News
If this isn’t an axiom, it should be. When politicians contemplating their next career move start rattling the bones of the Founding Fathers, it’s time for the citizens to put their noses in the air and sniff. Case in point: Mayor Bill Purcell’s veto of the ordinance regulating the placement of newsracks in the public right-of-way.
In his letter to the Metro Council, Hizzoner defends his veto in stirring phrases, lauding the wisdom of the Founders for establishing a free press “at the core of protecting and assuring the presence of liberty and democracy.” He attacks the ordinance for “the chill that would be placed upon freedoms this nation has understood since its start.” One’s olfactory sense doesn’t have to be all that acute to detect, amidst the flowery scents, a whiff of the substance normally found in fertilizer.
The ordinance, which was sponsored by council members Mike Jameson, Ginger Hausser Pepper, Ludye Wallace and Michael Craddock, is intended to tame the proliferation of the metal and plastic boxes for news and advertising papers. The publishers, including Chris Ferrell of the Nashville Scene, lobbied mightily against the ordinance, which passed 27-8 in April. The Tennessean and City Paper have heaped editorial praise on Purcell’s veto. What the publishers are pushing instead is a voluntary agreement for box placement and maintenance. The publishers hope this agreement will deter a council override of the veto—which would require 27 votes—on June 5.
The boxes are a streetscape staple wherever citizens walk: bars and restaurants, bus benches and shelters, office buildings and garages, strip shops and quick stops. They offer newspapers as well as what the trade calls “shoppers’ guides,” composed largely, often exclusively, of ads. Many shoppers’ guides are produced by media empires such as Dominion Enterprises and United Advertising Media. But The Tennessean competes in all the basic categories with its own free publications. The newsbox population is densest downtown because that’s where the most pedestrians are, but neighborhood commercial centers—such as Five Points and Hillsboro Village—also sport a goodly display.
The newsrack ordinance requires publishers to get a permit for newsboxes that encroach on any public right-of-way in Metro Nashville. The permits cost $50 for the first application for a freestanding box and $10 for a space in a multiunit newsrack; the annual renewal fee would be $10. The ordinance gives the director of public works authority to adopt rules such as placement, maximum number of boxes within a given area and maintenance standards. To withstand judicial scrutiny, the ordinance sets out a detailed hearing and appeal process that must be followed before any action can be taken against a permit holder, such as the removal of an abandoned newsbox.
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Jameson, whose district includes the area of downtown where the boxes are most prevalent, says he developed the ordinance in response to complaints from his constituents about “the safety hazards and visual clutter. The biggest concerns are the sheer quantity in some areas...and the lack of maintenance. There are racks for defunct publications, and some empty racks have beer bottles inside.”
The entity known as the Music City Publishers Group (MCPG) has drafted a voluntary agreement to address these issues, to be monitored by the Nashville Downtown Partnership. Basic provisions include placement of newsracks so that they are not obstacles to the disabled, repair and maintenance of racks and the removal of those unused for 30 days.
Keith Paige, the sales manager for Employment Guide and point person for MCPG, says the agreement is “a work in progress,” as the group tries to “develop, with residents and businesses, a plan for the aesthetics, which is the biggest concern.”
Paige has contacted 33 publishers about joining MCPG and expects to have a high level of participation. Page asks, “Isn’t participation in a group better than government regulation?”
Some publishers have, however, already declined to participate. “Once you have one defector,” Jameson says, “then that publisher won’t play by the rules, will put a box wherever he wants and the competitors will compete” by putting their boxes nearby. “That’s why the modulars haven’t worked.”
The “modulars” to which Jameson refers are the black multiunit newsracks that represent the publishers’ response to a bill regulating newsracks filed by then-council member Phil Ponder in 2000. Ponder pulled his bill when the Nashville Newspapers Publishers Co-op reached a voluntary agreement with the Central Business Improvement District for controlling and maintaining newsracks.
But not all publishers joined the Co-op, and pretty soon most publishers stopped using the modular units and put up their own boxes instead. Maintenance lapsed.
For council member Pepper, MCPG’s voluntary agreement is a case of been there, done that. “Anyone can see that the publishers original voluntary agreement has proved completely ineffective,” she says. “That’s because there was no consequence for failure and there’s none in the new agreement.”
Pepper also points out that the voluntary agreement “doesn’t go beyond the CBD [central business district].” Her criticism is echoed by council member Craddock. “The boxes are all over Madison in my district,” he says. “But there’s no Downtown Partnership in Madison, no organization for the publishers to work with.”
But for Purcell, “this is a First Amendment and freedom of the press issue. These are not matters for polling or focus groups,” he states in an email.
The constitutional issue isn’t the slam dunk Purcell claims. The First Amendment guarantees freedom of speech, including published speech. As Tom McCoy, retired Vanderbilt Law School First Amendment specialist explains, “Government cannot interfere with your speech because it doesn’t like the message.” He points out, however, “Government can regulate speech for legitimate non-speech interests, such as public health and welfare.” For example, “government can restrict billboards on scenic highways to preserve the scenic character [because] the government’s regulatory interest is independent of the subject of the speech. Government isn’t saying that Republicans can’t have billboards but Democrats can.”
Newsrack regulations have been found unconstitutional when they’ve focused on content. Cincinnati enacted an ordinance that permitted newspapers to distribute from freestanding boxes on sidewalks, but prohibited shoppers’ guides from doing the same in certain areas downtown. The Supreme Court affirmed the city’s “legitimate interests in the safety and attractive appearance of the city’s streets,” but overturned the ordinance because city officials couldn’t show that the boxes for shoppers’ guides were any more harmful or unattractive that those for newspapers. Nashville’s ordinance makes no such distinction. Metro and council lawyers have opined that the ordinance adequately addresses First Amendment concerns.