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Is lawn spam constitutionally protected?

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Evanston aldermen tonight are scheduled to give final approval to an ordinance restricting door-to-door solicitors and panhandlers.

The proposed ordinance proved highly popular in a recent Evanston Now online poll.

But based on a memo from the city’s legal staff, it appears the city may be unwilling to tackle a related issue — unwanted ad circulars tossed on private lawns and walkways.

Some of the same 8th Ward residents who complained about the solicitors also asked for city action to help stop that problem. And the idea won substantial support in an Evanston Now online poll.

The law department memo concedes that no court in Illinois has addressed the issue. But it cites several cases from other states in which widely varying municipal schemes to restrict or bar ad circulars and other forms of lawn litter were struck down on First Amendment grounds.

However, all of those cases date from the mid-1990s or before. And adoption in 2003 of two federal laws barring other forms of unwanted commercial solicitation — the Do Not Call Registry and the CAN-SPAM Act — suggest that courts today might be more sympathetic to residents’ privacy interest in being left alone — free from unwanted commercial messages dropped on their lawn.

One question not clearly addressed in the law department memo is whether an ordinance could be crafted that would let residents opt out of receiving purely commercial circulars, like the Tribune's Red Plum, while not at the same time opting out of getting free distribution newspapers with substantial editorial content, like the Evanston RoundTable.

And of course it's up to the aldermen to decide whether in the end such an ordinance — even if constitutional — might be a waste of city resources, as nearly a quarter of respondents to the Evanston Now poll suggested.

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