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AGENDA REPORT 1990 0711 CC REG ITEM 09A
SENT BY :Xerox Telecopier ?020 5 -90 : 4 21361 ?3'2�e- f �rs2� -vin �- •. Y,eu�n �c �Kvrirt,�, DONOVAN .&,GURC NCW!ON a 4..N[ 30 ROCKCrCLLCR •_ALA hew vORK N v O 2 TCLCRNONC a,a•4Ja-70CC -AX 2.2.634 -732- DONOVAN ICIaUNC, ROOOW N ..UOC A SC- .ZQ •200 TWCNTY- IOUATw 5110CCT . w wASNINOTON. 0 C ACC37- 44 - CLCRMONC a0a—e7.R300 PAK a0B.A47.S.G. lctt �:l�tt�c%t,� -90077 -C LC PHON [. 2ia- �t�.gpp0 FAX 8�3 40.234& X05 529 X2';0;« �f 7Z,C "AN _C OVRC VC'A,z%S .., NC 3: a..0 7t CAVaOURG 2A N' 'EOOi .AQ � •AK ...a•00 -00-ce AR.lCRt CIRtCf C�A� NV��Ca &O -adz Client/Matter: D�-�- '' Date S Too --PAtR[C,Y- QtC,��2 ©S Receiving Telecopier Number: Confirming Telephone number: goS -S2.1 - (i 2'-a ?OE -S�`i � From: Q0 Q itO r " Qk--A tit.0 Z'o Subjects M aD R P A RIL A- P ? e-A L- Time Sent: Tranmaission Receimsds Confirmed By: Date: Times +'# i+ r# tiAww*##*## ffw#* tw### wwl w++ �►+* ttw * +wfri # # #ww * # #w #wfrtft #i # # # #if * Number of pages, including this cover sheets pages + � w * Ii you do not receive all the pages indicated abowr pleats * call (213) 253 -4037. **+++++++ t##*•++# w« �++ 4#+ rrw• t+ w**** r*rr+ ++ + # *wr,rt *rwwwwww* ** *s• SENT BY :Xerox leiecopier 7020 7— 5 -9G C:5o?h1 '13e1732�0 e DONOVAN L[rtURC NEWTON & IRVINE y 90 FIOCKKFKLLXX PLAZA ,��►''^�`^A' ( . �pO/ NEW YORK. N.Y. Ious T[LSPMONE: 212.OSE -3000 FAX: zlSt- O3= -334t1 DONOVAN L[IfURC. AOOON4N. MUD[ & 0r.HILLKR 4so TW[NTY- rOUR'TH STA[CT. N.W. W^41ININOTON, O.G. !0037 -111!4 TELERMON[: SO!- 4A7•R300 FAX: 11:0=- 447.444A VIA F1�CSIMILZ, TELEPHONE' E134I!}}4000 FIVE: =L3- 0174348 July 5, 1990 Mr. Patrick J. Richards Director of Community Development City of Moorpark 799 Moorpark Avenue Moorpark, California 93021 G�5 52 z 627u:« 2 DONOVAN Lvount NCWTON 61Rv'NL VO AUE OU FAUSCURO &HINT- HONORt 70000 PARIS T[LLPHONC: I- ♦k-RS -47 -10 FAX: 1- 47- f•-O�•Oa WRITER'S DIRECT DIAL NUMBER: 4055 Re: Daily News' Appeal from Notices of Violation of Moorpark Newsrack ordinance Dear Mr. Richarde: The Daily News has been informed that its appeal of the notices of violation of the Moorpark Newsrack Ordinance before the city council has been scheduled for July 11, 3990. Due to a scheduling conflict, we would like to request a continuance until July 25, 1990. It is my understanding that you have agreed to grant this continuance if the request was made in writing. Please canfirm with us by facsimile or by telephone that the City of Moorpark will continue the hearing date of the Daily News, appeal before the city council to July 25, 1990. Very truly yours, ' Watut Noriko E. Okamoto cc: David Lack, Single Copy Manager, Daily News Glen Smith, Esq., Los Angeles Times Howard H. Soloway, Esq. u 'mimes Mirror TELECOPIRR TRANSMITTAL INSTRUCTIONS TODAY'S DATE: Iq o TO: Company Name and Locat on . k)5) 5,2�k q Telecopier Number Telecopy to be sent by: AM /PM Dates— Time FROM: C---) Len Ind v ua s Name and TIM) e The Times Mirror Company Times Mirror Square Los Angeles, California 90053 U -)3? ,3%0 Departme (Direct Telephone No. i 03 -7 3 f (P Secretary s Name (Direct Te a P one No. INSTRUCTIONS FOLLOWING TRANSMISSION: Telephone Secretary when transmission has been completed Secretary will pickup document(s) �— Return document(s) by Messenger ASAP Return document(s) by inter - office mail THIS IS PAGE 1 OF PAGES BEING TRANSMITTED FROM AN NEC /NEFAX -Y9 AUTOMATIC TELECOPIER ON (213) 237- -3800. IF YOU HAVE DIFFICULTY RECEIVING THIS TRANSMISSION, OR IF YOU HAVE ANY QUESTIONS ABOUT IT, PLEASE CALL (RetWeen 8z30 AM and 5 :00 PM - Lh Time s CORPORATE STOCKROOM (Telecopy) (213) 237 -3965 THE TIMES MIRROR COMPANY (213) 237 -2980 TIMES MIRROR SQUARE (213) 237 --2979 LAS ANGELES, CP.LIFORNIA i t' i !I (1= OF W Times Mirror u July 6, 1990 Ms. Lillian Kellerman Moorpark City Clerk 799 Moorpark Avenue Moorpark, CA 93021 Times Mirror Times Mirror Squam Los Angeles. CA 90053 213 231.3760 Glen A. Smilh Staff Counsel Re: Newsrack Ordinance Violation Appeals Dear Ms. Kellerman: We have learned that the Daily News has requested that the city council delay its consideration of the newsrack ordinance violation appeals until July 25, 1990. The Los Angeles Times joins in that request. Sincer y, Gie A. Smi h cc: Patrick Richards Al Brewer GAS /la r' Cori Augeleri (Timer, June 25, 1990 Ms. Lillian Kellerman Moorpark City Clerk 799 Moorpark Avenue Moorpark, CA 93021 Re: Appeal of June 18 Hearing Dear Ms. Kellerman: r Times Mirror Square Los Angeles, CA 90053 213 237 -3760 Glen A. Smith Staff Counsel This is an appeal pursuant to Municipal Code §5.60.080 of the findings of a June 18 Office Hearing. A copy of a June 20 letter from Patrick Richards, notifying the Los Angeles Times of the city's findings, is enclosed. This appeal is based on the following: 1) The subject newsracks are not placed in a hazardous location and have been properly maintained, 2) The city has not received any citizen complaints about the newracks' placement, and 3) Banning newsracks from all residential areas is unconstitutional. This point is more fully explained in the enclosed copy of a letter to the city from Los Angeles Times Senior Staff Counsel Rhonda Heth. - RECEIVED - JUN 2 8 1990 4f ityt �p#,�[��1'A�►Fk u \ewspaper Ms. Lillian Kellerman June 25, 1990 Page Two Please contact me if you need any additional information. I should be notified of any additional hearing dates. Sincerely, f 'Glen A. Smith cc: Al Brewer GAS /la MOORPARK BERNARDO M.PEREZ Mayor SCOTT MONTGOMERY Mayor Pro Tem ELOISE BROWN Councilmember CLINT HARPER, Ph.D. Councilmember PAUL W. LAWRASON, Jr. Councilmember LILLIAN KELLERMAN City Clerk June 20, 1990 Los Angeles Times Glen Smith Times Mirror Square Los Angeles, CA 90053 Dear Mr. Smith: CERTIFIED MAIL P,4(,1 2,1g 5,,l STEVEN KUENY City Manager CHERYL J. KANE City Attorney PATRICK RICHARDS, A.I.C.P. Director of Community Development R. DENNIS DELZEIT City Engineer JOHN V. GILLESPIE Chief of Police RICHARD T. HARE City Treasurer On June 18, 1990, an Office Hearing was held at Moorpark City Hall, 799, Moorpark Avenue. The meeting was held regarding the Los Angeles Times news racks that have been installed in an RPD Zone in violation of the City's Municipal Code. The following individuals were present at the above meeting: Patrick J. Richards, Director of Community Development Frank Mancino, Code Enforcement Officer Glen Smith, Los Angeles Times Staff Legal Council Al Brewer, Los Angeles Times Manager, Circulation Street Sales Philip Dolan, Los Angeles Times Assistant Manager, Circulation Street Sales At the June 18, 1990 meeting there was no agreement to remove the racks. Therefore, The Los Angeles Times continues to be in violation of Section 5.60.040 (10) of the Moorpark Municipal Code. 799 Moorpark Avenue Moorpark, Ca !ifornia 93021 (805) 529 -6864 Los Angeles Times Glen Smith Times Mirror Square Los Angeles, CA 90053 June 20, 1990 Page 2 This letter is being sent to you in accordance with Section 5.60.80 of the Municipal Code, which gives the Los Angeles Times the option to either remove the illegal news racks, or request an appeal to the City Council in writing. You may appeal this decision by requesting such with the City Clerk within ten (10) days from receipt of this letter. You should also state the basis upon which the appeal is made. The City Council shall hear the appeal within thirty (30) days of the filing of such an appeal request. If you should have any questions regarding this matter, please contact Frank Mancino or myself at (805) 529 -6864. S' erely, atrick J Richards, Director of Community Development File No. C -90 -100 cc: Steven Kueny, City Manager Cheryl Kane, City Attorney Lillian Kellerman, City Clerk Frank Mancino, Code Enforcement Officer C -90 -100 Cos Auvies limes RHONDA HEM SENOR STAFF OOUNSEL [213] 237 -3741 Frank Mancino Code Enforcement Officer City of Moorpark 799 Moorpark Avenue Moorpark, California 93021 May 23, 1990 Re: Notice of Violation Newsrack Ordinance Dear Mr. Mancino: The Los Angeles Times hereby request a hearing pursuant to §14.16.080 of Moorpark's Newsrack Ordinance #122. On May 9, 1990, The Times received a notice from you indicating that three of The Times newsracks located within the City of Moorpark are in violation of §14.16.040(10) of the Newsrack Ordinance, which basically prohibits newsracks in specified residential areas. ' As I indicated in our telephone conversation, The Times believes that the section of the ordinance in question is unconstitutional, and therefore cannot be enforced by the City. The dissemination of newspapers through newsracks is an activity protected by the Constitutions of the United States and the State of California. Regulation of this protected activity by means of newsrack ordinances has been restricted by court decisions. Only narrowly drawn and limited time, place, and manner restrictions have been upheld. For your convenience, I have attached copies of two cases covering this issue. In the case of California Newspaper Publishers Association v City of Burbank, the court held that the city's ordinance banning placement of newsracks except in a specified shopping mall violated the newspapers First Amendment rights. In the case of Chicago's Newspapers Publishers Association v City of Wheaton, the city's ordinance specifically banned newsracks in residential zones and this restriction was found invalid by the court. TIMES MIRROR SQUARE / LOS ANGELES, CAUFORNIA 90053 Since any attempt by the City of Moorpark to enforce an unconstitutional ordinance would violate The Times' First Amendment rights, The Times respectfully request that provision §14.16.040(10) not be enforced so that The Times' newsracks will not be in violation of the ordinance. As we also discussed, The Times hereby waives the requirement that the City of Moorpark schedule a hearing in connection with this request within five working days of the filing of the request. Please feel free to call me if you have any questions. Sincerely, ata Rhonda Heth RH:es cc: Al Brewer Bill Niese Shelley v. Newsday lire attesting to the factual .e article. trgument that even if the e, they did not support the usions does not make the nixed opinions ". Plaintiffs s to recognize that the ex- re opinion insulates its au- ility no matter how unrea- stified or derogatory the e. (See, Parks v. Steinbrenner, ter respect to defendant publisher of the article, it relied upon the integrity of )r editors and had no reason is judgment. (Chapadeau v. -- Dispatch, Inc., 38 NY2d ). Amordian Press, Inc., 128 z v. Valdescastilla,102 AD2d er, the article was arguably There of legitimate public a v. New York News Inc., 62 7obart v. Post - Standard, 52 raduman v. Newsday, Inc., 51 rmining defendants' motion judgment, plaintiff's cross hiss was not considered on 1, the motion for summary - anted. The cross motion to iied as moot. Chicago Newspaper Publishers Association v. Wheaton 15 Med. L. Rptr. 2297 CHICAGO NEWSPAPER PUBLISHERS ASSOCIATION v WHEATON U.S. District Court Northern District of Winois CHICAGO NEWSPAPER PUB- LISHERS ASSOCIATION, CHICA- GO TRIBUNE CO., an Illinois corpora- tion, CHICAGO SUN - TIDIES INC., a Delaware corporation, and DOW JONES & COMPANY INC. v. CITY OF WHEATON, an Illinois municipal- ity, No. 87 C 0765, October 12, 1988 REGULATION OF MEDIA CONTENT 1. Prior restraints —State action to re- strain ( §5.03) REGULATION OF MEDIA DISTRIBUTION Print media distribution—"News- rack" ordinances ( §25.13) City newsrack ordinance which vests city manager with discretion to deny per. mit upon finding of health or safety haz- ard, and to revoke permit upon finding that city ordinance has been violated, and which does not provide adequate proce- dural safeguards, including judicial re- view, is unconstitutional prior restraint. 2. Print media distribution—"News- rack" ordinances ( §25.13) City ordinance which bans all news- racks from city's residential zones, while permitting them in other areas, violates First Amendment, since ban is not nar- rowly tailored to achieve governmental interests of promoting motor vehicle and pedestrian safety and maintaining resi- dential character of area, and since alter- native channels for distribution of news- papers within city are not sufficient to support total ban. 3. Print media distribution—"News- rack" ordinances ( §25.13) Newspaper is not entitled to summary judgment on its claim that city's confisca- tion of its newsracks violated its First Amendment rights, in view of newspa- per's failure to overcome city's claim that newsracks created immediate safety risk Newspaper challenges constitutionality of city's newsrack ordinance. On parties' cross - motions for summary judgment. Plaintiff's motion for summary judg- ment granted in pan and denied in part; defendant's motion for summary judg- ment denied. James A. Klenk and Alan J. Mandel, of Sonnenschein, Carlin, Nath & Ro- senthal, Chicago, Ill., and Joseph P. Thornton, of The Chicago Tribune Co., Chicago, Ill., for plaintiffs. Edward J. Walsh Jr. and James H. Knippen II, Wheaton, Ill., for defendant. Full Text of Opinion Han, J.: In our participatory democracy news- papers are not just an amenity. They are a vital means of providing information to citizens called upon to exercise an enlight- ened use of the ballot. Without the infor- mation provided by newspapers many citizens would be without the knowledge required for an intelligent electoral pro- cess. Accordingly, the distribution of newspapers has always had First Amend- ment protection. The methods of newspaper distribution are changing. For some, home delivery is either unavailable or too expensive. Street vendors are disappearing in all but central business areas, and newsracks are ap- pearing as a substitute means of distribu- tion. This case concerns issues arising out of the regulation or prohibition of news- racks on public streets in a suburban area. This is a challenge to an ordinance which regulates the placement of news- racks in Wheaton, Illinois. Plaintiffs at- tack the ordinance on its face as an abridgement of their rights under the First and Fourteenth Amendments, and under the Illinois Constitution. Defend- ant City of Wheaton responds that the ordinance imposes valid time, place, and manner restrictions permitted under the First Amendment. Plaintiffs also claim that Wheaton officials confiscated news- racks without due process, in violation of the Fifth and Fourteenth Amendments. To this, Wheaton counters that the news- racks were confiscated because they posed a threat to driver and pedestrian safety. The parties have filed cross motions for summary judgment. For the reasons outlined below, the licensing scheme is an invalid prior re- straint. In addition, the complete ban on Y �1rre�k+t.•.- t..,,j- 1 -A£„ . �};'t" ....�5 TA f r .`T �� "- =f`�!� ,'.L r 7 s t [ [:'° 3 -1 `i♦ r t ew j.��p r � 1. . .,r -. jr �c—V' 1v-v ta. `a +ew- > }-w. '+ .`. .• -.-1 ra- ri. •�, -n,W •^T?F .'tic ^i`►ri 'tV� r • {L f -'t ti - J'ia.".Vi� Y . -.. Y!- Y.:..uAN W ',1L .a1• Y. r„ Y �1rre�k+t.•.- t..,,j- 1 -A£„ . �};'t" ....�5 TA 15 Med. L. Rptr. 2298 Chicago Newspaper Publishers Association v. Keaton residential newsracks is an invalid place and manner restriction. FACTS On April 7, 1986, defendant City of Wheaton, Illinois ( "Wheaton ") passed an ordinance regulating the placement of newspaper dispensing devices ( "news- racks") on Wheaton city streets. This ordinance was similar to an ordinance passed in Lakewood, Ohio. Three months later, in July 1986, the Sixth Circuit ruled that several provisions of the Lake- wood ordinance were unconstitutional. Plain Dealer Publishing Co. v. City of Lake - wond, 794 F.2d 1139 (13 Med.L.Rptr. 10651 (6th Cir. 1986), aFd in part dr re- manded, 108 S. Ct. 2138 (15 Med.L.Rptr. 1481) (1988). Six weeks after the Sixth Circuit decision, Wheaton amended its ordinance, deleting some of the language which proved fatal to the Lakewood ordi- nance.' In January 1987, plaintiff news- papers brought this §1983 action in Illi- nois state court, alleging a violation of their rights under the First, Fifth, and Fourteenth Amendments to the U.S. Con- stitution, and under the Illinois Constitu- tion. Wheaton removed to this court. At the, close of discovery, both sides moved for summary judgment. Because of the similarity between the Wheaton and Lakewood ordinances, this court deferred ruling on the motions until the Supreme Court decided Lakewood's appeal from the Sixth Circuit. In June of this year, the Supreme Court affirmed the Sixth Cir- cuit. City of Lakewood v. Plain Dealer Pub- lishing Co., 108 S. Ct. 2138 (1988). Both Wheaton and the newspapers then re- newed their summary judgment motions. LEGAL PRINCIPLES It is beyond dispute that the First Amendment protects the right to distrib- ute newspapers in newsracks. City of Lake - wood v. Plain Dealer Publishing. Co., 108 S. Ct. 2138 (1988); Gannett Satellite Info. Net - uXrrk, Inc. v. ,Metropolitan Transportation Au- thnrity, 745 F.2d 767, 777 (10 ,%led.L.Rptr. 24241 (2d Cir. 1984); Miami Ilerald Publishing Co. v. City of Hallandale, 734 F.2d 666, 673 (10 i\fed.L.Rptr. 20491 (1 1 th Cir. 1984). The degree of protection provided by the constitution depends "on ' The relevant portions of the Wheaton ordinance are reproduced in the Appendix fomiued]. the character of the property at issue- Perry Education Assn v. Perry Local Educe. tors'Ass'n, 460 U.S. 37, 44 (1983), In this case, the "property at issue" is city streets in Wheaton, Illinois. The Supreme Court has repeatedly recognized public streets "as the archetype of a traditional public forum." Frisby v. Schultz, 108 S. Ct. 2495, 2499 (1988). In these traditional public fora, govern. ment's authority to restrict speech is at its minimum. Time, place, and manner re- strictions are valid only if they are con- tent- neutral, narrowly tailored to serve a significant government interest, and re- tain ample alternative channels of com- munication. Perry, 460 U.S. at 45. As an application of the requirement that re- strictions be narrowly tailored, a law can. not condition the free exercise of First Amendment rights on the unguided dis- cretion of government officials. Lakewood, 108 S. Ct. at 2143; Shuttlesworlh v. Bir- mingham, 394 U.S. 147, 150 -51 (1969) ( "a law subjecting the exercise of First Amendment freedoms to the prior re- straint of a license, without narrow, objec- tive and definite standards to guide the licens- ing authority, is unconstitutional" (emphasis added)); Staub v. City of Baxley, 355 U.S. 313, 321 -22 (1958). And final- ly, any licensing system which operates as a prior restraint "avoids constitutional infirmity only if it takes place under pro- cedural safeguards designed to obviate the dangers of a censorship system." Freedman v. Maryland, 380 U.S. 51, 58 (1965); Mi- ami Herald Pub. Co. v. City of Hallandale, 734 F.2d 666, 675 0 1 th Cir. 1984). Against the backdrop of these legal principles, the court turns to a consider- ation of the Wheaton ordinance. DISCUSSION I. Due Process — Prior Restraint Plaintiffs attack the licensing scheme as an unlawful prior restraint. The Supreme Court has often articulated the elements of a prior restraint. First, the right to engage in the protected speech must re- quire the prior approval of a government agent. Approval of the application must depend on the agent's affirmative action. In addition, approval is not routinely granted but rather must require the exer- cise of the agent's judgment. Finally, the licensing scheme must empower the agent to approve, deny or revoke a license based is a r i y Chicago Newspaper Publishers Asso on the content of the proposed cc cation. Southeastern Promotions, L1, rad, 420 U.S. 546, 554 [ 1 Med 11401 (1976). The first two elements are pla here: the ordinance requires an ,ion to the Wheaton city manz must act on the application w days. Sec. 20- 147(1); (3). Whe: tends, however, that the remai ments are absent: approval is n tionary, and the city manage express authority to deny an al based on the content of the a paper. Wheaton is mistaken counts. First, the decision to issue a indeed discretionary. The ordir a number of conditions which cant must meet before a license Prominent among them are the Newspaper dispensing de, be placed adjacent and f building walls not more than (6 ") distant therefrom or nea allel to the curb not less tha inches (18 ") and not more the four inches (24 ") distant frot at such locations applied for and by the city manager not to cause safety hazard or interfere with the public to use of the streets, t, and sidewalks. Sec. 20- 148(2) (emphasis add( No newspaper dispensing ( be placed, installed, locate( maintained: (e) Within five hundred fet another newspaper dispc vice..., except that the cit may permit three (3) such devices at an intersection placement would not impair ire wise create a hazardous condit; Sec. 20- 148(3)(() (emphasis . The significance of the firs that, even if all other conditio fled, the city manager may stil permit if it is determined the rack creates a "health or safer interferes with the right of th use the streets and sidewalks. sition, the current city manat that this was at least in part determination, Rose dep. Wheaton has pointed to r. which guide his judgment. fishers Association v. Wheaton of the property at issue." Ass 'n v. P Local Educa- U.S. 37, 4983)_ In this erty at issue" is city streets iinois. The Supreme Court recognized public streets 'Pe of a traditional public v. Schultz, 108 S. Ct. 2495, itional public fora, govern - y to restrict speech is at its te, place, and manner re- alid only if they are con - trrowly tailored to serve a :rnment interest, and re- rnative channels of com- 'ry, 460 U.S. at 45. As an the requirement that re- Towly tailored, a law can - he free exercise of First :hts on the unguided dis- nment officials. Lakewood, .143; Shuttlesworth v. Bir- J.S. 147, 150 -51 (1969) ingg the exercise of First -edoms to the prior re- ise, without narrow, objec- !andards to guide the licens- is unconstitutional" I)); Staub v. City of Baxley, 21 -22 (1958). And final system which operates as it "avoids constitutional it takes place under pro- ds designed to obviate the orship system." Freedman U.S. 51, 58 (1965); Mi- Co. v. City of Hallandale, 75 (11th Cir. 1984). )ackdrop of these legal 3urt turns to a consider - :aton ordinance. W USSION ss — Prior Restraint k the licensing scheme as _ restraint. The Supreme articulated the elements tint. First, the right to otected speech must re- :)proval of a government of the application must vent's affirmative action. iroval is not routinely r must require the excr- judgment. Finally, the must empower the agent it revoke a license based Chicago Newspaper Publishers Association v. Wheaton on the content of the ro 15 Med. L. Rptr. 2299 P posed communi- cation. Southeastern Prom passage requires essentially the same sub, rad, 420 otions, Ltd. v. Con- Jective determination U.S. 546, 554 [1 Med.L.Rptr. 1140 (19 flawed. and is equally The first two elements are plainly here: the ordinance pl i y met the city manager h o ordinance a authorizes requires tion to the Wheaton cit PPltca- "fvJiolation of any city ordinance," for must y manager who "f fraud, ' or for act on the a misrepresentation days. Sec. 20-147(1); the application within ten statement" in the application � or any false tends, (3). Wheaton Gently the Eleventh Re- con- however, that the remaining ele- ments are absent: c considered the constitutionality of an ordinance approval is not discre- tionary, and the city manager has express regulat- tng newsracks which contained similar provisions. Miami Herald, no authority to den cation based on the content of 673_74. 734 F.2d at AS in this case, the city code before the court application a paper- Wheaton is mistaken on counts. both of appeals gave the mu- nicipality the authority to First, the decision to issue revoke news - rack permits for the violation of an cit !d The a license is indeed discretionary. The ordinance city commission was audthorized to adjudicate lists a number of conditions which the a ppli- cant must meet before a license license a the rights applicants • • • to determine ghts of if the cpplicant has violated a can issue. Prominent among them are the following: Newspaper provision" of the y code. This the court concluded, Provision" essarily involves `nec- pper dispensing devices shall be placed adjacent the exercise of consider- able discretion" and was and buildin w parallel to g alls not more than six inches ( 6 ") distant therefore im- proper under the First Amendment. Id. The same reasonin therefrom or near and par- allel to the curb not less than g PPJies leads to the same conclusion: the city manager determines eighteen inches (18 ") and not more than twenty- four inches (24 ") distant whether a violation has occurred. And, since revocationiis automatic, from the cub at such locationso b � the Gil pplied for and determined } manager the cit not determine which viola onsgwa ant y not !o cause a health or safety hazard or interfere revo- considerable dis- cret on' avid eannotebe`s with the right o the public to use of the streets. lhroughforesl squared with the File Amendment. and sidewalks. Sec. 20_148 2 () (emphasis response, Wheaton contends that these provisions authorize only added). discretion" "reviewable Y "limited No newspaper dispensing device shall sense and a both co common be placed, installed, reas nable m But the man standard." located, used, or cases do not s maintained: • • (e) Within five hundred feet (500') of another newspaper dispensing de- vice..., except that the city manager may permit three (3) such dispensi devices at an intersecti sing on where such Placement would not impair traffic or other - wise create a hazardous condition.. Se C- 20- 148(3)(e) (emphasis added). The significance of the fast passage is that, even if all other conditions are satis- fied, the city manager may still withhold a permit if it is determined that the news - rack creates a "health or safety hazard or interferes with the right of the public" to use the streets and sidewalks. In his depo_ soon the current city manager conceded that this was at least in part a subjective determination, Rose dep. at 36, and Wheaton has pointed to no standards which guide his judgment. 7'ric serond discretion" standard. Shupttolerworthmtted U.S. at 150 -51 (law must provide' "nar4 row, I' Yeclive and definite standards to guide the licensing authority. 88� 9j )' Swearson v. Meers, 455 F. Su,,. Must "leave non factors to be [assessed, judgments to be made, or discretion to be exercised.... f T]he decision to grant or deny the license application must be virtu_ ally a ministerial one. ") luoted in Miami Herald, 734 F.2d at 675. Furthermore; i ' The opinion of the California Supreme Court in Kash Enterprises t,. Cit), of LAS gngeles is not to the contrary. 19 Cal. 3d 2941 562 P.2d 130212 M,d- L.Rptr. 1716) (1977). One Pr0. vision of the ordinance challenged in Kash stated that newsracks may not "unreasonably interfere with or impede the flow of pedestrian traffic." 562 P.2d at 1308. The coup upheld I his provision. The challenge, however was that the language was vague and overbroad, and not that it vested discretion in government ot�icials. The holding today is the opposite. is 15 Nfed. L. Rptr. 2300 Chicago Newspaper Publtshers Association v. Wheaton even if "health or safety hazard" were narrowed to mean a violation of the objec- tive measurements in Sec. 20- 148(3), e.g. no newsracks less than fifteen feet from a fire hydrant, etc., the ordinance still vests the city manager with discretionary au- thority to revoke permits, as noted above. Finally, discussed infra, the ordinance does not provide for judicial review. The licensing decisions are discretion- ary. The next question in determining if the ordinance is a prior restraint is wheth- er decisions are based on the content of the applicant's paper. Wheaton contends that decisions are content- neutral because the ordinance applies to all newsracks. But that misstates the inquiry. The Supreme Court has uniformly recognized that an act can be a prior restraint even though, by its terms, it does not favor one speaker over another. See, e.g., Southeastern Promo- tions, 420 U.S. at 558; Shutelesworth, 394 U.S. at 150 -51; Staub, 355 U.S. at 321 -22. The question is not whether the ordi- nance expressly favors certain speakers (although that would also be improper), but - whether the discretion built into the ordinance raises the specter of content - based censorship. Freedman v. Maryland, 380 U.S. at 58; Miami Herald, 734 F.2d at 675; Fernandes U. Limmer, 663 F.2d 619, 627 -28 (5th Cir. 1981), cent. denied, 458 U.S. 1 124 (1982); Rubin v_ City of Berwyn, 553 F. Supp. 476, 480 (N.D. Ill. 1982), a. f'd, 698 F.2d 1227 (7th Cir. 1982). The ordinance does precisely that. In this re- spect, the Wheaton ordinance "is indistin- guishable in its censoring effect from the official actions consistently identified as prior restraints in a long line of this court's decisions." Southeastern Promotions, 420 U.S. at 552 (collecting cases). "Only if we were to conclude that [distribution of newspapers] is unprotected by the First Amendment ... could we possibly find no prior restraint here." Id. at 557; see also Miami Herald, 734 F.2d at 675 The fact that the ordinance is a prior restraint does not end the inquiry. A prior restraint is not per se unconstitutional. There is no inconsistency in the two holdings. Language may be precise and clear, but still vest discretion in municipal authorities. See ACORN v. City of Tulsa, Okla., 835 F.2d 735, 741 (10th Cir. 1987) (ordinance which per- mits municipality to decide which structures violate the law vests unguided discretion in government and is unconstitutional, even though language is not vague). Bantam Books, lne. v. Sullivan, 372 U.S. 58 70 rt :0 [i ,',ted.L.Rptr. 1116] (1963). The next question is the adequacy of procedural safeguards. The ordinance must require that the licensor grant or deny the permit within a specified, brief period., it must provide for prompt judicial review, and, if a license is denied or rc- voked, the burden must be on the licensor to institute judicial proceedings to prove that the_ material is unprotected. Southeast- ern P- motiions, 420 U.S. at 560; Freedman, 380 1.' S. at 58. III 'The necessary safeguards do not appear in this ordinance. Initially, though the law allows an applicant to appeal an adverse decision by the city manager to the Wheaton City Council, there is no time limit by which the city council must hear ar. appeal. Thus the "right" to ap- peal is n fact discretionary, and a permit application -an "languish indefinitely be- fore tfir. Council" -- a feature recently criticized by the Supreme Court when it struck down the Lakewood ordinance. Lakeu,, od, 1(18 S. ( -t. at 2151. Mari importantly, the ordinance does not provide for judicial review of the ad- minis tr<ative decision to grant, deny, or revoke a permit. In Illinois, the Adminis- trativc Review Act is not applicable unless clearly adopted by the legislature which providrd for the administrative decision. Ill. R- . Sr. t. ch. 110, 3 -102 (1988). 11'ilkin i t . State Dept. of Public Aid, 51 II1. 2d 88, 280 N. E 2d 700, 708 (1972); Sullivan U. Boa; <l of Fire and Police Commissioners, 103 I11 'ipp- 3d 167; 430 N.E.2d 636, 639 (1981;1 Nowhere does this ordinance adopt that Act. In addition, there is no provision requiring Wheaton to institute judiciai proceedings to prove the conduct is unprotected. These omissions are fatal to the licensing scheme.' See Ball, Extra! Extra' %;cad All About It First Amendment Problem in the Regulation of Coin Operated Newspat,cr Vending %fachines. 19 Colum. J L '�c ` )c. 1- robs, ` 83, 202 -204 (1985). I Sian Cn Resiaendal Newsracks Because tfte licensing scheme vests Wheaton officials with the unguided dis- cretior, , con, rol the placement of news- ' It may also be that the ten day waiting period before which the city manager must act is not sufficiently brief. The court does not reach the issue. It is not clear, however, why inspecting the site for compliance with objec- tive rncasi�icments would require ten days. Chicago Newspape racks, and becaus procedural safeg abuse of that disc tional. However, ordinance bans a tial zoning distric 148(1). This, obv . prior application tion. In other wo dential ban is un. of this opinion. provision as well. Residential strr lic fora and their does not change First Amendmen S.Ct. 2495, 249 the ban on reside: examined under the restriction mu must be narrowly nificant governmc leave open ample communication, f A. Cor The ban on re plies equally to all fore content -neutr netl, 754 F.2d at F.2d at 673 -74; , City of ,Newport, 66 Nfed.L.Rptr. 154_ tiffs suggest oth Wheaton has not c the Wheaton Daily_ tion challenges th and in their moti ment, plaintiffs ac vial challenges. B. Narr, [21 Wheaton n there is a signiftcai the regulation anc serest, and that th the least restrictive seka v. Illinois Put F.2d 1547, 1554 (7 S. Ct. 919 (1987). on residential nes not demonstrated the least restrictive sequently, th unconstitutional. The object of th the preamble. The to promote "motor safety" and to ma character of the R ,,r..a+��r -:s�� Vuitton v. Wheaton Ivan, 372 U.S. 58, -r, 1116] (1963). the adequacy of The ordinance licensor grant or a specified, brief tr prompt judicial is denied or re- be on the licensor :eedings to prove 3tected. Southeast - at 560; Freedman, feguards do not Initially, though 'ant to appeal an city manager to ncil, there is no Aty council must le "right" to ap- ry, and a permit i indefinitely be- feature recently e Court when it wood ordinance. '151. ordinance does eview of the ad- grant, deny, or ,is, the Adminis- Ipplicable unless 'gislature which trative decision. 3 -102 (1988). Ilic Aid, 51 Ill. 2d (1972); Sullivan e Commissioners, N.E.2d 636,639 this ordinance ion, there is no Mon to institute ove the conduct issions are fatal See Ball, Extra! 4'irst Amendment of Coin Operated nes. 19 Colum. 02 -204 (1985). Nwwsracks scheme vests e unguided dis- ement of news- ten day waiting nanager must act e court does not ,r, however, why :ante with objec- iuire ten days. Chicago Newspaper Publishers Association u. Wheaton 15 Med. L. Rptr. 2301 racks, and because the ordinance lacks the procedural safeguards to guard against abuse of that discretion, it is unconstitu- tional. However, another provision of the ordinance bans all newsracks in residen- tial zoning districts of Wheaton. Sec. 20- 148(1). This, obviously, involves neither a prior application nor municipal discre- tion. In other words, validity of the resi- dential ban is unaffected by the first part of this opinion. Plaintiffs challenge this provision as well. Residential streets are traditional pub- lic fora and their character as residential does not change their status under the First Amendment. Frisby v. Schultz, 108 S.Ct. 2495, 2499 -2500. Consequently, the ban on residential newsracks must be examined under the familiar standard: the restriction must be content - neutral, it must be narrowly tailored to serve a sig- nificant government interest, and it must leave open ample alternative channels of communication. Perry, 460 U.S. at 45. A. Content - Neutral The ban on residential newsracks ap- plies equally to all newsracks and is there- fore content - neutral on its face. See Gan- nett, 754 F.2d at 773; Miami Herald, 734 F.2d at 673 -74; Providence journal Co. v. City of Newport, 665 F. Supp. 107, 112 [ 14 Nfed.L.Rptr. 15451 (D.R.I. 1987). Plain- tiffs suggest otherwise, alleging that Wheaton has not enforced the ban against the Wheaton Daily Journal. But that allega- tion challenges the ordinance as applied, and in their motion for summary judg- ment, plaintiffs adequately raise only fa- cial challenges. B. Narrowly Tailored (2] Wheaton must demonstrate that there is a significant relationship between the regulation and the governmental in- terest, and that the means employed are the least restrictive available. City of Wat- seka v. Illinois Public Action Council, 796 F.2d 1547, 1554 (7th Cir. 1986), aff d, 107 S. Ct. 919 (1987). In enacting a total ban on residential newsracks, Wheaton has not demonstrated that they have adopted the least restrictive means available. Con- sequently, the total ban is unconstitutional. The object of the ordinance appears in the preamble. The ordinance is designed to promote "motor vehicle and pedestrian safety" and to maintain the "residential character of the Residential Zoning Dis- tricts." As to the former, Wheaton cannot claim that only a total ban will adequately provide for driver and pedestrian safety, since all other city streets are also poten- tial sites for a newsrack. The ordinance permits newsracks in non - residential dis- tricts, provided they are properly placed (e.g. not within 15 feet of a fire hydrant, not within five feet of a marked crosswalk, etc.). The second goal of the ordinance is to preserve the "residential character" of Wheaton neighborhoods. Wheaton claims this goal reflects a concern for neighbor- hood aesthetics. Granted, neighborhood aesthetics are a significant government interest. Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 806 -07 (1984). However, it does not follow that a complete ban is the least restrictive means of achieving the goal. Wheaton has not explained — much less demonstrated — how a newsrack on a residential street destroys the "character" of the neighborhood any more than a mailbox, utility pole, fire hydrant, or traf- fic sign. As one court recently observed, "[i]f newsracks alone are banned and no further steps appear likely, `the commit- ment of the city to improving its physical environment is placed in doubt.' " Provi- dence Journal Co. v. City of Newport, 665 F. Supp. 107, 115 (D.R.I. 1987) (quoting Metromedia, Inc. v. City of San Diego, 453 U.S_ 490, 531 -32 (1981) (Brennan, J., concurring)). See also Quadres, Content - Neutral Public Forum Regulations: The Rise of the Aesthetic State Interest, the Fall of Judi- cial Scrutiny, 37 Hastings L.J. 439, 474 -780 (1986). Aesthetic judgments are "necessarily subjective," Metromedia, 453 U.S. at 510, and Wheaton cannot simply raise the banner of aesthetic interest, and then leave it to this court to determine not only how the ordinance advances those interests, but why a total ban is necessary. See Southern New Jersey Newspapers v. New Jersey, 542 F. Supp. 173, 186 (D.N.J. 1982); Quadres, supra at 466, 468 -76. The burden is on Wheaton to show that the ordinance is narrowly tailored, and it has failed to carry that burden. C. Ample Alternative Channels Wheaton claims alternative channels are more than sufficient. It points to the availability of home delivery, commercial outlets, and "numerous newsboxes which are legally eligible for permits." These channels are inadequate to justify a com- plete ban on residential newsracks. 15 Med. L. Rptr. 2302 Chicago Newspape, Publishers Association v. Wheaton First, a person cannot selectively sub- scribe to home delivery of plaintiffs' pa- pers. The person who relies on newsracks to purchase an occasional paper must pay considerably more to subscribe to a par- ticular paper. And when alternative chan- nels are not readily available, "the Court has shown special solicitude for forms of expression that are much less expensive than feasible alternatives...." Taxpayers for Vincent, 466 U.S. at 812 n.30; Martin v. Sloulhers, 319 U.S. 141, 146 (1943). Fur- thermore, though plaintiff newspapers provide home delivery, the ordinance bans all newsracks in residential districts. This includes the small, poorly funded press, without the resources to provide home delivery, but with the same claim to the protections of the First Amendment. Moreover, the availability of private sellers is irrelevant. The First Amend- ment does not allow a municipality to restrict speech on the grounds that private actors are willing to sponsor it. See Prow - dence Journal Co. v. City of Newport, 665 F. Supp. at 118. If this were the rule, then the rights safeguarded by the First Amendment would be in the hands of private businesses. In other words, if pri- vate sellers are an adequate alternative channel under the Constitution, then an ordinance which is constitutional today becomes unconstitutional tomorrow, when those sellers close, relocate, or elect not to sell newspapers. The protections of the First Amendment cannot be so transitory. Wheaton, however, relies on the opin- ion of the Sixth Circuit in Lakewood, which upheld a residential ban on news- racks. The Court of Appeals relied in part on the availability of commercial sellers. 794 F.2d at 1147. But unlike the situation in Lakewood, where no residence was more than one- quarter mile from a newsrack, 794 F.2d at 1147, the parties here agree that some residential neighborhoods in Wheaton are a full three miles from a newsrack. To this, Wheaton responds that several newsracks are available in the area around Wheaton. But Wheaton can- not rely on other municipalities to rescue them from the consequences of an im- properly drawn ordinance. Cf. Schneider v. Stale, 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. ") These neighboring municipalities have the same right as Wheaton to enact valid time, place, and manner restrictions on the placement of newsracks. T}tese restrictions could well reduce ,he number of newsracks sur- rounding Wheaton. If Wheaton's view of the law +ere correct, then the effect of the neighboring ordinance would be to imper- il the co:utitutionality of the Wheaton ordinance. Wheaton cannot condition the exercise of First Amendment freedoms on events an ,i conditions outside of Wheaton any more than it can rely on private sellers i guarantee the expression which Wheaton has abridged. Valid place and manner restrictions on residential newsracks may well be differ - cnt than hose appropriate to commercial areas, but Wheaton has not made a show- ing whu t• just fits th,- total ban enacted in this oro . ante fit R'enlai Permit Fee The holdings stated above are sufficient to invalidate ;he entire ordinance. That notwithstanding, to preserve judicial re- sources. ind io guide Wheaton's subse- quent efforts, the court analyzes one other provision §20- 148(4), the rental permit fee Wheaton .-harges an initial fee of S25 per newsrack installed, as well as an an- nual rercwal fee of $15 per newsrack. The newspapers challenge these fees as an unconsii utional ix on their First Amencitncnt r ghts. Licensing fees are permissible, but a municili:i ity can charge no more than the amount needed to cover administrative costs. C, =. u. ,Vew Hampshire, 312 U.S. 569, 57, W41), ); Cannelt, 747 F.2d at 774; Fernarxr,. v. Lemmer, 663 F.2d 619, 633 (5th C 1 19F1), ee,t. denied, 458 U.S. 11:'.4 , 1 ,r,2) T'he .cdrninistration of this ordinance is somewi,,it convoluted. According to Wheatc applications are submitted to the ci;,, nanager's secretary, who for- wards to the city manager. He then sends hh� issisiant to inspect the proposed site for t )nformity with the ordinance. After the assistant reports back, the city manager then approves or disapproves the applicau,,n. The yearly renewal fee cov- ers reinwcctson costs. Annually, the city manager receives $65,500, his assistant roughly 526000, end his secretary S2,Ut t, Wheaten claims that the time it takes to complete these tasks, performed by em- ployees Al . these salaries, justify the fee. But the cewspapers note several undis- puted points i i the record which under- mine %*v ator's claim. First, it is appar- ent th,:t 'h,-awn digs not know what it Chicago Newspaper costs to administe stance, before the one City Council take a look at all regarding the per the future we'll costs us.... (SJo fee, it would ac upon our actual really know...." The Councilm that a 825 fee "re but there is reasc Wheaton passed tant city manager ties in the area. two charged fees two, one city cha and the other S1 the assistant rect fee in Wheaton t In response, process is more quires the time employees, inclu who is relatively looks several thi . tenses for apprw. tivities. Rose de license which rec tion of the city c license. Id. The i either the city m secretary. And th that his secretar monitor the pern In light of these asked the currer has to administ. nance, and no c "Ulust the way w at 71. Alternatively, out that the ordir make several d tions. But those Measuring com the time and exl cials. Wheaton i mine the duties c (cave the admin with the city M. not Iree to enact tutional restricts charge those wi pay for the time IV, The remainii with briefly. Fi when Wheaton `s Association v. Wheaton restrictions could well m of newsracks sur- . if Wheaton's view of A, then the effect of the nce would be to imper- ality of the Wheaton n cannot condition the nendment freedoms on ns outside of Wheaton can rely on private the expression which ged.' manner restrictions on ks may well be differ - •opriate to commercial has not made a show - he total ban enacted in I Permit Fee ed above are sufficient itire ordinance. That preserve judicial re- tde Wheaton's subse- urt analyzes one other (4), the rental permit es an initial fee of $25 led, as well as an an- -f $15 per newsrack. tllenge these fees as an tax on their First -e permissible, but a arge no more than the cover administrative ,npshire, 312 U.S. 569, 't, 747 F.2d at 774' 663 F.2d 619, 633 ,rt. denied, 458 U.S. '.n of this ordinance is -ited. According to ins are submitted to secretary, who for - manager. He then > inspect the proposed with the ordinance. -eports back, the city ves or disapproves the arly renewal fee cov- .s. Annually, the city 65,500, his assistant and his secretary tat the time it takes to performed by em- aries, justify the fee. ; note several undis- record which under - m. First, it is appar- >es not know what it Chicago Newspaper Publishers Association v. Wheaton 15 Med. L. Rptr. 2303 costs to administer the program. For in- stance, before the vote on the ordinance one City Councilman asked the city "to take a look at all of our paper generation regarding the permits like this so ... in the future we'll actually know what it costs us.... JSJo when we do establish a fee, it would accurately reflected (sic) upon our actual costs. I don't think we really know...." The Councilman went on to speculate that a $25 fee "really isn't that far off..." but there is reason to doubt him. Before Wheaton passed the ordinance, the assis- tant city manager surveyed 27 communi- ties in the area. He discovered that only two charged fees for newsracks. Of those two, one city charged $15 per newsrack, and the other $10. Based on that survey, the assistant recommended lowering the fee in Wheaton to either $10 or $15. In response, Wheaton says that the process is more expensive because it re- quires the time and attention of several employees, including the city manager, who is relatively well paid. But this over- looks several things. Wheaton issues li- censes for approximately 30 different ac- tivities. Rose deposition, 70. The . only license which receives the personal atten- tion of the city manager is the newsrack license. Id. The rest are administered by either the city manager's assistant or his secretary. And the city manager conceded that his secretary was perfectly able to monitor the permit system for newsracks.. In light of these points, the newspapers asked the current city manager why he has to administer this particular ordi- nance, and no other. He said that was "U lust the way we decided to set it up." Id. at 71. Alternatively, he could have pointed out that the ordinance called upon him to make several discretionary determina- tions. But those provisions are invalid. Measuring compliance hardly requires the time and expertise of senior city offi- cials. Wheaton is of course free to deter- mine the duties of its employees and may leave the administration of this program with the city manager. But Wheaton is not free to enact and administer unconsti- tutional restrictions on speech and then charge those whose speech is restricted to pay for the time it took IV. Other Issues The remaining issues may be dealt with briefly. First, plaintiffs argue that when Wheaton confiscated Tribune and Sun -Times newsracks in March 1988, they deprived the newspapers of their rights under the First, Fifth, and Fourteenth Amendments. Wheaton admits confiscat- ing the boxes, but argues that the news- racks obstructed the sidewalk and created an imminent safety risk. f3J Plaintiffs' motion for summary judgment is denied here. If the newsracks in fact created an imminent safety risk, Wheaton could summarily confiscate them. The Court has repeatedly upheld summary administrative action in emcr- gency situations, and "deprivation of property to protect the public health and safety is 'lolne of the oldest examples' of permissible summary action." Hodel u. Virginia Surface Mining t'r Reclamation Assn, 452 U.S. 264, 300 (1981) (quoting Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 599 (1950)). Wheaton claims that the newsracks created an immediate risk, and plaintiffs offer nothing to the contrary. On this record, summary judg- ment is improper. Plaintiffs also claim they are entitled to attorney's fees for legal work needed to resist the initial newsrack ordinance passed by Wheaton. They argue that Wheaton amended the initial ordinance in response to a letter written by plaintiffs' counsel. This, they claim, makes them a prevailing party for the purposes of §1988. Plaintiffs' claim is denied. A party may prevail without formal judicial relief. Maher v. Gagne, 448 U.S. 122, 129 (1980); In re Burlington Northern, Inc. Employment Practices Liligation, 832 F.2d 422, 425 (7th Cir. 1987). To prevail in a settled case, the actions taken by the plaintiff must be causally linked to the relief obtained. Burlington Northern, 832 F.2d at 425. The causal connection, how- ever, is a factual determination. Id.; Har- rington v. De Vito, 656 F.2d 264, 267 (7th Cir. 1981), cert. denied, 455 U.S. 993 (1982). Here, plaintiffs cannot establish the necessary causal connection, since Wheaton insists the ordinance was amended in response to the Sixth Circuit decision in Lakewood. Wheaton's position is certainly tenable, since the original or- dinance was so strikingly similar to the ordinance disapproved by the Sixth Cir- cuit. In addition, the changes made by Wheaton correspond more closely to the opinion of the Sixth Circuit than to coun- sel's letter. For instance, counsel warned against the residential ban. The Sixth Circuit upheld this ban, and the amended Wheaton ordinance included it. On a mo- tion for summary judgment, disputed at 15 Med. L. Rptr. 2304 facts are resolved against the movant. Ox- man v. IVLS -TV, 846 F.2d 448, 452 (7th Cir. 1988). Consequently, plaintiffs' mo- tion for summary judgment on this point is denied. IT IS THEREFORE ORDERED that (1) Plaintiffs' motion for summary judgment is granted in part and denied in part. (2) Defendant's motion for summary judgment is denied. (3) A status hearing is set for Novem- ber 10, 1988 at 9:15 a.m. KING BROADCASTING CO. v. FCC U.S. Court of Appeals District of Columbia Circuit KING BROADCASTING CO. v. FEDERAL COMMUNICATIONS COMMISSION and THE, UNITED STATES OF AMERICA, No. 88 -1367, November 1, 1988 REGULATION OF MEDIA CONTENT Broadcast media regulation —Equal time (Section 315) ( §20.15) Television station's proposed series of programs providing election coverage of major parties' presidential candidates, in- cluding statements by each candidate, mo- derated interviews, and rebuttals, is not exempt from equal time requirements of 47 USC 315(a)(2) as "bona fide news interview," since programs are not "regu- larly scheduled interviews," but Federal Communications Commission must de- termine whether programs constitute "on- the -spot coverage of bona fide news events" subject to exemption under Sec- tion 315(a)(4). Broadcaster seeks to overturn Federal Communications Commission's order de- nying a request for a declaratory ruling that the broadcaster's proposed coverage of the presidential election would be exempt from the equal time requirements of 47 USC 315. Remanded to commission for determination. Henry Geller, Donna Lampert, and Edward W. Hummers Jr., for petitioner. i n q 8roadcasttng Co. u. FCC Daniel ;11 \rm-.trong, associate gener- al counsel, )ianr• S. Killory, general counsel, and 1. Grey Pash Jr., counsel, Federal C:otnmunications Commission, and John j Powers III and Robert J. Wiggers, Drparunent ,f Justice, for respondents Andrew _Jay Schwartzman for amicus curiae Telecommunications Research and Action Ceiv, :'C Text of Opinion Before W d, C:.J., and Edwards and Buckley, J7 Edwards, J The petitioner, King Broadcasting Company "King ") asks this court to overturn a Federal Communications Commission "FCC" or "Commission ") order denying a request for a declaratory ruling that the petitioner would be exempt from the "equal time" require- ments of section 315 of the Communica- tions Act, 47 U.S.C. §315 (1982) in its presentation of programs designed to cov- er the presidential election. King argues that the FCC's refusal to construe the exemptions of section 315(a) so as to cover King's proposed programs results in an impermissible construction of the statute and, even if it does not, it violates the First Amendment by stifling a public debate that would otherwise ensue. On the rec- ord before w; it appears that the FCC has failed to apply the statute in a manner consistent with its own precedent, and no adequate justification has been offered to explain this failure. Therefore, we will remand this case to the agency for reconsi- deration A t lout reaching the constitu- tional quec, ii,n_ 3ACKGROUND A. Statulor) Structure Section 315(a) of the Communications Act provides that whatever a licensed tele- vision or radio broadcast station permits "a legally qualified candidate for any public offi, r't to "use" a station, it "shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station." 47 U.S.C. §315(x) (1 ')82). In 1959, the FCC ruled that the news coverage of the official du- ties of the ,ncumbent mayor of Chicago triggered the "equal time" requirement.. In re eleq• t n to CBS, Inc. (Lar Daly), 18 Rad. Set >, 1' & F) 238, recon. dented, 26 King Broadcasting Co. u F.C.C. 715 (1959). Th gross to amend section four categories of br, from the statutor requirements: (1) bona fide new, (2) bona fide ncw (3) bona fide nev, (if the appearance c incidental to the p subject or subjects cc documentary), or (4) on- the -spot co news events (includ . to political convent incidental thereto). Pub. L. No. 86 -274. (1959) (amending 47 L Until 1.975, the FC exemptions fairly narr in 1962, the agency exemption, dealing coverage of bona fide not extend to politic. C,x,du,ill Station, Inc (1962); A'attonal Broa off), 40 F.C.C. 370 (1 lute, 55 F.C.C.2d 697 holm v. FCC, 53 Ni ed. L. Rpt r. 22071 nied, 429 U.S. 890 Commission reversed the scope of the four` of what it then saw as the statute and its le Aspen, the Commissi press objectives botf dates equally and t coverage of news ever section 315(a)(4) "oi exemption to includ nonbroadcast entities of Women Voters; ar mission extended the debates sponsored by See Henry Geller, 95 sub nom. league of Fund o. ]. -CC:, 731 1 1983). While the legislat exemptions is "not to many concrete sit holm, 538 F.2d at 3' indisputable. First, concern ... was to sion's Lar Daly dm store the understanc need not be provide was the subject of " cast "; doing othe broadcast media frc lic with full cover W11 123 CALIFOR U REPORTER Appellant Seidman & Seidman to re- cover its costs on appeal from Wolfson; Weiner to recover his costs on appeal from Seidman & Seidman. FLEMING, Acting P. J., and COMP - TON, J.,. concur. r o s ur.ww. S"M 1 - - 51_CaLApp.3d 50 -JLSe1CALIFORNIA NEWSPAPER PUBLISHERS ASSOCIATION, INC., a California Cor- poration, st al., Plaintiffs and Respond- ents, v. The CITY OF BURBANK, Defendant and Appellant. CIv. 45944. Court of Appeal. Second Dlstrict, Division 5. Aug. 28, 1975. Hearing Denied Oct. 23, 1975. City appealed from a judgment of the Los Angeles County Superior Court, Jerry Pacht, J., declaring unconstitutional a city ordinance which banned placement of newspaper racks in city except in down- town shopping mall and enjoining the en- forcement of ordinance. The Court of Appeal, Kaus, P. J., held that ordinance was unconstitutional as violative of First Amendment rights and was not deemed constitutional because it did not prohibit newspaper racks on private property or be- cause it allowed newspaper racks in shop- ping mall which comprised one percent of city's total area. Affirmed. 1- Constitutional Law 4=90.1(4) Streets, sidewalks and parks are his- torically so associated with exercise of First Amendment rights that access to those areas for purpose of exercising such rights cannot be absolutr.ly denied; state 50 CaLApp.3d 837 and city is limited to restricting time, place, and manner of such uses. U.S.0 A. Const. Amend. 1. 2. Constitutional Law 4C=90.1(8) First Amendment applies to newspa- pers and newsracks; thus, the right to dis- tribute newspapers and public's right to buy and read newspapers cannot be condi- tioned on particular method of transmitting information. U.S.C.A.Const. Amend. 1 3. Constitutional Law 4=9o.l(g) Municipal Corporations 40594(2) Ordinance which totally banned place- ment of newspaper racks in city except in six-block downtown shopping mall compris- ing about one percent of • city's total area was overbroad and unconstitutional on its face as violative of First Amendment rights. U.S.C.A.Const. Amend. 1. 4. Judgment I81(15) Finding that ordinance which prohibit- ed placement of newspaper racks in city except in downtown shopping mall com- prising one percent of city's total area was unconstitutional authorized granting of summary judgment in action challenging ordinance's constitutionality without plain- tiff's being required to demonstrate that ordinance affected distribution of newspa- pers and that an affirmative need existed for newspaper racks. 5. Constitutional Law 41=90(1) One is not to have exercise of his lib- erty of expression in appropriate places abridged on the plea that it may be exer- cised in some other place. 6. Municipal Corporations 4!=721(2) Fact that ordinance which banned Placement of newspaper racks in city ex- cept in downtown shopping mall compris- ing one percent of city's total area did not prohibit placement of newspaper racks on private property did not render ordinance constitutional. 7. Municipal Corporations 0 =721(2) Fact that ordinance which prohibited placement of newspaper racks on public F property allowed placement of racks 'in CALIFORNIA NEWSPAPER PUB. ASSN, INC. v. CITY F, 81TRBANE ooy bl CaLApp,3d 53 Cite aA, App.. 123 Cal.Rptr. 88o 881 six -block downtown shopping mall compris- ing parkway," of -any ., ovable or immovable one percent of city's total area did not render ordinance constitution_ object of any char., ter .whatsoever," ex- al. U.S.C.A. Const. Amend. 1. cepting boxes in thy- process of being un- loaded, approved eceptacles containing - trees and shrubs, asli containers, and directional signs. Samuel Gorlick, City Atty., and Richard L llan Jr., Senior Asst. City Atty., for The section also ex -mpts : "(4) . appellant. [N]ewspaper racks within the area known Gibson, Dunn & Crutcher, as the Golden Mall, ^_ Theodore B. Olson, Gordon A. Schaller, Los Angeles, The Golden Mall is a 6-block pedestrian for respondents (other than Respondent mall, more or less in the center of Bur - bank, comprising about American Civil Liberties Union), one percent of the Fred Okrand and Michael G. total area of the City a Dave, Los Angeles, for respondent American Civil Plaintiff contended, and the trial court Liberties Union. agreed, that the ordinance was unconstitu- tional on its face. 1KAUS, Presiding Justice. We decide in this case whether an ordi- nance which, except in a six -block down- town shopping mall, totally bans the place- ment of newspaper racks in a city with a Population of 85,0001 is unconstitutional on its face. Defendant City of Burbank appeals from a summary judgment in favor of plaintiffs — newspaper associations and newspapers — declaring the ordinance to be unconstitu- tional under the United States and Califor- nia Constitutions and permanently enjoin- ing defendant from enforcing it. These facts are not disputed: Newspa- per racks are used as one method of dis- tributing newspapers in the Los Angeles metropolitan area, which includes Burbank. Section 20 -24(a) of the Burbank Munici- pal Code, as amended in 1973, prohibits the Placement "upon any public sidewalk or 1• California Statistical Abstract (State of California 1974), p. 9 (as of January 1, 1974). (Evid.Code, $ 452.) 2. The exception provides in full: "(4) This section shall not apply to news. Paper racks within the area known as The Golden Mall, as such area is described and delineated in Section 1 of Ordinance No. 2051, passed and adopted on April 4, 1967, Provided that such racks must be of a type equivalent to Model 97, K –Jack Newspaper Rack head maintained at all times in good 123 CaLRPtr. 56 DISCUSSION [1] Defendant recognizes the black -let- ter constitutional law that streets, side- walks and parks are historically so asso- ciated with the exercise of First Amend- ment rights that access to those areas for the purpose of exercising such rights can- not be absolutely denied, and that the state is limited to restricting the time, place and manner of such uses. 13 Cal. jur.3d, Con- stitutional Law, § 24 ` p. 453, § 252, p. 464.)4 Defendant contends, however, that the _,53 First Amendment does not apply to news- papers or newsracks: 'The right to utilize public streets and sidewalks for communi- cating thoughts and views is an in person- am right —a right accorded to persons and not to inanimate devic t- , and must be per- sonally exercised rathe, than through unat- tended racks or ,the devices placed on order and repair and installed only in the manner and at such locations within The Golden Mall area as at,proved by the Parks and Recreation Director." 3. Dozens of streets crises -cross Burbank from citY-line to city -line. Only the northeast corner of the City - -part of the Verdugo Moun- tains— appears to be sparsely settled. 4. The cases stating and restating this propo- sition are collected, intrr alia, in In re Hoff- man, 67 Ca1.2<i 815, ! #!s k�(i (A Cal.Rptr. 97, 434 P -2d 3.;3. i9 :t i �a 4 :I f j; i i 882 23 CALU'ORNIA REPORTER 51 OaLAPp.34. 53 public sidewalks and parkv is." We _an• not agree. [2] Plaintiffs' First Amendment rights to distribute its newspaper and the pub- lic's right to buy and read .`iem cannot be conditioned on a particuiar method of transmitting information :f. Weaver v. Jordan, 64 CaL2d 235, 244 -245, 49 Cal. Rptr. 537, 411 P2d 289.) In any event de- fendant's theory was resolved against it in Dulaney v. Municipal Court, 11 Ca1.3d 77, 83-84, 112 Cal.Rptr. 777, 782, 520 P2d 1, 6, which held that the °posting of notices on utility poles is a form of expression com- ing within the protective ambrella of the First Amendment." r Defendant's other contentions are pegged to its assertion that a surntnary judgment was improper because there were triable is- sues of fact - whether the newsrack ordi- nance significantly affects the distribution of newspapers, whether plaintiffs could ad- equately distribute newspapers using news- racks on private property, and whether the ordinance does really prohibit newsracks on public property in Burba. k.s [3,4] Defendant's claun that there are "factual issues" misses the point. The City has indiscriminately prohibited the distri- bution of newspapers through the use of newsracks on public property in the City of Burbank: The blanket prohibition with- out more makes the ordinance overbroad and unconstitutional on is face. (E. g., Wollam v. City of Palm 5'prings, supra, 59 Cal.2d 276, 284 -285, 29 ( .Rptr. 1, 379 P. 2d 481) and there is no ,)om for factual issues. Thus, plaintiffs air not required to demonstrate an affirmatiNe need for news- racks. Streets and sidewalks are, as. indi- 5. In Wollam v. City of Patrn Springs, 59 Cal. 2d 276, 29 CaLRptr. 1, 379 P.2d 481, the Su- preme Court struck down as ordinance which prohibited the use of stationary sound trucks. Nothing in the opinion suggests that the ordi- nance would have been upheld if it had been limited to the amplifiew l - n of pre -r- corded mersages. 6. Defendant has submittf,l elaborate &clara- tions supported by pho,�grapbs and tables cated, presumed to bIappropriate places 1� for First Amendment activities and the City may only impose reasonable restric- tions on the exercise of plaintiffs' First Amendment rights. (Kovacs v. Cooper (1949) 336 U.S. 77, 87, 69 S.CL 448, 93 L Ed. 513; Van Nuys Pub. Co. v. City of Thousand Oaks, 5 Cal.3d 817, 827 -M, 97 Cal.Rptr. 777, 489 P2d 809; Wollam v. City of Palm Springs, supra, 59 Cal2d 276, 284 -285, 29 Cal.Rptr. 1, 379 P.2d 481.) [5,6] Equally without merit are the City's contentions that the ordinance is not unconstitutional on its face because, first, newsracks are not prohibited on private property, and, second, newsracks are per- mitted on the public Golden Ma1L "[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." (Schneider v. State (1939) 308 U.S. 147, 163, 60 S.Ct. 146, 151, 84 L.Ed. 155.) The appropriate focus is on the blanket prohibition and not on those areas left untouched. Thus, in Wollam v. City of Palm Springs, supra, 59 Cal2d 276, 29 Cal.Rptr. 1, 379 P2d 481 the court, in holding invalid an absolute prohibition on the use of stationary sound trucks (id., at pp. 287 -288, 29 Cal.Rptr. 1, 379 P2d 481), did not consider the ordinance was re- deemed by the fact that moving sound ve- hicles were to some extent permitted. (Id., at pp. 278 -279, 29 Cal.Rptr. 1, 379 P2d 481. See also, Van Nuys Pub. Co. v. City of Thousand Oaks, supra, 5 Cal.3d 817, 822,97 Cal.Rptr. 777, 489 P2d 809; Young v. Municipal Court, 16 Ca1.App.3d 766, 770 -771, 94 CaLRptr. 331.) The suggestion that access to private fa- cilities would be constitutionally adequate which purport to show, first, the unaesthetic qualities of newsracks on public property, and, second, the number and location of newsracks on private property and in The Golden Mall. Defendant's declarations also purport to con- trovert plaintiffs' declarations concerning the economic impact of the prohibition of news- racks. Other than defendant's map of Bur- bank, none of this material is relevant. CALIFORNIA NEWSPAPF.E, PUB. ASSN, INC. V. OrrY t BURBANx 51 C LApp.3d 56 Cite Rs. App.. 123 Cal-Rptr. was rejected in Southeastern Promotions ,381,t Ltd, v. Conrad (1975) 420 U.S. he Pcnnsylvani.. 3upremc Court held e d 546, 9S S. Ct. 1239, 43 L..E& 448, in which Chattanoo- that a Philadelphia pa ,aerty owner, was en- l titled to an injunction. ga officials refused to permit the play "Hair" to be shown in the against the owner of a 9 -foot by 6- foot %tznd which occupied G �I municipal thea- tre. (420 U.S. at P• 548, 95 S.Ct. 1239.) about 40 percent of width )f the sidewalk in front The Supreme Court was not impressed of the plaintiff's show window, 'I from which the defendant with the fact that there might be other the - or his licensees sold atres in town. "Even if a privately owned newspapers, magazines, comic books and ratio forms. forum had been available, e that fact alone ,"u I •' at pp. �� 3�•) ( ;I The dictum relied would not justify an otherwise impermissi- or, by defendant that "newsstands ble prior restraint. . . . [ff] Thus, it are not ,o necessary as to cloak them with the does not matter for purposes of this case at the Board's decision. constitutional protec- tion accorded a free press" (157 A2d at p. 7 might not have - had the effect of total suppression of the 3875_is contrary to a more recent Pcnnsyl- musical in the community. Denying use of vania federal court case which held uncon-' !1 the municipal facility under the circum- stitutional a municipai ordinance which II prohibited the use of stances present here constituted the prior newspaper boxes on restraint. That restraint was final." (420 public streets. (Philadelphia #; News., Inc. U.S. at pp. 556 -557, 95 S.Ct. at 1245.) v. Borough C., etc., Swarth - more (E.D.Pa 381 I V -1974) F.Supp. 228, 241.) n an Nuys Pub. Co. v. City of Thou- sand Oaks, supra, 5 Cal.3d 817, 97 Cal. Rptr. 777, 489 P2d 809, the court held that the city could not prohibit all distribution of all printed matter on private property without the consent of the owner (id._lat PP- 821- 822, RV, 97 Ca1.Rptr. 777, 489 P2d 809), although as argued by the city, such materials could have been distributed on the public streets or by mail. (Id., at p. 822, 97 Cal.Rptr. 777, 489 P2d 809. See also, Young V. Municipal Court, supra, 16 Cal-APP-3d 766, 771, 94 Cal.Rptr. 331.) Given the conceded protection afforded the exercise of free speech in public places, the converse of Van Nuys certainly con- trols. [7] Nor is the prohibition against lewsracks on public property less than to- al because the City affords such privileges )n the Golden Mall. The fraction of Bur - lank open to newsracks is grossly inade- luate to meet constitutional muster. (See PoUam v. City of Palm Springs, supra, 59 :al.2d 276, 288, 29 Cal.Rptr. 1, 379 P.2d S1.) The cases relied on by defendant do not 'ell). In 46 South 56nd Street Corporation .. Manlin (Pa.1960) 398 Pa. 304, 157 A.2d People v. Amdur, 122 Cal.App2d Supp. 951, 267 P2d 445, involved a defendant who set up a card table on the sidewalk and passed out leaflets and petitions oppos- ing the death penalty. A city ordinance prohibited the physical obstruction of the sidewalk by objects such as the card ta- ble without permission from the city coun- cil. Since the court refused to consider the case as involving First Amendment problems, holding, rather, that the ordi- nance dealt with a privilege or activity "which may be completely prohibited" (id., at pp. 963 -964, 267 P.,'r: at 452), we can safely ignore it. Finally, Clay Investment Co. v. Racik, 88 Cal-App. 383, 384, 263 1, 555, held that the evidence was sufficient to sustain art order enjoining the defendant from maintaining a 4- by- 10- by-6.5 -foot newsstand on the street in front of the plaintiff's property, on grounds that the part icula Lstand was a �6 nuisance. Suffice it to say that the Bur- bank ordinance is not confined to particu- lar newspaper racks w F ich constitute a nuisance. The judgment is affirmed. STF-PHENS, and HAI; I'INGS, JJ , con- cur. I