Wednesday, July 13, 2011

The Suit Must Go On

Posted By on Wed, Jul 13, 2011 at 10:16 AM

It looks like both sides are digging in their heels on the matter of whether Brentwood can legally banish vendors of The Contributor, the city’s homeless newspaper and the largest of its kind in the U.S., from its uptown streets.

In a unanimous vote Monday, the tony enclave’s city council approved an amendment on the first of two readings that would rewrite an unconstitutionally broad law that bans all sales of anything anywhere in public. The new law would allow sales of newspapers, magazines and other such things protected under the First Amendment on public sidewalks.

"We recognize that courts throughout America say that sidewalks are a traditional public forum, where newspapers and similar materials can be distributed," Brentwood attorney Roger Horner told commissioners at the meeting, according to NewsChannel 5.

But there’s a problem. The amendment, as written, would only allow vendors to sell on sidewalks, not from them. That’s a core distinction for The Contributor and the ACLU-TN, which filed a federal lawsuit on the paper’s behalf a couple weeks ago. As well all know, Contributor vendors typically stand on the sidewalks and, like human billboards, advertise their buck-a-pop papers quietly — until someone summons them, perhaps even from an automobile, an internal-combustion device that occupies the "roads" that often run parallel to sidewalks.

“ACLU-TN shares the concerns of Brentwood in protecting the safety of its residents,” says Tricia Herzfeld, the group’s attorney. “However, there are ways to protect public safety without trampling on the First Amendment. The Contributor policy does not endorse vendors entering the street to sell the paper. Our concerns are protecting the free speech and press rights of the vendors to sell The Contributor from traditional public areas, such as sidewalks, to lawfully stopped motorists. The proposed ordinance is unreasonably restrictive.”

Both sides met weeks before the council considered the new language in an effort to find common ground. They left at odds — and so, as they say, the suit must go on.

For fun, here are some pertinent passages from Horner’s analysis accompanying the amendment:

“Since public sidewalks are a traditional ‘forum’ for exercising rights to freedom of speech, a regulation that prohibits the sale of newspapers on the sidewalks is vulnerable to constitutional challenges. At the same time, since the government has an interest in protecting public health and safety, reasonable restrictions on the sale of newspapers are likely to be upheld if they serve that interest and leave sufficient alternative means or locations available.”

“The ordinance also prohibits the use of public right-of-way to alert vehicle occupants to any commercial activity by the use of signs or other devices. Again, existing Code provisions have been used to address this issue in the past, but the proposed language more specifically addresses advertising gimmicks such as ‘sign spinners’ on sidewalks and elsewhere in the right-of-way who distract drivers from staying focused on safe driving.

“The proposed amendments would not apply to persons who have a legitimate reason for occupying and storing materials in the public right-of-way, such as emergency workers, public works employees, utility workers or franchisees such as Comcast. Nor would the ordinance apply to public streets that have been closed for festivals or other events and activities permitted by the City.”

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