Request By:
Mr. Thomas G. Alig, Jr.
Attorney at Law
203 Scott Street
Covington, Kentucky 41011
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As City Attorney for the City of Ludlow, Kentucky, you raise questions concerning the placement of newspaper vending machines within Ludlow by the "U.S.A. Today". You have read OAG 77-260, published, Banks-Baldwin. In that opinion we concluded that: (1) there are no statutes authorizing permits to be issued to a newspaper or owner of newspaper vending machines located on city, county, and state roads rights of way; (2) in the absence of public authority, the machines constitute a purpresture. A purpresture is an inclosure by a private party of a part of that which belongs to the public. Black's Law Dictionary, p. 1401. Cf. KRS 177.106, 177.103(2), and 416.140.
The factual background in that opinion was that newspaper vending machines were located on many city, county and state roads. The machines were chained to telephone poles located on or near sidewalks which were on city, county and state roads rights of way [Prometheus bound, but unbound for fifteen cents]. The question there was whether their location was pursuant to proper governmental approval under applicable statutes.
We concluded in that opinion that we were not aware of any statute permitting that kind of commercial venture at such publicly owned locations. Thus the owners of such vending machines were simply trespassers on public rights of way.
Question No. 1:
"Are the propositions advanced in that opinion still valid?"
The First Amendment to the United States Constitution provides in part that "Congress shall make no law . . . .; or abridging the freedom of speech, or of the press; . . . ."
In 10 McQuillin, Municipal Corporations, § 30.101a, page 821, it is written that "The First Amendment protections afforded speech and other forms of communication are also applicable to the public distribution of newspapers and periodicals through the use of newsracks or vending boxes placed on public sidewalks and streets. A municipality may not, therefore, constitutionally foreclose all use of newsracks or other newspaper vending devices on its streets and sidewalks. Entitlement to constitutional protection does not mean, however, that newsracks or other newspaper vending machines are totally immune from municipal regulation. Rather, municipalities may impose reasonable 'time, place and manner' regulations on the use of newsracks which are clearly and narrowly drawn so as to avoid arbitrary and unnecessary curtailment of freedom of speech and press. Thus a municipality may prohibit the placement of a newsrack in a location that unreasonably interferes with or impedes the flow of pedestrian or vehicular traffic. "
In
Philadelphia News., Inc. v. Borough C., Etc., Swathmore, U.S. Dist. Ct. E.D. Pa., 381 F.Supp. 228 (1974), the court ruled that the protection of the First and Fourteenth Amendments cannot be denied plaintiff merely because its newspaper is commercial. Thus "freedom of the press" includes the commercial press. The court said that "the constitutional protection extends to means of distribution of the newspaper, as well as to its content and the ideas expressed therein." (Emphasis added). The court added that the Supreme Court of the United States has long held that the right to circulation is as essential to the freedom of the press as the right to publish; without circulation, freedom of publication is a mockery. See
Lovell v. Griffin, 303 U.S. 444, 452, 58 S. Ct. 666, 82 L. Ed. 949 (1938). The United States District Court of Pennsylvania specifically held that newspaper vending boxes or machines along public streets and sidewalks are a constitutionally protected means of distribution.
The answer to Question 1 is that the principle applied in OAG 77-260 must give way to the proposition that the First Amendment protection means that the city should enact an ordinance relating to the reasonable control and regulation of such newspaper vending machines to be placed on city street and sidewalk rights of way. A city has no authority, in view of the First Amendment protection, to bar all such machines from city street and sidewalk rights of way. The city should enact an ordinance treating the subject of permitting such newspaper machines on such city rights of way under guidelines set out in the cases mentioned in this opinion. The ordinance should present a constitutional balance between the proper regulation of such devices, calculated to prevent any impediment of pedestrian and vehicular traffic, and freedom of the press. Where a constitutional ordinance is in place, and a particular company, without license, places machines on such rights of way, a purpresture would be involved, for which the city could file a trespass suit in circuit court.
O'Leary v. Com., Ky., 441 S.W.2d 150 (1969); and
Bradford v. Clifton, Ky., 379 S.W.2d 249 (1964).
Question No. 2:
"What licensing, permit, or regulatory authority would a fourth class city have in this situation?"
Its basic authority is found in the home rule statute, KRS 82.082, which provides in part that a city may exercise any power and perform any function within its boundaries that is in furtherance of a public purpose of the city and not in conflict with a constitutional provision or statute. Thus the city of Ludlow has the regulatory authority to deal with the placement of such newspaper machines on such city property, through the enactment of an appropriate ordinance, under the guidelines suggested in the above cited authority. See also the standards mentioned in
Gannett Co. v. City of Rochester, 330 N.Y.S. 2d 648 (1972).
Question No. 3:
"What enforcement (litigation) powers would a fourth class city have to stop the placement of these vending machines? "
We have dealt above with the question of trespass where a particular news vending company does not meet the provisions of a constitutional ordinance on the subject and places its machines on city rights of way, notwithstanding.
OAG 77-260 is modified accordingly.