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Litter can't stand in way of free speech

It's a fact of life at the Supreme Court that the cases the court rejects are often more interesting than the cases the court accepts. This truism manifested itself last month when the court rejected appeals from four municipalities in Arkansas.

The story goes back to 1981, when Fort Smith adopted an ordinance intended to reduce the litter on city streets. In 1983 the neighboring towns of Van Buren, Alma and Dyer adopted substantially identical laws. You will correctly surmise that behind this rush to sanitation was a less antiseptic motivation.

The ordinances were targeted at evangelicals in Crawford County. The congregation, developed under the leadership of Pastor Tony Alamo 20 years ago, has existed under several names _ the Gloryland Christian Church, the Holy Alamo Christian Church and the Tony and Susan Alamo Christian Foundation.

It is the ambitious purpose of the congregation "to preach the Gospel to every living person on the Earth." For such a purpose, you have to start somewhere. The petitioners started along Interstate 40 in northwest Arkansas. In their missionary zeal they won a number of converts, but they irritated the everyday folks who saw them as Bible-thumpers and Jesus freaks. Christians can be terrible pests.

The Arkansas evangelicals spread the Gospel by putting printed material under the windshield wipers of unattended vehicles parked on public streets. The practice is known as "tracting." The proprietors of pizza parlors, beauty salons and used cars employ the same technique but less high-mindedly.

The several ordinances left no one in doubt. In Van Buren the city council decreed: "It shall be unlawful for any person to place or deposit any commercial or non-commercial handbill or other hand-distributed advertisement upon any vehicle not his own, or in his possession, upon any public street, highway, sidewalk, road or alley within the City of Van Buren."

Sporadic enforcement of the ordinances led to multiple arrests. Remarkably, the only ones arrested were the Alamo Christians. Finally, their patience exhausted, members of the congregation sought an injunction. They regarded the ordinances as patent abridgments of their First Amendment rights of free speech and freedom of religion. The towns responded with motions for summary judgment. They defended their power to keep their cities tidy.

A councilman in Alma explained the underlying problem. The ordinance was passed "because of the problem of distributing literature on the windshields or whatever on people's vehicles, and when they came out instead of taking those and putting them in their vehicles, they were just throwing them all over the community of Alma. And, you know, Alma is a nice city."

The mayor of Alma had a personal grievance: "I drive a Corvette Stingray and I don't want people sticking stuff all over it. My reaction is when I walk up there and it's on my car, I trash it. I throw it down on the pavement. The natural reaction of any person is that they're not going to read it. They're going to throw it down on the ground. Then what happens when the wind blows, you've got all this stuff piled up."

The District Court ruled in favor of the townships, though there was not much empirical evidence to support the proposition that tracting produces intolerable tons of litter. The 8th Circuit reversed. The right of free speech counts for more than a mayor's Corvette.

This is the affirmation that makes the case of the Crawford County evangelicals worth your time. Here we learn, once again, what free speech is all about: The First Amendment protects speech that offends.

Time after time, the Supreme Court had laid down the ground rules. The makers of contraceptives have a right to advertise them by mail. Evangelicals have a right to pass out their literature. Candidates for public office may pamphleteer on the streets and sidewalks. Not until a leaflet becomes litter can a city's police power be invoked.

A case from New Jersey in 1983 is in point. Here the Supreme Court acknowledged that unwanted mail can be a nuisance, but "the short journey from mailbox to trash can is an acceptable burden, at least so far as the Constitution is concerned." The journey that begins at a windshield wiper in Alma, Ark., is equally short.

The Alamo Christians are not exactly my kind of folks. If they leave a tract on my windshield, I'll probably take it home to a trash can. But some day, you know, I might possibly glance at it first.

James J. Kilpatrick is a syndicated columnist with the Universal Press Syndicate.

Universal Press Syndicate