Six Publishers File First Amendment Suit Over Ordinance.

A GROUP OF SIX publishers, led by New Times Inc., which owns the SF Weekly, filed suit in federal court last week seeking to block enforcement of San Francisco’s new news-rack ordinance.

A lawsuit and a motion for preliminary injunction were filed Jan. 5 in U.S. District Court in San Francisco. A hearing on the motion before Judge Sandra Armstrong is scheduled for Feb. 23.

The news-rack ordinance, passed in June, authorizes the Department of Public Works to replace all of the city’s estimated 15,000 freestanding news racks with “up to 1,000” multi-unit fixed pedestal racks (ped mounts), 450 of the downtown-area ones bearing 18-square-foot illuminated billboards.

A supplementary ordinance, approving DPW’s 20-year, multimillion-dollar contract with the New York street furniture firm Adshel to install and maintain the ped mounts and sell the billboard space, was passed by the Board of Supervisors Jan. 5.

According to the contract, which was negotiated in secret without any input from publishers, the city will receive 5 percent of advertising revenues above $2 million after five years.

Paul Eckstein, of the law firm Brown & Bain (based in Phoenix, as is New Times), which represents New Times and is handling the suit, told the Bay Guardian the plaintiffs named Adshel as a codefendant because its interests are involved, but are not seeking any action against the company.

In the lawsuit, the plaintiffs say the ordinance and the contract are in blatant violation of publishers’ free speech and distribution rights.

“Promoted as an effort to improve the safety and aesthetics of San Francisco, the [news-rack ordinance] is not a reasonable restriction narrowly advancing legitimate governmental interests, but an impermissible encroachment on First Amendment rights that serves to raise revenues for the City at the expense of daily and weekly newspapers,” the motion for preliminary injunction states.

The ordinance creates a “complicated, oppressive regulatory system” and forces publishers into “a complex permit procedure subject to the unbridled discretion of a municipal official,” according to the motion. Publishers “will have no alternative but to participate in the City’s scheme.”

The suit also charges that the ordinance violates publishers’ Fifth and Fourteenth Amendment rights to due process and equal protection by forcing them to accept third party-selected ped-mount advertisements and by providing no meaningful recourse to appeal DPW decisions on ped-mount placement or denials of permits to distribute papers in the ped mounts.

“This ordinance is an unprecedented intrusion into newspaper distribution, and I don’t think government should be in the newspaper business. It’s not how the founding fathers thought it should be,” Tom Newton, general counsel for the California Newspaper Publishers’ Association, told the Bay Guardian. “It’s also in the interest of readers not to have the government decide when and where they can get their news.”

The six plaintiffs in the suit are New Times, the San Francisco Newspaper Agency (business arm of the Examiner and the Chronicle), the San Jose Mercury News, Gannett (publisher of USA Today), the New York Times, and the Los Angeles Times.

The lawsuit’s main argument is that the news-rack ordinance gives the director of the DPW, who is appointed by the mayor, virtually total control over sidewalk newspaper distribution in the city.

“The [U.S.] Supreme Court has expressly held that a statute that gives a municipal official ‘unfettered discretion to deny a [news-rack] permit application’ is unconstitutional,” the motion states. “Incredibly, the Ordinance does exactly that.”

The ordinance gives the director sole discretion to establish the procedure and guidelines for granting permits to place newspapers in the ped mounts. The director also has the sole authority to issue or deny permits but need not state the reasons for denying one.

A publisher challenging a permit denial must appeal to the News Rack Advisory Committee, whose members are appointed by the director. There is no requirement for prompt committee review of an appeal, and the director is not bound by the committee’s recommendation. The director also has final authority over the content of ads on the ped mounts.

The lawsuit argues that “the advertising scheme will also likely taint the exercise of the Director’s sole authority to select pedmount locations. Because the City will be receiving a cut of the advertising revenue, the Director will have an interest in placing pedmounts, not where newspaper distribution is likely to be greatest, but where the advertising on the pedmounts will be most profitable.”

By giving the director unfettered authority to select ped mount locations, the ordinance “effectively requir[es] the Director to make marketing and readership decisions for the New York Times, USA Today, the San Francisco Chronicle,” and the other plaintiffs.

Attorney Eckstein said it is clearly unconstitutional to “force [a publication] to associate with advertising that’s not of its choice. A major function of the ped mounts is that they’re eye-level billboards that happen to have cubicles in them for newspapers. The only way the ordinance functions is if someone makes large sums of money on it.”

The motion cites a June 1998 federal court decision in an Atlanta case — involving news racks in airports, which are subject to weaker First Amendment protection than are public sidewalks — that concluded that “requiring publishers to use newsracks with advertisements of another entity violates their rights under the First Amendment.”

Deputy City Attorney Buck Delventhal told the Bay Guardian: “The suit claims the ordinance gives unfettered discretion to the director of DPW in an area protected by the First Amendment. We strongly dispute that assertion. We think the ordinance has been carefully crafted to avoid giving unfettered discretion.”

He said it had not yet been decided which deputy city attorney will argue the city’s case in court.

Also unconstitutional, the lawsuit states, is that the ordinance forces publishers to pay a $30 administrative fee for each ped-mount space it is given even though ad revenues would defray the city’s administrative costs.

Senny Boone, government relations director of the National Newspaper Association, which represents weekly newspapers in Washington, D.C., told the Bay Guardian, “This is one of the wackier news-rack regulations I’ve ever heard of.”

Adshel officials did not return Bay Guardian phone calls.

Ron Vinson, deputy press secretary to Mayor Willie Brown, told the Bay Guardian the Mayor’s Office had no comment on the suit. Brown has been a strong supporter of the news-rack ordinance.

“The matter is now in litigation, and the courts will decide from here,” Vinson said.

P.S. The exclusive club: A lot of people (including a reporter from Editor and Publisher) have called us since news of the lawsuit broke, to ask why the Bay Guardian, which has been at the forefront of the anti-news rack ordinance fight, didn’t join the lawsuit. Those calls raise some troubling questions about the way the suit is being handled and the implications for the free-speech fight in San Francisco.

The simple answer is that the Bay Guardian wasn’t offered the chance to join the suit before it was filed. The SF Weekly and the San Francisco Newspaper Agency worked secretly on the suit together for months, cutting us out of the loop. Since New Times is the lead plaintiff, it was always the SF Weekly’s call as to which publications should be included as co-plaintiffs.

Since DPW’s request for proposals on the ped-mounts contract was issued in March 1998, numerous local daily, weekly, and monthly publications across the political spectrum have been meeting to discuss strategy and prepare arguments against the ordinance. Those meetings were initiated by Bay Guardian editor and publisher Bruce B. Brugmann, who has been fighting against unfair news-rack regulations for three decades, and were held in the Bay Guardian’s conference room.

SF Weekly publisher Jim Rizzi — an active participant in this coalition — began working with New Times’ Phoenix law firm several months ago to prepare the lawsuit. Alan Freeland, attorney for the SFNA and also an active participant in the coalition, was involved in this preparation.

After the suit was filed, Rizzi told a Bay Guardian reporter he was not trying to cut his competition out of the action or to win P.R. points at the expense of the coalition. He and Freeland said the other co-plaintiffs were brought on board during the two weeks prior to filing the suit — a period in which both Freeland and Rizzi had extensive discussions with the Bay Guardian about potential litigation but never mentioned that New Times would be the lead plaintiff. On the contrary, their clear message for months was that the SFNA would be the lead plaintiff. Freeland did say, however, that he was soliciting other papers to join the suit. Repeated offers of assistance and participation by the Bay Guardian’s attorney, Thomas Burke of Davis Wright Tremaine, were declined with vague explanations. As late as the day before the lawsuit was filed, the Bay Guardian was informed only that the filing was imminent but not that its competitor was the lead plaintiff. We learned of the Weekly’s involvement after last week’s paper had gone to press — forcing us to stop the presses and correct our story after deadline.

Rizzi told us that the pressure and work needed to file by Jan. 5 (when the supplementary contract ordinance was finally passed), combined with the growing number of plaintiffs’ attorneys at the table, made adding more co-plaintiffs during the weeks prior to filing a logistical burden.

SFNA president and CEO Steven Falk told us that the co-plaintiffs were selected with an eye to including a range of major newspapers: a local weekly and local, regional, and national dailies. He said he was unaware of any effort to exclude the Bay Guardian or any other publications, since the SFNA was concerned only with signing on other daily newspapers; the Weekly would handle weeklies and others. He also said the SFNA did not pursue its own lawsuit in order to avoid a “sour grapes” impression, since the SFNA was an unsuccessful bidder for the ped-mount contract. “Once it was clear the SF Weekly and its lawyers had already gone a long way down the path toward a lawsuit, it didn’t make sense for the SFNA to file separately,” he said.

Freeland said there was no written confidentiality agreement, only a verbal understanding that the co-plaintiffs “weren’t supposed to describe [to anyone] who the plaintiff was.”

Brugmann said the process was disturbing. “We fully support this lawsuit, and we’re glad the Weekly and others have filed it,” he said. “But from the start this has been a coalition effort, and we are dismayed at the exclusionary way it was handled. The battle has only begun, and no matter what happens with this lawsuit, the fight against a restrictive news-rack law will continue for a long, long time. We hope the Weekly and the daily newspapers involved will not try to go it alone and will work to restore the united front on this critical common-ground First Amendment issue.”

P.P.S. The secrecy and exclusionary maneuvering behind the filing may also explain why the media coverage has been so spotty and incomplete. There was no press conference or even a press release to announce the suit, only an informational “white paper” handed out by Freeland at city hall the day of the filing that included no contact person or number, no quotes from the suit, and no mention of the attorneys handling it. Examiner and SF Weekly stories on the suit failed to quote the suit or any of the lawyers involved or to lay out the main First Amendment points. The Chronicle story, which ran two days after the suit was filed, gave the impression the SFNA was the lead plaintiff.

P.P.P.S. The News Rack Advisory Committee meets to discuss implementation of the news-rack ordinance Thurs/14, 5 p.m., 101 Grove, Room 300, S.F. (415) 554-6917.

Originally published in the January 13, 1998 issue of the San Francisco Bay Guardian. Reprinted with permission.