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Soto v. City of Cambridge

United States District Court, D. Massachusetts

June 20, 2016

PAULA F. SOTO, Plaintiff,


          Judith Gail Dein United States Magistrate Judge


         As originally filed, this case raised the issue whether the plaintiff’s First Amendment rights were violated when she was prohibited from placing non-commercial leaflets on parked cars in the City of Cambridge. It was the City’s position that such leafleting was prohibited by Cambridge City Ordinance § 9.04.050 (the “Ordinance”) and Mass. Gen. Laws ch. 266, § 126 (the “Statute”). During the pendency of this action, the Ordinance was amended so that it no longer prohibited “the posting of such items on privately owned motor vehicles in the public way[.]” Affidavit of City of Cambridge Police Commissioner Robert C. Haas (Docket No. 95) (“Haas Aff.) ¶ 1. However, the City continued to take the position that Mass. Gen. Laws ch. 266, § 126 authorizes it to prohibit such leafleting, and that it is responsible for “enforcing the laws of the Commonwealth[.]” Id. ¶ 5. Nevertheless, the City also contends that there is no evidence that it will seek to prevent the plaintiff from placing her leaflets on parked cars in the future.

         The plaintiff argues that neither the Ordinance nor the Statute covers the instant factual situation of placing non-commercial leaflets on parked cars, but if they were interpreted to cover the instant situation they would be unconstitutional. The plaintiff gave notice to the Commonwealth of the possibility that the constitutionality of a statute was being challenged in this case, but the Commonwealth declined to intervene in this action or to take a position as to the scope of the Statute. As a result of these events, this case has been buried in issues of justiciability and whether there exists a case or controversy so as to entitle the plaintiff to the relief she is seeking, including declaratory and injunctive relief, nominal damages and attorneys’ fees.

         This matter is presently before the court on the plaintiff’s Motion for Summary Judg-ment (Docket No. 49) and the defendant’s Motion to Join the Commonwealth as a Required Party Defendant Pursuant to Fed.R.Civ.P. Rule 19(a) (Docket No. 63). For the reasons detailed herein, the summary judgment motion and the joinder motion are DENIED. This court finds that:

         1. The plaintiff’s claims for declaratory and injunctive relief are moot;

         2. There are disputed facts as to whether the City of Cambridge had a policy of barring the placement of non-commercial leaflets on the windshields of parked cars prior to the amendment of the Ordinance;

         3. This court declines to offer an advisory opinion as to whether the Statute precludes non-commercial leaflets from being placed on parked cars, or whether such a ban would be constitutional;

         4. The claim for nominal damages due to an alleged breach of the old Ordinance is insufficient to keep this case active; and

         5. Since this case is moot, and the Commonwealth cannot be joined as a party without its consent, the joinder motion is denied.


         The plaintiff, Paula F. Soto, lives in Cambridge, Massachusetts. Plaintiff’s Statement of Undisputed Material Facts (Docket No. 51) (“PF”) ¶ 2. She is the founder of UPandOUT, an organization she created to raise awareness about important political and social issues that she believes are not adequately addressed by the mainstream media. PF ¶ 3. UPandOUT is not a registered 501(c)(3) organization, it has no paid staff, and it does not generate any income. PF ¶ 4. Through UPandOUT, Ms. Soto organizes a free monthly film series which is held in the community room of her apartment building, an affordable housing complex. PF ¶ 5. Ms. Soto advertises these film screenings, as well as various political and social issues, by distributing flyers on cars parked on public streets in the City of Cambridge. PF ¶¶ 8-9. In some months, she distributes over 1, 000 flyers this way. PF ¶ 10. To a lesser extent, she also advertises these events by putting flyers in the windows of local businesses, sending emails and posting flyers on bulletin boards in parks. PF ¶ 11. It is now undisputed that the flyers constitute noncommercial speech. Defendant’s Response to Plaintiff’s Statement of Material Facts (Docket No. 67) (“DR”) ¶ 49. However, the record indicates that the City required discovery before determining that it was non-commercial speech. See Docket No. 62 (“The City seeks to file an amended answer in which it concedes that Soto’s activities that are the subject of this litigation constitute non-commercial speech.”).

         Ms. Soto has been involved with UPandOUT, and has been placing leaflets on parked cars, for at least seven years. PF ¶ 12. On December 12, 2011, Ms. Soto was placing leaflets on parked cars in Cambridge advertising the free monthly film screenings, when she was approached by a Cambridge police officer, who informed her that she could not place leaflets on parked cars.[1] PF ¶¶ 16-17. She was also informed that her actions constituted littering. PF ¶ 18. Ms. Soto stopped placing the leaflets on the cars that day, although she did continue to try and hand them out to passers-by. PF ¶ 19; DR ¶ 19. There is no evidence in the record that the police interfered with her leafleting activities at all prior to this incident, even though Ms. Soto had received complaints from car owners over the years. See PF ¶ 15. It is undisputed that Ms. Soto has not knowingly distributed a flyer on an automobile after an owner asked her not to do so. Id.

         The day after having been told to stop placing leaflets on parked cars, Ms. Soto contacted the American Civil Liberties Union of Massachusetts (“ACLUM), which contacted the then-Cambridge City Solicitor on Ms. Soto’s behalf, and objected to the fact that Ms. Soto was told to stop leafleting. PF ¶¶ 20-22. The City Solicitor sent Ms. Soto’s counsel a copy of an opinion letter, dated February 3, 1994, written by a former City Solicitor, opining that placement of commercial advertising on car windows was illegal and precluded by Mass. Gen. Laws ch. 266, § 126 and Cambridge City Ordinance § 9.04.050. Am. Compl. Ex. 4 (the “1994 Opinion Letter”); PF ¶¶ 24-27. In particular, Mass. Gen. Laws ch. 266, § 126, entitled “Natural scenery; penalty for defacement” provided (in 1994 and now) in relevant part as follows:

Whoever paints, or puts upon, or in any manner affixes to, any fence, structure, pole, rock or other object which is public property or the property of another, whether within or without the limits of the highway, any words, device, trade mark, advertisement or notice which is not required by law to be posted thereon, without first obtaining the written consent of the municipal or public officer in charge thereof or the owner or tenant of such property, shall, upon complaint of such municipal or public officer, or of such owner or tenant, be punished by a fine of not less than ten nor more than one hundred dollars, and in addition shall forfeit to the use of the public or private owner of such property or the tenant thereof the cost of removing or obliterating such defacement to be recovered in an action of tort. Any word, device, trade mark, advertisement or notice which has been painted, put up or affixed within the limits of a highway in violation of this section shall be considered a public nuisance, and may be forthwith removed or obliterated and abated by any person.

         As quoted in the 1994 Opinion Letter, Cambridge Ordinance § 9.04.050 provided in relevant part:

A. No person shall post or attach, or directly or indirectly cause to be posted or attached in any manner, any handbill, poster, advertisement or notice of any kind ... on private property without the ...

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