Justices Limit Controls of News Boxes by Cities : Mayors May Not Choose Which Papers Are Displayed; Allowed to Rule on Rack Placement

Supreme Court ruled Friday that city officials may regulate where newspaper boxes are placed on city streets but that they do not have the authority to decide which newspapers are sold there.

In a narrowly crafted 4-3 opinion, the high court struck down a law in a Cleveland suburb that gave the mayor the power to decide which newspapers would get licenses to sell their papers in racks on city streets.

Citing the First Amendment’s guarantee of freedom of the press, Justice William J. Brennan Jr. said that such a law could allow the mayor to punish newspapers that oppose him.

“In the area of free expression, a licensing statute placing unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship,” wrote Brennan, the court’s 82-year-old liberal leader.

The decision is an important victory for the nation’s newspaper publishers because it accepts their argument that the First Amendment protects their right to put news boxes on city streets. Most papers and especially nationally marketed papers such as USA Today rely on coin-operated news boxes for a substantial percentage of their sales.

Property Rights Case

Attorneys for Lakewood, Ohio, joined by the National League of Cities, had argued that this was a property rights case and that no one had a right to use city property without permission. Justice Byron R. White agreed, contending that if a city could ban soft drink vending machines on city property, it could also ban news vending boxes.

Lawyers for the Cleveland Plain Dealer and the American Newspaper Publishers Assn., though pleased with the outcome, were cautious in judging its significance for two reasons. First, in a footnote, Brennan said that the court was not deciding whether a total ban on newspaper boxes could be upheld. This leaves open the possibility that city officials could cite safety or aesthetic reasons to justify a ban on all news racks on public property.

Secondly, two conservative justices took no part and may have swung the outcome the other way. Sitting out the case were Chief Justice William H. Rehnquist, whose daughter’s law firm represented the Cleveland Plain Dealer, and Justice Anthony M. Kennedy, who joined the court after the case was argued.

Los Angeles Regulations

Most cities, including Los Angeles, permit the placing of news boxes on public streets, but also regulate them to make sure that they do not pose a safety hazard. For example, boxes may not be placed too close to cross walks or otherwise block pedestrian traffic. The state courts in California have struck down municipal ordinances banning news boxes entirely.

This case began in 1982 when officials of the city of Lakewood denied the Plain Dealer’s request to put news boxes on its streets, relying on a law that prohibited the placement of private structures on public property. The newspaper sued and a federal judge struck down the ordinance. The city council then passed an amended law giving the mayor the authority to issue or deny permits for placing news vending boxes on the streets. The new law did not specify on what basis the mayor was to make his decision.

Upheld New Law

The Plain Dealer sued again and a judge upheld the new law. However, the U.S. 6th Circuit Court of Appeals in Cincinnati struck it down last year and the city appealed to the Supreme Court (Lakewood vs. Plain Dealer, 86-1042).

Brennan noted that the court has often upheld reasonable restrictions on activities protected by the First Amendment but not total prohibitions or laws that allow for favoring one group over another. For example, city officials may regulate where picketers march or where solicitors operate in an airport, but they cannot ban such activities entirely or treat one group better than another.

‘Boundless Authority’

The Lakewood law is unconstitutional, Brennan said, because it gives “boundless authority” to the mayor to make decisions on news racks. His opinion got the crucial support of Justice Antonin Scalia, along with his traditional allies Justices Thurgood Marshall and Harry A. Blackmun.

In dissent, White said that he would uphold an outright ban on news racks on city sidewalks. The Constitution “does not create a First Amendment right in newspaper publishers to cordon off a portion of the sidewalk in an effort to increase the circulation of their papers,” he wrote. He was joined by Justices Sandra Day O’Connor and John Paul Stevens.

Must Disqualify Himself

In other rulings, the court:

--Insisting that judges avoid even the appearance of unfairness, said that a judge must disqualify himself from a case if he discovers a personal conflict of interest after he has ruled on the matter. In a 5-4 ruling, the court said that a judge who learns belatedly of a possible conflict of interest should agree to invalidate his decision and withdraw from the case (Liljeberg vs Health Services Acquisition, 86-957).

--Said that 16 Filipinos who fought with U.S. troops in World War II do not have a constitutional right to become U.S. citizens. In 1945 and 1946, foreign soldiers who fought with U.S. forces were eligible to seek U.S. citizenship but no American official was in the Philippines during part of that time to take applications. For this reason, the 9th Circuit Court of Appeals in San Francisco said that the 16 Filipino veterans were entitled to citizenship now. But the high court unanimously reversed that ruling, saying that only Congress can determine citizenship requirements, not the courts (INS vs. Pangilinan, 86-1992).