Three Reasons Why Door Hanger Advertisements are Illegal — And What You Can Do About It
A national chairman of a major political party once said that they would bring their message to the people in a variety of ways. He was most gleeful about using door hanger advertising. Multiple legal prohibitions make this a really bad idea.
A Bit of Background
You would have to be a hermit not to know about door hangers, also known as handbills, but here’s a quick description. A company wants to get its message in consumer’s hands. Other options are too expensive or unfocused. So the company decides to print their message on lightweight cardboard, typically about five-by-12 inches in size with a circle cut out at the top and a slit in the top strip. The ad resembles the classic hotel Do Not Disturb placard. The advertiser hires people or personally walks targeted neighborhoods and hangs these cardboard strips on front door handles and leaves the ads in apartment building lobbies. The advertiser might be a real estate agent or a local handyman you never heard of or a Pizza Hut franchise.
The person who comes onto someone else’s property for the purpose of delivering this commercial message is trespassing. This worker was not invited onto the property. The worker came for the business’ own purpose. Commercial speech has the lowest level of constitutional protection.
The First Amendment to the Constitution is widely misunderstood. It does not exactly confer a right of free speech. Rather, it is a prohibition of the government passing a law that limits free speech. Absent a valid law such as the classic law against falsely crying “Fire!” in a crowded theater, anyone can say anything they want in a public place such as on a public sidewalk. The same goes for quasi-public spaces such as shopping malls.
Private spaces are different. The only person who has first amendment rights on their own private property is that homeowner. Court cases adjudicating homeowner’s rights deal with issues such as whether a homeowners’ association can prevent a homeowner from placing a sign on his own front lawn. No cases say a total stranger has the right to come on someone else’s residential property to advertise.
Unlike U.S. mail which is deposited in a mailbox, the contents of which cannot be observed, the unauthorized deposit of observable commercial material communicates to the world the likelihood that the property is unattended and is vulnerable to theft. The advertiser has created a dangerous condition.
The law labels this condition a nuisance; the person who created it has committed a tort, an illegal, actionable civil wrong. The person who committed this act, called the tortfeasor, may be found liable to the homeowner for money damages.
By the way, it is also illegal for anyone other than the U.S. Postal Service to deposit anything in a residence mailbox.
A municipal body may have passed a law banning door hangers. For example,
Los Angeles Municipal Code sec. 28.02 provides:
“HAND-BILLS — PERMISSION PREMISES.
No person shall distribute, deposit, throw, place or attach any hand-bill to, in or upon any porch, yard, steps or mail-box located upon any premises not in the possession of or under the control of the person distributing the said hand-bill, which premises has posted thereon in a conspicuous place, a sign of at least twelve inches in area bearing the words, ‘No Advertising,’ unless the person distributing the hand-bills has first received the written permission of the person occupying or having possession of such premises authorizing him so to do.”
Notwithstanding the conspicuous placement of the described sign, handbill distributors ignore the prohibition more often than not. One reason may be that the penalty for violating this type of ordinance is likely to vary widely among communities. In Los Angeles, the ordinance does not even specify a penalty.
What To Do Now
Sadly, under current circumstances, as the resident of a property inundated with this garbage, you have few options. You can send a letter to the perpetrator demanding compensation for the infraction, assuming the door hanger provides a street address or evidence of one. Someone who has trashed your doorstep is unlikely to pay attention to a letter. Neither is it a good idea to communicate via your email address or text contact as that can lead to more junk communication.
You could sue in small claims court. This requires a lot of effort, including figuring out how to have a process server serve the summons on the offender or obtain service via publication. Getting a default judgment just gets you a piece of paper, not money. The judgment has to be enforced, and that takes more time and money, though there are companies who will contact you after the fact offering to go after the judgment debtor for a contingent fee.
Demand a Solution
The infraction is small, but, multiplied by many instances, it affects many people. State or municipal consumer protection agencies could help. First those governmental bodies would have to have enforceable laws and better awareness. (No interstate commerce is involved so the feds don’t care.) Creating a complaint process similar to that already in place for other infractions would not take much effort. If the offending advertiser is licensed, a letter notifying the advertiser that the license is at risk could be very effective.
If door hangers are a continuing problem where you live, let your local representatives know about your concern and how they can help. Send a copy of this article and recirculate it on social media.
Door hangers are another invasion of our private space. Heightening public awareness of the problem can help control it.
© Theda C. Snyder 2021 The author is an attorney. This article provides information and does not constitute legal advice or create an attorney-client relationship.