Houston news-rack restrictions survive challenge

Wednesday, November 17, 2010

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Houston’s news-rack ordinance does not violate the First Amendment, a federal judge ruled recently.

The city passed its ordinance in 2007, imposing a variety of new requirements on newspaper publishers. Publishers had to obtain permits to operate news racks, which were required to be a certain size and color, to be made of steel and to have a cement base. The ordinance also restricted the location of news racks. Under the ordinance, city officials removed noncompliant racks.

Sharon Lauder, who owns and operates Lauder Inc., sued in October 2008, alleging that the ordinance violated the First Amendment. Lauder produces and distributes the free monthly newspapers Houston Tribune and Heights Tribune. She contended that the rigid requirements for news racks were too burdensome and expensive. There was nothing wrong with her plastic racks, she said.

U.S. District Judge Lee Rosenthal disagreed in his Nov. 4 opinion in Lauder Inc. v. City of Houston. He reasoned that the news-rack ordinance was a content-neutral law that did not discriminate against any newspapers on the basis of subject matter or viewpoint.

Under First Amendment jurisprudence, content-neutral laws are constitutional if the government has a substantial interest, such as public safety, in imposing them, if the law is narrowly drawn and if it leaves open ample alternative ways for the speaker to engage in expression.

Rosenthal first determined that the city’s ordinance advanced two substantial interests: aesthetics and traffic safety. Although Lauder noted that no studies showed serious safety problems with news racks, the judge reasoned that “common sense and experience bear out Houston’s substantial interests in regulating news racks to improve public safety and the City’s physical appearance.”

Lauder had also argued that the ordinance was not narrowly drawn, because it could have been less restrictive. She contended her plastic news racks weighted down with removable bags of sand presented a good appearance and worked just as well as the city-mandated racks. She also said it was expensive for publishers and distributors to comply with the news-rack requirements.

Rosenthal said Lauder failed to show that the new requirements imposed a substantial burden on her speech or that the law was too broad. “The City has acted within the range of constitutionally permissible regulation in this case,” he wrote.

Lauder also contended that the law failed to provide her other means to engage in her speech. She argued that the impact of the new law would be to reduce her expression, as fewer people would receive the newspapers if she provided fewer news racks to keep costs down. Rosenthal acknowledged that the costs for new news racks could be so high as to prohibit speech. But, under the facts of this case, he said that Lauder had the financial resources to purchase the racks.

He also said that “the First Amendment allows some reduction in potential audience by a valid regulation.” He said Lauder could distribute her newspaper in private places, by door-to-door distribution or make the paper available online.

Finally, she challenged the fact that the ordinance did not provide for judicial review. The ordinance provided claimants an avenue for administrative appeal, but there was no right to go directly into court to challenge the administrator’s decision.

Rosenthal acknowledged that the federal courts were divided on whether U.S. Supreme Court case law required city officials to include a provision for judicial review in their ordinances. Rosenthal reasoned that the Supreme Court’s decision in Thomas v. Chicago Park District (2002) meant that city ordinances providing clear, adequate standards for city officials to administer did not need to include an explicit provision for judicial review.

“We are going to appeal this to the Fifth Circuit,” said Galveston-based attorney Anthony Griffin, a noted First Amendment advocate. “The issues in this case are too important. The First Amendment should protect the basic newspaper and the right to distribute your newspaper.”

“I fundamentally disagree with the notion that we should get rid of our First Amendment rights for beauty or aesthetics issues,” said Griffin. “The First Amendment is never neat or pretty.”

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