Providence Journal Co. v. City of Newport

• Decision Date: 12 June 1987
• Docket Number: Civ. A. No. 86-0320-P.
• Citation: 665 F. Supp. 107
• Parties: PROVIDENCE JOURNAL COMPANY, the Edward A. Sherman Publishing Company, the New York Times Company, Dow Jones & Company, and Gannett Satellite Information Network, Inc. v. CITY OF NEWPORT.
• Court: U.S. District Court — District of Rhode Island

665 F. Supp. 107

PROVIDENCE JOURNAL COMPANY, the Edward A. Sherman Publishing Company, the New York Times Company, Dow Jones & Company, and Gannett Satellite Information Network, Inc. v. CITY OF NEWPORT.

Civ. A. No. 86-0320-P.

United States District Court, D. Rhode Island.

June 12, 1987.

John H. Blish and Joseph V. Cavanagh, Jr., Providence, R.I., for plaintiffs.

MaryJo Carr and Joseph J. Nicholson, Jr., City Solicitor's Office, City of Newport, Newport, R.I., for defendant.

OPINION AND ORDER

PETTINE, Senior District Judge.

The question presented by this case is whether a municipality may ban the placement of coin-operated newspaper vending machines, known as newsracks, upon its public rights of way. The plaintiffs, five newspaper publishers, have brought suit under 42 U.S.C. sections 1983 and 1988 seeking declaratory and injunctive relief against the city of Newport, Rhode Island, which recently enacted such a ban. The jurisdiction of the court is invoked pursuant to 28 U.S.C. sections 1331 (federal question) and 1343 (civil rights).

Presently before the court are the plaintiffs' motion for summary judgment and the defendant's cross-motion for summary judgment. For reasons discussed herein, I am granting summary judgment in favor of the plaintiffs.

I. FACTUAL BACKGROUND

Each of the five plaintiffs in this case publishes a daily newspaper that is distributed in the city of Newport, Rhode Island. The Providence Journal Co., a Rhode Island corporation, publishes each weekday morning and evening the Providence Journal and the Evening Bulletin; it also publishes the Journal Bulletin on Saturday and the Providence Sunday Journal on Sundays. The Edward A. Sherman Publishing Co., a Rhode Island corporation, publishes the Newport Daily News Monday through Saturday. The New York Times Co., a New York corporation, publishes the New York Times seven days a week. Gannett Satellite Information Network, Inc., a Delaware corporation, publishes USA Today Monday through Friday. Dow Jones & Co., Inc., a Delaware corporation, publishes the Wall Street Journal Monday through Friday. The defendant in this case, the city of Newport, is a public municipal corporation organized and existing under the laws of the state of Rhode Island.

Prior to March, 1986 the city of Newport allowed newsracks to be placed on public rights of way adjacent to buildings, vacant lots and street curbs, subject to various location, size, insurance and permit fee regulations. See Codified Ordinances of the City of Newport, Revision of 1980, Chapter 842, "Newspaper Vending Devices."¹ On or about March 26, 1986 the Newport City Council enacted the following amendment to Chapter 842:

Chapter 842.02 "Location"

No newsrack shall be permitted on any public right of way within the City of Newport.

SECTION 2. This ordinance shall take effect June 1, 1986 and all ordinances or parts of ordinances inconsistent herewith are hereby repealed.

By letter dated May 16, 1986 the city of Newport notified several of the plaintiffs of its intention to enforce the foregoing ordinance and directed the plaintiffs to remove their respective newsracks from all public rights of way in the city by May 31, 1986. On May 29, 1986 the plaintiffs filed the instant action for declaratory and injunctive relief. A temporary restraining order was entered by this court on May 29, 1986, restraining the city of Newport from enforcing the challenged ordinance until further order of the court.

According to discovery undertaken by the defendant, the plaintiffs' newspapers are distributed throughout the city of Newport not only by newsracks on public rights of way, which would be banned by the ordinance, but also via newsracks on private property and retail establishments such as stores and newsstands, none of which would be affected by the ordinance. The precise figures obtained through discovery are as follows: outlets for the Providence Journal Co.'s newspapers include eight newsracks on public rights of way, seventeen newsracks on private property and forty-four retail establishments; outlets for the Newport Daily News include ten newsracks on public rights of way, eleven newsracks on private property and forty-three retail establishments; outlets for USA Today include ten newsracks on public rights of way, ten newsracks on private property and fifteen retail establishments; outlets for the New York Times include eleven newsracks on public rights of way, eleven newsracks on private property and an unknown number of retail establishments. Precise figures regarding the Wall Street Journal were not made available by Dow, Jones & Co., Inc.

II. DISCUSSION

To grant a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, the court must first find that there is no genuine issue of material fact, looking at the record and drawing all inferences in the light most favorable to the party opposing the motion. Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976). If no material facts are in dispute, then summary judgment can be granted if the court further finds that the moving party is entitled to judgment as a matter of law, viewing the evidence in the light most favorable to the opposing party. Cia. Petrolera Caribe, Inc. v. ARCO Caribbean, Inc., 754 F.2d 404, 411 (1st Cir.1985); Irish Subcommittee v. Rhode Island Heritage Commission, 646 F.Supp. 347, 351 (D.R.I.1986).

In this case, with the above recited facts undisputed, the parties' motions for summary judgment turn solely on principles of First Amendment law. The First Amendment to the Constitution provides in pertinent part, "congress shall make no law ... abridging the freedom of speech, or of the press...." Through the due process clause of the Fourteenth Amendment, the strictures of the First Amendment apply with equal force to limit state action. Lovell v. City of Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 668, 82 L.Ed. 949 (1938); Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 630, 69 L.Ed. 1138 (1925). Because municipal legislation is a recognized category of state action, Lovell, 303 U.S. at 450, 58 S.Ct. at 668, the newsrack ban enacted by the city of Newport is subject to the First Amendment's proscriptions against state regulation of expressive activity.

A three-step inquiry must be undertaken to determine whether the challenged ordinance violates the proscriptions of the First Amendment: first, assessing whether the object of the challenged ordinance constitutes activity protected by the First Amendment; second, if protected activity is found, characterizing the particular forum in which the protected activity has been or is being attempted; and third, evaluating the state's proffered justifications for the challenged ordinance under the First Amendment standards applicable to the particular forum. Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 105 S.Ct. 3439, 3446-47, 87 L.Ed.2d 567 (1985); Irish Subcommittee v. Rhode Island Heritage Commission, 646 F.Supp. 347, 352 (D.R.I.1986).

A. Protected Activity

The challenged ordinance prohibits, on all public rights of way, the distribution of newspapers via newspaper vending machines, commonly known as newsracks. It has long been established that the First Amendment's guarantee of a free press necessarily protects the right to distribute newspapers. "Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value." In re Jackson, 96 U.S. 727, 733, 24 L.Ed. 877, 879 (1878); see also Talley v. State of California, 362 U.S. 60, 64, 80 S.Ct. 536, 538, 4 L.Ed.2d 559 (1960); Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938); Gannett Satellite Information Network v. Town of Norwood, 579 F.Supp. 108, 114 (D.Mass.1984); Rubin v. City of Berwyn, 553 F.Supp. 476, 479 (N.D. Ill.), aff'd. 698 F.2d 1227 (7th Cir.1982); Miller Newspapers, Inc. v. City of Keene, 546 F.Supp. 831, 833 (D.N.H.1982). The protection accorded liberty of circulation is grounded not only in the newspaper's right of publication, but also in the public's right of access to newspapers. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576, 100 S.Ct. 2814, 2827, 65 L.Ed.2d 973 (1980); Philadelphia Newspapers, Inc. v. Borough of Swarthmore, 381 F.Supp. 228, 243 (E.D.Pa.1974) (The state's interests "must be balanced against not only the right of the plaintiff to distribute its newspapers, but the right of the public to have access that is as free as possible as long as the means of distribution do not create real hazards...." (emphasis in original)). As one court has observed, the right to receive information is "the indispensable reciprocal of any meaningful right of expression." Sheck v. Bailyville School Committee, 530 F.Supp. 679, 685 (D.Me. 1982). See also Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853-54, 102 S.Ct. 2799, 2808, 73 L.Ed.2d 435 (1982); Virginia State Board of Pharmacy v. Citizens' Consumer Council, Inc., 425 U.S. 748, 756-57, 96 S.Ct. 1817, 1823, 48 L.Ed.2d 346 (1976).

The reciprocal liberties of circulation and of access are protected by the First Amendment irrespective of whether the newspapers are to be distributed for free or for a fee. 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); Smith v. California, 361 U.S. 147, 150, 80 S.Ct. 215, 217, 4 L.Ed.2d 205 (1959); Gannett Satellite Information Network v. Metropolitan Transit Authority, 745 F.2d 767, 772 (2d Cir.1984); Wulp v. Corcoran, 454 F.2d 826, 834-35 n. 13 (1st Cir.1972); Gannett Satellite Information Network v. Town of Norwood, 579 F.Supp. 108, 114 (D.Mass.1984). Based on these considerations, I readily join the long line of precedents holding that coin-operated newspaper...