Unable to selectively restrict the sale of adult publications in newspaper racks on city streets, a frustrated City Council has voted to study a ban on all newspaper vending machines on public property.
The council last week initially voted 3 to 2 to draft an ordinance for a ban, but reconsidered the motion and decided to have City Atty. Carl Newton prepare a report on the legality of such an action.
The council was trying to find the middle ground between the city attorney, who has advised that there are problems in selectively banning adult publication vending machines, and community leaders, who say they want to keep children from buying these publications.
Councilman Roy L. Paul, who voted for drafting the ordinance along with Mayor James S. Santangelo and Councilman Robert G. Cormack, joined council members Randall R. Barb and Diane P. Boggs in calling for the report.
At issue are tabloid newspapers that contain brief stories but mostly advertisements for massage parlors, escort services and telephone services offering sexually explicit messages. Nude women are pictured in many of the ads.
Barb criticized the ban as an attack on First Amendment rights protecting freedom of the press. The councilman also argued that the prohibition would be ineffective because vendors would move the racks onto private property where minors could still purchase the tabloids without supervision.
"All we're asking for is the most expensive legal battle in the history of the city," Barb said.
But Cormack, who led the push for the ordinance, said he thought that there would be no legal problems and urged the council to move forward.
"I'm tired of the City of Downey taking that conservative avenue," Cormack said. "If I'm wrong here, all we have to do is apologize to the (U.S.) Supreme Court and back off."
After the meeting last week, Newton gave some hint of the recommendations that probably will be contained in his report.
"I have some question of the ability of the city to do that (impose a ban)," he said. "The right to distribute news is guaranteed by the First Amendment."
The idea for the ban surfaced after the city attorney advised the council that it could not pass a law restricting vending machines to keep adult publications out of the hands of children.
State law already makes it illegal to distribute harmful material to a minor or to display in vending machines material depicting certain sexual acts. The state law preempts efforts to impose more stringent local regulations, Newton said in a report to the board.
"Thus, the City of Downey cannot regulate the sale or distribution of harmful matter to minors since the state has taken upon itself the responsibility for doing so," Newton wrote.
At Newton's suggestion, the City Council voted unanimously to press for strict policing of the adult newspaper racks for possible violations of the state law. The council members also voted to urge the Legislature to allow cities to enact their own regulations covering newspaper racks based on local community standards.
Meanwhile, Mike Dorais, general counsel for the California Newspaper Publishers Assn., said in a telephone interview that court decisions restrict cities from regulating newspaper racks for reasons beyond considerations of public safety.
"They haven't seen anything yet until they encounter the legal problems they'll have in a free country in attempting to regulate newspapers of general circulation," Dorais said. "(They may) regulate the placement of news racks, say, a reasonable distance from an entryway or a pedestrian crossing on the street, for instance. It's clear they can't order them off the public sidewalks."
The council took up the issue after a coalition of church and civic groups packed the council chambers a few weeks ago and submitted petitions containing more than 2,500 signatures calling for adult newspaper vending machines to be removed from city sidewalks.
Few Attended Hearing
Only a handful of people were present at last week's meeting when the council debated the issue, and no one from the groups addressed the City Council.
Joseph C. Grana, pastor of the First Christian Church and one of the organizers of the petition drive, has said that he is not leading a "book-burning endeavor" but rather trying to keep adult publications from children.
The coalition wants the publications to be sold in stores, where sales can be monitored like other adult publications. The tabloids can be purchased from vending machines in 19 locations in Downey, many near schools, Grana said.
The vending machines offer publications such as New Reality, which describes itself as "an adult newspaper for swingers, men, women and couples" 18 and older, and Hollywood Press, which declares itself "a sexual freedom publication."
The City Council acted to regulate sexually explicit publications in accordance with state law in June, 1985, when it amended the municipal code to prohibit public display of written material describing sexual acts and pictures of sexual acts and genitals.
The amendment allowed such material to be sold in newspaper racks with opaque covers to hide the publications.
Newton has said the adult periodicals in question do not appear to violate the city ordinance and the city could not require the special racks for them.
The campaign to remove the vending machines began in December when Grana, Pastor Tim Smith of the Church of the Nazarene and Pastor John F. Bratun of the First Foursquare Church began contacting churches and civic groups to determine if their members found the racks objectionable. The three, working through the Downey Ministerial Fellowship, formed a pornography task force that drew support from the Downey Coordinating Council, a coalition of area civic organizations, Grana said.