USCA1 Opinion
January 2, 1997 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1538
GLOBE NEWSPAPER COMPANY, ET AL.,
Plaintiffs - Appellees,
v.
BEACON HILL ARCHITECTURAL COMMISSION,
Defendant - Appellant.
____________________
ERRATA SHEET
The opinion of this court issued on November 12, 1996 is
amended as follows:
On page 42, line 6, insert "are" between "we" and "aware" so
that the sentence reads "While we are aware. . ."
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1538
GLOBE NEWSPAPER COMPANY, ET AL.,
Plaintiffs - Appellees,
v.
BEACON HILL ARCHITECTURAL COMMISSION,
Defendant - Appellant.
____________________
ERRATA SHEET
The opinion of this court issued on November 12, 1996 is
amended as follows:
Page 30, line 5, "not" should be deleted.
Page 34, line 5 of footnote 19 should read "utterly" instead
of "unterrly".
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1538
GLOBE NEWSPAPER COMPANY, ET AL.,
Plaintiffs - Appellees,
v.
BEACON HILL ARCHITECTURAL COMMISSION,
Defendant - Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
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Cummings* and Cyr, Circuit Judges.
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John R. Devereaux, with whom Merita A. Hopkins and Gerald
_________________ __________________ ______
Fabiano were on brief for appellant.
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Edward N. Costikyan, Michael S. Gruen and David Nissenbaum
____________________ ________________ ________________
on brief for The National League of Cities, The United States
Conference of Mayors and The Municipal Art Society of New York,
amici curiae.
James C. Heigham, with whom Choate, Hall & Stewart and
__________________ ________________________
Alice Neff Lucan were on brief for appellees.
________________
____________________
November 12, 1996
____________________
____________________
* Of the Seventh Circuit, sitting by designation.
TORRUELLA, Chief Judge. We visit this controversy for
TORRUELLA, Chief Judge.
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the second time in as many years. See Globe Newspaper Co. v.
___ ____________________
Beacon Hill Architectural Comm'n, 40 F.3d 18 (1st Cir. 1994). We
________________________________
are left to decide important issues that require a balancing
between First Amendment rights and governmental interests.
Defendant-Appellant Beacon Hill Architectural
Commission (the "Commission") enacted a regulation, the Street
Furniture Guideline, which effectively bans newspaper
distribution boxes from the public streets of the Historic Beacon
Hill District in Boston, Massachusetts (the "District"). The
validity of this regulation was challenged in a suit filed in
district court by Plaintiffs-Appellees, a group of newspaper
publishers (the "Newspapers"). The district court held that the
Commission lacked the authority to adopt the regulation and also
that it violated rights guaranteed by the First Amendment. See
___
Globe Newspaper Co. v. Beacon Hill Architectural Comm'n, 847 F.
___________________ ________________________________
Supp. 178 (D. Mass. 1994).
In the ensuing appeal by the Commission, we concluded
that the appropriate course of action was to certify the
dispositive issue of state law to the Supreme Judicial Court of
Massachusetts (the "SJC") and so proceeded. To the question
Did the Beacon Hill Architectural Commission
have the authority under 1955 Massachusetts
Act Chapter 616 (as amended) to adopt the
"Street Furniture Guideline"?
the SJC answered in the affirmative. See Globe Newspaper Co. v.
___ ___________________
Beacon Hill Architectural Comm'n, 421 Mass. 570 (1996). In its
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response, the SJC held that the Commission had authority to
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regulate newsracks and other "street furniture" through
rulemaking and to completely ban entire classes of structures
such as newsracks. Id. at 590-91. Specifically, it said:
___
As to streets and sidewalks, the
[C]ommission's jurisdiction is concurrent
with appropriate municipal agencies.
Regulation of the sidewalks is rationally
related to the goal of preserving the
Historic Beacon Hill District. Section 4 of
the enabling [A]ct provides the [C]ommission
with the authority to issue rules that govern
private conduct within its particular
geographic area of responsibility. We
conclude that, apart from constitutional
considerations, outright bans on certain
classes of structures are merely a practical
consequence of the [C]ommission's ability to
proscribe inappropriate exterior
architectural features within the [D]istrict.
Id. We thus focus our attention on the constitutional issue,
___
which requires us to determine whether the Street Furniture
Guideline violates rights guaranteed by the First Amendment to
the Newspapers. We conclude that it does not and reverse the
decision of the district court.
BACKGROUND
BACKGROUND
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The Historic Beacon Hill District was created by an act
of the Massachusetts General Court in 1955. See 1955 Mass. Acts
___
ch. 616 ("the Act"), as amended by 1958 Mass. Acts ch. 314 & 315,
1963 Mass. Acts ch. 622, 1965 Mass. Acts ch. 429, 1975 Mass. Acts
ch. 741, and 1982 Mass. Acts ch. 624. The Act is intended to
promote the educational, cultural, economic
and general welfare of the public through the
preservation of the historic Beacon Hill
district, and to maintain said district as a
landmark in the history of architecture and
as a tangible reminder of old Boston as it
existed in the early days of the
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commonwealth.
1955 Mass. Acts ch. 616, 2. The District's historical
significance can hardly be doubted. See Opinion of the Justices,
___ _______________________
333 Mass. 783, 786-87 (1955). Indeed, it was listed in the
National Register of Historic Places and designated a National
Historic Landmark on October 15, 1966, pursuant to the National
Historic Preservation Act of 1966, 16 U.S.C.A. 470 et seq.
______
The Commission was created to review proposed changes
to the "exterior architectural feature[s]" of "structures" within
the District. See 1955 Mass. Acts ch. 616, 7; see also id. at
___ ________ ___
3 (defining an "exterior architectural feature"); Mass. Gen. L.
ch. 143, 1 (providing definition of "structure"); Globe
_____
Newspaper, 43 F.3d at 20. Anyone wishing to construct,
_________
reconstruct or alter an exterior architectural feature is
required to apply to the Commission for a certificate of
appropriateness. The Commission, "[i]n passing upon
appropriateness," shall consider, inter alia, "the historical and
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architectural value and significance, architectural style,
general design, arrangement, texture, material and color of the
exterior architectural feature involved and the relationship
thereof to the exterior architectural features of other
structures in the immediate neighborhood." 1955 Mass. Acts ch.
616, 7. Furthermore, the Commission must "spread upon its
records the reasons for [its] determination" that a certificate
of appropriateness should not issue. Id. An aggrieved party may
___
appeal the Commission's decision to the Superior Court for
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Suffolk County, which "shall annul the determination of the
[C]ommission" if it is "unwarranted by the evidence" or
"insufficient in law." Id. at 10.
___
As previously noted it was not surprising that, "given
the stream of applications for certificates of appropriateness,
the Commission developed uniform policies toward certain
recurring types of proposed alterations." Globe Newspaper, 40
________________
F.3d at 20. Specifically, in 1981, it formally adopted the
policies as "guidelines." These guidelines regulate exterior
architectural features such as masonry, roofs, windows, sash and
shutters, doors, trim, paint, and ironwork. One of the
guidelines states that "[f]reestanding signs are not permitted."
In the District, the Newspapers distribute their
publications via home delivery, mail, store sales, street
vendors, and "newsracks."1 Newsracks, we explained, are
____________________
1 The record shows that the Newspapers' publications are
distributed by the following methods:
HERALD USAa GLOBE WSJb NYTc TAB
Home Delivery 21% 5% 7% 97.7% 53.3% 0%
Store Sales 46% 78% 65% 1.9% 39.6% 0%
Street Vendors 23%d 0% 16%e 0% 0% 0%
By Mail 0% 5% 0% 0% 0% 79%
Newsracks 10% 11% 12% 0.4% 7.1% 21%
aAbbreviation is to USA Today. bAbbreviation is to The Wall
_________ ________
Street Journal. cAbbreviation is to The News York Times.
_______________ _____________________
dStreet vending occurs between 6:00 a.m. and 9:00 a.m. eStreet
vending occurs between 5:30 a.m. and 9:30 a.m.
-5-
newspaper distribution boxes painted in various colors and
featuring the name of the newspaper and other advertising logos,
which are commonly anchored to lampposts, signposts, or fixtures
on the sidewalk. The plaintiffs maintain a total of thirty-nine
newsracks in the district.2 Within the District, there are
eleven stores that distribute, or are available to distribute,
the Newspapers' publications. Outside the District, but within
one block of the District's boundaries, the Newspapers'
publications are sold through stores and newsracks.3 It is
undisputed that no point within the District is more than 1,000
feet (approximately 1/5 of a mile) from a source of the
Newspapers' publications.
Newsracks were first introduced to the District in the
early 1980s, and by 1983, Beacon Hill residents had begun to
____________________
2 The thirty-nine newsracks maintained by the Newspapers are
broken down as follows: Boston Globe (9); Boston Herald (10);
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The New York Times (8); The Wall Street Journal (4); USA Today
___________________ ________________________ _________
(3); and TAB (5). In addition to the Newspapers' newsracks, at
___
least five other publishers maintain newsracks within the
District. Agreed Statement of Facts at 4, p. 16.
3 The record shows that the Newspapers' publications are
available in stores and newsracks near the District as follows:
HERALD USA GLOBE WSJ NYT TAB
Stores within
one block of 4 2 10 2 4 0
the District
Newsracks
within one 4 9 7 1 6 7
block of the
District
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complain of the "unsightliness, congestion and inconvenience
associated with the vending machines." The Commission believed
that the newsracks violated the guideline prohibiting
free-standing signs. It took no enforcement action, however,
because a city-wide regulation of newsracks was being discussed
in the early 1980s.
In 1990, no regulation having been adopted, the Beacon
Hill Civic Association petitioned the Commission for a guideline
to exclude newsracks from the District. After holding a public
meeting regarding the petition,4 the Commission conducted a
survey and completed, in January, 1991, a study entitled the
"Publication Distribution Box Report (the "Report"). See Exhibit
___
H (in the record). Soon thereafter, on February 21, 1991, the
Commission held a public hearing5 on the proposal to adopt
guidelines for newsracks and, ultimately, adopted the following
guideline:
Publication distribution boxes (any boxes
placed on the sidewalks to distribute
publications, whether for charge or not)
visible from a public way are not allowed
within the District.
In its decision, the Commission indicated that the publication
distribution guideline ("PDG") was consistent with its guideline
banning freestanding signs and the Commission's decisions denying
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4 Although notice of this meeting was mailed to the Newspapers'
main offices, notice was not received by their Circulation
Departments and, of the Newspapers, only the TAB appeared and
commented on the petition.
5 Again, although notice was mailed, the Newspapers' Circulation
Departments did not receive the notice and, thus, did not attend.
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the installation of traffic signal control boxes on the
sidewalks, and the regulation of the installation of a cable
television system in the District.
A few months later, on April 1, 1991, the Commission
notified the Newspapers of the new guideline. One month later,
it requested that the Newspapers remove their newsracks by June
1, 1991. Then, after the Newspapers requested that the
Commission reconsider its decision to adopt its regulation, the
Commission heard testimony from the Newspapers in July, 1991.
After voting to deny reconsideration, the Commission extended the
removal deadline until October 1, 1991. Within a month, the
Newspapers brought suit in district court seeking declaratory
relief, damages, and preliminary and permanent injunctive relief
from the regulation, on the grounds that it violated their First
Amendment right to distribute newspapers in the District.
After a bench trial on stipulated facts, the court
ruled from the bench that the regulation offended the First
Amendment:
. . . , "instead of being narrowly tailored
with respect to the limitation on speech[,
the PDG] is narrowly tailored to focus only
on speech. It applies to no form of visual
clutter other than public[ation] distribution
boxes. . . ." Significantly, the trial judge
was "troubled whether there is statutory
authority for the particular kind of
legislative rule making" illustrated by the
guideline. He did not decide the case on
state law grounds, however, because "the
questions about the Architectural
Commission's authority are at least debatable
on the present record . . . and perhaps would
require some supplementation of the record in
order for the Court to resolve them. . . ."
-8-
Globe Newspaper, 40 F.3d at 20 (quoting bench trial transcript).
_______________
After the bench ruling but before judgment had entered,
the Commission adopted a new guideline--the present Street
Furniture Guideline--that bans all "street furniture," not just
newsracks, from the District:
Street furniture, as defined below, shall not
be permitted in the Historic Beacon Hill
District with the exception of approved
store-front merchandise stands and those
structures erected or placed by authorized
public agencies for public safety and/or
public welfare purposes. Street furniture is
defined as any structure erected or placed in
the public or private ways on a temporary or
permanent basis.
Authorized public safety/public welfare
street furniture includes, but is not limited
to, such structures as street lights, traffic
lights, mail boxes, fire hydrants, street
trees, and trash receptacles. Any such
authorized public safety/public welfare
street furniture or approved store-front
merchandise stands shall be subject to
Commission review and shall be in keeping
with the architectural and historic character
of the District and the criteria for exterior
architectural features as specified in
Chapter 616 of the Acts of 1955 as amended.
Having done so, the Commission moved for reconsideration of the
judgment, arguing that the new guideline was free from the
constitutional defects of the old. This time, the district judge
not only held that the new guideline fared no better under the
First Amendment, but also that the Commission lacked authority
under Massachusetts law to adopt the new regulation.6 See Globe
___ _____
Newspaper, 847 F. Supp. at 189.
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____________________
6 We decline the Commission's invitation to pass upon the
validity of the original regulation as that issue is moot.
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DISCUSSION
DISCUSSION
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I. The First Amendment and the Street Furniture Guideline
I. The First Amendment and the Street Furniture Guideline
A. Standard of Review
A. Standard of Review
In an appeal from an adverse ruling after a bench trial
on the merits, our review is ordinarily quite circumscribed: we
review de novo the district court's legal determinations,
________
according a significant amount of deference to the court's
factual determinations and to most of its resolutions of mixed
fact/law issues, letting them stand unless they are clearly
erroneous. See AIDS Action Comm. v. MBTA, 42 F.3d 1, 7 (1st
___ _________________ ____
Cir. 1994). In a case such as this one, however, "where the
trial court is called upon to resolve a number of mixed fact/law
matters which implicate core First Amendment concerns, our
review, at least on these matters, is plenary so that we may
reduce the likelihood of "'a forbidden intrusion on the field of
free expression.'" Id. (quoting Bose Corp. v. Consumers Union of
___ __________ __________________
U.S., Inc., 466 U.S. 485, 499 (1984) (quoting New York Times Co.
____ ____ __________________
v. Sullivan, 376 U.S. 254, 285 (1964))). Besides furthering
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other interests, see AIDS Action, 42 F.3d at 7, "de novo review
___ ___________ _______
of the trial court's application of a First Amendment standard to
the facts before it "ensures that the federal courts remain
zealous protectors of First Amendment rights." Id. (quoting
___
Duffy v. Sarault, 892 F.2d 139, 142-46 (1st Cir. 1989)).
_____ _______
B. Legal Framework
B. Legal Framework
The First Amendment states that "Congress shall make no
law . . . abridging the freedom of speech, or of the press."
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U.S. Const. amend. I. It is beyond dispute that the right to
distribute newspapers is protected under the First Amendment.
See City of Lakewood v. Plain Dealer Publishing Co., 486 U.S.
___ _________________ ____________________________
750, 768 (1988); Lovell v. Griffin, 303 U.S. 444, 452 (1938);
______ _______
Gold Coast Publications, Inc. v. Corrigan, 42 F.3d 1336, 1343
______________________________ ________
(11th Cir. 1994), cert. denied, ___ U.S. ___, 116 S. Ct. 337
____________
(1995). Here, the parties do not dispute that the Street
Furniture Guideline effectively bans the use of newsracks as a
method of distributing newspaper in the District. The issue, of
course, is whether under the circumstances of the case, the
Newspapers' First Amendment rights are impinged. We know that
few constitutional rights, if any, are absolute, and in most
constitutional litigation what courts are called upon to do is to
balance competing fundamental rights. See, e.g., Denver Area
___ ____ ___________
Educ. Telecommunications Consortium, Inc. v. Federal
_________________________________________________ _______
Communications Comm'n, ___ U.S. ___, ___; 116 S. Ct. 2374, 2384
_____________________
(1996); Board of County Comm'rs v. Umbehr, ___ U.S. ___, ___; 116
_______________________ ______
S. Ct. 2342, 2352 (1996). Such is the present situation.
It is by now axiomatic that the degree of protection
provided by the Constitution depends "on the character of the
property at issue." Perry Educ. Ass'n v. Perry Local Educators'
_________________ ______________________
Ass'n, 460 U.S. 37, 44 (1983).7 In the instant case, the
_____
____________________
7 Distinguishing between, say, commercial and non-commercial
speech is a relevant factor. See, e.g., Board of Trustees v.
___ ____ __________________
Fox, 492 U.S. 469, 480 (1989). Here, we need not make precise
___
classifications because we test, and ultimately uphold, the
Street Furniture Guideline under the more stringent standards
governing noncommercial speech.
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"property at issue" is the District's streets and sidewalks. The
Supreme Court has repeatedly recognized public streets "as the
archetype of a traditional public forum." Frisby v. Schultz, 487
______ _______
U.S. 474, 480 (1988) (noting that "[n]o particularized inquiry
into the precise nature of a specific street is necessary" as all
public streets are public fora). In these traditional public
fora, "places which by long tradition or by government fiat have
been devoted to assembly and debate," Perry, 460 U.S. at 45,
_____
government's authority to restrict speech is "sharply
circumscribed." Id. As the Court in Perry explained,
___ _____
[f]or the state to enforce a content-based
exclusion it must show that its regulation is
necessary to serve a compelling state
interest and that it is narrowly drawn to
achieve that end.
Id. In traditional public fora, content-based restrictions are
___
presumptively invalid and subject to "strict" scrutiny. See,
___
e.g., Ackerly Communications of Mass., Inc. v. City of Cambridge,
____ _____________________________________ _________________
88 F.3d 33, 36 (1st Cir. 1996); National Amusements, Inc. v. Town
_________________________ ____
of Dedham, 43 F.3d 731, 736 (1st Cir. 1995). The Court in Perry
_________ _____
made clear, however, that in traditional public fora
[t]he state may also enforce regulations of
the time, place, and manner of expression
which are content-neutral, are narrowly
tailored to serve a significant government
interest, and leave open ample alternative
channels of communication.
Perry, 460 U.S. at 45. Such time, place, and manner regulations
_____
are subject to "intermediate" scrutiny. See, e.g., National
___ ____ ________
Amusements, 43 F.3d at 736.
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Given the "differing analytic modalities, it is
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unsurprising that many First Amendment battles over the
constitutionality of government regulations start with a debate
about what level of scrutiny is appropriate." Id. at 737. The
___
instant case is no exception. The key issue is thus determining
whether the Street Furniture Guideline is content-based or
otherwise has a content-based impact in which publications,
particularly newspapers, are singled out for negative treatment,
as is claimed by the Newspapers, or is content neutral on its
face and application, as is alleged by the Commission. The
answer to this inquiry will allow us to establish what level of
scrutiny, strict or intermediate, is appropriate, a finding which
will ultimately settle the outcome of this controversy.
C. Content-Neutrality and Content-Based Impact
C. Content-Neutrality and Content-Based Impact
As this circuit has noted, "[t]he concept of what
constitutes a content-based as opposed to a content-neutral
regulation has proven protean in practice." Id. at 737. The
___
Court's cases "teach that the 'principal inquiry in determining
content neutrality, in speech cases generally and in time, place,
or manner cases in particular, is whether the government has
adopted a regulation of speech because of disagreement with the
message it conveys.'" Id. (quoting Ward v. Rock Against Racism,
___ ____ ___________________
491 U.S. 781, 791 (1989)). "A regulation that serves purposes
unrelated to the content of expression is deemed neutral, even if
it has an incidental effect on some speakers or messages but not
others." Ward, 491 U.S. at 791.
____
Under this test, the Street Furniture Guideline seems
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to be the very model of a content-neutral regulation. It does
not make or otherwise demand reference to the content of the
affected speech, either in its plain language or in its
application. Indeed, as applied to newsracks, it operates as a
complete ban without any reference to the content of a given
publication whatsoever: uniquely concerned with the physical
structure housing the speech, it restricts only the mode of
distribution and would plainly apply even if they were empty. As
such, it seems to be an example of the very kind of total ban on
newsracks which Justice Stevens was willing to assume arguendo
________
might be constitutional in City of Cincinnati v. Discovery
___________________ _________
Network, Inc., 507 U.S. 410, 427-28 (1993) (holding ban on
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newsracks to be content-based because determining whether a
newsrack fell within ban required reference to a publication's
content).8 Furthermore, like the ban on posted signs which the
Court upheld in City of Los Angeles v. Taxpayers for Vincent, 466
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____________________
8 Commenting on Justice Steven's observation in Discovery
_________
Network, the district court noted that "[t]he notion seems
_______
strange that a broader ban on speech is more acceptable than a
narrower ban." Globe Newspaper, 847 F. Supp. at 195-96 (citing
________________
Justice Rehnquist's dissenting statement in Discovery Network
__________________
that "it scarcely seems logical that the First Amendment compels
such a result"). Discussing whether First Amendment doctrine
creates--to use the district court's phrase--a "perverse
incentive to regulate more speech," id. at 195, does not alter
___
out ultimate conclusion that the present regulation is content-
neutral. We, therefore, decline the invitation to engage in this
unnecessary dialogue. We note in passing, however, that it is
not unprecedented in constitutional jurisprudence that "broader"
regulations are constitutional while "narrower" ones are not.
See, e.g., 44 Liquormart, Inc. v. Rhode Island, ___ U.S. ___,
___ ____ ____________________ ____________
___, 116 S. Ct. 1495, 1513 n.20 (1996) (citing R.A.V. v. St.
______ ___
Paul, 505 U.S. 377 (1992) and Cincinnati v. Discovery Network,
____ __________ _________________
507 U.S. 410 (1993)).
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U.S. 789, 804-05 (1984), the Street Furniture Guideline is
directed at aesthetic concerns and is unrelated to the
suppression of ideas: indeed, nothing in the record suggests
that the challenged regulation arose out of an effort to suppress
any particular message communicated through the newsracks, nor do
the Newspapers even contend as much.9 That the Street Furniture
Guideline results in a total ban on newsracks is nothing more
than an incidental effect of its stated aesthetic goal of
enhancing the historic architecture of the District by reducing
visual clutter: there is nothing in the record to contradict
this.
The Newspapers contend, however, that this directive
has a content-based impact, because it singles out publishers,
and most significantly daily newspapers, serving Boston for
special, negative treatment. In advancing its "targeting,"
"differential treatment," and "censorial effects" arguments, the
Newspapers urge us to test the Street Furniture Guideline against
Minneapolis Star & Tribune v. Minnesota Comm'r of Rev., 460 U.S.
___________________________ ________________________
575 (1983), and Leathers v. Medlock, 499 U.S. 439 (1991). The
________ _______
district court, in their view, correctly concluded that because
the regulation exempts store-front merchandise and public
safety/welfare structures, it singles the press for special
____________________
9 We note further there is no suggestion, let alone argument,
that the Street Furniture Guideline is content-based because it
is "format-based," applying only to print media, or
"distribution-based," applying only to newsracks: in other
words, no argument that the SFG is designed to suppress a
particular message carried only through either of these two
media.
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treatment and, thus, raises "similar concerns . . . of 'censorial
effects'" as found by the Court in Minneapolis Star. Globe
________________ _____
Newspaper, 847 F. Supp. at 199.
_________
We disagree. As an initial matter, we are of the view
that reliance upon Minneapolis Star by both the Newspapers and
_________________
the district court is misplaced in the instant case. First,
Minneapolis Star, one of a line of cases establishing rules for
________________
the economic regulation of the press, did not involve a time,
place and manner restriction. The tax on newsprint there was
held unconstitutional, because it applied only to the press and
discriminated in favor of one class of publishers over another;
i.e., it was not generally applicable. Minneapolis Star, 460
___ ________________
U.S. at 581. More importantly, unlike the Street Furniture
Guideline which adversely affects only one method of
distribution, the regulation there rendered all forms of
circulation more burdensome. Second, unlike the case of a
discriminatory tax, the Commission asserts, and the Street
Furniture Guideline present regulation advances, colorable non-
content-discriminatory purposes: aesthetics. Last, we believe
it is not coincidental that neither of the two newsrack cases
decided by the Court, Discovery Network and Plain Dealer, engaged
_________________ ____________
in a Minneapolis Star analysis. Indeed, none of the cases that
________________
have dealt with restrictions on newsracks have found the
_________
restrictions to be content-based, have a content-based impact, or
otherwise trigger strict scrutiny because they singled-out the
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press for regulation; in fact, Minneapolis Star is not even
_________________
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mentioned in the two newsrack cases decided by the Court. See
___
generally Discovery Network, 507 U.S. 410; Plain Dealer, 486 U.S.
_________ _________________ ____________
750.10 That aside, even "inspect[ing] this case through the
precedential prism of Minneapolis Star and Leathers," National
________________ ________ ________
Amusements, 43 F.3d at 740, leaves us unpersuaded that there is a
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cognizable basis for invoking strict scrutiny.
In National Amusements, a panel of this court
_____________________
extensively discussed Minneapolis Star and Leathers. After
_________________ ________
noting the Court's statement in Minneapolis Star that
_________________
"differential treatment, unless justified by some special
characteristic of the press, suggests that the goal of the
regulation is not unrelated to suppression of expression, and
[that] such a goal is presumptively unconstitutional,"
Minneapolis Star, 460 U.S. at 585, the panel went on to discuss
________________
that in Leathers "the Court refined the analysis it had crafted
________
in Minneapolis Star[.]" National Amusements, 43 F.3d at 739.
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Leathers explains "that targeting engenders strict scrutiny only
________
when regulations (1) single out the press, (2) take aim at a
small group of speakers, or (3) discriminate on the basis of the
content of protected speech." Id. at 739-40. Essentially, then,
___
because the Street Furniture Guideline does not discriminate on
the basis of content, the Newspapers' arguments for strict
____________________
10 The only mention of Minneapolis Star is in Chief Justice
________________
Rehnquist's dissent in Plain Dealer, 486 U.S. at 797 & n.17
_____________
(finding Minneapolis Star-based argument that provision was
_________________
invalid because it applied only to newsracks and not other
"users" of the public streets to be "inapposite and unpersuasive"
in that case).
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scrutiny based on targeting and differential treatment hinge on
one or both of the first two criteria identified in Leathers.
________
We note first that, to the extent the Newspapers'
"targeting" and "differential treatment" arguments essentially
rest upon the notion that strict scrutiny is always justified
when the practical effect of a regulation is to regulate the
First Amendment rights of a select group, this notion is
misguided. National Amusements, 43 F.3d at 739. Simply put,
____________________
this notion
flies in the teeth of the secondary effects
doctrine. Under [this] formulation, any
regulation that has an effect on fewer than
all First Amendment speakers or messages
could be deemed to be a form of targeting and
thus subjected to strict scrutiny. Yet the
Supreme Court has recognized that a
municipality lawfully may enact a regulation
that "serves purposes unrelated to the
content of expression . . . even if it has an
incidental effect on some speakers or
messages but not others."
Id. at 740 (quoting Ward, 490 U.S. at 791). More importantly,
___ ____
[i]n Minneapolis Star, the Court did not
________________
condemn all regulations that single out First
Amendment speakers for differential
treatment; rather, the Court acknowledged
that certain forms of differential treatment
may be "justified by some special
_________________________________
characteristic" of the regulated speaker.
______________
National Amusements, 43 F.3d at 740 (quoting Minneapolis Star,
___________________ ________________
460 U.S. at 585 (emphasis added)). Most relevant to the instant
case, noting that "[s]econdary effects can comprise a special
characteristic of a particular speaker or group of speakers,"
this court concluded that "the language . . . quoted from
Minneapolis Star comfortably accommodates an exception to the
_________________
-18-
prohibition on differential treatment for regulations aimed at
secondary effects, so long as the disparity is reasonably related
to a legitimate government interest." National Amusements, 43
____________________
F.3d at 740.
The Street Furniture Guideline falls within that
exception. As an initial matter, we note that there is no
indication that the Commission's alleged "targeting" or
"differential treatment" was done in a purposeful attempt to
interfere with the Newspapers' First Amendment activities: while
it clearly takes away one method of distribution, other methods
are left untouched. See ante at 5 n.1 and at 6 n.3; see also
___ ____ ________
Gold Coast, 42 F.3d at 1345 (rejecting disparate treatment
___________
argument where there was no evidence regulation was enacted
because of a dislike with the message conveyed). Cf. Leathers,
___ ________
(finding tax measure avoided pitfalls because, for example, there
was "no indication" that Arkansas "targeted cable television in a
purposeful attempt to interfere with . . . First Amendment
activities").
More importantly, "street furniture" can obviously
create or add to visual clutter in different ways such that
solutions calling for differential treatment might be warranted.
Cf. Renton v. Playtime Theaters, Inc., 475 U.S. 41, 49 (1985)
___ ______ ________________________
(noting that city treats certain movie theaters differently based
on the markedly different effects upon their surroundings). See
___
Discovery Network, 507 U.S. at 430 (noting that unlike speech in
__________________
Renton "there [were] no secondary effects attributable to" the
______
-19-
commercial-publication newsracks that distinguished them from the
non-commercial publications newsracks). While the Newspapers
complain that the Street Furniture Guideline "affects no other
similarly situated object" in the District, the truth of the
matter is that there simply is no other such object. Not only is
there no record evidence that any other entity--public or
private--uses newsracks or other objects that are similarly
anchored to lampposts, signposts, or fixtures on the sidewalks to
distribute its product to the public, but there is also no record
evidence that such an entity would not be subject to the
challenged regulation. In our view, that there is no such
evidence, let alone a suggestion to that effect, only underscores
the "uniqueness" of the newsracks and the way in which they
impact upon the District.
In reaching our conclusion, we are not swayed by the
district court's findings that "[g]overnmentally-placed street
furniture is exempted, and merchandise-store fronts are subjected
to no more stringent review than they ever were" and/or that the
"only apparent effect of the [Street Furniture Guideline] will be
the removal of [the Newspapers'] publication boxes." Globe
_____
Newspaper, 847 F. Supp. at 199. Contrary to the Newspapers'
_________
contentions, that exempt street furniture, store-front signs, or
other tangible signs of modern life may also constitute or add to
"visual clutter" does not necessarily render the differential
treatment unjustified: this argument ignores legitimate, if not
obvious, differences among those on-street or other visible
-20-
objects that are essential to the public safety and welfare--
street and traffic lights, mail boxes, fire hydrants, street
trees, traffic and parking signs, trash receptacles, parking
meters and hitchposts--and the preferred distribution means of
private entities. See Plain Dealer, 486 U.S. at 797-98
___ _____________
(Rehnquist, J., dissenting) (finding difference between "public
services of a quasi-governmental nature" and newsracks to be
significant). Although the record is devoid of any facts
regarding store-front stands,11 the Newspapers' argument also
seems to ignore practical and historical differences between
merchants' on-site signs and bulky newsracks anchored along the
sidewalks. It is safe to assume, at least in the absence of
record evidence to the contrary, that the newsracks' overall
bulky structure is reasonably predictable as compared to store-
front signs, which lend themselves more readily to case-by-case
review: designing the newsracks' appearance may reduce their
complained-of "unsightliness" but it does not eliminate their
complained-of "congestion and inconvenience."
Perhaps most importantly, we disagree with the district
court's conclusion that, as in Minneapolis Star, "[s]imilar
_________________
concerns . . . in the sense of 'censorial effects' are raised by
the . . . Street Furniture Guideline[]," Globe Newspaper, 847 F.
_______________
Supp. at 199. Not only is there no record evidence to support
____________________
11 Interestingly enough, the Newspapers did not raise the
differential treatment of store-front signs when they challenged
the first regulation banning newsracks, despite the fact that it
would have the same effect of exempting those structures.
-21-
the conclusion that, because of the regulation, publishers might
be chilled by the threat of restrictions on other methods of
distribution, we fail to countenance any reasonable basis upon
which to ground such a fear: none of the other methods of
distribution depend upon structures which are subject to the
Commission's jurisdiction. Furthermore, because it is a complete
ban upon newsracks, it does not provide for, or otherwise grant,
the Commission any--let alone unbridled--discretion in
determining what newsracks will be allowed. See Plain Dealer,
___ ____________
486 U.S. at 769-72. As to the Newspapers' claim that the
censorial effects of the Street Furniture Guideline extend beyond
the District, we find nothing in the record, other that this bald
assertion, to merit such a conclusion. The allegation that this
regulation "sends affected publishers the message that if they
criticize, annoy or otherwise offend any official with power over
any forum, they may face another expensive and futile court
battle" implies that the Commission has acted in a retaliatory
manner by enacting this legislation, an argument which is totally
unsupported by any evidence.
Finally, we are unpersuaded by the Newspapers claim
that, because the regulation deprives publishers of an already
significant and still growing percentage of their readers, its
impact is hardly "incidental." While, as alleged by the
Newspapers, newsracks may indeed be the "indisputable workhorse"
of the daily press (a contention belied by the evidence regarding
the District, ante at 5 n.1), nothing in the record suggests, let
____
-22-
alone demonstrates, how the removal of the District's newsracks
is so burdensome that it is not "incidental." As we see it, the
Newspapers' complaint boils down to the potential reader passing
through the District or the non-subscribing resident and, as we
discuss later, ample alternative channels exist for the
Newspapers to reach even these accidental transients passing
through the District as well as those readers with more frequent
ties to the District.
In sum, we find no cognizable basis for invoking strict
scrutiny and, thus, apply an intermediate level of scrutiny.
D. The Street Furniture Guideline Under Intermediate Scrutiny
D. The Street Furniture Guideline Under Intermediate Scrutiny
Strict scrutiny aside, restrictions on the time, place
and manner of protected expression in a public forum--and the
Street Furniture Guideline's effective ban on newsracks upon the
District's public and private ways certainly qualifies as such a
restriction--should be upheld so long as they are "content-
neutral, . . . narrowly tailored to serve a significant
governmental interest, and allow for reasonable alternative
channels of communication." Perry, 460 U.S. at 45. See
_____ ___
Discovery Network, 507 U.S. at 428-431 (applying time, place, and
_________________
manner test to regulation of newsracks in public forum); Plain
_____
Dealer, 486 U.S. at 763 (noting that the Court would apply time,
______
place, and manner test to a hypothetical ordinance completely
prohibiting a particular manner of expression); see also National
________ ________
Amusements, 43 F.3d at 741 (citing other cases). Cf. Capitol Sq.
__________ __ ___________
Review Bd. v. Pinette, ___ U.S. ___, ___, 115 S. Ct. 2440 (1996)
__________ _______
-23-
(noting that "a ban on all unattended displays . . . might be" a
reasonable, content-neutral time, place and manner restriction).
As we have already discussed, the Street Furniture Guideline is
content-neutral. We turn, thus, to the remainder of the
analysis.
Aesthetics: A Significant Government Interest?
Aesthetics: A Significant Government Interest?
Pointing to the fact that preservation of the District
"as a landmark" is mandated by state law, see Acts of 1955, ch.
___
616, 12, the Commission contends that its interest in
preserving the District's historic and architectural character is
a substantial government interest that justifies a narrowly
tailored restriction. The Newspapers roundly disagree, arguing
that the Commission's invocation of its statutory purpose cannot
justify a ban of newsracks in a public forum. The district
court did not decide either way. Instead, it took for granted
that the Commission satisfied the significant government interest
prong when it "assume[d] arguendo that the Commission's
[a]esthetic interest is greater than that of the average
community, because [the District] has been designated a special
historic district." Globe Newspaper, 847 F. Supp. at 194.
_______________
The Commission has certainly met the "significant
governmental interest" prong. On more than one occasion, the
"Court has recognized aesthetics . . . as [a] significant
government interest[] legitimately furthered through ordinances
regulating First Amendment expression in various contexts." Gold
____
Coast, 42 F.3d at 1345 (citing cases). Although there is no need
_____
-24-
to accord the Commission a greater than average interest in
aesthetics, it would not be unreasonable to do so given its
statutory mandate as well as the District's significance to both
Massachusetts and the nation as a whole, as evidenced by its
designation as a National Historic Landmark. See 36 C.F.R. 65.2
___
(stating that such designations are reserved for "properties of
exceptional value to the nation as a whole rather than to a
particular State or locality").
We are not swayed by the Newspapers' claim that the
Commission's aesthetic interests cannot constitute a significant
government interest where a ban in a public forum is involved.
Although it did not explicitly address, or otherwise test, the
legitimacy of aesthetics through a public forum lens, the Court
in Discovery Network acknowledged that the city's asserted
__________________
interest in aesthetics was an "admittedly legitimate" interest
justifying its regulation of sidewalk newsracks. Discovery
_________
Network, 507 U.S. at 424-425 (holding that newsrack regulation's
_______
distinction between commercial and non-commercial speech bore no
relationship "whatsoever" to its asserted aesthetic interest).
Indeed, the Newspapers' contentions to the contrary, there is
abundant authority for the proposition that aesthetic interests
constitute a significant government interest justifying content
neutral, narrowly tailored regulations of a public forum that
leave open ample alternative channels. See, e.g., Gold Coast, 42
___ ____ __________
F.3d at 1345 (recognizing aesthetics as "significant government
interest[]" when upholding ordinance regulating newsracks in
-25-
traditional public forum); Chicago Observer, Inc. v. City of
_______________________ ________
Chicago, 929 F.2d 325, 328 (7th Cir. 1991) (upholding regulation
_______
of newsracks' advertising and size as justified by "[c]ities'
[interest in] curtail[ing] visual clutter, for aesthetic and
safety reasons"); Plain Dealer, 794 F.2d at 1147 (recognizing
_____________
aesthetics as a "substantial" government interest justifying
total ban of newsracks in residential areas).
Our conclusion that the Commission's specified
interests are "significant" does not end the inquiry. As "[i]n
most cases, the outcome [of this prong] turns not on whether the
specified interests are significant, but rather on whether the
regulation is narrowly tailored to serve those interests." Gold
____
Coast, 42 F.3d at 1345.
_____
Is the Street Furniture Guideline Narrowly Tailored?
Is the Street Furniture Guideline Narrowly Tailored?
As the district court correctly set forth, the Court in
Ward "explained that the narrow tailoring requirement does not
____
mandate a least restrictive means analysis: '[r]ather, the
requirement of narrow tailoring is satisfied so long as the . . .
regulation promotes a substantial government interest that would
be achieved less effectively absent the regulation.'" National
________
Amusements, 43 F.3d at 744 (quoting Ward, 491 U.S. at 799). The
__________ ____
regulation will be valid if it does not burden "substantially
more" speech than is necessary to further the government
interest. Ward, 491 U.S. at 799; see Gold Coast, 42 F.3d at
____ ___ ___________
1345. Where aesthetic interests are at play, the challenged
regulation must be judged by overall context: the government
-26-
must show that the regulation of the feature at issue "would have
more than a negligible impact on aesthetics," which generally
requires that the government be making a bona fide or
___________
"comprehensive coordinated effort" to address aesthetic concerns
in the affected community. See Metromedia, Inc. v. San Diego,
___ ________________ _________
453 U.S. 490, 531 (1980).
In a nutshell, the district court held that the
challenged regulation did not pass muster under the First
Amendment because the Commission "has shown no reason why its
interest in preserving the architectural and historic character
of the [D]istrict cannot be met by, for example, subjecting
newsracks and other street furniture to the same review process
as store-front merchandise racks." Globe Newspaper, 847 F.Supp.
_______________
at 194. In reaching this conclusion, the district court took its
cue from the Court's statement in Discovery Network: while a
_________________
regulation need not satisfy the "least-restrictive-means" test,12
"if there are numerous and obvious less-burdensome alternatives
to the restriction on . . . speech, that is certainly a relevant
consideration." Discovery Network, 507 U.S. at 417 n.13.13 With
_________________
____________________
12 See Gold Coast, 43 F.3d at 1346 n.12 (noting that reliance on
___ __________
newsrack cases using "least restrictive means" is misplaced due
to subsequent Supreme Court cases rejecting that standard).
13 Although the Court in Discovery Network made this observation
_________________
while applying the test applied to commercial speech, see, e.g.,
___ ____
Board of Trustees, 492 U.S. at 480, "[b]ecause commercial speech
_________________
receives less First Amendment protection than does non-commercial
speech . . . and [because] intermediate scrutiny also does not
impose a 'least-restrictive-means' analysis, . . . , [this
observation] clearly applies to determinations of narrow
tailoring under intermediate scrutiny." Chesapeake & Potomac
_____________________
Telephone Co. of VA v. United States, 42 F.3d 181, 199 n.29 (4th
___________________ _____________
-27-
this in mind, the district court observed that
[t]he SFG assumes that "street lights,
traffic lights, mail boxes, fire hydrants,
street trees, and trash receptacles," can be
designed in such a fashion that they will be
"in keeping with the architectural and
historic character of the District." The
same is true for store-front merchandise
stands. . . . There is no showing that
newsracks are any more inherently out of
keeping with the architectural character of
the [District] than other modern innovations
that have been approved by the Commission on
the basis of their external design features.
Globe Newspaper, 847 F. Supp. at 194-95. In the district court's
________________
view, "the preference given to 'public' street furniture and
store-front stands . . . [i]s evidence that the [Street Furniture
Guideline] . . . is . . . not narrowly tailored," id., and
___
"burdens substantially more speech than is necessary to serve the
Commission's interest in preserving the character of the
District," id. The Newspapers contend that this is correct.
___
We disagree, and conclude that the regulation is
narrowly tailored. First, and without a doubt, it promotes the
Commission's significant or substantial14 government interest in
preserving the District's aesthetics: as the SJC observed, "the
[C]ommission has determined that [newsracks] are inappropriate,
in part because they did not exist at the time with which the
____________________
Cir. 1994).
14 "The term 'significant interest' is equivalent to the terms
'important interest' and 'substantial interest,' and these
phrases are often used interchangeably." Rodney A. Smolla &
Melvin Nimmer, A Treatise on The First Amendment, 3.02[3][A] at
_________________________________
3-36 & n.95 (1994) (noting that Ward, 491 U.S. at 796, uses
____
"significant" and "substantial" in adjacent sentences).
-28-
[C]ommission's preservation efforts are concerned." Globe
_____
Newspaper, 421 Mass. at 721. Second, as the Report's review of
_________
the five available alternatives15 indicate, the Commission's
aesthetic interest in preserving the District's historic and
architectural character would not be achieved as effectively,
absent the regulation: banning the newsracks would effectively,
as the Commission's Report observed, most completely "reverse"
their inappropriateness and "be most consistent with the purposes
of the [D]istrict."16 Exhibit H at 7. Finally, it does so
____________________
15 The dissent levels several attacks at the Commission's
consideration of the five available alternatives. We believe
that none of these contentions withstand scrutiny. First, if, by
requiring that the Commission "actively consider[] alternative
newsrack design proposals," the dissent means to suggest that the
Commission was required to implement or experiment with other
alternatives before finally choosing the total ban, we simply
disagree that Discovery Network requires this.
_________________
Second, that the Commission failed to send notice of
the public hearing to the plaintiffs' circulation departments is
irrelevant because the Commission granted a reconsideration
hearing upon the Newspapers' request after the original ban was
promulgated.
Finally, we disagree with the dissent's last point that
the Commission's failure to regulate newsracks on an
individualized basis, as it does some other appurtenances,
displays a decision lacking careful calculation. That the
Commission has chosen a total ban on only newsracks, and applied
different measures more relevant to the other appurtenances,
shows that the Commission made its determination based on the
interests and concerns uniquely related to newsracks.
16 The dissent contends that the Commission's actions -- holding
two public meetings, conducting a survey, publishing a study, and
taking additional testimony at the Newspapers' request -- do not
evidence a "carefully calculated" determination that the ban on
newsracks is the most suitable solution "proportionate to the
resulting burdens on any protected First Amendment activity."
See post at 5-6 (citing Discovery Network, 507 U.S. at 416
___ ____ __________________
n.12). The dissent suggests that the Commission's decision was
not "carefully calculated" because it failed to employ or
consider incremental, experimental alternatives to a total ban on
newsracks. Id. at 6. We believe, however, that the Commission's
___
-29-
without burdening "substantially more" speech than is necessary:
it does not burden, or otherwise adversely affect, any other
means of distribution, including the use of street vendors in the
public forum. See ante at 5 n.1. Significantly, we note that
___ ____
the district court acknowledged, albeit implicitly, that the
challenged regulation meets this test: nowhere in its opinion
did the district court conclude that the Street Furniture
Guideline would fail to advance the Commission's interest or that
its interest would be achieved as effectively absent the
regulation.
In reaching our conclusion, we are mindful of the
district court's "findings" that the Commission's interest could
not be met by, say, "subjecting newsracks and other street
furniture to the same review process as store-front merchandise
racks," and that it treats some "street furniture" with
"preference." Unlike the district court, however, we do not
conclude that such findings compel a determination--at least in
this case--that the Street Furniture Guideline burden
"substantially more" speech than is necessary to accomplish its
purpose and, thus, is narrowly tailored. While the district
____________________
study, in addition to its other actions, demonstrate that it in
fact carefully calculated its determination of the alternative
that most comprehensively met each of its interests and, at the
same time, burdened no more speech than necessary to further this
interest. See Ward, 491 U.S. at 799. Additionally, we do not
___ ____
read National Amusements to require the Commission to engage in
___________________
experimental employment of alternative measures or otherwise
engage in further calculation of the "suitability" of
alternatives beyond that which its study demonstrates it has
done.
-30-
court correctly considered the fact that less-burdensome
alternatives exist, it gives too much weight to that fact alone.
In so doing, it essentially discounts from the equation Ward's
____
inquiry into whether the Street Furniture Guideline "promotes
[the Commission's interests such] that [they] would be achieved
________
less effectively absent the [Street Furniture Guideline]." Ward,
________________________________________________________ ____
491 U.S. at 799 (emphasis added).17
We explain: As an initial matter, the Court in
Discovery Network explained that the existence of "numerous and
_________________
obvious less-burdensome alternatives . . . is certainly a
_
relevant consideration." Discovery Network, 507 U.S. at 418 n.13
_________________
(emphasis added). Standing alone, this plainly means that, while
"certainly a relevant consideration," id., it is not necessarily
___
a controlling one: i.e., that "numerous and obvious less-
____
burdensome alternatives" exist does not automatically compel the
conclusion that a regulation burdens "substantially more" speech
than is necessary. When read in light of Ward, it becomes clear
____
that less-burdensome alternatives must be considered in
connection with the inquiry into whether, absent the challenged
_____________________
regulation, the government's interests are achieved less
__________ ______________
effectively. Giving too much weight to the existence of
___________
____________________
17 The district court, despite its statement to the contrary,
seems to have applied the "least restrictive means" test when it
calibrated the "narrow-tailoring" scales. In closing, it stated:
"A regulator's declaration of benign purpose cannot justify a
needless burden on rights of expression caused by the regulator's
blunt instrument when finer instruments are available." Globe
_____
Newspaper, 847 F. Supp. at 200.
_________
-31-
alternatives, without calibrating the scales to account for
differences between them and the challenged regulation in terms
of overall effectiveness and impact on aesthetics, may result--as
here--in error: that the record, here, reveals that the
Commission's interests are achieved less effectively absent the
_____________________________________
Street Furniture Guideline was apparently lost in the shuffle.
__________________________
In other words, the Court's qualifier in Discovery
_________
Network must, in turn, be qualified--or, rather, "re-qualified"--
_______
by its language in Ward, lest Ward's explicit rejection of the
____ ____
"least restrictive means" test be reduced to a meaningless
phrase. As the Court made clear in Ward:
____
So long as the means chosen are not
substantially broader than necessary to
achieve the government's interest, however,
the regulation will not be invalid simply
because a court concludes that the
government's interest could be adequately
served by some less-speech-restrictive
alternative. "The validity of [time, place,
and manner] regulations does not turn on a
judge's agreement with the responsible
decisionmaker concerning the most appropriate
method for promoting significant government
interests" or the degree to which those
interests should be promoted.
Ward, 491 U.S. at 800 (quoting United States v. Albertini, 472
____ _____________ _________
U.S. 667, 689 (1985). As the Sixth Circuit observed, the Court
"has repeatedly deferred to the aesthetic judgments of
municipalities and other government bodies when evaluating
restrictions on protected expression." Gold Coast, 42 F.3d at
___________
1346 (citing, among others, Vincent, 466 U.S. at 807, and
_______
Metromedia, 453 U.S. at 512). Of course, as Discovery Network's
__________ _________________
language implicitly reaffirms, courts are not merely to defer to
-32-
the government's subjective judgment; instead, aesthetic
considerations must be judged by overall context and the
government must make its requisite showing. Metromedia, 453 U.S.
__________
at 530.
Under this rubric, while we do not dispute that the
Commission could have adopted a less drastic solution, the fact
_____
that it chose not to does not mean that it did not "carefully
calculate[] the costs and benefits associated with the burden on
speech imposed by [the Street Furniture Guideline]." Discovery
_________
Network, 507 U.S. at 417. In Discovery Network the Court found
_______ _________________
that the city there did not make a careful calculation based on
the fact that it did not address its "recently developed concern
about newsracks by regulating their size, shape, appearance, or
number." Id. In this regard, it also noted that the "benefit to
___
be derived from the removal of 62 newsracks while about 1,500-
2,000 remain in place was considered 'minute' by the [d]istrict
[c]ourt and 'paltry' by the [c]ourt of [a]ppeals." Id.
___
Unlike the city in Discovery Network, however, the
__________________
Commission's actions since newsracks became a subject of concern
in the early 1980s --including survey, report and public
hearings-- demonstrate that it carefully calculated the costs and
benefits. The path it chose to follow--eliminating the newsracks
altogether--is the most effective solution aimed at reducing
visual clutter and preserving the District's historic character.
Designing the newsracks to better "blend in" and conform with the
District's architectural and historic character by having, say,
-33-
an "old-fashioned" or colonial "look," would promote the
Commission's interest by reducing their "unsightliness." It
would not achieve, however, as effective a reduction in "the
visual clutter created by their presence on the sidewalks [which]
clearly detracts from the historic and architectural character of
the [D]istrict,"18 or, for that matter, the long-standing
concerns regarding "congestion and inconvenience."
Our conclusion is not swayed by the Newspapers'
protestations that the Street Furniture Guideline, as applied to
Charles Street (the most commercial in the District), is a "lost
cause" and that the regulation does not remove all evidence of
modern life. It is also not influenced by the district court's
finding that there has been "no showing that newsracks are any
more inherently out of keeping with the architectural character
of the [D]istrict than other modern innovations."19 847 F. Supp.
at 194-95. These contentions miss the point. As the SJC
____________________
18 See The Report, Exhibit H at 2.
___
19 In any event, we disagree with this observation. As the
Agreed Statement of Facts indicates, the District's street
pattern includes many narrow pedestrian streets and lanes. The
newsracks, which began to appear on the scene in the 1980s, are
obviously out of character with the District's street pattern and
it is utterly irrelevant that some streets may not be as narrow
as they once were. Furthermore, as the Agreed Statement of Facts
evidences, much of the exempt "street furniture" that would
constitute "other modern innovations" was installed in the
District long before newsracks came on the scene and, indeed, in
some cases apparently prior to the creation of the District in
1995. That said, we reiterate that this observation ignores the
obvious differences between the public safety/welfare structures
providing indispensable services and private structures erected
on public property whose function, although no doubt important,
can be served in ways that do not require "appropriation" of
public property.
-34-
correctly observed, "the [C]ommission's charge is to preserve
what it can of the . . . District as a tangible reminder of old
Boston. That particular nonconforming uses predated that charge
. . ., or that certain non-conforming uses have since been
allowed to continue, has no effect on ongoing attempts the
[C]ommission makes in preserving the [D]istrict." Id. More
___
importantly, as the Court in Vincent made clear when it rejected
_______
a similar argument, "[e]ven if some visual blight remains, a
partial, content-neutral ban may nevertheless enhance the City's
appearance." Vincent, 466 U.S. at 811 (rejecting argument that
_______
"the validity of the [a]esthetic interest in the elimination of
signs on public property is not compromised by failing to extend
the ban to private property"). Indeed, in contrast to both
Vincent and Metromedia where the regulations were arguably
_______ __________
"partial-solutions," the Street Furniture Guideline completely
tackles the newsracks' visual clutter and inappropriateness by
eliminating them altogether. See Vincent, 466 U.S. at 811
___ _______
(banning signs on public property but not private property);
Metromedia, 453 U.S. at 512 (banning off-site advertising but not
__________
on-sign advertising).
What is more, the Newspapers' argument, which is
implicitly based on the notion that newsracks within the District
may only be regulated as part of a comprehensive beautification
or, better yet, "visual clutter reduction" plan, was rejected
foursquare by the Court in Vincent, 446 U.S. at 807 n.5, and
_______
Metromedia, 435 U.S. at 511-12. See Chicago Observer, 929 F.2d
__________ ___ ________________
-35-
at 328 (making this observation). In any event, we dismiss as
disingenuous the Newspapers' suggestion that the challenged
regulation is not part of a "comprehensive" plan because it does
not ban all "street furniture" or all evidence of modern life:
not only is the Street Furniture Guideline consistent with its
long-standing prohibition against freestanding signs, the
Commission's guidelines, review process, decisions regarding
cable television control boxes and traffic control boxes, not to
mention its thorough approach regarding newsracks, all speak for
themselves. See Gold Coast, 42 F.3d at 1346 (finding city took
___ __________
several steps to enhance its aesthetic interest by convening a
task force, conducting research, and revising ordinance).
Last, but not least, contrary to the Newspapers'
suggestion that the Street Furniture Guideline operates as a
complete ban does not, by itself, mean that it is not "narrowly
tailored." While the Court has clearly "voiced particular
concern with laws that foreclose an entire medium of expression,"
City of Ladue v. Gilleo, ___ U.S. ___, ___, 114 S. Ct. 2038, 2045
_____________ ______
(1994) (invalidating ordinance banning all residential signs),
bans on the use of privately owned structures or displays on
public property have been upheld. See Vincent, 466 U.S. at 804-
___ _______
05 (upholding ban on signs posted on public utility poles).
In Vincent, the Supreme Court addressed a challenge to
_______
an ordinance banning all posted signs in the city brought by
supporters of a political candidate. Vincent, 466 U.S. at 792-
_______
93. The supporters argued that the ban unconstitutionally
-36-
abridged their freedom of speech. Id. at 802-03. The Court
___
recognized that the complete ban, like the ban here, "did no more
than eliminate the exact source of the evil it sought to remedy."
Id. at 808. The Vincent Court compared the sign ban to the
___ _______
ordinance banning handbilling to address littering problems that
the Court struck down in Schneider v. State, 308 U.S. 147 (1939).
_________ _____
In making its determination that the total ban in Vincent was
_______
narrowly tailored to serve the government's interest in
aesthetics, the Court distinguished between the state's
unconstitutional exercise of police power to regulate litter by
prohibiting the distribution of handbills and the constitutional
exercise of that power to completely eliminate the substantive
evil addressed. Unlike the situation of littering, the evil in
Vincent, as here, "is not merely a possible byproduct of the
_______
[protected expressive] activity, but is created by the medium of
expression itself." Id. at 810. The Court held that, because
___
the Vincent regulation directly resolved the evil the city sought
_______
to address, the medium of expression, the regulation was narrowly
tailored to the city's interest in aesthetics and limiting visual
blight. Id. Similarly, the Commission's ban on the use of
___
private newsracks, which are both the exact evil presented and
the medium of expression, is narrowly tailored to the government
interest in eliminating the visual blight and congestion on
public property caused by that evil.
Moreover, unlike cases where the medium of expression
involves the exercise of speech by an individual or where the
-37-
medium is a uniquely valuable mode of expression, see, e.g.,
___ ____
Ladue, ___ U.S. at ___, 114 S. Ct. at 2045 (citing cases), the
_____
medium of expression here is the use of a privately owned
structure placed on public property for which, as we discuss
below, there are ample alternative channels available for the
distribution of the Newspapers' publications.
In sum, we conclude--contrary to the district court--
that the Street Furniture Guideline is narrowly tailored.
The Final Hurdle: Ample Alternative Channels?
The Final Hurdle: Ample Alternative Channels?
The district court did not reach this final prong,20
but we must before the full First Amendment analysis is
completed.
Below, and on appeal, the Commission claims that ample
alternative channels exist. The challenged regulation, it points
out, leaves unaffected the Newspapers' primary means of
distribution within the District: home delivery, sales by
stores, street vendors, and mail. See ante at 5 n.1. Even
___ ____
without newsracks, the Commission highlights, the Newspapers'
publications are available within the District 24-hours a day,
seven days a week, through private stores. Further still, it is
undisputed that no point within the District is more than 1,000
feet (approximately 1/5 of a mile) from a source of publications
and that adjacent to the District numerous additional sources
____________________
20 Although the district court found that the PDG did not leave
open ample alternative channels for free publications, such as
the TAB, it did not make this finding regarding the Street
Furniture Guideline.
-38-
exist, including newsracks:21 this, it emphasizes, is well
within the 1/4 mile distance that the Sixth Circuit found
sufficient in Plain Dealer when it upheld a ban on newsracks in a
____________
residential neighborhood. See Plain Dealer, 794 F.2d at 1147.
___ ____________
Relying on Chicago Newspapers Publishers v. City of
_______________________________ _______
Wheaton, 697 F. Supp. 1464, 1470 (N.D. Ill. 1988) ("[t]he
_______
availability of private sellers is irrelevant"); and Providence
__________
Journal Co. v. City of Newport, 665 F. Supp. 107, 118-19 (D.R.I.
___________ _______________
1987) (same), the Newspapers counter with the argument that the
availability of private sources is irrelevant to the inquiry.
Accordingly, they claim that the only relevant available means of
distribution is the use of street vendors in the public forum.
While street vendors are unaffected by the Street Furniture
Guideline, the Newspapers nonetheless contend that, because the
cost of 24-hour street vending is substantially more burdensome
than placing stationary newsracks, the regulation fails to leave
available any practical or economical alternative to newsracks.
We are unpersuaded by the Newspapers' arguments
regarding street vendors. Without having to address the merits
of whether the availability of private sources is relevant to the
inquiry,22 or resolve whether it is appropriate to rely on the
____________________
21 See ante at 6 n.3.
___ ____
22 Compare Chicago Newspapers, 697 F. Supp. at 1470; Providence
_______ __________________ __________
Journal, 665 F. Supp. at 118-19; with Multimedia Publishing Co.
_______ ____ __________________________
of S.C., Inc. v. Greenville-Spartenburg Airport Dist., 991 F.2d
______________ _____________________________________
154, 160 (4th Cir.1993) (invalidating ban on newsracks in airport
terminal, a non-public forum, due to the lack of market forces
that provide private sources in public fora); Plain Dealer, 794
_____________
F.2d at 1147 (existence of alternative channels on private
-39-
proximity of newsracks on the District's boundaries,23 we
conclude that there are ample alternative channels available for
the distribution of the Newspapers' publications. See ante at 5
___ ____
n.1. Throughout our analysis, we are mindful that "the lens of
inquiry must focus not on whether a degree of curtailment exists,
but on whether the remaining communicative avenues are adequate."
National Amusements, 43 F.3d at 745.
___________________
Here, it is undisputed that the Street Furniture
Guideline does not affect the Newspapers' freedom to exercise
their right to distribute publications through street vendors in
the very public forum--the District's sidewalks--from which the
newsracks are banned. See Vincent, 466 U.S. at 812 (finding
___ _______
ample alternative channels available where ordinance "did not
affect any individual's right to exercise the right to speak and
distribute literature in the same place where the posting of
signs . . . is prohibited"). Thus, without relying on the other
current means of distribution within the District, the numerous
private sources both within and without the District, or the
proximity of newsracks outside the District, we conclude that the
Street Furniture Guideline satisfies this last prong. We note
further that street vendors--or "newsboys" per the Agreed
____________________
property considered).
23 See Chicago Newspapers, 697 F. Supp. at 1471 (noting that
___ __________________
city "cannot rely on other municipalities to rescue them from the
consequences of an improperly drawn ordinance") (citing Schneider
_________
v. State, 308 U.S. 147, 163 (1939) ("[O]ne is not to have the
_____
exercise of his liberty of expression in appropriate places
abridged on the plea that it may be exercised in some other
place.")).
-40-
Statement of Facts--began hawking newspapers on the streets of
Boston in approximately 1844; thus, street vending is an
alternative within the public forum that is consistent with the
District's purpose.
In reaching this conclusion we reject as essentially
irrelevant the contention that the cost of street vendors, let
alone 24-hour street vending, is substantially more costly than
placing a stationary newsrack. The First Amendment does not
guarantee a right to the most cost-effective means of
distribution or the rent-free use of public property. Cf.
__
Capitol Sq. Review Bd. v. Pinette, ___ U.S. ___, ___, 115 S. Ct.
_______________________ _______
2440 (1996) ("It is undeniable, of course, that speech which is
constitutionally protected against state suppression is not
thereby accorded a guaranteed forum on all property owned by the
State."); Regan v. Taxation with Representation, 461 U.S. 540,
_____ _____________________________
546 (1983) (rejecting the notion that "First Amendment rights are
not somehow fully realized unless they are subsidized by the
State"). Moreover, the Newspapers' claim that street vendors are
not a practical alternative is belied by the record, particularly
with respect to the daily papers serving the Boston area: sales
by street vendors for both the Boston Herald and the Boston Globe
_____________ ____________
exceed those by newsracks. See ante at 5 n.1. What is more, the
___ ____
record shows that newsracks come in either last or second-to-last
place in terms of percentage of distribution. Id.
___
While we do not dispute the Newspapers' claims that
newsracks provide a relatively inexpensive means of distribution,
-41-
which in some cases meet distribution needs where others are
either prohibitively expensive or altogether unavailable, nothing
in the record indicates how these concerns are implicated in the
instant case. Indeed, there is nothing in the record to suggest,
let alone show, that the newsracks within the District fulfill a
unique distribution need which is not currently satisfied by
other means of distribution and which could not be satisfied by a
street vendor. As we see it, their claim boils down to the
accidental reader who passes through the District and the
District resident who prefers single-copy sales. Although the
regulation may frustrate the preferences of these readers,
"thwarting . . . an idiosyncratic [or not so idiosyncratic]
preference cannot be equated with a denial of adequate avenues of
communication." National Amusements, 43 F.3d at 745. While the
___________________
Street Furniture Guideline diminishes the total quantity of the
Newspapers' publications within the District, that is a necessary
side effect of almost any restriction on speech: "[a]s long as
restrictions are content-neutral, some diminution in the overall
quantity of speech will be tolerated." Id. (citing Vincent, 466
___ _______
U.S. at 803, 812).24
In addition, our conclusion is not swayed by the
assertion that street vending may not be a viable alternative for
all publications, particularly those that are free, such as the
____________________
24 Were we to widen the scope of relevant alternative sources
beyond street vendors, these potential readers could obtain their
preferred publications from newsracks on their way in and/or out
of the District or from one of the numerous stores carrying them.
-42-
TAB.25 While we are aware that the Court, with good reason, "has
shown special solicitude for forms of expression that are much
less expensive than feasible alternatives and hence may be
important to a large segment of the citizenry, . . . this
solicitude has practical boundaries." Vincent, 466 U.S. at 812
_______
n.30 (citations omitted). Given that the regulation neither
affects the TAB's primary means of distribution, the mail, which
accounts for 79% of its distribution, nor prohibits the use of
street vendors, such "practical boundaries" exist here. In any
event, absent any record evidence regarding the feasibility or
infeasibility of street vending for free publications, such as
the TAB, we are particularly reluctant to treat free publications
differently than those "for charge," or to otherwise alter our
conclusion.
In short, "[a]s the Court phrased it: 'That the city's
limitations on volume may reduce to some degree the potential
audience for respondent's speech is of no consequence, for there
has been no showing that the remaining avenues of communication
____________________
25 When the district court made its bench ruling that the
original regulation did not leave open ample alternative channels
it noted that "there is a special problem" with respect to the
impact upon free publications, such as the TAB. Although the
Newspapers had not raised this issue and despite the absence of
record evidence, the district court's conclusion was based on the
assumption that stores would not have the same economic incentive
to serve as conduits for the distribution of free publications.
Despite the subsequent admission of evidence showing that "no-
charge" publications were carried in the District's stores, the
court did not abandon its "finding" on this point when it
reconsidered its ruling on the new regulation. There is no
mention of this or any other similar finding in the district
court's opinion regarding the Street Furniture Guideline.
-43-
are inadequate.'" National Amusements, 43 F.3d at 745 (quoting
___________________
Ward, 491 U.S. at 802). Here, because the SFG leaves intact an
____
alternative means of distribution within the public forum, and in
the absence of any record evidence "call[ing] into legitimate
question the adequacy of the alternate routes for
[distribution]," National Amusements, 43 F.3d at 745, we conclude
___________________
that the Street Furniture Guideline's effective ban on newsracks
in no way runs afoul of the Newspapers' First Amendment right to
distribute their publications. Accordingly, with this last prong
satisfied, we find that the challenged guideline passes muster
under the First Amendment: it is a reasonable, content-neutral
time, place and manner restriction on the Newspapers' right to
distribute their publications in the District.
Some Additional Thoughts
Some Additional Thoughts
We have considered the Newspapers' other arguments and
find them to be without merit. We pause briefly, however, to
respond to a few of them.
First: Contrary to their contention, and as the
foregoing discussion makes clear, the Street Furniture Guideline
in no way denies the Newspapers the ability to make their
publications available to those "willing to receive" them.
Indeed, there is simply nothing in the record to support this
bald assertion.
Second: We also reject as utterly without merit the
notion that, by upholding a ruling that bans a common and useful
means of newspaper distribution, our decision today opens the
-44-
door to the "piecemeal destruction of the public forum." We are
simply at a loss to see how the public forum is "destroyed" by
such a valid content neutral, time, place and manner restriction
on the distribution of protected speech--particularly where, as
here, the Newspapers are free to distribute their publications
from the very same spot within the public forum where their
newsracks have been located.
Last, but not least: We also dismiss as irrelevant
their claim that the SJC's decision signals a danger for
newsracks in all historic districts: even if this were true, as
long as the regulations are valid content neutral, time, place
and manner restrictions, what of it? As noted above, while the
First Amendment guarantees the right to circulate publications,
it does not guarantee the right to do so through private
structures erected on public property. No one disputes that
regulations governing newsracks, because they facilitate the
distribution of protected speech, are subject to First Amendment
scrutiny. What the Newspapers fail to appreciate is that
newsracks are nothing more than structures occupying, if not
monopolizing, public space on the sidewalks, which--with or
without publications within--simply are not immunized from
regulations passing muster under the First Amendment.
In sum, our opinion today stands unaffected by the
clatter of these alarmist claims. Without more ado, we reverse
the district court's decision.
II. Attorney's Fees
II. Attorney's Fees
-45-
The Commission also appeals from the district court's
award of attorneys fees to the Newspapers as the "prevailing
party" under 42 U.S.C. 1988. In light of our opinion today
reversing the judgment below on the merits, we need not address
the Commission's claims of error. As a judgment in favor of the
Newspapers is reversed on the merits, that party is no longer a
"prevailing party" under 42 U.S.C. 1988 and, thus, no longer
entitled to attorney's fees under that statute. See, e.g., Lewis
___ ____ _____
v. Continental Bank Corp., 494 U.S. 472, 483 (1990); Clark v.
_______________________ _____
Township of Falls, 890 F.2d 625, 626-28 (3d Cir. 1989).
_________________
CONCLUSION
CONCLUSION
__________
For the foregoing reasons, the district court's
decision is reversed, the award of attorneys' fees is vacated,
reversed vacated
and the case remanded to the district court for entry of judgment
in favor of the Commission, and for such further necessary and
appropriate proceedings and orders as are consistent with this
decision.
Costs are granted to Appellant.
______________________________
"Dissent Follows"
-46-
CYR, Circuit Judge (dissenting). As I agree with the
CYR, Circuit Judge (dissenting).
______________
district court, see Globe Newspaper, 874 F. Supp. at 193-95, that
___ _______________
the Commission has yet to establish, inter alia, that its Street
_____ ____
Furniture Guideline is "narrowly tailored," Perry, 460 U.S. at
_____
45; see North Ave. Novelties, Inc. v. City of Chicago, 88 F.3d
___ __________________________ _______________
441, 444 (7th Cir. 1996) (noting that government must show that
its "time, manner, and place" restriction on protected speech is
"narrowly tailored"), I respectfully dissent.
This case turns on whether the Commission established
that its outright ban on all newsracks within the District
represents a reasonable means to its concededly legitimate
regulatory end, in the sense that the ban "is in proportion to
the interest served"; that is to say, "not necessarily the least
restrictive means," but one which is "narrowly tailored to
achieve the desired objective." Cincinnati, 113 S. Ct. at 1510
__________
n.12 (quoting Board of Trustees of State Univ. of N.Y. v. Fox,
_________________________________________ ___
492 U.S. 469, 480 (1989)) (internal quotation marks and citations
omitted). As the Supreme Court has made clear, both in Fox and
___
Cincinnati, the government must demonstrate that it "carefully
__________
calculated" the resulting burdens on expressive activity
protected by the First Amendment, Cincinnati, 113 S. Ct. at 1510
__________
n.12, which involves something more than simply identifying a
legitimate regulatory purpose.
The Commission is specifically charged with preserving
the District as a unique "old Boston" community and the
importance of preserving the architectural and historical
-47-
esthetics within the District, for the benefit of the community,
the Commonwealth, and the Nation, is not in question. See
___
Vincent, 466 U.S. at 806-07. Nonetheless, the sweeping
_______
presumption indulged by the Commission that the nonconforming
nature of all newsracks represents an esthetic blight only an
outright ban can remedy is not entitled to deference in the
First Amendment context. The Commission is required first to
demonstrate that it carefully considered obvious alternative
regulatory means before imposing its outright ban against all
newsracks within the District. See Cincinnati, 113 S. Ct. at
___ __________
1510 n.13 (rejecting "mere rational basis review"). The record
does not demonstrate that the Commission has met its burden.
By the same token, the unquestionable efficiency of a
total ban on all newsracks does not satisfy the "narrow
_____ ___
tailoring" requirement. Otherwise, there would be virtually no
role left to be served by the requirement that governmental
entities "carefully calculate" the burdens their regulatory
actions impose on protected expressive activity, see id. at 1510
___ ___
n.12, since an outright ban will almost invariably prove most
efficient in rooting out unbecoming appurtenances. Moreover,
unlike public-safety regulations, for example, esthetics-based
regulations often stem from subjective assessments not readily
amenable either to objective measurement or empirical refutation,
thereby warranting careful judicial scrutiny. See Metromedia,
___ __________
453 U.S. at 510; see also Ward, 491 U.S. at 793.
___ ____ ____
The historical basis for the Commission ban against all
-48-
newsracks within the District is incontestable: newsracks "did
not exist at the time with which the [C]ommission's efforts are
concerned." While the District is "a tangible reminder of old
Boston," however, it nonetheless remains a contemporary
residential and commercial community. Charles Street, for
example, accommodates numerous modern commercial conveniences
(e.g., gas stations) presumably alien, if not offensive, to the
____
esthetic sensibilities of even the most indurate "old Bostonian."
Thus, notwithstanding the Commission mandate to preserve the
District's colonial and post-colonial characteristics, residents
rely upon (or at least tolerate) many uncharacteristic
obtrusions, at least one of which (cable television boxes)
presumably was introduced after the Commission came into
existence in 1955. Various other anachronous utilities abound as
well including paved roads and sidewalks, automobiles, traffic
signals, streetlights, trash receptacles, mail boxes, and fire
hydrants not only along Charles Street but throughout the
District. Even though many of these nonconforming modernities
are regulated by the Commission often robustly rather than
_________ ___________
banned outright, the Commission concedes that newsracks are the
_______________
only "street furniture" it subjects to an outright ban.
As the district court correctly noted, there can be no
question that an outright ban on all nonconforming modernities
(e.g., as at Plymouth Plantation or Williamsburg) offers the most
____
efficient approach to restoring historical and architectural
integrity. Where the First Amendment is implicated, however,
-49-
efficient governmental regulation must be "narrowly tailored."
Yet the Commission neither demonstrates that "obvious less-
burdensome alternatives" are unavailable, Cincinnati, 113 S. Ct.
__________
at 1510 n.13, nor explains why the ad hoc permitting process it
__ ___
uses to regulate anachronous utilities such as cable television
boxes should not be enlisted for newsrack regulation. Cf.
___
Vincent, 466 U.S. at 808 (noting Metromedia plurality's view that
_______ __________
"[i]t is not speculative to recognize that billboards by their
___ ___________
very nature, wherever located and however constructed, can be
perceived as an `esthetic harm'") (emphasis added).
Furthermore, the Commission has not explained its
rationale for concluding let alone demonstrated, see
___
Cincinnati, 113 S. Ct. at 1510 that a permissible basis exists
__________
for assuming that newsracks, without regard to size, signage,
________
design, color, location or number, cannot comport with its
esthetic standards. See Chicago Newspaper Publishers Ass'n v.
___ ___________________________________
City of Wheaton, 697 F. Supp. 1464, 1470 (N.D. Ill. 1988) (noting
_______________
that city "has not explained . . . how a newsrack on a
residential street destroys the `character' of the neighborhood
any more than a mailbox, utility pole, fire hydrant, or traffic
sign").26 Nor has the Commission shown that any perceived
____________________
26 In its Staff Report, the Commission cites its 1983 and 1990
surveys of the District's newsracks, and identifies five
alternatives: (1) an outright ban on all newsracks; (2) an
outright ban on all newsracks, except those distributing non-
"commercial" speech, whose design and placement would be
regulated; (3) an outright ban on all newsracks in District
residential areas, with design and placement regulations for non-
"commercial" newsracks on Charles Street; (4) no outright ban on
any newsrack, but general regulation of their size, design,
-50-
"visual clutter" could not be addressed by restricting, severely
if necessary, the location (e.g., within the Charles Street
__ _________ ___
"commercial" zone) and the number of newsracks within the
District. Plainly, these obvious alternatives, if efficacious,
____________________
color, location, and attachment; and (5) delaying any District
regulation pending the City's decision whether to regulate
newsracks city-wide. The Staff Report fails to demonstrate the
required "narrow tailoring," for three reasons.
First, the Report was based solely on surveys of then-
_____
existing newsracks, see Commission Staff Report, at 65 ("None of
________ ___
the distribution box designs can be said to be architecturally
appropriate"), and does not consider the feasibility of a
different newsrack design more consonant with the desired
esthetics. Indeed, the analysis of Alternative #4 merely states
that any such design criteria would have "to be drafted" at some
later time. See id. at 68. This plainly does not amount to
___ __
"careful calculation."
Second, the Commission points to no other record evidence
that it ever actively considered alternative newsrack design
proposals. Even though the Commission now acknowledges that it
failed to send notice of its November 15, 1990, public hearing to
______ __ ____ ______
plaintiffs' respective circulation departments, the Staff Report
touts the fact that, after years of public opposition to a
newsrack ban, plaintiffs had lodged no comments at the public
hearing. In a letter to the Commission shortly after the first
guideline was promulgated, however, the Boston Globe not only
objected to the "notice" provided by the Commission, but reminded
the Commission of the Globe's "historical willingness" throughout
the preceding eight-year period to negotiate a mutually agreeable
newsrack guideline short of a total ban.
Finally, the Report rejects Alternatives 2-4 on the ground
that they would tax the Commission's limited enforcement
resources. Administrative burden is an appropriate consideration
in the "careful calculation" inquiry. Yet even accepting the
Commission's uncorroborated reference to its limited
administrative resources, it fails because it simply presumes,
sub silentio, that the expressive activity here involved is
___ ________
somehow due less protection than the anachronous appurtenances
the Commission has decided to regulate, but not to ban, and
therefore that it is less deserving of individualized treatment
under the Commission's ad hoc permitting process. Nor does the
__ ___
Report attempt a comprehensive overview of current Commission
administrative enforcement expenditures relating to its
regulation of these other unhistorical appurtenances.
-51-
would be much less burdensome on the important First Amendment
expressive activity the Commission proposes to ban outright.
As the court appropriately acknowledges, of course,
considerable deference is due the Commission. See supra p. 31.
___ _____
Nevertheless, deference to an outright ban on protected
expressive activity cannot be predicated on anything less than a
reasoned showing that the Commission "carefully calculated"
alternative means with a view to their suitability to address
legitimate regulatory interests proportionate to the resulting
_____________
burdens on any protected First Amendment activity. Cincinnati,
__________
113 S. Ct. at 1510 n.12; see also Vincent, 466 U.S. at 803 n.22
________ _______
(warning that courts "may not simply assume that the ordinance
will always advance the asserted state interests sufficiently to
justify its abridgment of expressive activity"). The Commission
adopted its outright District-wide ban on all newsracks without
either attempting less draconian regulation or evaluating by
incremental experimentation alternative approaches to controlling
and reducing any visual blight caused by contemporary newsracks.
See Cincinnati, 113 S. Ct. at 1510 (noting that newsrack ban was
___ __________
not a "reasonable fit," since city "failed to address its
recently developed concern about newsracks by regulating the
size, shape, appearance, or number").
I do not suggest that government invariably must engage
in actual experimentation before settling on an outright ban,
especially if it can demonstrate that the particular expressive
activity creates a serious public nuisance too pressing to
-52-
countenance delay. Nevertheless, outright bans on protected
modes of expressive activity such as newspaper distribution are
not entitled to judicial deference absent the required showing
that less burdensome alternatives were "carefully calculated."
See Ward, 491 U.S. at 799 (noting that there is no "narrow
___ ____
tailoring" if government "regulate[s] expression in such a manner
that a substantial portion of the burden on speech does not
serve to advance its goals"); Lakewood 486 U.S. at 750;
________
Providence Journal Co. v. City of Newport, 665 F. Supp. 107, 110
______________________ _______________
(D.R.I. 1987) (collecting cases holding that newsracks are
entitled to "full First Amendment protection"); cf. Vincent, 466
___ _______
U.S. at 813 (noting that specific locations (utility poles) for
posting signs were not traditionally recognized public fora like
public streets); Metromedia, 453 U.S. at 490 (upholding outright
______ _______ __________
ban on off-premises billboards carrying less-protected commercial
__________
speech). On the other hand, "narrow tailoring" in the present
______
context does not require the government to employ the "least
restrictive means," but to demonstrate that it "carefully
calculated" the suitability of obvious alternatives proportional
___________
to its legitimate esthetic objectives. Each case is to be judged
on its particular facts, of course, and a total ban might pass
muster were it made to appear that the Commission "carefully
calculated" less burdensome alternatives and justifiably found
them wanting.
The failure to make such a showing is especially
flagrant in the present context, since the Commission settled on
-53-
a total ban because newsracks were unknown in post-colonial
times, yet it continues to regulate, rather than prohibit
outright, numerous post-colonial appurtenances, without
explaining why a newsrack need inevitably be more unbecoming
historically and architecturally than a trash receptacle or a
streetlight pole. If its response is merely that the trash
receptacle or streetlight pole serves a more useful purpose which
must somehow be tolerated, then the Commission seriously
undervalues both the utility of expressive activity (i.e.,
___
newspaper distribution) and the First Amendment protection to
which it is entitled. As the failure to demonstrate the required
"narrow tailoring" undermines the challenged Street Furniture
Guideline under the three-part Perry test, I would affirm the
_____
district court judgment.
-54-
