Facing lawsuit by homeless paper, Tenn. city revising law

Friday, July 15, 2011

NASHVILLE, Tenn. — A Nashville suburb is amending an ordinance that prohibits individuals from selling newspapers on city streets and sidewalks in the face of a lawsuit claiming the regulation is unconstitutional.

City commissioners in Brentwood took the first step at a meeting July 11 to revise the ordinance, which at present bans the sale of goods on public streets, sidewalks and right-of-ways. The revision would allow the sale of newspapers and other printed material on public sidewalks. But the prohibition of selling on streets would remain intact, and the amendment would make clear that selling to vehicle occupants is prohibited.

The city’s action comes several weeks after a federal lawsuit was filed by The Contributor, a Nashville-based newspaper about homelessness, and two of its vendors, against the city challenging the constitutionality of the current ordinance.

The Contributor is distributed primarily by street vendors who are, or have been, homeless. Vendors typically stand on sidewalks near intersections and sell copies of the paper to interested passersby, often motorists.

Brentwood police ticketed several street vendors earlier this year for entering the street to sell papers to vehicle occupants. The newspaper challenged the tickets in municipal court and lost. After dropping appeals and paying a fine, The Contributor filed suit in federal district court in Nashville seeking to have the ordinance declared unconstitutional and requesting an injunction barring enforcement or “any action against” the newspaper and its vendors.

The complaint claims the ordinance violates the First Amendment and the Tennessee Constitution. It attacks the regulation on a variety of grounds: that the ordinance is overbroad, not narrowly tailored and fails to leave open ample alternative channels of communication. The complaint also claims the city lacks a sufficiently significant government interest for the ordinance.

Brentwood City Attorney Roger Horner said July 11 that he hoped the proposed changes to the ordinance would render the lawsuit moot.

“We’re a bit puzzled as to what the lawsuit seeks to accomplish,” Horner said.

But attorneys for The Contributor say the revised ordinance is still too restrictive. Both sides had been engaged in discussion about the language of the revision, which had already been drafted before the suit was filed, but could not agree.

The amendment to the ordinance was first publicly read July 11 at the commission meeting and is slated for a second reading on July 25. If passed, the change will go into effect the following day, according to Horner.

A case-management conference is scheduled for Aug. 16 in the U.S. District Court for the Middle District of Tennessee.

The Tennessean newspaper quoted the First Amendment Center’s David L. Hudson Jr. as saying that “Public streets are considered to be public fora. There’s a greater presumption that free speech is allowed,” and adding: “Basically, the burden is on the city of Brentwood … to show … it advances a substantial public interest.”

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