Miller Newspapers, Inc. v. City of Keene

• Decision Date: 09 September 1982
• Docket Number: Civ. No. 82-435-D.
• Citation: 546 F. Supp. 831
• Parties: MILLER NEWSPAPERS, INC., d/b/a The Brattleboro Reformer v. CITY OF KEENE, and Harold A. Becotte, individually and in his capacity as Chief of Police of the Keene Police Department.
• Court: U.S. District Court — District of New Hampshire

546 F. Supp. 831

MILLER NEWSPAPERS, INC., d/b/a The Brattleboro Reformer v. CITY OF KEENE, and Harold A. Becotte, individually and in his capacity as Chief of Police of the Keene Police Department.

Civ. No. 82-435-D.

United States District Court, D. New Hampshire.

September 9, 1982.

Robert T. Kennedy, Keene, N.H., for plaintiff.

Charles H. Morang, City Atty., Keene, N.H., for defendant.

OPINION

DEVINE, Chief Judge.

At approximately 3 o'clock on the morning of May 3, 1982, employees of the Brattleboro Reformer placed two coin-operated newspaper vending machines on the sidewalks of Main Street in the city of Keene, New Hampshire, and chained each newsrack to a parking meter with a short length of cable. On May 17, 1982, at time of day unknown, employees of the Public Works Department of the City of Keene, armed with boltcutters or like instruments, removed the newsracks and transported them to the Police Department, per order of the City Attorney. Of such auspicious beginnings was this First Amendment case born.

Plaintiff thereafter filed this civil rights action, 42 U.S.C. § 1983, claiming that defendants' removal of the newsracks violated plaintiff's First and Fourteenth Amendment rights. Jurisdiction is founded upon 28 U.S.C. § 1343(3). Plaintiff now moves for a preliminary injunction to enjoin any further seizure of its newsracks.

To demonstrate entitlement to a preliminary injunction in the First Circuit, a plaintiff must satisfy four criteria. The Court must find: (1) that plaintiff will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which granting injunctive relief would inflict on the defendant; (3) that plaintiff has exhibited a likelihood of success on the merits; and (4) that the public interest will not be adversely affected by the granting of the injunction. Auburn News Company, Inc. v. Providence Journal Company, 659 F.2d 273, 277 (1st Cir. 1981), cert. denied, ___ U.S. ___, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982) (and cases cited and quoted therein). Application of these principles requires review of the salient facts.

The Facts

The Brattleboro Reformer ("Reformer") is a general interest newspaper with a circulation of approximately 9000 papers daily in Windham County, Vermont, and southwestern New Hampshire. Until May of 1982 the Reformer was an evening newspaper. In May the publishers initiated a morning edition. According to its Circulation Manager, Jeffrey Cohen, approximately 1000 papers are sold daily in the Cheshire County/Keene, New Hampshire, area. Approximately 25 copies of the Reformer are sold in Keene daily. Approximately five papers were sold each day from each newsrack while they were in place. The newsracks are the only means of distribution of the Reformer after stores are closed.

The Reformer has sold and continues to sell newspapers from twelve newsracks in Brattleboro, Vermont. The newsracks are located on the curbs adjacent to parking meters, and are attached to the bases of the meters with short lengths of aircraft cable. Plaintiff's Exhibits 1A and 1B. Theft and/or vandalism of unsecured boxes prompted the use of the cables.

Cohen placed two such newsracks on the sidewalks in Keene on May 3, 1982. No contact was made with the City prior to putting the racks on the sidewalks. Shortly after the newsracks were installed, Cohen was contacted by the Keene Police Department and told that the newsracks would have to be removed. On or about May 10 Cohen spoke with the City Attorney for the City of Keene. According to Cohen, the City Attorney informed him that the newsracks would have to be removed from the curb area and that, to the best of his recollection, no mention of public safety or problems with the parking meters was made. The City Attorney maintains that the City's objection was to the chaining of the newsracks to the meters, and that this was communicated to Cohen. Some discussion ensued regarding the possibility of putting the racks next to the buildings, but because of apparent confusion as to whether the fee next to the building was publicly or privately owned, Cohen did not consider this a viable option. Cohen suggested that the Keene City Attorney discuss his concerns with the City Attorney for Brattleboro, Vermont, with whom Cohen had had some discussion regarding the proper placement of newsracks. The Keene City Attorney declined. A few days later Cohen received a telephone message from the City Attorney stating that the newsracks would have to be removed or they would be seized. On May 17, 1982, they were seized.

The following day the City Attorney sent a letter to plaintiff's attorneys requesting that the Reformer retrieve its newsracks. The letter further stated that the City Council was considering a "hawkers and peddlers" ordinance, and that while it would not be possible for newspaper boxes to be chained to parking meters, the author could "personally see no reason" why newspaper boxes could not be permitted on the sidewalks, in a manner safe for pedestrian use, along with human hawkers and peddlers. Plaintiff's Exhibit 3.

It is stipulated that there is currently no City ordinance governing the placement of newsracks or vending machines in the city, or governing the removal of same. At no time either prior to or after the removal of plaintiff's newsracks was the Reformer given an opportunity to be heard concerning the City Attorney's determination that the newsracks were improperly situated.

Discussion

The First and Fourteenth Amendments' guarantee of freedom of the press and freedom of speech "extends to the means of distribution of the newspaper as well as to its content and the ideas expressed therein". Philadelphia News, Inc. v. Borough Council, Mayor, Manager and Director of Public Works of the Borough of Swarthmore, 381 F.Supp. 228, 240 (E.D. Pa. 1974) ("Philadelphia News") (emphasis in original). "Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value." Lovell v. City of Griffin, Ga., 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938), quoting Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877 (1877). First Amendment protections are not lost or diminished because the newspapers at issue here are sold rather than distributed freely. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 504 n. 11, 101 S.Ct. 2882, 2890 n. 11, 69 L.Ed.2d 800 (1981) (and cases therein cited) ("Metromedia"); Smith v. California, 361 U.S. 147, 150, 80 S.Ct. 215, 217, 4 L.Ed.2d 205 (1959); Wulp v. Corcoran, 454 F.2d 826, 835 n. 13 (1st Cir. 1972).

The right of access to public streets and sidewalks has long been recognized as essential to the exercise of First Amendment freedoms.

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for the purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.

Hague v. CIO, 307 U.S. 496, 515-16, 59 S.Ct. 954, 963-64, 83 L.Ed. 1423 (1939). The right of access encompasses the related right to distribute printed material. Flower v. United States, 407 U.S. 197, 92 S.Ct. 1842, 32 L.Ed.2d 653 (1972); Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1938). Accordingly, those courts which have considered the question have ruled that newsracks and newspaper vending machines located along public streets and sidewalks are a constitutionally protected means of distribution, and that a blanket prohibition against such devices is unconstitutional. Southern New Jersey Newspapers, Inc. v. State of New Jersey, et al. and Woodbury Daily Times v. State of New Jersey, 542 F.Supp. 173 (D.N.J. 1982) (consolidated action) ("Southern New Jersey"); Westchester Rockland Newspapers, Inc. v. The Village of Briarcliff Manor, et al., No. 1095 (S.D.N.Y. Dec. 17, 1980); Philadelphia News, supra; Remer v. City of El Cajon, 52 Cal.App.3d 441, 125 Cal.Rptr. 116 (1975); California Newspaper Publishers Association, Inc. v. City of Burbank, 51 Cal.App.3d 50, 123 Cal.Rptr. 880 (1975); Gannett Co., Inc. v. City of Rochester, 69 Misc.2d 619, 330 N.Y.S.2d 648 (N.Y. Sup. Ct. 1972).

Constitutional protections do not exempt newspaper vending machines from all municipal regulation, however. A municipality may impose reasonable time, place, and manner restrictions on the use of the machines. Cf. Westchester Rockland Newspapers v. City of Yonkers, et al., No. 79-1168 (S.D.N.Y. Aug. 9, 1979); Houston Chronicle Publishing Company v. City of Houston, Tex. Civ. App., 620 S.W.2d 833 (1981) ("Houston Chronicle"); Kash Enterprises, Inc. v. City of Los Angeles, 19 Cal.3d 294, 138 Cal.Rptr. 53, 562 P.2d 1302 (1977) ("Kash"). A municipality's power to regulate is far from unfettered, however. The restrictions, and their manner of enforcement, must themselves pass constitutional muster. Metromedia, supra 453 U.S. at 515-17, 101 S.Ct. at 2896-97; Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981) ("Heffron"); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 74-77, 101 S.Ct. 2176, 2186-87, 68 L.Ed.2d 671 (1981) ("Schad"); Southern New Jersey, supra; Westchester Rockland Newspapers v. City of Yonkers, et al., supra; Houston Chronicle, supra.

The City contends that it...