Del. Shewell and Those Pesky Weeklies

A few weeks ago, I wrote about Delegate Tanya Shewell's bill to regulate the distribution of regional free unsolicited newspapers. The bill, as written, would also likely affect small community association newsletters and other neighborhood publications. I have spoken with Del. Shewell and she assures me that is not her intent.

The Shewell bill covers any "circular, newspaper, magazine, paper, or booklet that is published at regular intervals and distributed to the public" that is "delivered to a residential address in the state without the prior consent of the resident." This definition would seem to include community association newsletters, as well as a number of other small-time neighborhood publications.

The unsolicited publications must tell people how they can have further deliveries stopped. Continued delivery would then constitute an “unfair or deceptive trade practice” and be punishable by a fine.

Shewell, a Carroll County Republican, says the unsolicited delivery of unwanted weeklies like The Examiner is the number one issue constituents contact her about: These weeklies clog storm drains, leach ink into our waterways, become trash in the community, and can serve as a signal that the resident is out of town. The abundance of yellowed, wet newspapers creates an eyesore that lowers property values.

Del. Shewell is aware of the constitutional issues raised by her bill, saying that she worked with Maryland Assistant Attorney General Bonnie Kirkland to craft a bill that would not violate the First Amendment. In terms of constitutionality, she says that Kirkland likened her proposal to the federal "Do Not Call" telemarketing opt-out list.

However, I'm not sure that's quite so good a comparison. Telemarketing involves commercial speech, which generally receives less First Amendment protection than political speech. Telemarketing also involves a direct intrusion into the home, which newspaper delivery does not, a factor suggesting less constitutional protection for telemarketing than for newspaper delivery.

As far as community association newsletters go, Del. Shewell had not taken them into account when drafting her bill. Assuring me that she does not want to include them, she expressed a willingness to amend the bill to ensure that does not happen.

The House Economic Matters Committee has scheduled a hearing on the bill for March 6.