Pittsburgh councilman introduces new ordinance on news racks

Thursday, February 4, 1999

Pittsburgh City Councilman Richard Hertzberg introduced a new ordinance on news racks yesterday at a council meeting — one that would allow the newspaper industry to police itself under a “Good Neighbor” policy.

Last week, Hertzberg dropped his previous news-rack regulation measure after a public hearing at which newspaper officials and attorneys criticized the proposal, saying it would violate First Amendment rights.

The councilman's first proposal would have imposed numerous restrictions on where in the city news racks could be located. Hertzberg said he introduced his bill last fall for reasons of safety and aesthetics. “Safety was my primary goal for introducing these measures,” he said.

But the councilman tabled his measure after constitutional and other objections were raised at a Jan. 28 public hearing.

“I tabled the news-rack regulatory proposal in part because newspaper vendors convinced me to let them self-police,” Hertzberg said. “Also, I did not have the votes.

“I really don't know if the prior proposal would have survived a legal challenge,” Hertzberg said. “There are cases all over the board on this issue.”

Attorney Charles Kelly, a partner in the law firm Kirkpatrick & Lockhart, which represents six Pittsburgh-area newspapers, says that U.S. Supreme Court case law shows that the prior Hertzberg proposal was unconstitutional.

“The prior news-rack bill was unconstitutional because it gave unbridled discretion to city officials to determine when to remove a news rack,” Kelly said. “The U.S. Supreme Court in its 1988 decision City of Lakewood v. Plain Dealer Pub. Co. said that city officials could not use unbridled discretion to regulate news racks.”

Kelly called Hertzberg's decision to withdraw the prior measure and introduce a new version “a positive move.”

According to the new proposal, within the next year “the Departments of Public Works and City Planning are directed to prepare an objective report on newspaper vending machines, including the effectiveness of the 'Good Neighbor' Program in addressing issues of public safety and aesthetics.”

If the proposal were adopted, the council would form a Newspaper Vending Machine Task Force to review the newspaper industry's so-called Good Neighbor Program. According to the newspapers, the Good Neighbor Program was designed to “ensure that news racks or news boxes, which are conveniently located on public sidewalks to provide easy access to news and other information to Pittsburgh residents, are maintained in an orderly fashion.”

“The best enforcement mechanism to ensure that news racks are placed in safe locations is through private enterprise,” Kelly said. “We in the newspaper industry have agreed to act as a unit.”

Hertzberg says he is confident his new proposal will pass. The council will take a preliminary vote on the measure on Feb. 10 and a follow-up vote on Feb. 16.