Legal: Newsracks Deserve a Place on the Street

I have been accused in public of making a career of representing newsracks. It’s not actually true. First, most of my clients are actually animate. Second, the "representation" in First Amendment distribution law includes advocacy on behalf of the newspaper reader.

Newsracks often are the target of improvement efforts in cities and towns. Some city planners have no place in their designs for real people, especially people who read newspapers.

Worse, citizens’ groups sometimes take on the issue of newsracks and seem scornful of anyone who would buy a newspaper on a street. Could they be afraid of people from out of town, or people who can’t afford subscriptions, or of people who read more than one newspaper?

Witness, for example, Upper Marlboro, Maryland. Visiting readers may find a newspaper hard to come by, especially if they don’t know their way around town. They may not be able to pick up a newspaper on any "street, lane, alley, sidewalk or walkway" within the town’s corporate limits if the Board of Town Commissioners decides a newsrack is a "danger or hazard" to public safety. A brand new ordinance, effective Jan. 29, states that the board can unilaterally remove newsracks, with costs charged to the owner of the newsracks.

According to a representative of the town, the purpose of this ordinance, which is never mentioned in the text, is to keep all newsracks off of Main Street. Upper Marlboro’s representative says that if every publisher keeps the status quo, everything will be fine.

The new ordinance is not actually a ban, but difference is hard to see. The board has given itself the power to decide that any newspaper vending machine is a danger or hazard and order it removed.

Constitutional limits on First Amendment regulation provide for genuine imminent danger. Any law enforcement officer or public works employee could remove or move a newsrack if it presents a "clear and present" danger to public safety, but the publisher must be notified immediately. Otherwise, interrupting the exercise of free speech requires notice and the opportunity for due process, which this ordinance never mentions. Furthermore, a board cannot make an executive or legislative decision without listing objective criteria that will forestall the exercise of "unfettered discretion."

None of that appears in the ordinance, and instead of talking about Main Street, the ordinance mentions only hazards or danger. Allowing public employees unguided discretion cannot be done when regulating a First Amendment right. This is black letter law, straight out of a U.S. Supreme Court opinion regarding the City of Lakewood, Ohio. "[The city’s ordinance] presumes the [Town Board] will act in good faith and adhere to standards absent from the statute’s face. But this is the very presumption that the doctrine forbidding unbridled discretion disallows." City of Lakewood v. Plain Dealer, 486 U.S. 750, 770 (1988).

Then there was the recent Inauguration. There was one unreported glitch. All opportunities to buy a newspaper in the public forum where inaugural visitors clustered were gone. What kind of democratic action is that?

Publishers know a visitor is one of the most likely readers of newspapers vended from sidewalk machines. Nonetheless, in the name of safety, the D.C. Metropolitan Police asked publishers to remove their newsracks from every inch of the downtown area. When the publishers tried to return their distribution to normal, they found hundreds of machines were dumped under the 11th Street Bridge in a Department of Public Works lot. Metal was scarred or torn, coin boxes were missing, and Plexiglas faces were ripped or removed.

Washington publishers get out of the way of the Inaugural Parade every four years at the request of the Secret Service. However, before this year, publishers were required to move newsracks only from the parade route and one block beyond. Only this year were publishers asked to leave bare so large an area.

It really isn’t unusual for some people in certain spots to decide that publishers and their newsracks are the root of the evil du jour. We all have to admit to problems associated with newspaper distribution. But the unheard voice here is the voice of the newspaper reader who wants easy access to newspapers. The irony of it is that those people probably out-number the urban designers and the citizens’ groups together.