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Publishers support newsstand operators in NYC dispute

By The Associated Press
02.27.06

NEW YORK — Several news organizations have filed papers asking an appeals court to reverse a decision that will require newsstand operators on city streets to surrender display space to advertisers.

The eight publishers said the decision, issued Aug. 24, 2005, by state Supreme Court Justice Michael Stallman in Manhattan, violates their First Amendment rights by letting the city regulate the distribution of magazines and newspapers.

The eight organizations supporting the newsstand operators who filed suit against the city are the Harpers Magazine Foundation, The New York Times Co., Dow Jones & Co. Inc., Daily News, L.P., The Hearst Corporation, Gannett, Advance Publications and NYP Holdings Inc., which owns the New York Post.

Newsstands are currently run by owners who have licenses to operate them. Under Local Law 64, the newsstands will be rebuilt and owned by a single franchisee chosen by the city but will be operated by individual licensees.

The city franchisee will be allowed to sell display space on city-licensed newsstands to advertisers, instead of letting the newsstand operators use it as they wish.

Nearly a dozen members of the New York City Newsstand Owners Association sued Mayor Michael Bloomberg and most of the city government's executive branch after the proposal was announced. After Stallman found for the city, the newsstand operators appealed.

The news organizations say in a friend-of-the-court brief filed on Feb. 23 at the state Supreme Court's Appellate Division that Stallman's decision permits a scheme that lets the city dictate the content of messages appearing on the newsstands.

"This regulatory scheme impermissibly compels anyone who seeks a license to operate a newsstand on the streets of the city to endorse (or appear to endorse) messages chosen by the city (or its corporate franchisee-designate)," court papers say.

The city argues that the size and the relative permanence of newsstands justify different treatment than smaller dispensers of printed materials, according to court papers.

But the publishers reply in court papers that "the minimal additional space that newsstands take up is more than justified by their efficient circulation of a wide variety of viewpoints to the public each day."

"In sum, there is no principled basis to apply a lesser First Amendment protection to newsstands," the news organizations' brief states.

Gabriel Taussig, a senior attorney in the city's Law Department, issued a statement saying, "We're confident that, once it has the opportunity to consider the matter, the appeals court will agree with the lower court that the city's plans for sidewalk newsstands are constitutional and lawful."

A long-running legal battle in Atlanta involved a 1996 policy in which the city wanted to remove news racks placed by newspapers and lease publishers city-owned boxes.

In a 2004 decision, a federal judge ordered the newspapers to pay the city nearly $350,000 in back rent and interest for news racks but said the city owed the newspapers $1.35 million in attorney's fees and expenses.

An attorney for USA TODAY, one of the newspapers, said at the time that a new policy allowed the city to charge a reasonable fee for the right to put news racks at the airport but couldn't force newspapers to put advertising for other companies on them.


Update
NYC can replace newsstands, state appeals court rules
In unanimous decision, justices reject vendors' argument that city violated their First Amendment rights by turning over newsstands to franchisee. 11.13.07

Related

New York delays new newsstand rules

City puts off enforcement after vendors bring suit, charging that the porn restrictions and increased fees would stifle free speech. 04.27.98

Split decision issued in feud over airport news racks
Federal court orders three newspapers to pay Atlanta nearly $350,000 in back rent, interest, but also orders city to pay newspapers $1.35 million in attorney’s fees, expenses. 12.08.04

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