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Single Newsracks Under Attack in Frisco, Chicago as Cities Push for Multi-Rack Unitsby David L. Hudson, Jr. |
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City officials in Chicago and San Francisco have waged war on individual newsracks, claiming they impair public safety and cause visual clutter. Both cities have implemented plans to remove individual racks and replace them with multiple-rack units, without careful consideration of First Amendment interests. The San Francisco legislation — passed by the board of supervisors on May 26 and signed by the mayor on June 12 — contains a litany of justifications. It provides that "a proliferation of newsracks" congests city sidewalks, impedes pedestrian and vehicular traffic, interferes with the use of streets, contributes to the city's litter problem, and results in visual blight. The ordinance even states that the removal of individual newsracks will advance the city's economic interests and ensure compliance with the Americans with Disabilities Act. Enacted after a six-month pilot program, the ordinance goes into effect in July. City officials will place the multiple units in certain "highly congested areas or areas with particular public safety, aesthetic, historical, or economic concerns" called "fixed pedestal zones." Individual newsracks are banned from these zones. A Newsrack Advisory Council will hold regular meetings to recommend areas as "fixed pedestal zones." Newspapers can "attach a sign or decal to a specified area on the front of the newsrack boxes" to display the name of the publication being sold. Dan Brugmann, the city's newsrack program manager, said "there is nothing in the legislation that says a newspaper can't buy an ad" on the back of the fixed pedestal unit as well. The law also empowers the director of public works to "remove and impound" without notice any newsrack that poses an immediate danger to persons, vehicles, or property. The city can begin implementing the ordinance on July 12, though Brugmann says the city is "still in the process of locating a vendor." At this time no legal challenges have been filed, but Brugmann admits that a few smaller papers have engaged in some "legal posturing." "We are considering suing the hell out of the City of San Francisco," said John Mecklin, editor of the SF Weekly. "This law has numerous constitutional problems and will absolutely negatively affect most publications. The city's safety rationale for this law is bogus; I mean no one has ever been injured by a newsrack." |
The Chicago ordinance contains a discriminatory provision that allows advertisements on the back of the multi-racks, yet stipulates that a multi-rack "may not advertise any publication that is sold from and displayed" in the rack itself. A coalition of six newspapers — the Chicago Sun-Times, Chicago Tribune, Exito!, N'Digo, New City, and Chicago Reader — sued the city in federal court. Federal district court Judge Ruben Castillo granted a temporary restraining order on May 15 in Chicago Sun-Times, Inc. v. City of Chicago, stating that "the most important thing as far as this court is concerned ... [is] long-held, traditionally very highly respected First Amendment rights." The judge also said the ordinance "raises some First Amendment issues under the commercial speech doctrine because of the fact that everyone else is to be allowed to advertise, yet for some reason, newspapers themselves are not being allowed to advertise." Just before the parties were due in court for a preliminary injunction hearing, the publishers and the city reached a "settlement in principle." Dale Cohen, senior counsel for the Tribune Company, said that "under the settlement, the city will limit its initial program to a much smaller area and, secondly, a task force composed of representatives of newspapers, the city, and various civic organizations will spend the next six months considering the germane issues and coming up with a recommendation as to whether the city should proceed, retrench, or modify its program." The settlement was expected to be signed by July 10. Both the San Francisco and Chicago ordinances contain sweeping language empowering city officials to deny individual newsrack permits. Local officials would be wise to heed the U.S. Supreme Court's words in City of Cincinnati v. Discovery Network, Inc. Though the Court ruled that the city had significant interests in aesthetics and safety, the Court recognized that newsracks "continue to play a significant role in the dissemination of protected speech." While these city ordinances may not suffer from the fatal constitutional flaw of the Cincinnati ordinance, which selectively banned newsracks containing commercial publications, even a content-neutral ordinance must be narrowly tailored to pass constitutional muster.
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David L. Hudson, Jr. is a research attorney at The Freedom Forum First Amendment Center in Nashville. |
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