Court Rejects Ban on Newsracks

A state Court of Appeal on Monday struck down a novel municipal law banning newsrack sales of sexually explicit newspapers from residential neighborhoods.

An ordinance adopted by the City of Alameda, apparently unique in the state, had sought to limit the location of such vending machines in the same way other communities have restricted adult theaters and bookstores offering material that is explicit but not legally obscene.

Failed to Show Blight

The appellate panel found that the city had failed to show that the newsracks created urban blight--as might theaters or bookstores--and held that the ordinance, in restricting expression based on its content, infringed on freedom of the press.

“It may be true that . . . adult entertainment downgrades neighborhoods,” Appellate Justice Donald B. King wrote for the court. “But neither prior cases, independent studies nor common sense have yet demonstrated that adult newsracks downgrade neighborhoods.”

The city’s contention that the newsracks provide a potential meeting place for prostitutes and customers “sounds more like an idea for a Gary Larson cartoon than a plausible constitutional argument,” King said, alluding to the offbeat Far Side cartoon.

The ruling, which is binding on all trial courts in California unless overturned by the state Supreme Court, was praised by an attorney for the California Newspaper Publishers Assn.

“In our system there is an orderly way to provide for the removal of the very limited amount of material that is, in fact, obscene,” said Terry Francke, legal counsel for the organization.

“But this was the kind of ordinance that left it up to city officials to categorize in advance those publications which for one reason or another they found unappealing for that part of town,” he said. “The ruling comes as a welcome reaffirmation for all kinds of newspapers.”

The ordinance, barring newsracks containing sexually explicit newspapers from within 500 feet of a residential community, was adopted in 1987 after parents complained that their grade school-age children were bringing home copies of the Spectator, a tabloid that calls itself “California’s Weekly Sex News & Review.”

Ordinance Expanded

In enacting the measure, the Alameda City Council expanded an existing ordinance that limited theaters and other adult entertainment to certain locales--a legal concept that has been upheld by the U.S. Supreme Court.

But an Alameda County Superior Court judge last year barred the newsrack measure from taking effect, finding that it violated the First Amendment. The appeal court upheld that ruling in a 21-page opinion by King that was joined by Appellate Justices Harry W. Low and Zerne P. Haning.