Just How Free Should the Press Be? 

Nashville publishers fight for the right to clutter our sidewalks with newsracks

Council members Mike Jameson and Ludye Wallace have introduced a bill to tame the proliferation of metal or plastic boxes employed to distribute news and advertising papers. The publishers of the papers, predictably enough, are lobbying mightily to kill the bill and met this week to consider alternative solutions to government regulation.

The perennial topic of newsracks that seem to breed like rabbits on our city streets is back in play. Council members Mike Jameson and Ludye Wallace have introduced a bill to tame the proliferation of metal or plastic boxes employed to distribute news and advertising papers. The publishers of the papers, predictably enough, are lobbying mightily to kill the bill and met this week to consider alternative solutions to government regulation.

The boxes are a streetscape staple. Few people with working eyeballs could fail to notice the jumbles that line Nashville’s sidewalks. The boxes cluster where 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. The ad papers, many of which are produced and distributed by media empires such as Dominion Enterprises and United Advertising Media, concentrate on basic all-American needs: shelter—both homes for sale and apartments for rent—jobs, wheels and entertainment.

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. Last week, some downtown sidewalks featured as many as 23 boxes in a row. At some intersections, boxes occupied all four corners. Some lineups contained multiple boxes for the same publication. Flyers for clubs and movies exercised squatters’ right in vacant boxes of monthlies, which are also creatively utilized by the homeless to store blankets and booze.

The Jameson/Wallace bill would require publishers to get a permit for newsboxes that encroach on any public right-of-way (ROW) in Metro Nashville. Such permits are currently required for other encroachments, such as awnings that hang over the sidewalk. Publishers would apply to Public Works for the permits, which would 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 also gives the director of Public Works the authority to adopt rules to regulate newsracks. Such rules could include placement, maximum number of boxes within a given area, maintenance standards, etc. In order to withstand the judicial scrutiny that would undoubtedly arise should the bill pass, the ordinance sets out a detailed hearing process that must be followed before taking any action against a permit holder, such as the removal of an abandoned newsbox.

Jameson, whose district includes the area of downtown where the boxes are most prevalent, says he developed his bill “in response to complaints from my constituents” about the safety hazards and visual clutter. The loudest complainer has been the Urban Residents Association, a 180-member group of downtown dwellers. Vice President Ben Bahil says “there are simply too many boxes, and a lot of them are badly maintained. And who collects and disposes of those for defunct publications? The boxes have become a real abuse of the streetscape.”

Councilman Michael Craddock says the abuse isn’t restricted to downtown. “I’ve had lots of complaints from my district—the boxes are all over Madison. The plastic ones blow around and into the street, where they’re hit by cars. The boxes encroach on the sidewalks so that people in wheelchairs can’t navigate around them. And because many of the publications are free, people take them and then throw them on the ground, contributing to the huge litter problem on Gallatin Road.”

Publishers of the papers counter that the Jameson/Wallace bill would violate the Constitution’s guarantee of freedom of speech. The legal staff of the Council office state in their analysis, however, that in their opinion First Amendment concerns raised by newsrack regulation “have been adequately addressed in this ordinance.” The publishers’ opposition is led by Tennessean president/publisher Ellen Leifeld, whose paper uses the boxes not only to sell newspapers but to distribute its free publications: All the Rage entertainment weekly and the shoppers’ guides Cars.com Weekly, CareerBuilder Weekly, Apartments.com Monthly and the bimonthly Tennessee Homes.

Leifeld says she objects to the bill because it represents “an additional tax on publications [the permit fee] and reaches beyond government power. If government is issuing permits for publishers to be able to distribute newspapers, then that gives government control over a free press.”

Leifeld raises a gnarly constitutional issue. The First Amendment guarantees freedom of speech, including published speech. As Tom McCoy, Vanderbilt Law School’s 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. This is called the ‘time, place or manner doctrine.’ ” The professor cites several examples: a rock concert that’s keeping the neighbors awake into the wee hours; someone speechifying while standing in the middle of Broadway, thus causing a safety hazard to motorists. “And government can restrict billboards on scenic highways to preserve the scenic character. In each of these cases, the government’s regulatory interest is independent of the subject of the speech,” McCoy says. “Government isn’t saying that Republicans can’t have billboards but Democrats can.”

Many cities are grappling with the issue of newsboxes in their public ROW—some, such as San Francisco and Indianapolis, more successfully than others. One notable failure is Cincinnati, which enacted an ordinance which 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.

“If you ban all newsracks,” McCoy explains, “the court will ask one more question: Does the speaker [publisher] have sufficient other ways to deliver his/her message? If not, that’s a severe limitation and is unconstitutional. But if a city provides a sufficient alternative, such as modular [multiunit] boxes” that contain several publications placed in enough locations to slightly rather than severely restrict circulation, “the court could find that an acceptable way to serve the city’s safety and aesthetic interests.”

How severe a limitation the regulation of newsracks would impose on publishers would not be clear until the city developed specific rules. The Nashville Scene moves 10,000 copies a week out of 80 outdoor racks. The Tennessean isn’t exactly doing a booming sales business from its newsracks. According to Leifeld, the 89 downtown racks sell a daily average of 285 newspapers, 110 on Sunday; countywide the Tennessean’s 666 racks sell a daily average of 2,180 papers, 1,290 on Sunday. This is approximately 3.2 daily (not Sunday) newspapers per rack.

The number and location of newsboxes a downtown pedestrian might find sufficient could very likely seem insufficient to publishers—whose primary responsibility, after all, isn’t protecting the city’s streetscapes but moving as many papers as possible. And the newspapers of those publishers could have a chilling effect—via coverage as well as endorsements—on the careers of politicians who try to regulate the boxes containing them.

Thus the Jameson/Wallace bill has support from such downtown advocates as the DISTRICT, a nonprofit dedicated to the historic areas of Second Avenue, Broadway and Printers’ Alley. But political support appears to be lacking.

Nashville Scene publisher and former Council member Chris Ferrell has been working his Council contacts to derail Jameson’s bill. Mayor Bill Purcell is against the bill, according to spokesman Patrick Willard, “because it would restrict First Amendment rights. And the last time legislation threatened to regulate distribution, we ended

up with those black monoliths that take up so much space, can’t be moved because they’re bolted to the sidewalk and are today half empty. This wasn’t a step toward improvement.”

The black monoliths to which Willard refers were the publishers’ response to a bill regulating newsboxes 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 (CBID) Board for self-policing. The Tennessean paid for multiunit newspaper racks, placed them on the most congested corners and split the cost with the other publishers who used them. According to a copy of the agreement, the publishers volunteered to restrict all newsracks to two corners of an intersection in the CBID which featured a modular unit; place modular units and newsracks away from pedestrian paths; properly weight newsracks and keep them in good repair; and remove racks not used for 30 consecutive days. The chief enforcer was to be The Tennessean. “All modular units and racks of members of the Publishers Co-op will be monitored and cleaned regularly by The Tennessean,” the agreement states.

The agreement expired in 2005. And a survey of the modular units last Wednesday between 8 a.m. and 9 a.m. found a lone copy of The Tennessean in the Hillsboro Village modular and none in the downtown modulars, even though the orange boxes across the street had an ample supply. “It is possible,” Leifeld states in an email, “that due to a combination of sellouts and the repair work being done that you found several empty.”

Publisher Ferrell feels that the bill is “overkill for the scope of the problem. It’s only an issue at a handful of locations downtown. The solution will really just take businesspeople being responsible for themselves.”

Willard says Purcell is confident that “if we can get away from the distraction of this legislation, it will provide a greater opportunity for self-regulation and self-awareness” on the part of the publishers.

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