August 25, 2008

Rack and ruin, Texas-style

   The city of Houston has joined a number of other U.S. cities in trying to impose a uniform standard for the newsracks on its streets. Each city has its own requirements, reflecting its own unique culture. In the case of Houston, newspaper publishers must furnish their own newsracks — metal, painted fir green, embedded in a 3-inch-high concrete base. They are assessed a general permit fee of $300, plus $5 per newsrack. The city is beginning to implement the ordinance,  with all publishers expected to comply completely by January 1, 2009.

The Houston & Heights Tribune is a bi-monthly paper with a readership of about 100,000 people. In existence since 1986, the paper is distributed to 250 locations, mainly in plastic newsracks. Under the ordinance, the existing newsracks will head to the city dump, to be replaced by dark green metal ones at the paper’s expense. The Tribune’s publisher, Sharon Lauder, has fought the proposal from the beginning, and the paper’s website includes a protest http://www.houstontribune.com/Newsrack%20resolution.pdf for readers to print out and mail to the Houston City Council. She made the following speech to the City Council on April 1, 2008. [The cartoons are reprinted with the permission of the Houston Tribune.]

I am Sharon Lauder, publisher of the Houston & Heights Tribune, and I am against the newsrack ordinance.

I am here to plead with you to reconsider this ordinance and to remind you that we as a country are in a recession. The old saying “Waste not, want not” is important. The smaller publications already have plastic newsboxes that are suitable for distribution. And metal rusts!!

This ordinance will go into effect on April 11 despite many publishers’ speaking out against it at city hall. The ordinance has already depleted our community newspapers and left the corporate giants in downtown Houston along with a few other publications. It requires all newsboxes to be metal & all the same color, with a 95-pound cement base underneath, and soon this requirement will be citywide.

As you may suspect, an ordinance that targets a narrow segment of the media is constitutionally invalid, as was set out in the case of Pitt News v. Pappert in an opinion written by now-Supreme Court Justice Samuel A. Alito. The practical effect of this ordinance is to make it impossible for small free papers to distribute using newsracks. Even if on its face the ordinance does not appear discriminatory, as Judge Alito points out in his opinion in Pitt News, the practical effect of a statute can also be unconstitutional. Aside from that, does the City of Houston really want to eliminate the diversity that the small publication segment of the print media brings to this city?

There’s a reason that this statute is probably unconstitutional: It is un-American and against our traditions of free speech and respect for opinions from all segments of our society.

The Nashville mayor vetoed that city’s newsrack ordinance.

Los Angeles gave newspaper publishers seven years to adhere to its newsrack ordinance and “grandfathered” in all newsboxes.

San Luis Obispo newspapers won a lawsuit against the city, and the courts affirmed that the freedom to distribute information is as essential as the freedom to publish it. The California appellate court found the newspaper and publishers’ suit met three requirements. First, the ruling “preserved an important right for the public, which is embedded in the First Amendment of the United States Constitution: the right of free expression of new ideas.” Second, the ruling grants a significant benefit to the general public by “preserving their right to be informed of different points of view through desirable, inexpensive forums at all times of the day.” And finally, the court ruled that the public benefits outweigh the benefits for the publications because a large percent of their distribution was in the newsracks.

“The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all. It is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience and in consonance with peace and good order, but it must not, in the guise of regulation be abridged or denied” (United States Supreme Court, Hague v. C.I.O., 1939). The Houston newsrack ordinance has abridged and denied the smaller publications their right to be on city sidewalks by making it cost prohibitive.

This newsrack ordinance is going to “impede the free flow of ideas and the ability of alternative voices to be heard within our community!” And if you drive around downtown, you’ll see that it already has. Many smaller publications have pulled out of downtown. Three African-American newspapers are no longer on the downtown city sidewalks, and Leisure Learning and many other minority-owned and women-owned newspapers are gone.

Most of the smaller publications have spent thousands of dollars on their existing plastic newspaper boxes, and now the city of Houston has said no to plastic and yes to metal. This ordinance prevents freedom of the press:  if a publisher does not have the right to distribute, then the right to publish has been violated.  The First Amendment has been totally disregarded with this newsrack ordinance.

There are many reasons to repeal this ordinance. Here are 12:

1. The Houston Police Department told me that the metal newsboxes are being used by thieves to throw into a car windshield to break and enter. And now with the 95 pounds of added weight, they will cause much more damage to a citizen’s car.

2.  Metal newsboxes can and have been stolen to sell at scrap-metal yards. There is even a special HPD task force for metal thieves because of the large amount of metal stolen in Houston.

3. Communities depend on the smaller publications to get out the news vital to their communities.

4. The economic losses to the small businesses that rely on the low cost ad space offered by smaller publications will be at risk.

5. Free publications do not need metal boxes. Coin-operated newspaper boxes need metal newsboxes.

6. Plastic boxes do not rust. Houston is known for humidity and rust.

7. All boxes can be weighted down inside the box. A cement base is a trip hazard for citizens.

8. Small publications depend on the newsracks for over 80% of their distribution.

9. Freedom of the press is at risk with this newsrack ordinance.

10. I have never had a complaint in 22 years in business regarding my newspaper box being blown into the air and hurting someone. I have made sure my outdoor boxes were clean and secured down with a chain and a lock. But that can be easily changed by adding sand or a cement block inside to stabilize the box.

11. More time is needed to implement any ordinance and it needs to be fair for all publications. There were only a small number of publishers invited to attend the newsrack ordinance hearing. Therefore the newsrack ordinance did not do its due diligence.

12. Houston is the four largest city. Major changes cannot happen overnight, and they should be for the benefit and welfare of all. When the city of Houston confiscates the newsboxes, what special dump will there be for plastic newsboxes that were intended to be used for newspapers??

        — Copyright Sharon Lauder 2008