Federal judge halts enforcement of San Francisco news rack ordinance

Wednesday, June 30, 1999

A federal judge recently halted enforcement of a San Francisco ordinance that would replace individual news racks in certain areas of the city with multi-newspaper units called fixed-pedestal units.

Passed in June 1998, the ordinance called for the creation of “fixed pedestal zones” that would contain no freestanding news racks. Under the ordinance, newspaper companies would have to apply for permits to have their papers distributed via these units.

City officials said they passed the ordinance because of problems they associated with the “proliferation” of news racks, including interference with streets and sidewalks, pedestrian safety, litter and “visual blight.”

Last December, the city contracted with a New York-based street furniture company to begin replacing the individual news racks. Six newspaper publishing companies sued in federal court in January. The plaintiffs in New Times, Inc. v. City and County of San Francisco include:

  • New Times, Inc., which publishes 10 weekly newspapers, including SF Weekly.
  • San Francisco Newspaper Printing Company, Inc., which prints and distributes the San Francisco Chronicle, the San Francisco Examiner and the San Francisco Sunday Examiner & Chronicle.
  • Gannett Satellite Information Network, Inc., which publishes USA TODAY.
  • The New York Times Company, which publishes 22 papers including The New York Times.
  • The San Jose Mercury News, Inc., which publishes the San Jose Mercury News.
  • The Los Angeles Times, a division of The Times Mirror Company, which publishes the Los Angeles Times.

The newspaper publishers contended the ordinance violated the First Amendment in many ways. They alleged the ordinance was unconstitutional because it forced them to be associated with speech selected by the vendor of the multi-rack units that might conflict with their editorial policies.

In addition, the publishers claimed the ordinance restricted their right to distribute newspapers and infringed on the public's right to receive information via individual news racks.

They also claimed the ordinance amounted to an unlawful prior restraint because it failed to require the city to issue or deny news rack permits within a certain time frame.

Earlier this month, U.S. District Judge Saundra Brown Armstrong granted the plaintiffs' motion for a preliminary injunction, forcing the city to halt enforcement of the ordinance.

While Armstrong rejected several of the constitutional challenges to the ordinance, she agreed that the lack of procedural safeguards in the issuance of permits for inclusion in the fixed-pedestal units raised First Amendment problems.

“The ordinance fails to prescribe adequate time limits by which cubicle permit decisions are to be made, and also fails to provide for adequate judicial review of permit decisions,” the judge wrote in her June 18 order.

“Enforcement of the ordinance is hereby enjoined, as long as it fails to provide for prompt administrative appeals and prompt review by a judicial officer of decisions denying cubicle permit applications,” the judge wrote.

Jennifer H. Small, special assistant for government litigation in the San Francisco city attorney's office, said the city was “quite pleased with the ruling” even though an injunction was granted.

“It is an injunction we can work with,” Small said. “The judge properly rejected five out of the six challenges filed by plaintiffs against the ordinance. The judge said the law did not discriminate on the basis of content, was narrowly tailored and that the plaintiffs had alternative means of communication.”

Steven Falk, president and chief executive officer of the San Francisco Newspaper Agency, told The San Francisco Examiner: “We are delighted that a federal judge has recognized the constitutional problem that we saw with this ordinance.”

Small says the city is considering how to proceed in the case.