Newspapers battle newsrack ordinances

From the Winter 2002 issue of The News Media & The Law, page 17.

Dean Wallace’s love for political satire convinced him to start a weekly paper in 1989. But the 58-year-old publisher of Editorial Humor, a paid weekly magazine in Boston, worries his paper will not survive if forced off the street.

Last summer, city officials said Wallace could no longer place his news box in one of the city’s prominent commercial zones.

A ban of newsracks by the Back Bay Architectural Commission sent Wallace and other publishers in the area to their lawyers. Wallace’s Editorial Humor, along with five other publications, filed a lawsuit against the City of Boston, Mayor Tom Menino, the architectural commission and its chair, Anthony Gordon.

In August, a temporary restraining order by Suffolk Superior Court stopped city officials from enforcing the ban. Wallace told the Boston Phoenix he would have faced financial disaster if the ban went into effect. The city later agreed not to enforce the order until the case is resolved.

Wallace’s case is not a solitary one, as newsrack cases have been heard in courts across the country. In fact, the U.S. Supreme Court itself has heard two cases on the issue. Both times, the court determined newsrack ordinances were unconstitutional for specific reasons but left it up to city officials to change specific language in the ordinances to make them legal.

In 1988, the Supreme Court held in Lakewood v. Plain Dealer Publishing Co. that an ordinance in Lakewood, Ohio, was unconstitutional. The justices remanded the case to the U.S. Circuit Court of Appeals in Cincinnati (6th Cir.) to decide whether the provisions of the ordinance the court declared unconstitutional were severable and to take further action.

“The ordinance vested in the mayor’s authority to grant or deny a newspaper’s application for a newsrack permit but contained no limit on the scope of the mayor’s discretion,” the appellate court wrote in striking down the ordinance. The court stated further that such a plan which “vests such unbridled discretion in a government official may result in either content or viewpoint censorship.”

Five years later in City of Cincinnati v. Discovery Network Inc, the Supreme Court upheld lower court decisions that a 1990 city ordinance prohibiting the distribution of “commercial handbills” on public property violated the First Amendment.

Justice John Paul Stevens, writing for the court, said: “Not only does Cincinnati’s categorical ban on commercial news racks place too much importance on the distinction between commercial and noncommercial speech, but in this case the distinction bears no relationship whatsoever to the particular interests that the city has asserted. It is therefore an impermissible means of responding to the city’s admittedly legitimate interests.”

Despite the two rulings, the outcome of any particular newsrack litigation is hard to predict, said Nicki Ballinger, an attorney with the Newspaper Association of America.

For example, the Massachusetts Supreme Judiciary Court in 1993 said a city architectural commission had authority to regulate newsracks and other “street furniture” and to completely ban entire classes of structures such as newsracks.

After a series of appeals, the case reached the U.S. Circuit Court of Appeals in Boston (1st Cir.). There, Chief Judge Juan Torruella wrote that the “street furniture” ordinance did not violate First Amendment rights.

Torruella said, “While the First Amendment guarantees the right to circulate publications, it does not guarantee the right to do so through private structures erected on public property.”

And this year, another appellate court struck down such a newsrack ordinance in Atlanta’s Hartsfield International Airport. Following renovations made to the airport for the 1996 Summer Olympics, the city tried to force publishers to pay $20 to rent newsracks bearing Coca Cola advertisements. City officials went as far as stopping delivery of the Atlanta Journal-Constitution, a newspaper that refused to comply with the restrictions, by stripping delivery personnel of their security clearance.

On Jan. 4, a three-judge panel of the U.S. Circuit Court of Appeals in Atlanta (11th Cir.) upheld a district court judge’s ruling that the airport newsrack plan infringed on newspapers’ First Amendment rights.

“The First Amendment affords the press the right not just to speak but to effectively distribute,” said Peter Canfield, lawyer for the Atlanta Journal-Constitution, which led the lawsuit that included USA Today and The New York Times. “If you allow the government to establish areas of restrictions on First Amendment rights, you give them more opportunities to create censorship and insidious activity.”

But Canfield said there are situations when airports have a right to impose particular restrictions.

Ballinger agreed. “Every ordinance is different, and court rulings do not prohibit regulation of newsracks placement altogether. But it’s important to remember that the distribution of publications through newsracks has been recognized as a fully protected First Amendment right,” she said.

And that’s why the Newspaper Association of America is closely watching development of such ordinances in Kansas City, Mo., and New York City.

In Kansas City, officials are considering a pilot project that would replace individual newsracks in the Downtown Loop and County Club Plaza with modular units controlled by an independent company. The ordinance creating the project cites public health and welfare for the change.

“A proliferation of news racks adds to the dangers presented to pedestrians and drivers through unregulated placement of metal or plastic news racks,” the ordinance reads.

The ordinance also said neither the mayor’s office nor the city council wants to prevent the distribution of newspapers. The modular units would be available to the publishers at no cost.

The Missouri Press Association, in a letter to the City Council Operations Committee, suggested that “without clear evidence of a danger to the pedestrians arising from the current situation” as a result of the placement of metal or plastic newsracks “there is no rational basis for the city to enact such an ordinance.”

The press association also claimed the city is in a position “where a First Amendment argument could be made that certain publications are being denied access to newsracks due to the actions of a third party, acting on behalf of the city.”

In New York City, the New York Newspaper Publishers Association is also battling a new local law that amends the administrative code to allow the regulation of newsracks. The press association called the law unnecessary because of an agreement publishers have had with the city since 1984.

The agreement requires the publishers to provide location, size and maintenance requirements to the city and offer assurances that they will work with the city to ensure the safety of pedestrians.

In a memorandum opposing the bill, the association wrote, “These problems could be solved much more effectively and efficiently if the city would simply work with the newspaper industry to inform new publications and newsrack operators of the existence of this agreement and indicate that compliance is needed.”

The press group also noted problems with giving the powers to city appointees and employees. The journalists further stated that the law unreasonably restricts ownership of multiple-vending newsracks, bans single-publication newsracks and fails to clarify the selection process for inclusion in multiple-vending newsracks.

In Boston, publishers also claim city officials circumvented talks.

“The City of Boston was in the middle of negotiating a contract to set up ‘street furniture’ that would include bus stops and condo newsracks,” said John Reinstein, a lawyer with the American Civil Liberties Union, which is helping Dean Wallace and other publishers. “But while these talks were being made, the Back Bay Architectural Commission adopted the ban.”

Wallace, along with the Boston Phoenix, Stuff@night, the Real Estate Guide and the Weekly Dig, heads back to court in March.

Reinstein said the issue of Boston newsracks has been before the courts before. State courts upheld a ban issued in 1991 that said publication distribution boxes would not be allowed within one of the city’s historical districts. The ban was the result of residents’ complaints about the appearance of the area.

“What makes our case different is that these publications do not have other means of distribution,” Reinstein said. “These publications are so small and are dependent on these newsracks.” — HP, KG