Gannett Satellite Info. Network v. Town of Norwood
| Decision Date | 25 January 1984 |
| Docket Number | 83-2751-C and 83-2752-C.,Civ. A. No. 83-2750-C |
| Parties | GANNETT SATELLITE INFORMATION NETWORK, INC., Plaintiff, v. TOWN OF NORWOOD, Defendant. GANNETT SATELLITE INFORMATION NETWORK, INC., Plaintiff, v. TOWN OF RANDOLPH, Defendant. GANNETT SATELLITE INFORMATION NETWORK, INC., Plaintiff, v. TOWN OF WINCHESTER, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
COPYRIGHT MATERIAL OMITTED
Douglas P. Woodlock, Marjorie R. Corman, Goodwin, Procter & Hoar, Boston, Mass., for plaintiffs.
William Carr, Town Counsel for Town of Randolph, Boston, Mass., for defendant in No. 83-2751-C.
Justin C. Barton, Town Counsel of Norwood, Norwood, Mass., for defendant in No. 83-2750-C.
Douglas A. Randall, Town Counsel for Town of Winchester, Quincy, Mass., for defendant in No. 83-2752-C.
These are three civil actions seeking declaratory and injunctive relief for alleged violations of 42 U.S.C. § 1983 and the First and Fourteenth Amendments to the United States Constitution. This Court has jurisdiction under 28 U.S.C. §§ 1331, 1343, and 2201.
Plaintiff Gannett Satellite Information Network, Inc., ("Gannett") publishes USA TODAY, a nationally distributed daily morning newspaper, published Monday through Friday. Gannett first published USA TODAY in September 1982, and began distributing the newspaper in New England on September 12, 1983.
USA TODAY's newsracks are approximately four feet high and two feet wide. The newspapers are contained in a box situated on top of a pedestal approximately two and one half feet high. The newsracks are blue, white and black and bear the words, "USA TODAY," on three sides. The newspapers are visible through the clear plastic front of the box.
Defendants are three Massachusetts towns in which Gannett has begun distributing USA TODAY. The Town of Randolph has threatened to remove the newsracks. Norwood and Winchester actually seized the newsracks, but returned them after Honorable David A. Nelson of this Court ordered them to do so. This Court issued a preliminary injunction on October 17, 1983, enjoining the towns from interfering with distribution of the newspapers. The cases are now before the Court on plaintiff's motion for summary judgment and for permanent injunctive relief.
In early summer 1983, Gannett planned to begin distributing USA TODAY in Norwood starting in September. By letter dated July 8, 1983, Gannett asked the Town to send it copies of all town regulations, rules or ordinances applicable to circulation of newspapers by the use of newsracks within the Town. Without identifying any by-law as applying specifically to the newsracks, Robert M. Thornton, Town Clerk and Accountant, sent to Gannett a copy of the Town's entire by-laws.
By letter dated August 5, 1983, Gannett informed Thomas Riolo, Chairman of the Norwood Board of Selectmen, that it intended to proceed with its plan to place newsracks in the Town beginning August 15, 1983. Gannett also notified the Chief of the Norwood Police Department by letter dated August 9, 1983, that it planned to begin placing the newsracks on that date. On September 3, 1983, Gannett placed four newsracks in public areas within the Town.
By letter dated September 9, 1983, John J. Carroll, General Manager of the Town, advised Gannett that "at their meeting of Wednesday, September 7, 1983, the Board of Selectmen had ordered the removal of all USA TODAY boxes from all public ways in the Town of Norwood," that all four boxes had been removed, and that the boxes would be released only to a duly authorized representative of USA TODAY. On September 20, 1983, Judge Nelson ordered the Town to return the boxes to Gannett, and on or about September 22, 1983, Gannett returned the boxes to their locations within the Town.
In its answer, Norwood alleges that placement of the newsracks violates "the Zoning By-Law of the Town of Norwood; Section 31 of Article XII-Police Regulations of the general by-laws of the Town of Norwood; and Chapter 93D of the Massachusetts General Laws." The Town points to no specific zoning by-law which Gannett has violated by placing the newsracks in the Town. Article XII § 31 of the general by-laws provides:
M.G.L. c. 93D regulates outdoor advertising adjacent to the interstate and primary highway systems.
By letter dated July 8, 1983, Gannett asked the Town of Randolph to send it copies of any town rules, regulations or ordinances pertaining to circulation of newspapers by the use of newsracks within the Town. Joan F. Ward, the Town Clerk, responded on July 12, 1983, by sending to Gannett a copy of the Town's by-laws. Gannett informed Alvin J. Yorra, Chairman of the Town's Board of Selectmen, by letter dated August 5, 1983, that it intended to proceed with its plan to place the newsracks in the Town starting August 15, 1983. Gannett also advised O.J. Benjamino, the Town's Police Chief, by letter dated August 9, 1983, that it intended to begin placing the newsracks on August 15, 1983, and that it intended to begin distributing the newspapers on September 12, 1983.
By letter dated August 26, 1983, Chairman Yorra informed Gannett that "permission to place newsracks in various locations throughout the Town of Randolph for purposes of selling USA TODAY is denied." On September 7, 1983, Gannett placed six USA TODAY newsracks in public locations within the Town. Chairman Yorra then notified Gannett by letter dated September 13, 1983, that the Board of Selectmen had voted that "the publishers of `USA TODAY' be notified to have the `USA TODAY' vending machines removed from the sidewalks of Randolph by next Monday, September 19, 1983, by noon."
In a letter dated September 14, 1983, William Carr, Town Counsel, mailed to Gannett copies of three of the Town's bylaws. The by-laws, set out in the margin, prohibit use of the Town's sidewalks, streets and public ways to sell or display any merchandise without permission of the Board of Selectmen.1
On September 20, 1983, Judge Nelson enjoined the Town from removing or disturbing the newsracks.
By letter dated July 8, 1983, Gannett asked the Town of Winchester to send it copies of all town rules, regulations or ordinances pertaining to circulation of newspapers by the use of newsracks within the Town. When it received no response, Gannett informed the Town's Board of Selectmen by letter dated July 29, 1983, that it intended to begin placing USA TODAY newsracks within the Town on August 15, 1983.
Douglas A. Randall, Town Counsel, responded by letter dated August 4, 1983, that Chapter 8 § 10 of the Town's by-laws prohibits placing any obstruction on any public street or sidewalk without a permit from the Board of Selectmen. He opined that the machines "would constitute an unlawful purpresture under the common law."
By letter dated August 9, 1983, Gannett advised the Town's Police Chief that it intended to begin placing the newsracks on August 15, and to begin distributing the newspapers on September 12. On August 26, 1983, Gannett installed five newsracks in public locations in the Town.
Acting on the suggestion of the Board of Selectmen, Gannett applied for a permit for the newsracks by letter dated September 1, 1983, while preserving its objection that the Town's by-laws were unconstitutionally vague and overbroad as they applied to its newsracks. On September 12, Gannett began distributing USA TODAY in the Town. On the same day, Gannett's counsel appeared at a permit hearing before the Board of Selectmen. At the close of the meeting, the selectmen voted to deny the permit because Gannett had failed to show that the newsracks would not be a danger to public safety nor inconvenience public travel, because they would substantially interfere with removal of snow from Town sidewalks, because they may become a safety hazard to young children, and because "placement of the boxes in the down-town area is contrary to the Winchester Center Urban Design Improvement Project now underway."
On September 12, 1983, the Town instituted criminal proceedings against Gannett for obstructing Town streets and sidewalks without first obtaining a permit from the Board of Selectmen. On or about September 16, 1983, the Town removed the five newsracks. On September 20, 1983, Judge Nelson ordered the Town to return the boxes.
The record shows with respect to all three towns that, although Gannett has refused to comply with town procedures it considers unconstitutional, it has attempted at all times to accommodate the safety concerns of town officials. And, of course, "a person faced with ... an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license." Shuttlesworth v. Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 938, 22 L.Ed.2d 162 (1969); Lovell v. Griffin, 303 U.S. 444, 452-53, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938).
The Town of Winchester urges this Court to abstain under principles set out by the Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The Court in Younger ruled that a federal court should not enjoin a criminal action pending in state court prior to commencement of the federal suit, absent certain extraordinary circumstances. And "where an injunction would be impermissible under Younger principles, declaratory relief should ordinarily be denied as well." Samuels v. Mackell, 401 U.S. 66, 73, 91...
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