Globe Newspaper v. Beacon Hill Architectural Com'n, Civ. A. No. 91-12297-REK.
| Decision Date | 28 February 1994 |
| Docket Number | Civ. A. No. 91-12297-REK. |
| Citation | 847 F. Supp. 178 |
| Parties | GLOBE NEWSPAPER COMPANY, News Boston Group, Inc., New York Times Company, Dow Jones & Co., Inc., Gannett Satellite Information Network, Inc. and Tab Communications, Inc., Plaintiffs, v. BEACON HILL ARCHITECTURAL COMMISSION, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
James C. Heigham, Choate, Hall & Stewart, Boston, MA, for plaintiffs.
John Devereaux, City of Boston Law Dept., Boston, MA, for defendant.
This is an action for declaratory relief, damages, and preliminary and permanent injunction. Plaintiffs allege that a "guideline" adopted by the defendant, Beacon Hill Architectural Commission ("Commission"), is incompatible with plaintiffs' constitutional right to distribute news and information.
The complaint sought relief against a guideline ("Publication Distribution Guideline") drafted on February 21, 1991, declaring that "publication distribution boxes ... visible from a public way are not allowed within the Historic Beacon Hill District."
On June 15, 1993, at a bench trial, this court stated oral findings and conclusions favorable to the plaintiffs and set a schedule for further proceedings to determine the precise form of the judgment to be entered.
The schedule was extended at defendant's request, without opposition by plaintiffs, even after the court had denied defendant's motion for reconsideration.
On July 15, 1993, the Commission adopted a new guideline ("Street Furniture Guideline") that facially applies to "any structure erected or placed in the public or private ways on a temporary or permanent basis."
On July 27, 1993, defendant filed a second motion for reconsideration, asking this court to rule that the Commission had the authority to adopt the Street Furniture Guideline and that the guideline is compatible with plaintiffs' First Amendment rights.
For the reasons stated in this Opinion, the court will order Final Judgment for plaintiffs, the exact terms of which are to be determined after further submissions by the parties.
As explained in more detail below, the Commission is charged with reviewing the "exterior architectural features" of "structures" within the Historic Beacon Hill District ("District"). Anyone proposing to construct, install or modify such an exterior architectural feature must first obtain a certificate of appropriateness from the Commission. In the last five years, the Commission has reviewed an average of 100 such applications a year.
Based on its experience of a quarter-century in reviewing applications for certificates of appropriateness, the Commission developed policies regarding recurring types of applications. In 1981, these policies were formalized into the Historic Beacon Hill District Architectural Guidelines ("Guidelines") that specify the types of alterations considered appropriate and inappropriate to the District.
Since at least 1982, newspaper vending machines, commonly known as "newsracks," have distributed daily and weekly newspapers. Plaintiffs are newspaper entities that have placed such newsracks within the District. Each newsrack is approximately four feet high and two feet wide. Ordinarily a newsrack is affixed along the sidewalk and remains in the same location on a nearly permanent basis. But a newsrack can be moved or removed readily in response to reader demand or temporary use requirements such as sidewalk construction. One of the plaintiffs distributes a free newspaper, the Tab; the other plaintiffs use coin-operated newsracks.
In 1983 the Commission considered the regulation of newsracks but withheld action pending the outcome of a proposed city-wide regulation also under consideration at that time. No such city-wide regulation was enacted.
On October 22, 1990, the Beacon Hill Civic Association, a neighborhood organization, petitioned the Commission to adopt guidelines to exclude newsracks from the District to the extent permitted by law.
On November 15, 1990, the Commission held a public meeting regarding the petition to adopt a guideline for newsracks and directed its staff to study the proposal and report to the Commission on their recommendations. That report was completed on January 17, 1991.
On February 21, 1991, the Commission held a public hearing at which it adopted the Publication Distribution Guideline. The guideline declared:
Publication distribution boxes (any boxes placed on the sidewalks to distribute publications, whether for charge or not) visible from a public way are not allowed within the district.
On April 1, 1991 the Commission issued a notice to the Plaintiffs of the new guideline. The Commission set a deadline of June 1, 1991 for removal of existing publication distribution boxes. It is undisputed that plaintiffs' newsracks fall within the definition of publication distribution boxes.
On June 3, 1991, plaintiff Boston Globe requested that the Commission reconsider its decision on newsracks. The Commission held a public hearing on the request on July 18, 1991. The Commission refused to modify its decision and served notice to that effect on July 26, 1991. The Commission extended the date for removal of newsracks to October 1, 1991. After plaintiffs commenced this litigation, the Commission suspended that deadline until further notice.
On August 29, 1991, plaintiffs filed this action in this court, seeking declaratory relief, damages, and preliminary and permanent injunction. Plaintiffs claim violation of their First Amendment rights and also assert that the Commission lacked authority under the law of Massachusetts to enact the challenged guideline.
At the bench trial of June 15, 1993, the court ruled that although the state has a significant interest in regulating visual clutter, the Commission had failed to show that the regulation was narrowly tailored to serve that interest without needlessly suppressing speech. Indeed, the court noted that the regulation was "narrowly tailored" in the exact opposite sense. That is, the ban extended only to those devices placed on the sidewalk that were designed to distribute expressive materials; the ban did not extend to any other objects that might also contribute to visual clutter.
On June 23, 1993, defendant moved to reopen the record to add information regarding (1) the availability of free publications at stores in and adjacent to the District, (2) fixtures that occupy the public ways of the District, (3) the area occupied by the district in proportion to the City of Boston as a whole, and (4) the nonexistence of other newsrack regulations in the city. That motion was allowed as unopposed. The defendant also moved for reconsideration of the court's ruling, or in the alternative for the court to withhold judgment. That motion was denied after a hearing on June 24, 1993.
As noted above, on July 15, 1993, the Commission adopted a new guideline ("Street Furniture Guideline"). It replaced the Publication Distribution Guideline. Its text is as follows:
On July 27, 1993, defendant filed a second motion for reconsideration, asking this court to rule that the Commission had the authority to issue the Street Furniture Guideline and that the guideline is compatible with plaintiffs' federal constitutional rights under the First Amendment. Without objection, I allow the Street Furniture Guideline to be added to the trial record in this case.
This court has jurisdiction over the First Amendment claim in this action under 28 U.S.C. §§ 1331 (federal question jurisdiction) & 1343 (civil rights claims jurisdiction), and over the state law claim in this action under 28 U.S.C. § 1367 (supplemental jurisdiction.
In the decision at the close of the bench trial in this action, the court declined to reach the state law question, in part because the record before the court at that time was not adequately developed to make a proper determination of that question, and in part because the incompatibility of the Publication Distribution Guideline with plaintiffs' First Amendment rights was apparent. Since that time, the parties have filed supplemental briefs on the second motion for reconsideration. They address in more detail both the state law issue and the First Amendment issue in light of...
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...an absolute right of access to public property for the sale of newspapers through newsracks. Globe Newspaper Co. v. Beacon Hill Architectural Comm'n, 847 F.Supp. 178, 191 (D.Mass.1994). A city may regulate the time, place and manner of activity in a public forum,4 provided that the regulati......
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Globe Newspaper Co. v. Beacon Hill Architectural Com'n
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Globe Newspaper Co. v. Beacon Hill Architectural Com'n
...to adopt the regulation and also that it violated rights guaranteed by the First Amendment. See Globe Newspaper Co. v. Beacon Hill Architectural Comm'n, 847 F.Supp. 178 (D.Mass.1994). In the ensuing appeal by the Commission, we concluded that the appropriate course of action was to certify ......
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Globe Newspaper Co. v. Beacon Hill Architectural Com'n, 94-1538
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