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Honolulu Weekly loses battle to use Waikiki newsracks

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    NMU         HAWAII         Newsgathering         Aug 8, 2002    

Honolulu Weekly loses battle to use Waikiki newsracks

  • Appellate court overturned injunction that allowed free newspaper to be distributed in racks for dailies but with the coin mechanism disabled.

A weekly newspaper in Honolulu returns to the free newsracks in Waikiki after a federal appeals court panel ruled that the publication does not have a constitutional right to use newsracks designed for those that charge its readers.

The U.S. Court of Appeals in San Francisco (9th Cir.) on Aug. 2 overturned an injunction from 1999 that barred Honolulu officials from conducting separate lotteries for free and paid publications to determine which ones get to use newsracks in the Hawaiian city.

A three-judge panel said the city ordinance governing the newsracks did not violate the First Amendment rights of the publishers of the Honolulu Weekly.

As far back as 1976, Honolulu officials have restricted the use of newsracks within the Waikiki Special District, a popular tourism site, to keep the streets free from clutter and safety hazards. Ten years later, the city began offering city-constructed racks along Kalajaua Avenue, the main street of Waikiki. The racks were arranged to segregate papers on whether they charged their readers.

The weekly newspaper, founded in 1991, challenged a 1997 ordinance that required all publishers to use city-owned newsracks. Because of the limited number of racks, the ordinance created a lottery system to determine which newspapers would get the coin-operated and the noncoin-operated racks.

The weekly opted to participate in the lottery but sought a coin-operated box alongside those for The Honolulu Advertiser and the Honolulu Star-Bulletin.

After the weekly won 21 newsrack spaces in an April 1999 lottery, the city denied their permits. The newspaper filed suit.

A federal district court agreed that the ordinance was content-neutral but that it was not narrowly tailored enough to meet the city’s goal in improving aesthetics and safety. The court issued a permanent injunction barring the city from conducting lotteries based on whether publications charged their readers.

The appellate panel overturned the injunction, noting that the “First Amendment does not guarantee the right to communicate one’s views at all times and places or in any matter that may be desired.”

The panel determined that city officials crafted an ordinance that was content-neutral, narrowly tailored to serve its interests and left numerous opportunities open for alternative means of communication.

(Honolulu Weekly v. Harris; Media counsel: Scott Saiki, Saunders & Dang, Honolulu) PT

© 2002 The Reporters Committee for Freedom of the Press

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