Michael S. Gruen
Off the Rack
Winter 1995

New York City's Department of Transportation is considering how to regulate news racks, those eyesore vending machines that obstruct the city's sidewalks. The department will no doubt hear from publishers claiming that the effort imperils their First Amendment right of freedom of the press. Officials should not be intimidated.

The publishers will argue that they have a constitutional right to install news racks on public property, subject at most to minimal regulations essential to accomplish the city's goal of enhancing safety and aesthetics. Further, the argument will go, the government must show that it has comprehensively attacked other nuisances and is not picking on news racks. Any regulations will be subject to judges' "strict scrutiny," which places a heavy burden of persuasion on the city.

Many courts have mistakenly accepted this line of argument, as in a New Jersey decision that struck down a ban on news racks because the government failed to address other visual blights, such as "stores, utility poles, commercial billboards, traffic signs, benches, fire hydrants, mailboxes, street signs, and houses." It's wilderness or news racks—take your choice.

But the U.S. Supreme Court is likely to disagree. Twice, the Court has struck down news rack regulations—but only because the regulations allowed government arbitrarily to bar news rack sales by some publications while allowing them for others, a clear violation of press freedom.

In dissenting from these decisions, four currently sitting justices argued that no one has an inherent right to install anything on a public sidewalk—a view that no current justice has ever disagreed with. As it writes its regulations, the city should keep in mind that it holds the high legal cards, so long as it treats all publications equally.

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