Publishers lose lawsuit over Back Bay newsracks

Three newspaper publishers lost their federal court challenge to a local ordinance prohibiting the use of newsracks in Boston's Back Bay. U.S. District Judge Douglas P. Woodlock ruled Aug. 27 that the ordinance does not violate the publishers' First Amendment rights because the ordinance allows "reasonable alternative means of distribution."

"While the guideline forces plaintiffs to use distribution means in the district which they find economically unappealing or that they would otherwise not use," Woodlock said, "this does not change the fact that alternatives to newsracks in the district are available to plaintiffs."

The three newspapers – Editorial Humor, Boston's Weekly Dig and The Improper Bostonian – filed the lawsuit in 2001 after Boston's Back Bay Architectural Commission adopted a guideline prohibiting "street furniture" from the Back Bay Architectural District.

The newspapers contended that the commission violated their First Amendment rights by imposing a flat ban on all newsracks, rather than tailoring the ban more narrowly in a way that would still preserve the aesthetics of the neighborhood. They also argued that the ordinance violated their free speech rights by not providing an economically feasible alternative means of distribution within the Back Bay.

Relying on a 1996 decision by the 1st U.S. Circuit Court of Appeals in a challenge to a similar ban on newsracks in Boston's Beacon Hill, Woodlock ruled against the publishers on all counts. The legal standard, Woodlock said, is that the ordinance would be acceptable if it was "narrowly tailored to serve a significant governmental interest" and would "allow for reasonable alternative channels of communication."

The publishers argued that the commission could have narrowed the ordinance and still achieved its aesthetic goals through a regulation that provided for approval of newsracks on a case-by-case basis. But Woodlock found that the commission acted appropriately in considering the alternatives and adopting "what it perceived to be the most effective solution to the perceived problem with newsracks."

Woodlock likewise rejected the publishers' arguments that the ordinance left them with no reasonable alternatives for distributing their newspapers because other options – street vendors, store placement, mail and home delivery – were prohibitively expensive. He said that the publishers offered no evidence to prove this argument. "Plaintiffs have failed to adduce any meaningful evidence of the cost of using street vendors in the district, much less show how such cost compares to the cost of installing and maintaining newsracks there."

The decision is HOP Publications v. City of Boston, U.S. District Court civil action number 01-11536-DPW.