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Newspapers sue San Francisco over removal of free-standing news racks

By David Hudson
First Amendment Center

Six newspaper publishing companies sued the city of San Francisco earlier this week in federal court over the city's plan to remove 12,000 individual news racks and replace them with approximately 1,000 multi-newspaper units.

The plaintiffs in New Times, Inc. v. City and County of San Francisco contend the city's news rack ordinance violates the First Amendment in a number of ways, most notably in providing the director of the Department of Public Works "unfettered discretion" to issue and deny permits.

Last month the city contracted with a New York-based street furniture company called Adshel, Inc. to begin replacing thousands of free-standing news racks with fixed- pedestal units, or pedmounts as the plaintiffs call them.

The city passed legislation last June mandating the removal of individual news racks and the creation of so-called "fixed pedestal zones." The legislation states that the city changed the law because of a "proliferation" of news racks which "interfered with the use of streets" and contributed to "visual blight."

The challengers to the city law include:

  • New Times, Inc., which publishes ten 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 plaintiffs also question the system by which the city and Adshel advertise on the back of the fixed-pedestal units. According to the lawsuit, "the pedmount advertising scheme amounts to forced speech because publishers are prohibited from engaging in the First Amendment-protected right of distributing newspapers through newsracks unless they do so through pedmounts covered with advertising solicited by the Vendor and approved by the City."

The challengers also claim that the ordinance violates the First Amendment because it "does not require the City to issue or deny permits within a brief, specified and reasonably prompt period of time" and "unconstitutionally restricts Plaintiffs' commercial speech in the form of the individual trademarks and trade dress currently displayed on the backs and sides of Plaintiffs' newsracks."

In addition to filing a complaint, attorneys for the challengers filed a 25-page motion for a preliminary injunction. In that motion, the plaintiffs outline their complaints with the ordinance, such as arguing that it restricts their rights to distribute newspapers and infringes on the public's right of access to newspapers.

John Mecklin, editor of SF Weekly, said: "This news rack ordinance is a horribly unconstitutional abrogation of First Amendment rights in San Francisco."

Mecklin objects to what he calls the "arbitrary decision-making" of the director of public works. "News racks on public streets have traditionally been in a public forum and are in a protected free-speech area," he added.

Dan Brugmann, news rack program manager for the city said he couldn't comment on the specific allegations in the lawsuit because he hadn't seen it. However, he said that "the intent of the ordinance is not to restrict free-press rights but simply to clean up the clutter in the streets."

"This ordinance is completely content-neutral; it applies to all publications without regard to content," Brugmann said. He adds that the ordinance does not favor certain papers over others or discriminate against smaller papers.

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