The coming legal clash between The Contributor, the ACLU and Brentwood tests the limits of free speech in Middle Tennessee
Freedom for Sale
by Stephen George
- Eric England
- A Contributor vendor
Along with the stamina it takes to stand for hours on corners in 95-degree heat, there is a different kind of training that prospective vendors for the city's street newspaper The Contributor must undergo for their new gigs — this one more intellectual than physical. Tom Wills, the nonprofit's director of vending, typically opens one of these sessions with a broad question for the group: What is the First Amendment?
Most of them know the gist, Wills says. It protects speech. Others recall freedom of religion, and its slightly more nuanced concomitant — freedom from religion — that is supposed to keep anybody's god out of government. But few remember that freedom of the press is an equal part.
"Do you ever see a vending machine on the sidewalk?" Wills says, recounting his routine.
No, you don't. Not unless there are newspapers — those untaxable vehicles of free expression — inside.
Before boxes, of course, actual people sold newspapers on the streets. Whether that is still a legal and protected enterprise is the central question of a lawsuit filed last week by the American Civil Liberties Union of Tennessee on behalf of The Contributor, which is suing the city of Brentwood for what it says is an unconstitutional restriction on its vendors' rights.
"We lean on our First Amendment rights of freedom of speech and freedom of the press to sell printed material on public property," says Tasha French, executive director of the nonprofit that operates the paper.
According to the federal suit, those rights were violated in January, when Brentwood officials issued citations to seven Contributor vendors. The citations were given under a long-standing city ordinance that essentially prohibits the sale of anything, anywhere on public property — a clear violation of the First Amendment.
But Brentwood's broad ordinance has gone unchallenged since its inception in 1976. That's no surprise: City administrator Mike Walker tells the Scene he's not aware of any citations ever issued under the ordinance.
"If they were [in violation of the ordinance], my guess is that they left once the police told them that it was not permitted under our code," he says.
Why the police didn't tell the seven Contributor vendors to move along when they encountered them earlier this year is anyone's guess. Many have accused the tony suburb, whose median household income was $129,771 in 2008, of preferring not to engage with the homeless — or, as is sometimes the case, formerly homeless — people who sell The Contributor for $1 apiece at a 75-cent profit per paper. Vendors also sell in Franklin, another generally wealthy Williamson County enclave. While some have reported that police ushered them from their posts, no one has been cited.
French says vendors haven't encountered problems like this in Davidson County, where the paper has enjoyed stunning success: The Contributor sells nearly double the amount of the second-highest-selling street newspaper in the country.
But Nashville's suburban neighbors didn't mind crimping the paper's expansion plans — which are driven by the vendors, who are free to sell where they please once they've been trained. The seven Brentwood sellers, two of whom are plaintiffs in the lawsuit, wound up paying a collective fine of $200 after a city judge denied their appeal in March.
Since then, the ACLU has been in discussions with Brentwood officials, who say they're prepared to file an amended ordinance on July 7. City attorney Roger Horner, who declined comment to the Scene because the case is ongoing, issued a statement about the suit last week, in which he suggested the citations were given to maintain public safety.
"Walking into a public street to sell newspapers or anything else creates a safety risk," the statement reads. "It is not the city's intention to prohibit the sale of newspapers, nor does the city wish to discriminate against anyone, including persons who happen to be homeless."
Whether Horner has any proof of the supposed risk — mitigated in The Contributor's Vendor Code of Conduct, which envisions its sellers as passive human sandwich boards who approach only when beckoned — could determine the case, says Professor James Blumstein, a constitutional law expert at Vanderbilt University. He called the citations against the vendors "very problematic."
"They need some evidence of what harm they're trying to deal with," Blumstein says of Brentwood officials. "If this were some particular intersections, or whether it's traffic problems, or something that would relate to the sales right off the curb or something like that — that might work. But all public places? Sounds like it's way over-broad to me."
Because Brentwood has never cited anyone under this ordinance, finding proof could be challenging. But Blumstein says it doesn't have to be local. If the city found a study showing, for example, that street-paper vendors bring traffic problems, he explains, it might be able to get by with an amended ordinance that focuses specifically on that issue.
City officials have been preparing an amended ordinance, although they declined to share a draft with the Scene. In a statement to the press, they said the new ordinance would "make it clear that newspaper sales on public sidewalks are permitted, as long as vendors do not enter the street."
That's not good enough for ACLU-TN, and it ignores — subtly — what's at the root of the lawsuit. The Contributor's concern is not selling on sidewalks so much as from them.
"We worked very hard to resolve this before we had to go to court, but after reviewing the language they were putting forth, the language was still so restrictive that it would prohibit The Contributor and their vendors from sharing their message with the public and to those who wanted to purchase the paper," says Hedy Weinberg, ACLU-TN's executive director.
The amended ordinance is up for a first vote July 11. If the version Brentwood officials are hinting at actually passes, don't expect the lawsuit to go away.
"I've seen a couple different iterations of [the proposed ordinance]," says ACLU-TN attorney Tricia Herzfeld. "I've been pretty clear with the city that their proposals were just unacceptable."
Email editor@nashvillescene.com.
Comments (23)
Showing 1-23 of 23
