Philadelphia News., Inc. v. Borough C., Etc., Swarthmore
Citation | 381 F. Supp. 228 |
Decision Date | 13 August 1974 |
Docket Number | Civ. A. No. 74-1569. |
Parties | PHILADELPHIA NEWSPAPERS, INC. v. The BOROUGH COUNCIL, MAYOR, MANAGER AND DIRECTOR OF PUBLIC WORKS OF the BOROUGH OF SWARTHMORE. |
Court | U.S. District Court — Eastern District of Pennsylvania |
COPYRIGHT MATERIAL OMITTED
Bruce W. Kauffman, Philadelphia, Pa., for plaintiff.
G. Guy Smith, Media, Pa., for defendants.
This case presents the following issue for resolution, apparently one of first impression in the federal courts:1
Does the protection of the First and Fourteenth Amendments to the Constitution invalidate, pro tanto, an Ordinance and a Resolution of the Council of the Borough of Swarthmore, Pennsylvania, insofar as they are applied first: to totally prohibit the placement of newspaper boxes anywhere on the public sidewalk strips within the Borough, or second: to limit the placement of newspaper boxes to a three foot strip of the public sidewalk adjacent to premises within the business district of the Borough, during business hours, when such newspaper boxes are so placed by the tenant, owner or occupant of a business establishment which customarily sells newspapers?
This action was brought on June 20, 1974, by plaintiff Philadelphia Newspapers, Inc., publisher of the Philadelphia Inquirer (hereinafter referred to as PNI), against defendant officials of the Borough of Swarthmore, Pennsylvania (hereinafter referred to as the Borough), seeking declaratory and injunctive relief against enforcement of Borough Ordinance No. 715, passed on March 8, 1971, insofar as it prohibits the placement of newspaper boxes along streets and on sidewalks within the Borough.
An initial hearing was held on June 21, 1974, at the conclusion of which a temporary restraining order was issued ordering the Borough to replace two newspaper boxes located at Rutgers Avenue near the Post Office, and at the intersection of Yale Avenue and South Chester Road, which it had removed a short time before this action was instituted. By consent of the parties, this temporary restraining order was to remain in effect until the subsequent hearing, which the parties agreed could be a final one because of the identical character of the factual and legal issues pertinent to the grant or denial of temporary and permanent relief. Accordingly, a final hearing was held on July 15 and 16, 1974, and the temporary restraining order was continued in effect, again with the consent of the parties, pending final decision of this Court.
Before turning to the merits of the case, a brief discussion of the basis for our jurisdiction is in order.
Jurisdiction is founded on 28 U. S.C. § 1343(3), which grants to the District Courts original jurisdiction "to redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States. . . ." The substantive counterpart to § 1343(3) is 42 U.S.C. § 1983, which establishes a cause of action against "every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution. . . ."2
PNI alleges deprivation by defendant officials of rights secured under the First and Fourteenth Amendments to the Constitution of the United States.3
The challenged ordinance provides as follows, in pertinent part:
This ordinance was modified by Resolution of May 13, 1974, which provides as follows:
PNI asserts that the Ordinance of March 8, 1971 (hereinafter the Ordinance), and the Resolution of May 13, 1974 (hereinafter the Resolution), construed together, are unconstitutional to the extent that they prohibit the placement of newspaper boxes on the public sidewalks of the Borough, while permitting certain other uses of the streets and sidewalks which are not entitled to the protection of the First and Fourteenth Amendments.
Several other preliminary jurisdictional matters must be discussed before we reach the merits of plaintiff's claim.
First, we are satisfied that a single...
To continue reading
Request your trial-
Kash Enterprises, Inc. v. City of Los Angeles
...50, 123 Cal.Rptr. 880; Remer v. City of El Cajon (1975) 52 Cal.App.3d 441, 125 Cal.Rptr. 116; Philadelphia News., Inc. v. Borough C., etc., Swarthmore (E.D.Pa.1974) 381 F.Supp. 228; Gannett Co. v. City of Rochester (1972) 69 Misc.2d 619, 330 N.Y.S.2d 648.) 3 The City of Los Angeles does not......
-
Associated Film Distribution Corp. v. Thornburgh
...of distribution of protected expression as well as to protection of content itself. See, e. g., Philadelphia Newspapers, Inc. v. Borough Council of Swarthmore, 381 F.Supp. 228, 240 (E.D.Pa.1974) (holding that newspaper boxes along public streets are constitutionally protected); Lovell v. Gr......
-
Sentinel Communications Co. v. Watts
...New Jersey Newspapers, Inc. v. New Jersey Dep't of Transp., 542 F.Supp. 173, 183 (D.N.J.1982); Philadelphia Newspapers, Inc. v. Borough Council, 381 F.Supp. 228, 241 (E.D.Pa.1974). But see Lakewood, 108 S.Ct. at 2155 (White, J., dissenting). There is therefore little question in this case t......
-
Raymond Motor Transp., Inc. v. Rice, 75-C-172.
..."citizen of the United States or other person" entitled to invoke § 1983. See, e. g., Philadelphia Newspapers, Inc. v. Borough Council, etc., of the Borough of Swarthmore, 381 F.Supp. 228 (E.D.Pa.1974), citing at note 2, Adams v. City of Park Ridge, 293 F.2d 585 (7th Cir. The complaint invo......
-
Broadsheet bullies? Designated public forum and established newspapers' efforts to rid Philadelphia's public transit system of a government-sponsored competitor.
...the requirement that the government narrowly tailor regulations restricting speech to meet compelling government interests). (112) 381 F. Supp. 228 (E.D. Pa. (113) See id. at 235-36 (describing the ordinance at issue). (114) See id. at 24243 (describing Swarthmore's justifications for the e......