*1 COMPANY, GLOBE NEWSPAPER al., Appellees,

et Plaintiffs — HILL ARCHITECTURAL

BEACON

COMMISSION, Defendant-

Appellant. 94-1538.

No. Appeals,

United States Court

First Circuit. 8,May

Heard 12, 1996.

Decided Nov. *3 Devereaux, (as amended) John R. with whom Merita Chapter A. chusetts Act Fabiano, Boston, Hopkins MA, adopt and Gerald the “Street Furniture Guideline”? brief, defendant-appellant. were on the SJC answered in the affirmative. See Newspaper Co. v. Beacon Hill Archi- Costikyan, Edward N. Michael S. Gruen Comm’n, tectural 421 Mass. 659 N.E.2d Nissenbaum, City, and David New York (1996). response, the SJC held brief, Cities, League for The National authority regu- Commission had Mayors United States Conference of and The late newsracks and other “street furniture” Municipal Society York, Art of New amici through rulemaking completely and to curiae. entire classes of structures such as news- Heigham, Choate, James C. with whom racks. Id. at Spe- 659 N.E.2d 710. Stewart, Boston, MA, Hall & and Alice Neff cifically,it said: *4 Lucan, DC, Washington, brief, were on for [Cjommis- sidewalks, As to streets and plaintiffs-appellees. jurisdiction sion’s appro- concurrent with priate municipal agencies. Regulation of TORRUELLA, Before Judge, Chief * rationally sidewalks is related to the CYR, CUMMINGS and Judges. Circuit goal preserving the Historic Beacon Hill TORRUELLA, Judge. District. enabling Chief Section of the [A]ct provides the [Commission with the au- controversy We visit this for the second thority to govern issue rules that private many years. time Newspa- See Globe conduct within particular geographic per Co. v. Beacon Hill Architectural responsibility. that, area of We conclude Comm’n, (1st Cir.1994). 40 F.3d 18 We are apart considerations, from constitutional left important to decide require issues that outright bans on certain classes of struc- balancing between First rights Amendment merely tures are practical consequence governmental interests. ability proscribe [Commission’s Defendant-Appellant Beacon Hill Archi inappropriate exterior architectural fea- (the “Commission”) tectural Commission en tures within the [District. regulation, acted a the Street Furniture Id. We thus focus our attention on the Guideline, effectively which newspaper bans issue, constitutional requires which us to de- distribution boxes from the streets of termine whether the Street Furniture Guide- Boston, Historic Beacon Hill District in rights guaranteed line by violates the First (the “District”). Massachusetts validity The to the Newspapers. We con- of this challenged was in a suit clude that it does not and reverse the deci- filed district Plaintiffs-Appellees, court sion of the district court. (the group of newspaper publishers “News papers”). The district court held that BACKGROUND Commission lacked authority adopt The Historic Hill Beacon District was cre- regulation and rights also that it violated ated an act of the Massachusetts General guaranteed by the First Amendment. See Court in 1955. See 1955 Mass. Acts ch. 616 Newspaper Globe Co. v. Beacon Hill Archi (“the Act”), as amended 1958 Mass. Acts Comm’n, (D.Mass. tectural ch. 314 & 1963 Mass. Acts ch. 1994). Mass. ch. Acts 1975 Mass. Acts ch. ensuing In the appeal by Commission, and 1982 Mass. Acts ch. 624. The Act is we concluded appropriate course of intended action certify was to dispositive issue of promote educational, cultural, econom- state law to Supreme Judicial Court of general ic and welfare of the (the “SJC”) Massachusetts proceeded. and so through preservation of the historic question To the district, Beacon Hill and to maintain said Did the Beacon Hill Architectural Commis- district as a landmark in history sion authority have the under 1955 Massa- tangible architecture and as a reminder of * Circuit, Of the sitting by designation. Seventh “spread upon early days of the Commission must its rec- it in the Boston as existed

old determination” that [its] ords reasons the commonwealth. appropriateness should not a certificate of 616, § 2. District’s ch. 1955 Mass. Acts may aggrieved party appeal issue. Id. An hardly can be doubted. significance historical Superior decision to the the Commission’s Justices, County, 338 Mass. “shall annul Opinion Court for Suffolk of- (1955). if it Indeed, the determination [CJommission” it 128 N.E.2d by the evidence” or “insuffi- is “unwarranted Register of Histor- was listed National § cient in law.” Id. at designated a National Historic ic Places previously surprising noted was not pursuant Landmark on October that, “given applications the stream of Act of Historic Preservation the National appropriateness, the Commis- certificates 1966,16 seq. § et U.S.C. developed policies uniform toward cer- sion was created to review The Commission recurring types proposed tain alterations.” architec- proposed changes to the “exterior Newspaper, Specifical- 40 F.3d at 20. formally ly, adopted policies of “structures” within feature[s]” tural “guidelines.” guidelines regulate ex- These 7;§ ch. 1955 Mass. Acts District. See architectural features such as mason- terior (defining § an “exterior see also id. at roofs, windows, shutters, doors, ry, sash and feature”); Mass. Gen. L. ch. architectural *5 trim, paint, guide- One of the ironwork. “structure”); (providing § definition of “[fjreestanding signs lines states that are not Anyone 40 F.3d at 20. Newspaper, Globe permitted.” construct, wishing or alter to reconstruct District, Newspapers In the distribute required feature is to exterior architectural mail, publications delivery, via home a apply to the Commission for certificate sales, vendors, store street and “news- Commission, appropriateness. “[i]n 1 Newsracks, explained, are racks.” passing upon appropriateness,” shall consid- newspaper painted boxes in vari- distribution alia, er, “the historical and architectur- inter featuring ous colors and the name of the style, significance, al value and architectural advertising logos, newspaper and other texture, arrangement, mate- general design, lampposts, sign- commonly anchored to of the architectural rial and color exterior plain- posts, or fixtures the sidewalk. The relationship thereof involved and the feature thirty-nine tiffs maintain a total of newsracks architectural features of other to the exterior District, the district.2 Within neighborhood.” distribute, in the immediate structures or are avail- are eleven stores distribute, Furthermore, Newspapers’ publiea- § Acts 7. able 1955 Mass. ch. Newspapers' publi- 1. The record shows that the following by methods: cations distributed (10); (9); The New York thirty-nine Boston Herald maintained

2. The (4); (8); Street Journal USA Newspapers Times The Wall are broken down as follows: Boston District, (any within one Outside Publication distribution boxes boxes tions. boundaries, publi- placed the sidewalks to distribute District’s the News- block not) cations, charge whether for visible through publications are stores papers’ sold public way within from a are not allowed undisputed It that no newsracks.3 the District. 1,000 the District is more than point within decision, mile) In its Commission indicated from a (approximately of a feet 1/5 guideline publication distribution Newspapers’ publications. source of the (“PDG”) guideline was consistent with its were first introduced Newsracks banning freestanding signs Commis- and the 1980s, early District denying sion’s decisions the installation complain begun Hill residents had Beacon sidewalks, signal traffic control boxes on the “unsightliness, congestion and inconve- and the of the installation of a vending system with the ma- nience associated cable television the District. The Commission believed that the chines.” later, A months April few guideline prohibiting newsracks violated the Newspapers Commission notified the free-standing signs. It took no enforcement later, guideline. request- new One month action, however, regula- city-wide Newspapers ed that the news- remove their Then, June being racks after tion newsracks was discussed requested Newspapers that the Commission early 1980s. regulation, adopt reconsider decision to regulation having been testimony the Commission heard from the adopted, the Beacon Hill Civic Association July, Newspapers voting 1991. After guideline petitioned the Commission reconsideration, deny ex- District. exclude newsracks from the After removal tended the deadline until October holding public meeting peti- regarding month, Newspapers 1991. Within *6 tion,4 survey Commission conducted brought seeking suit district court declara- relief, completed, study January, tory damages, and preliminary permanent injunctive regula- relief entitled the “Publication Distribution Box from the tion, (the (in grounds on the it violated their See Report” “Report”). Exhibit H right newspa- record). First Amendment to distribute thereafter, February on Soon pers in District. the Commission held a hear- guidelines ing5 proposal adopt for facts, stipulated After a bench trial on and, adopted ultimately, the fol- from regula- court ruled the bench that the lowing guideline: tion the First offended Amendment: (3); (5). Today publi- and TAB Newspapers' In addition to the 3. The shows that the record newsracks, Newspapers’ pub- five at least are available cations in stores and newsracks maintain newsracks within the District. Statement of Facts at lishers near the District follows:

Agreed p. 16. mailed, Although meeting Again, although 4. notice of this was mailed to 5. notice was the News- offices, Newspapers’ the received was main notice papers' Departments receive Circulation did not and, Departments their Circulation and, thus, the notice did not attend. Newspapers, only appeared of the the TAB petition. commented on the Chapter 616 of Acts being narrowly tailored ..., “instead speeeh[, amended. respect limitation only narrowly to focus tailored PDG] so, Having done Commission moved applies to no form of visual It speech. judgment, arguing reconsideration public[ation] distribution clutter other guideline the new was free from'the boxes_” judge Significantly, the trial time, defects of This constitutional the old. statutory whether there is was “troubled judge only district held that the new legisla- particular kind of authority for the guideline fared no under the First better guide- making” illustrated tive rule Amendment, but also that the Commission decide ease on state He did not line. authority under lacked Massachusetts law however, ques- “the grounds, law regulation.6 adopt the new Globe News- the Architectural Commission’s tions about F.Supp. paper, 847 authority at least on the debatable perhaps ... and re- present would record DISCUSSION quire supplementation the record some to resolve order Court I. The First Amendment and ” them.... Street Furniture Guideline (quoting Newspaper, 40 F.3d at 20 A. Review Standard of transcript). bench trial ruling judg- ruling appeal bench but before In an from an adverse After the entered, merits, adopted trial on our review ment had after a bench present ordinarily quite new we review guideline Street circumscribed: —the furniture,” legal bans all “street novo the district court’s Guideline —that de determina newsracks, tions, just according significant from the District: amount of def to the court’s determinations erence factual furniture, below, as defined shall and to most of of mixed resolutions fact/ Beacon permitted not be Historic issues, letting they them unless law stand ap- exception with the Hill District clearly erroneous. See AIDS Action Comm. proved merchandise stands store-front Cir.1994). (1st MBTA, In a F.3d by au- placed erected or those structures one, however, such as this “where case *7 safety public’ agencies public thorized upon number trial court is called to resolve a purposes. welfare public and/or w implicate of which mixed matters fact/la defined as structure erect- furniture is review, concerns, First Amendment our core public ways private ed placed or or matters, plenary these is so at least on temporary permanent or basis. ‘ may of “a forbid reduce likelihood expres on the of free public safety/public welfare den intrusion field Authorized ’ ” includes, (quoting Corp. limited v. Consum furniture but is not sion.” Id. Bose street U.S., Inc., U.S, 485, 499, to, lights, traffic ers Union 466 structures street such of (1984) 1949, 1958, boxes, lights, hydrants, fire L.Ed.2d 502 mail street 104 S.Ct. 80 Sullivan, trees, receptacles. Any v. (quoting trash such New York Times Co. 254, 285, 710, 729, 84 11 public safety/public welfare 376 U.S. authorized S.Ct. (1964))). furthering approved furniture or store-front L.Ed.2d 686 Besides street Action, interests, subject see 42 F.3d merchandise stands shall be AIDS 7, applica keeping review of trial review and shall “de novo court’s First with the architectural and historic charac- tion of a Amendment standard federal ter criteria for facts before ‘ensures that the. of the District of First specified protectors remain zealous exterior architectural features as courts pass moot. that issue is We decline Commission’s invitation upon validity original regulation of the 182 ” fora). rights.’ (quoting Duffy public Id. Amendment streets are In these traditional 139, (1st Cir.1989)).

Sarault, F.2d 892 142-46 fora, “places by long tradition or by government fiat have been devoted to Legal B. Framework debate,” assembly Perry, 45, 460 U.S. at Amendment The First states that “Con 954, government’s authority S.Ct. ... gress abridging make law shall “sharply restrict is circumscribed.” speech, press.” freedom of U.S. Id. Perry explained, As the Court in Const, beyond dispute I. It is amend. [f]or the state to enforce content-based right newspapers protect to distribute is exclusion it must show that its City ed under First Amendment. See of Co., Publishing necessary Plain Dealer Lakewood v. is compelling serve a state 750, 768, 2150, 2138, 108 S.Ct. U.S. narrowly interest and that it is drawn to (1988); Griffin, Lovell v. L.Ed.2d achieve that end. U.S. 82 L.Ed. 949 public fora, Id. In traditional content-based Gold, (1938); Publications, Coast Inc. v. Cor restrictions are presumptively invalid and (11th Cir.1994), rigan, 42 F.3d — subject See, scrutiny. e.g., to “strict” denied, Acker U.S. -, 337, 133 cert. 116 S.Ct. (1995). Mass., Here, ley Communications parties City L.Ed.2d 236 Inc. v. do not of of dispute (1st Street Furniture Guideline Cambridge, Cir.1996); 88 F.3d effectively bans use of newsracks as a Amusements, National Inc. v. Town Ded distributing newspaper method of in the Dis ham, (1st Cir.1995). 43 F.3d The issue, course, trict. The is whether under clear, Perry however, Court made that in case, Newspa circumstances traditional fora pers’ rights First impinged. may state regulations [t]he also enforce rights, We know few constitutional if time, place, expression absolute, manner of any, are and in most constitutional litigation content-neutral, upon what courts are which are narrowly called to do is competing to balance rights. fundamental significant government tailored to serve a See, e.g., Denver Area Educ. Telecommuni interest, open ample and leave alternative Consortium, cations Inc. v. Federal Commu channels of communication. — Comm’n, U.S. -, -, nications 45, 103 Perry, 460 S.Ct. at 955. Such 2374, 2384, (1996); 135 L.Ed.2d 888 time, place, — regulations and manner are sub Umbehr, County Board Comm’rs v. ject See, scrutiny. to “intermediate” -, e.g., -, 2342, 2352, (1996). Amusements, L.Ed.2d 843 National Such 43 F.3d at 736. present is the situation. modalities, “differing analytic Given the It now axiomatic that unsurprising many First Amendment degree protection provided the Consti battles over constitutionality govern- depends tution “on the prop character of the regulations ment start with a debate about erty at Perry issue.” Perry Educ. Ass’n v. scrutiny appropriate.” what level of Id. at Ass’n, Local Educators’ 103 737. The instant exception. case is no *8 948, 954, (1983).7 S.Ct. 74 L.Ed.2d 794 key issue is determining thus whether the case, the instant “property at issue” is Street Furniture Guideline is content-based the District’s streets and sidewalks. The or otherwise has a impact content-based in Supreme Court repeatedly has recognized publications, which particularly newspapers, public streets “as archetype of a tradi singled treatment, negative are out for as is Schultz, tional forum.” Frisby v. 487 claimed Newspapers, is content or 474, 480, 2495, U.S. 2500, 108 S.Ct. 101 neutral on (1988) application, its face and as is L.Ed.2d 420 (noting particu that “[n]o alleged by inquiry larized precise into the the Commission. The answer to nature of a specific street necessary” inquiry as all this will allow us to establish what between, Distinguishing test, 7.. say, ultimately uphold, commercial and cations because and See, speech non-commercial is a relevant factor. the Street Furniture Guideline under the more Fox, e.g., 469, 480, Board Trustees v. 492 U.S. stringent governing of standards noncommercial 3028, 3034-35, 109 S.Ct. 106 L.Ed.2d 388 speech. (1989). Here, precise we need not make classifl-

183 intermediate, which Justice was will- scrutiny, newsraeks Stevens strict or of level ultimately arguendo might constitu- finding ing which will to assume be appropriate, controversy. City Discovery of this in Cincinnati v. the outcome tional settle of Inc., Network, 410, 427-28, 113 507 U.S. Content-Neutrality and C. (1993) 1515-16, 123 L.Ed.2d 99 S.Ct. Impact Content-Based content- (holding ban on newsraeks to be determining a news- noted, based because has con whether “[t]he As this circuit required to a as rack within ban reference content-based fell cept of what constitutes a content).8 Furthermore, publication’s like regulation has a content-neutral opposed to posted signs The the Court proven practice.” in Id. at 737. protean the ban City ‘principal inqui City in upheld cases “teach Members Council Court’s of Vincent, neutrality, in ry determining Angeles Taxpayers v. 466 content Los time, place, 789, 804-05, or speech generally 80 cases and S.Ct. particular, (1984), cases is whether Furniture manner L.Ed.2d 772 the Street government adopted regulation has concerns is directed aesthetic Guideline disagreement because suppression is unrelated ideas: ” conveys.’ (quoting v. message it Id. Ward indeed, nothing suggests record Racism, 781, 791, 109 Against 491 U.S. Rock challenged regulation of an out arose (1989)). 105 L.Ed.2d suppress any message particular effort purposes unrelated “A that serves newsraeks, through nor do communicated expression neu is deemed the content much.9 Newspapers even as contend tral, if it has an effect on even incidental That the Furniture results Guideline messages or not others.” speakers some nothing more in a total ban on newsraeks is Ward, 109 S.Ct. at 2754. effect than an incidental of its stated aesthet- enhancing ic architecture goal of historic test, the Street Under by reducing clutter: of the District visual very model of a seems to be the Guideline nothing in the to contradict there is record regulation. make It does not content-neutral this. to the demand reference otherwise con contend, however, that speech, plain Newspapers in its the affected either tent of Indeed, impact, has a application. in its this directive content-based language or newsraeks, singles publishers, out most operates a com it applied to serving daily newspapers," Bos plete significantly to the con ban without reference negative In ad publication special, treatment. given whatsoever: ton tent of “targeting,” treat vancing its “differential uniquely physical concerned with the struc ment,” arguments, the speech, only the and “censorial effects” housing ture restricts Furni urge us to plainly apply Newspapers test the Street of distribution would mode such, against Minneapolis Star & empty. it seems they if were ture Guideline even Rev., 460 very ban Tribune v. Minnesota Comm’r example kind of total ones Commenting constitutional while “narrower” on Justice Steven’s observation lations See, Network, e.g., Liquormart, v. Rhode Discovery not. Inc. court noted district — U.S. -, - Island, 20, 116 S.Ct. strange a broader ban seems “[t]he notion n.20, (1996) (citing R.A.V. acceptable 134 L.Ed.2d 711 speech is more than a narrower Paul, v. St. Newspaper, F.Supp. at 195-96 ban.” (1992) Discovery L.Ed.2d 305 Cincinnati Rehnquist’s dissenting (citing Justice statement U.S. 410, Network, logi- Discovery scarcely seems Network “it (1993)). L.Ed.2d compels the First Amendment such cal that result”). Discussing whether First Amendment *9 court’s creates—to use the district doctrine suggestion, there let further is no 9. We note “perverse regulate more phrase incentive to Guide- argument, that the alone —a 195, speech,” does our ultimate id. not alter it is “format- content-based because line is media, based,” present regulation only content- print that the is or “distri- applying conclusion We, therefore, bution-based,” applying only in decline the invitation to newsraeks: neutral. words, unnecessary dialogue. argument is de- engage We note in that the SFG in this other however, particular message suppress carried unprecedented signed in a passing, that it is not regu- only through media. jurisprudence either these two that “broader” constitutional 184 575, 1365, Leathers,” prism Minneapolis 75 L.Ed.2d 295 Star and

U.S. Medlock, (1983), Amusements, 740, and Leathers U.S. 43 F.3d at National leaves 1438, (1991). unpersuaded L.Ed.2d cognizable S.Ct. us is a that court, view, correctly in The district invoking scrutiny. for basis strict regulation because the ex- concluded that Amusements, panel In National a of this empts merchandise and store-front extensively Minneapolis court discussed Star structures, safety/welfare singles press noting and Leathers. After the Court’s and, thus, special for “simi- raises treatment in Minneapolis statement Star that “differ- ” lar ... of concerns ‘censorial effects’ treatment, justified by ential unless some by Court in Minneapolis found Star. special press, suggests characteristic of the Newspaper, 199. goal regulation of the is not unrelat- matter, disagree. We an initial we are suppression expression, ed to and [that] upon Minneapolis of the view that reliance goal presumptively such unconstitution- Newspapers Star both the and the district al,” Star, Minneapolis 460 U.S. at First, misplaced court the instant case. is. panel S.Ct. went on to discuss Star, Minneapolis one of a line of cases that in Leathers “the Court refined the anal- establishing regulation rules the economic ysis Minneapolis it had crafted in Star[.T time, press, place of the not involve a did Amusements, National 43 F.3d at 739. newsprint manner restriction. tax on explains targeting Leathers engenders “that unconstitutional, there was held because it (1) scrutiny only regulations strict when sin- applied only press and discriminated (2) gle press, out the take aim at a small publishers in favor of one class of anoth- over (3) speakers, group discriminate on the er; i.e., generally applicable. was protected basis speech.” content of Star, Minneapolis S.Ct. Essentially, then, Id. at 739-40. because the importantly, at 1369-70. More unlike the Street Furniture does not Guideline discrimi- adversely Street Furniture Guideline which content, on the Newspapers’ nate basis of distribution, only affects one method of arguments scrutiny for strict based on tar- regulation there rendered all forms of circu- geting and hinge differential treatment Second, lation more burdensome. unlike the one or both of the first two criteria identified discriminatory tax, case of a the Commission in Leathers. asserts, and the Street Furniture Guideline that, noteWe first extent the News- present advances, regulation colorable non- papers’ “targeting” and “differential treat- content-discriminatory purposes: aesthetics. arguments essentially upon ment” rest Last, we it is not believe coincidental that scrutiny that always justified notion strict neither of the newsrack two eases decided practical regulation when the of a effect tois Court, Discovery Network and Plain regulate rights the First Amendment Dealer, engaged in a Minneapolis Star anal- group, misguided. select this notion Na- ysis. Indeed, none the cases have Amusements, tional Simply 43 F.3d at 739. dealt with restrictions newsracks have put, this notion. content-based, found the restrictions to be impact, secondary have a content-baséd flies the teeth of the or otherwise effects trigger formulation, scrutiny they singled- strict doctrine. Under [this] fact, press regulation; regulation out the Minne- that has an effect on fewer than apolis even speakers Star is not in the two all First mentioned or mes- newsrack decided sages cases could Court. See be deemed to be a form of Network, Discovery generally subjected targeting and thus to strict Dealer, Plain scrutiny. Supreme Yet Court has rec- aside, That “in- ognized municipality may 2138.10 even lawfully spect[ing] through case precedential enact purposes “serves only provision 10. The Minneapolis mention of Star is applied only was invalid because it Dealer, Rehnquist’s Chief Justice dissent in Plain to newsracks and not "users” 486 U.S. at & "inapposite unpersuasive" 108 S.Ct. at 2165 & n. to be streets case). 17 (finding Minneapolis argument Star-based

185 (1986) (noting city that expression ... 29 treats certain mov- to the content of unrelated- differently markedly on the if it incidental effect some ie theaters based has an even upon others.” messages surroundings). or but not speakers different effects Network, Discovery U.S. at 113 507 Ward, U.S. at (quoting Id. at (noting at unlike S.Ct. 2754). importantly, More at 109 S.Ct. secondary Renton “there no effects [were] Star, the Court did Minneapolis [i]n commercial-publication to” attributable single regulations that out all condemn distinguished them from the newsracks speakers for differential First Amendment newsracks). publications non-commercial treatment; rather, acknowl- Court Newspapers complain While of differential edged that certain forms “affects Furniture Guideline no other Street “justified by spe- some may be treatment District, similarly object” in the situated regulated cial characteristic” of. no simply truth of the matter is that there speaker. object. only is other such Not Amusements, (quot- at 740 F.3d National entity public record evidence that other — Star, Minneapolis ing private objects or or other added)). —uses (emphasis Most rele- at 1372 similarly lampposts, to that are anchored case, noting that “[s]ec- to the instant vant signposts, fixtures or sidewalks comprise special charac- ondary effects can public, product but there distribute group speaker or particular of a teristic entity is also evidence that such an no record that “the lan- speakers,” this court concluded subject challenged regu- to the would not be Minneapolis quoted ... from Star guage view, lation. In our that there no such comfortably exception an accommodates effect, evidence, suggestion alone a to that let prohibition on differential treatment for only “uniqueness” of the underscores the effects, secondary so regulations aimed way they impact newsracks and reasonably related to long disparity as the upon District. National legitimate government interest.” Amusements, F.3d at 740. conclusion, reaching our falls Furniture Guideline swayed by findings that the district court’s matter, exception. As initial within that “[g]overnmentally-placed street furniture is is no indication we note that there exempted, and merchandise-store fronts are “targeting” or alleged “differ Commission’s subjected stringent more to no review purposeful was in a ential treatment” done they “only appar- ever were” and/or Newspapers’ attempt with the interfere Guideline] [Street ent effect of clearly First Amendment activities: while Newspapers’] [the will be the removal of distribution, away other takes one method Newspaper, 847 publication boxes.” Globe ante methods left untouched. See Contrary Newspa- at 199. Coast, 42 1 and at n. see also Gold contentions, exempt furni- street pers’ (rejecting disparate treatment F.3d at 1345 ture, signs, tangible store-front or regu was argument where there no evidence may life also or signs of modern constitute was because of a dislike with lation enacted necessarily add to clutter” does “visual (find Leathers, message conveyed). Cf unjustified: render the differential treatment because, pitfalls ing tax avoided measure if ignores legitimate, not obvi- argument example, “no that Ar there was indication” ous, among those on-street differences pur in a “targeted kansas cable television objects that are essential to other visible ... poseful attempt to interfere with First public safety and traffic and welfare —street activities”). trees, boxes, hydrants, lights, mail fire street receptacles, parking signs, trash importantly, furniture” can traffic and

More “street hitchposts pre- parking obviously add to clutter in meters create or visual —and private entities. calling ferred distribution means ways such that solutions different Dealer, 797-98, might be warranted. See Plain differential treatment (find- J., Theatres, Inc., dissenting) (Rehnquist, at 2165 Playtime Renton Cf. 49, 106 of a ing “public services difference between L.Ed.2d *11 enacting argument legislation, nature” and newsracks an quasi-governmental Although totally by unsupported any the record is is significant). to be evidence. any regarding facts store-front devoid of Finally, unpersuaded by we are the News- stands,11 Newspapers’ argument also the that, regulation claim papers because the practical dif- ignore and historical seems to deprives publishers already significant of an signs merchants’ on-site ferences between percentage readers, still growing of their bulky along newsracks anchored impact hardly While, is “incidental.” assume, It safe to at least in sidewalks. is alleged by Newspapers, may newsracks of record evidence to the con- the absence “indisputable indeed be the workhorse” of trary, bulky the newsracks’ overall (a daily press by contention belied reasonably predictable as com- is structure District, regarding evidence ante at 179 signs, pared to store-front which lend them- 1), nothing suggests, in the record let case-by-ease readily more review: selves demonstrates, alone how the removal of the appearance may designing the newsracks’ re- District’s newsracks so burdensome that it “unsightliness” complained-of duce their it, “incidental.”' As we see the News- complained-of does eliminate complaint papers’ potential boils down to “congestion and inconvenience.” through passing reader the District or the and, non-subscribing resident as we discuss importantly, disagree Perhaps most later, ample exist alternative channels for the that, with conclusion as in the district court’s Newspapers to reach even accidental these Star, “[sjimilar ... Minneapolis concerns passing through transients the District as of ‘censorial effects’ are raised sense frequent well as those readers more ties ],” Guideline[ the ... to the District. only Newspaper, at 199. Not sum, cognizable we find no basis for support record the con- nq evidence and, thus, invoking scrutiny apply strict that, regulation, pub- clusion because of the scrutiny. intermediate level might lishers be chilled the threat of of,distribution, restrictions other methods D. The Street Furniture Guideline any we fail to countenance reasonable basis Scrutiny Under Intermediate upon ground which to such a fear: none of depend aside, scrutiny other methods of distribution Strict restrictions on time, upon subject place structures which are protected and manner of ex Furthermore, jurisdiction. pression public Commission’s be- forum —and the Street newsracks, complete upon cause it is it Furniture ban Guideline’s effective news- for, provide grant, upon does not private or otherwise racks the District’s any ways certainly alone qualifies unbridled —dis- as such a restric —let upheld cretion what will determining they tion —should long so Dealer, “content-neutral, be allowed. See 486 U.S. at narrowly Plain ... tailored to 769-72, 108 significant governmental interest, S.Ct. at 2150-52. As serve a Newspapers’ claim censorial effects and allow for reasonable alternative channels Perry, Street Furniture Guideline extend be- of communication.” 460 U.S. at yond District, nothing Network, we find Discovery see record, assertion, other that this bald mer- (apply 113 S.Ct. at 1516-18 time, it such allegation ing place, conclusion. The that this regulation and manner test to regulation publishers forum); Dealer, “sends of newsracks in affected Plain message criticize, 763, 108 that if they annoy other- (noting 486 U.S. at S.Ct. at 2147 any power time, wise offend apply official with over Court place, would and man forum, they may expensive another hypothetical face ner test to a com ordinance futile court battle” implies pletely particular prohibiting Commis- manner of sion retaliatory Amusements, has acted in a expression); manner see also National newsracks, Interestingly enough, Newspapers banning despite did the fact that it would raise exempting the differential treatment of store-front have the same effect those struc- signs they challenged when the first tures. *12 cases). particular a whole rather than to a Capi nation as (citing at 741 F.3d Cf. — locality”). U.S. -, Pinette, State Sq. Review Bd. tol 2446, -, 132 L.Ed.2d swayed Newspa We are not (1995) (noting “a ban on all unattended that pers’ that aesthetic claim the Commission’s reasonable, might a content- ... be” displays significant gov a cannot constitute interests restriction). time, place and manner neutral public interest where a ban in a ernment discussed, already the Street As we have Although it is involved. did ex forum We is content-neutral. Furniture Guideline address, test, plicitly legiti or otherwise thus, analysis. turn, to the remainder public macy through a forum of aesthetics

lens, Discovery in Network ac the Court city’s knowledged that the asserted interest Significant A Government Aesthetics: “admittedly legitimate” in was an aesthetics Interest? regulation justifying its of sidewalk interest Network, Discovery newsracks. preservation- of that Pointing to the fact 424-25, 113 (holding that news- is mandated District “as a landmark” regulation’s com rack distinction between law, § eh. state see Acts of speech bore no mercial and non-commercial pre- contends that its interest relationship to its asserted “whatsoever” and architec- serving the District’s historic interest). Indeed, Newspa aesthetic government tural character is a substantial pers’ contrary, to the there is contentions narrowly justifies re- that a tailored interest authority proposition for the that abundant disagree, Newspapers roundly striction. significant aesthetic interests constitute a arguing that Commission’s invocation justifying neu government interest content statutory justify purpose cannot a ban its tral, narrowly regulations public of a tailored in a forum. The district open ample that leave alternative forum Instead, way. not decide either court did Coast, See, 42 F.3d at e.g., channels. Gold granted the Commission satis- took for “significant as (recognizing aesthetics significant government fied interest upholding when ordi government ]” interest arguendo prong “assume[d] when in traditional regulating newsracks nance greater interest [a'Jesthetie Commission’s forum); Observer, Chicago Inc. v. average community, that of the (7th Chicago, F.2d Cir. City designated special District] has been [the 1991) (upholding regulation of newsracks’ Newspaper, 847 district.” Globe historic “[cjities’ justified by advertising and size as F.Supp. at clutter, for curtail[ing] visual in] [interest reasons”); safety Plain Dealer aesthetic certainly has met Lakewood, The Commission City Publishing Co. v. Cir.1986) governmental interest” “significant (6th (recognizing F.2d occasion, the government than one in prong. On more aas aesthetics “substantial” justifying [a] .... as of newsracks recognized has aesthetics total ban “Court terest areas). government legitimate significant residential ] interest! through regulating ordinances

ly furthered conclusion that Commission’s Our expression con various First “significant” does not specified interests Coast, (citing 42 F.3d at Gold texts.” cases, the inquiry. “[i]n As most end the cases). Although is no need to accord prong] turns not on whether [of outcome in greater than average the Commission significant, but specified interests aesthetics, unreason narrowly it would regulation terest rather on whether the statutory given mandate as to do so Gold able to serve those interests.” tailored Coast, significance to both 42 F.3d as the District’s at 1345. well whole, as the nation as a Massachusetts and Is the Street Furniture Guideline designation a National evidenced n Narrowly Tailored? § 65.2 Landmark. See 36 C.F.R. Historic correctly set court designations are reserved the district (stating such forth, “explained to the the Court Ward “properties exceptional value tailoring requirement speech, narrow not man- ... certainly does tion on rele analysis: Network, restrictive date least means Discovery vant consideration.” ‘[r]ather, requirement of tailoring narrow at 417 n. 113 S.Ct. at 1510 n. 13.13 long the ... mind, is satisfied so this in With the district court observed government promotes a substantial interest effectively achieved less that would be absent SFG assumes lights, [t]he that “street traf- ” *13 Amusements, regulation.’ the National 43 lights, boxes, hydrants, fic mail fire street Ward, (quoting at 744 at F.3d trees, receptacles,” and trash be can de- 2758). regulation 109 S.Ct. at The will be in signed they such a fashion that will be burden, if “substantially valid it does not keeping “in with the architectural and his- speech necessary more” than to is further toric character of the District.” The same Ward, government the 491 interest. U.S. at is true store-front merchandise Coast, 109 at see Gold showing stands.... There is no that at F.3d 1345. Where aesthetic interests inherently newsraeks are more out of play, challenged regulation the must be keeping with the architectural character of judged by government overall context: than [District] other modem innova- regulation must show that the feature tions been approved by that-have the Com- negligible at issue “would have more than a mission on the basis of their external de- aesthetics,” impact generally re- sign features. quires government making that be Newspaper, F.Supp. Globe at 194 — 95. In “comprehensive bona coordinated-ef- fide view, preference giv the district court’s “the to fort” address aesthetic in concerns ‘public’ en to street furniture and store-front community. Metromedia, affected See Inc. ... stands [i]s evidence that the Fur [Street 490, 531, Diego, v. San niture ... ... narrowly Guideline] is (1981). 69 L.Ed.2d 800 tailored,” id., and substantially “burdens nutshell, In a the district court held that speech necessary more than is to serve challenged regulation pass did not mus- preserving Commission’s interest in the char ter Under First Amendment because the District,” acter Newspapers id. why “has shown no reason contend that is this correct. preserving

interest in the architectural and [District historic character of the cannot disagree, We and conclude that by, example, subjecting met regulation First, narrowly newsraeks is tailored. doubt, and street furniture the same and promotes review without a the Com process as significant store-front merchandise racks.” mission’s govern or substantial14 Newspaper, at 194. preserving ment interest in the District’s conclusion, reaching observed, this the district court aesthetics: as [C]om- the SJC “the took its from cue the Court’s statement in has mission determined [newsraeks] that Discovery inappropriate, part Network: while need they did not satisfy “least-restrictive-means” exist at the time which the [C]ommis test,12 “if there are numerous and preservation obvious sion’s efforts are concerned.” less-burdensome to the Newspaper, alternatives restric- Globe 421 Mass. at Coast, (noting applies 12. Gold tailoring F.3d 1346 n. to determinations narrow tra using scrutiny.” reliance on newsrack cases "least Chesapeake re- der intermediate & Poto States, misplaced subsequent strictive means” is due to mac Co. Tel. United 42 F.3d of Va. Supreme standard). (4th Cir.1994). rejecting Court cases 199 n. Although Discovery 'significant the Court equivalent Network term 14."The interest’ made applying this ‘important observation while the test the terms and interest' 'substantial see, applied Trustees, interest,' speech, e.g., phrases commercial Board and these are often used inter- 3034-35, changeably.” Rodney U.S. at 109 S.Ct. at A. Smolla & Melvin Nim- mer, Amendment, speech “[b]ecause commercial receives less A First Treatise on The First n § protection (1994) (noting than does 3.02[3][A] non-commer- &3-36 n.95 speech Ward, cial ... [because] intermediate scru- 491 U.S. at 109 S.Ct. at uses tiny impose "significant" also does not adjacent a 'least-restrictive- “substantial” sen- ..., tences). analysis, means’ clearly [this observation] by, say, be met Second, Commission’s interest could Report’s review as N.E.2d 710. indicate, furni- “subjecting alternatives15 newsracks and other street of the five available pre- aesthetic interest the Commission’s process as store- ture the same review architec- historic and serving the District’s racks,” it treats front merchandise would not be achieved tural character “preference.” furniture” with some “street banning regulation: effectively, absent court, however, do not Unlike district effectively, Com- would findings compel such a deter- conclude that observed, completely Report most mission’s ease —that mination —at least inappropriateness “be “reverse” “sub- burdens Guideline purposes of the with the most consistent necessary stantially more” Finally, it Exhibit H 7. does [District.”16 and, thus, nar- accomplish purpose is not “substantially burdening more” without so rowly cor- tailored. While district court burden, necessary: does speech than rectly fact less-burden- considered the *14 affect, any adversely other otherwise or exist, gives much some alternatives it too distribution, including the use of means of doing, so weight to fact alone. In it that See ante forum. street vendors essentially equation from the discounts we note that the Significantly, at 179 n. 1. the Fur- inquiry into whether Ward’s implicitly, acknowledged, albeit court district “promotes Commis- [the niture Guideline regulation meets this challenged that the [they] sion’s that would be such] interests opinion did the district test: nowhere in effectively [Street achieved absent less that the Street Furniture court conclude Ward, 491 U.S. at Guideline].” fail to the Commis- would advance Guideline added).17 799, (emphasis at 2758 S.Ct. its interest would be interest or that sion’s effectively regulation. absent achieved matter, explain: As an initial conclusion, We reaching are mindful

In our we Discovery Network explained that “findings” that the Court court’s of the district "carefully calculated” deter- do not evidence a several attacks at Com- 15. The dissent levels that the ban on newsracks is the most available mination consideration of the five alter- mission’s "proportionate resulting to the suitable solution We that none of these conten- natives. believe protected First, if, First Amendment ac- requiring burdens on scrutiny. tions withstand tivity." post (citing DiscoveryNet- at 197-98 "actively ] alter- the Commission consider! work, 1510 n. 507 U.S. at 416 n. at design proposals," the dissent native newsrack 12). suggests that the Commission's The dissent suggest that Commission was re- means to "carefully calculated" because decision was not implement experiment quired with other to incremental,, employ ex- failed or consider it to ban, choosing finally the total alternatives before perimental to a total ban on news- alternatives simply disagree Discovery we re- Network however, believe, racks. Id. at 198. We quires this. study, to ac- in addition its other Commission's Second, to failed send Commission tions, carefully fact calcu- demonstrate that hearing plaintiffs' to notice of of alternative that lated its determination departments is irrelevant because circulation comprehensively met each its interests most hearing granted a and, time, reconsideration speech at burdened no more the same upon Newspapers' request original after the necessary this interest. See to further promulgated. Ward, ban was at Addi- at 491 U.S. Finally, disagree last with the dissent’s tionally, Amusements to we do not read National point regulate to engage experimen- the Commission's failure require the Commission basis, as it individualized does employment measures or other- of alternative tal displays appurtenances, a decision engage some other of the "suita- wise in further calculation beyond study lacking bility” That the Commis- careful calculation. that which of alternatives newsracks, only sion has chosen a total ban it has done. demonstrates applied different measures more relevant appurtenances, court, shows that Com- despite to the its statement 17.The district its determination based on contrary, mission made applied the “least re- to have seems uniquely and concerns related news- interests the "nar- when calibrated strictive means” test closing, it row-tailoring” racks. stated: "A scales. purpose benign regulator’s cannot declaration expression rights justify a contends that the Commission's needless burden on 16. The dissent regulator's public meetings, instrument when holding conduct- caused blunt two actions— ing Newspa- study, survey, taking finer instruments are available.” Globe publishing a ad- request— per, 847 at 200. testimony Newspapers’ at the ditional repeatedly “numerous and obvious less- Court the existence “has deferred to the aesth- certainly ... judgments alternatives municipalities burdensome etic and other Network, Discovery government evaluating relevant consideration.” bodies when restric- Coast, 113 S.Ct. at 1510 n. 13 protected expression.” U.S. at 418 tions on Gold added). alone, Standing (emphasis others, (citing, among F.3d at 1346 Vin- that, cent, “certainly plainly while a rele- means S.Ct. at and. U.S; id., consideration,” necessarily Metromedia, it is not vant ie., 2895). controlling course, ob- one: “numerous and Of as Discovery Network’s reaffirms, language exist implicitly vious less-burdensome alternatives” courts are not automatically compel merely subjec- does not the conclusion government’s defer to the “substantially judgment; instead, that a tive burdens aesthetic consider- necessary. than is judged by more” When ations must read overall context and Ward, it becomes light government clear that less- requisite must make its Metromedia, showing. alternatives must be considered burdensome into, whether, inquiry with the connection S.Ct. at 2904. challenged regulation, govern- absent rubric, dispute Under this while we do not less, effectively. are achieved ment’s interests that the Commission adopted could have weight much to the Giving too existence solution, less drastic the fact that it chose alternatives, calibrating without the scales to not mean “carefully does that it did not between *15 account for differences them and the the ealculate[ ] costs and benefits associated challenged regulation in terms of overall ef- imposed by the burden on [the aesthetics, impact may fectiveness Discovery Street Furniture Guideline].” record, error: that the result —as here —in Network, 417, 507 U.S. at 113 at 1510. S.Ct. here, reveals Commission’s interests In Discovery Network the Court found that effectively less achieved absent city did not make careful calcula- apparently was in

Furniture Guideline lost tion based on the fact that it not did address the shuffle. “recently developed its concern about news- by size, regulating shape, racks their appear- words, qualifier In other the Court’s ance, or Id. In regard, number.” it also must, turn, Discovery in quali Network be that noted the “benefit to be derived from or, rather, “re-qualified” by lan fied— — the removal of 62 newsracks while about Ward, guage explicit rejection lest Ward’s 1,500-2,000 place remain in was considered restrictive means” the “least test be re by ‘paltry’ [district ‘minute’ [c]ourt and meaningless phrase. duced to a As the by of [a]ppeals.” [e]ourt Id. Court made clear in Ward: long as the means So chosen are not city Unlike in Discovery Net substantially necessary broader than to work, however, the Commission’s actions interest, government’s achieve howev- subject since newsracks became a of concern er, simply will not be invalid early including survey, report 1980s— govern- because a court concludes that the public hearings —demonstrate adequately interest could be ment’s served carefully calculated the costs and benefits. by less-speech-restrictive some alternative. path it chose to eliminating the follow— [time, validity place, “The and manner] altogether newsracks the most effective —is1 regulations does turn judge’s on a reducing solution aimed at visual clutter and agreement with the responsible decision- preserving the District’s historic character. concerning the appropriate maker most Designing the newsracks to better in” “blend promoting significant method govern- and conform with the District’s architectural degree ment interests” or to which by and historic having, say, character promoted. should be those interests “look,” pro “old-fashioned” colonial would Ward, 491 at U.S. 109 at 2758 by S.Ct. mote the reducing Commission’s interest Albertini, (quoting States v. “unsightliness.” achieve, United their U.S. It would not 675, 689, 105 however, S.Ct. L.Ed.2d 536 as effective a'reduction in “the visu (1985)). observed, As the Sixth by presence Circuit al clutter created on the (banning signs at at 2132 clearly from the U.S. S.Ct. detracts [which] sidewalks property); public property private but not character and architectural historic Metromedia, matter, 453 U.S. at [District,”18 or, long (banning advertising off-site but not on- “congestion and standing regarding concerns advertising). site ineonvenience.” more, argument, Newspapers’ What is swayed the News- is not Our conclusion implicitly is on the notion that based Furni- that the Street papers’ protestations may only within the District Guideline, applied to Charles Street ture part comprehensive of a beauti regulated as District), (the is most commercial or, yet, clutter reduc better “visual fication regulation does not cause” and that the “lost plan, rejected foursquare tion” was life. It also all evidence of modern remove Vincent, Court finding district court’s not influenced Metromedia, at 2123 n. showing “no that news- there has been 2894-95; Chicago see inherently keeping any out of more racks Observer, (making this 929 F.2d at 328 obser [D]is- character of the with the architectural vation). event, we dismiss disin innovations.”19 trict other modern genuous suggestion Newspapers’ contentions miss F.Supp. at 194-95. These challenged regulation part of a “com observed, correctly point. As the SJC prehensive” plan not ban all does preserve charge is to “the [C]ommission’s all furniture” or evidence modem “street tangible the ... District as a what it can of only life: the Street Guide particular That old Boston. reminder of prohibi long-standing line consistent with predated charge nonconforming uses against freestanding signs, the Commis tion ..., non-conforming certain uses or that guidelines, process, decisions review sion’s continue, has no since been allowed to have regarding cable television control boxes attempts the ongoing [CJommission effect boxes, its thor control not to mention traffic Id. preserving [District.” makes *16 newsracks, regarding all ough approach in Vincent importantly, More as Court the. Coast, 42 speak for themselves. See Gold rejected argu- a similar made clear when it steps (finding city took F.3d at 1346 several remains, ment, blight if visual “[e]ven some by convening interest to enhance its1aesthetic may partial, ban nevertheless content-neutral research, force, conducting and revis a task Vincent, City’s appearance.” enhance the ordinance). ing (rejecting at 104 S.Ct. at 466 U.S. Last, least, contrary to the News- validity of argument [a]esthetic that “the suggestion, that Furniture signs papers’ in on the Street the elimination of interest complete by operates as a ban does compromised failing to Guideline property is not, itself, “narrowly by In- mean that it private property”). extend the ban to clearly has deed, While the Court to both Vincent and Me- tailored.” contrast with laws that regulations .argu- particular were “voiced concern tromedia where the expression,” of “partial-solutions,” foreclose an entire medium ably the Street 43, -, Gilleo, City Ladue v. 512 U.S. completely tackles newsracks’ Guideline of (1994) by elimi- 114 129 L.Ed.2d inappropriateness visual clutter Vincent, (invalidating banning all residen- ordinance nating altogether. See them Report, District at 2. modem innovations” was installed 18. See The Exhibit H and, long scene before newsracks came event, disagree with we this observa- In indeed, prior apparently to the in some cases Agreed Statement of Facts indi- tion. said, we in 1995. That creation of District cates, many pattern street includes District’s ignores the obvi- reiterate that this observation pedestrian The news- narrow streets and lanes. safety/welfare between the ous differences racks, began appear on the scene in the providing indispensable services structures 1980s, obviously out character with the are of public property private erected on structures pattern utterly and it is irrelevant District's street function, important, although no doubt whose may they some streets not be as narrow that once were. require "ap- ways do not Furthermore, can be served in Agreed State- evidences, exempt propriation” public property. much of the ment Facts that would constitute "other "street furniture” Moreover, signs), privately bans use of tial unlike cases where the medium displays public prop expression structures owned involves the exercise Vincent, erty upheld. See have been an individual or where the medium is 804-05, (uphold 104 S.Ct. at 2128-29 see, uniquely valuable expression, mode of signs posted utility on public ing Ladue, at -, ban on e.g., 512 U.S. 114 S.Ct. poles). cases), (citing expression the medium of privately here is the of a use owned structure Vincent, Supreme In Court ad which, placed on public property for as we challenge banning to an ordinance dressed below, ample discuss alternative city posted signs brought by sup all channels available for the distribution of the Vincent, porters political of a candidate. Newspapers’ publications. 792-93, sup 104 S.Ct. at 2122. The porters argued that the ban unconstitutional sum, In contrary to the dis- conclude— ly abridged speech. their freedom Id. at trict court —that the Street Furniture Guide- recog 104 S.Ct. at 2127. The Court narrowly line is tailored. ban, complete like ban nized here, “did no more eliminate the exact Ample The Final Hurdle: Alternative sought remedy.” source of the evil it' Id. Channels? 104 S.Ct. at 2130. The Vincent compared sign Court to the ordi The did district court not reach this final banning handbilling nance prong,20 address litter but we full must before the First ing problems that the Court struck analysis down completed. State, Schneider v. Below, appeal, and on the Commission (1939). making, 84 L.Ed. de ample claims that alternative channels exist. termination that the total ban Vincent was out, challenged regulation, it points narrowly tailored to government’s serve the Newspapers’ primary leaves unaffected the' aesthetics, interest the Court distin means distribution within the District: guished between state’s unconstitutional stores, delivery, home sales street ven- police power regulate exercise of litter dors, and mail. See ante at 179 1.n. Even prohibiting the distribution of handbills newsracks, without high- the Commission power the constitutional exercise lights; Newspapers’ publications completely eliminate the substantive ad evil day, available within the District 24-hours a littering, dressed. Unlike situation of week, days through private seven stores. *17 Vincent, here, merely the evil “is not a still, undisputed point Further it is that no possible byproduct [protected of expres the 1,000 within the District is more than feet activity, by but sive] is created the medium mile) (approximately of a from a source of 1/5 810, expression of Id. S.Ct. at itself.” publications adjacent and that to the District that, 2131. The Court held because the Vin exist, numerous additional including sources regulation directly cent the resolved evil the this, emphasizes, newsracks:21 it is well city sought address, to the ex medium of the within mile distance that the Sixth 1/4 pression, regulation narrowly the tai was Circuit found sufficient in Plain Dealer when city’s lored to the interest aesthetics upheld on newsracks in a residential limiting blight. Similarly, visual Id. the Dealer, neighborhood. See Plain 794 F.2d at Commission’s ban of private the use 1147. newsracks, pre which are both the exact evil expression, sented and the Relying medium of nar Chicago is Newspaper Publishers rowly government Wheaton, tailored to City 1464, the interest F.Supp. of eliminating (N.D.Ill.1988) (“[t]he blight congestion the visual availability private of public property by irrelevant”); caused that evil. sellers is and Providence Jour- Although 20. the district court the found that 21. See ante at 180 n. 3. open PDG did not leave ample alternative chan- TAB, publications, nels for free not such as the it did finding regarding make this the Street Furni- ture Guideline. Thus, relying on prohibited”). the without City Newport, 665

nal Co. v. of (same), (D.R.I.1987) Newspapers other current means of distribution within the 118-19 District, private that the availabili- argument the numerous counter with the the sources to the private District, sources is irrelevant ty of within and without the the both they claim that the Accordingly, inquiry. District, proximity newsracks outside the of of distribution only available means relevant conclude that Street Furniture Guide- we of street vendors is use próng. note fur- line satisfies last We unaffected vendors are forum. While street “newsboys” per ther street vendors —or Guideline, the News- by the Street Agreed began of Statement- Facts — that, contend papers nonetheless hawking newspapers on the of Boston streets vending is substantial- cost 24-hour street thus, vending approximately street stationary placing ly more than burdensome alternative forum that is an within newsracks, avail- fails leave purpose. is consistent with District’s economical alternative practical or able to newsracks. reaching reject this conclusion we essentially irrelevant contention by the unpersuaded are News We vendors, let cost of street alone 24-hour arguments regarding street vendors. papers’ vending, substantially costly more is street having address the merits Without placing stationary newsrack. availability private is sources whether the guarantee a right First Amendment does inquiry,22 or resolve whether relevant to the the most cost-effective means of distribu proximity of appropriate rely on the it is public property. tion or the rent-free use boundaries,23 we newsracks on District’s — Pinette, Sq. Bd. v. Review Capitol ample alternative conclude that Cf. —, -, the U.S. the distribution of channels available for (“It (1995) undeniable, is publications. ante L.Ed.2d 650 Newspapers’ analysis, course, are mindful Throughout constitutionally our is inquiry focus not on that “the lens must suppression against protected state exists, degree curtailment whether a thereby on all guaranteed accorded forum remaining av communicative on whether State.”); Regan v. property owned adequate.” Amuse enues are National Representation, 461 U.S. Taxation with ments, F.3d at 745. L.Ed.2d (1983) notion that “First (rejecting the Here, Fur- undisputed that the Street fully rights are somehow Newspa- does not affect niture Guideline they are subsidized realized unless right to dis- pers’ freedom exercise State”). Moreover, Newspapers’ claim through vendors publications tribute street practical alter- street vendors are not very public District’s side- forum —the record, particularly native belied which the newsracks walks —from serving daily papers respect to the *18 Vincent, 466 U.S. banned. See by for sales street vendors both Boston area: (finding ample alternative at 2132-33 the the Boston Herald and Boston not available where ordinance “did channels by ante at 179 newsracks. See exceed those right the any to exercise affect individual’s more, 1. the record shows n. What right speak and distribute literature last or second-to- signs come either place posting of ... same where the newsracks F.Supp. at Chicago Newspaper, 697 F.Supp. at 23. See Compare Chicago Newspaper, 697 22. 1470; Journal, rely municipal- (noting city at 118- on Providence "cannot other S.C., Publishing Co. Inc. with Multimedia consequences an the of ities to rescue them from of Dist., Greenville-Spartanburg Airport 991 F.2d v. ordinance”) (citing improperly Schneider drawn Cir.1993) (4th (invalidating ban State, 146, 151-52, 147, 163, 60 S.Ct. terminal, non-public airport fo- a newsracks in rum, (1939) ("[0]ne the is not to have 84 L.Ed. 155 pro- due to the lack of market forces that appropri- liberty expression in of his of exercise Dealer, fora); private Plain vide sources in plea may places abridged that it be on the ate (existence alternative chan- 794 F.2d at 1147 of place.”)). exercised in some other considered). private property nels on place percentage may important segment of of large in terms distribu- hence be a last citizenry, prac- of ... tion. Id. the this solicitude has Vincent, tical boundaries.” at 812 U.S. dispute Newspapers’ the we do While (citations 104 S.Ct. at 2133 n. 30 omit- provide relatively newsracks claims that ted). regulation Given that the af- neither distribution, inexpensive of which in means primary fects the TAB’s means of distribu- distribution needs some cases meet where tion, mail, accounts for which 79% its prohibitively expensive others either' or distribution, prohibits nor the use street unavailable, altogether nothing in the record vendors, “practical such exist boundaries” implicated indicates how these concerns are event, any any In here. absent evi- record Indeed, nothing in the instant case. there regarding feasibility infeasibility dence show, suggest, in the record to let alone vending for publications, street free such within the District fulfill the newsracks TAB, particularly as the we are reluctant to unique which is not distribution need cur- publications differently free treat than those rently means of satisfied distribu- charge,” “for or to otherwise alter our con- tion and could not be satisfied clusion. it, their claim street vendor. we see boils passes down the accidental reader who short, phrased In the Court “[a]s it: ‘That through District District resident city’s may limitations volume reduce prefers single-copy Although who sales. degree potential to some for audience may preferences frustrate the respondent’s speech consequence, is of no for readers, “thwarting idiosyncrat- ... these an has showing been no remain idiosyncratic] preference ic [or so cannot ing avenues of communication are inade equated of adequate be with denial ” avenues Amusements, quate.’ National 43 F.3d at Amusements, of communication.” National Ward, (quoting 802, 109 43 F.3d at While the Street 2760). Here, SFG leaves quantity Guideline diminishes total intact alternative means of distribution Newspapers’ District, publications within the forum, within the and in the absence necessary that is a effect of side almost any “calling] record legiti evidence into speech: long restriction on “As as restric- question mate adequacy of the alternate content-neutral, tions are some diminution in [distribution],” for routes National Amuse quantity the overall will tolerat- ments, 43 F.3d at we conclude that the Vincent, (citing ed.” Id. Street Furniture Guideline’s effective 2132-33).24 104 S.Ct. at way runs afoul of News addition, our swayed conclusion is not papers’ right First Amendment to distribute vending may that street publications. Accordingly, assertion their with this satisfied, publications, be a' viable alternative all prong last' we find that the chal free, particularly lenged guideline passes those such as the muster under the Court, reasonable, TAB.25While we are aware First Amendment: it is a con reason, good special time, place “has shown solici- tent-neutral and manner restric expression tude for forms of Newspapers’ right that are much tion on the to distribute expensive than less feasible alternatives and publications the District. scope 24. Were we widen of relevant alter- district court's conclusion was based on as- vendors, beyond po- native sources street these sumption that stores would not have the same preferred publi- tential could readers obtain their economic incentive serve as conduits way cations from newsracks on their in and/or publications. Despite distribution of free *19 out of the District or one of from the numerous subsequent showing admission of evidence carrying stores them. "no-charge” publications were carried the stores, District's the court did abandon its ruling

25. the district made When its bench court "finding” point on this when reconsidered its original open did not leave ruling regulation. on the ample new There is men- no alternative channels noted that "there is special problem” respect this impact finding with tion of other similar to the the upon publications, free such as opinion regarding the TAB. Al- district court's the Street Fur- though the Newspapers had not raised this issue niture Guideline. evidence, despite the absence of record the Attorney’s Thoughts II. Fees Additional Some Newspapers’ other have considered the We appeals from The Commission also mer- be without and find them to arguments attorneys to district court’s award fees the however, to briefly, respond to pause it. We Newspapers party” the “prevailing as the of them. few light § In of our under U.S.C. today reversing judgment opinion the below contention, Contrary and as to their First: merits, the on 'we need not address Com the clear, makes the foregoing discussion the judgment in error. As a mission’s claims of way in no denies Furniture Guideline Newspapers the reversed on the favor of is ability their Newspapers the to make the merits, party longer “prevailing is no “willing re- those to publications available to and, thus, § party” under U.S.C. Indeed, nothing simply is them. ceive” attorney’s longer entitled to fees under that support bald assertion. in the record to See, Bank e.g., statute. Lewis v. Continental reject utterly without also as Second: We 483, 110 Corp., 494 that, ruling by upholding a the merit notion (1990); Township v. L.Ed.2d 400 Clark common and useful means that bans a (3d Cir.1989). Falls, 890 F.2d 626-28 today distribution, our decision newspaper “piecemeal the to the destruction opens door CONCLUSION simply at a public forum.” We are of the the forum is “de- to see how loss reasons, foregoing the district For neutral, stroyed” a valid content by such reversed, decision is award of court’s time, place restriction on and manner vacated, attorneys’ is fees is case protected speech particularly distribution entry — to district court for remanded where, here, Newspapers to as are free Commission, judgment in and for favor very publications from the their distribute necessary pro- appropriate further such spot forum where within same with ceedings and orders as are consistent newsraeks have been located. this decision. Last, We also dismiss least: granted Appellant. to Costs deci irrelevant their claim that SJC’s signals danger newsraeks- in all sion CYR, Judge (dissenting). Circuit true, if this historic districts: even were court, agree see I with district neu long regulations are valid content as the Newspaper, restrictions, tral, time, place and manner establish, yet the Commission has above, while First of it? As noted what alia, Furniture Guideline inter that its Street right guarantees the circulate tailored,” “narrowly Perry, 460 U.S. right guarantee publications, it does not Novelties, Ave. see North through private erected to do so structures (7th City Chicago, 88 F.3d Inc. disputes that public property. No one Cir.1996) government (noting that must show newsraeks, regulations governing manner, “time, place” restriction protected they the distribution facilitate tailored”), “narrowly I speech is protected subject First Amendment speech, are respectfully dissent. scrutiny. Newspapers ap fail to What nothing more preciate that newsraeks are the Commis This case turns whether monopoliz occupying, structures if not outright ban on all established that sion sidewalks, ing, public space on which— represents a within District newsraeks simply publications or without within — concededly legiti to its means reasonable regulations passing not immunized from end, regulatory sense that the mate muster under the First Amendment. . served”; proportion “is interest sum, necessarily least say, “not opinion today stands unaffect- our means,” which is “narrow but one clatter of these alarmist claims. restrictive ed objective.” ado, ly to achieve the desired the district tailored Without more we reverse *20 Cincinnati, 12, 113 at at n. S.Ct. 507 U.S. 416 court’s decision. 196 tion, (quoting thereby judicial warranting Board Trustees 1510 n. 12 careful scru Fox, Metromedia, tiny. Univ. See 453 U.S. at.

State of N.Y. (1989)) 3035, 106 2893-94; Ward, L.Ed.2d 388 at S.Ct. see also 491 U.S. at 793, 109 (internal marks and omit at quotation citations S.Ct. 2754-55. ted). clear, Supreme Court has made As The historical basis for the Commission Cincinnati, government and Fox both against all ban newsracks within District “carefully that it must demonstrate calculat is incontestable: “did not at exist newsracks resulting expressive burdens on ac ed” [Cjommission’s the time with which the ef- Amendment, tivity protected by the First forts are concerned.” While the is District Cincinnati, 12, 113 at 416 n. at U.S. S.Ct. Boston,” tangible “a reminder old howev- something n. which involves more er, it contemporary nonetheless remains a identifying a simply legitimate regulato community. and residential commercial

ry purpose. Street, example, Charles accommodates specifically charged is

The Commission numerous modem commercial conveniences stations) preserving (e.g., alien, District a unique gas presumably “old if not community importance offensive, Boston” to the esthetic sensibilities of even preserving Thus, the architectural and historical the most indurate “old Bostonian.” District, notwithstanding esthetics within the for the benefit the Commission mandate to community, Commonwealth, preserve post-colo- the District’s colonial and Vincent, (or Nation, question. characteristics, not See rely upon nial residents at tolerate) at many S.Ct. 2129-30. least uncharacteristic obtru- Nonetheless, (cable sweeping sions, presumption in- at least one of which television boxes) dulged by the Commission—that presumably the noncon- was introduced after the forming represents nature all newsracks Commission came into existence in 1955. only blight outright an esthetic can ban Various other anachronous utilities abound as — remedy not entitled to including sidewalks, deference in the paved well roads —is automobiles, First context. The signals, streetlights, Amendment Commission traffic required boxes, first demonstrate that it care- receptacles, hy- trash mail fire — fully regulato- obvious alternative only along considered drants Charles ry imposing outright throughout means before ban though many District. Even against all newsracks within the nonconforming District. of these reg- modernities are — Cincinnati, 507 U.S. at 417 n. ulated often robust- — (rejecting n. 13 ly “mere rational outright, rather than banned the Com- review”). The record basis does not demon- mission concedes that only newsracks are the strate subjects that the Commission has met bur- outright “street furniture” it to an den. ban. token,

By unquestionable noted, the same correctly district court efficiency a total ban all question outright can that an all satisfy tailoring” nonconforming does not the “narrow (e.g., Plym- re- as at modernities Otherwise, quirement. there would be virtu- Williamsburg) outh Plantation or offers the ally no role left to be served require- approach restoring most efficient historical governmental “carefully ment entities integrity. and architectural Where First regulatory calculate” the burdens implicated, however, ac- efficient impose protected tions bn expressive activity, governmental regulation “narrowly must be id. see 1510 n. Yet tailored.” the Commission neither dem- outright since an ban will invariably almost onstrates that “obvious less-burdensome al- prove rooting unavailable, Cincinnati, most efficient in out unbecom- ternatives” n; ing appurtenances. Moreover, 13,113 public- unlike at 417 S.Ct. at 1510 n. nor safety regulations, example, explains why permitting esthetics- hoc process the ad regulations based subjective often stem from regulate uses to anachronous utilities such as readily assessments amenable either to cable television boxes should be enlisted objective Vincent, empirical measurement or regulation. refuta- for newsrack Cf. *21 important the (noting much burdensome on at 2130-31 less at S.Ct. activity plurality’s expressive view that not First the “[i]t Metromedia recognize that speculative outright. to billboards proposes to ban Commission nature, and very wherever located how- their acknowledges, court appropriately the constructed, perceived as an ever can be course, the of considerable deference is due ”) added). (emphasis ‘esthetic harm’ supra p. 190. Commission. See Furthermore, has not ex the Commission Nevertheless, outright an ban — deference to concluding plained let its rationale expressive protected on cannot be Cincinnati, demonstrated, see alone activity — than a predicated anything on less reasoned 417, 113 permissible at 1510 that a showing “carefully that the Commission cal newsracks, assuming exists that basis culated” means with a view to alternative size, color, regard signage, design, without to legitimate suitability regula to address number, comport cannot with its location tory resulting proportionate to the interests Newspaper Chicago esthetic standards. See any protected burdens on First Amendment Wheaton, City Ass’n v. Publishers of Cincinnati, activity. 416 n. 1470 (N.D.Ill.1988) (noting that Vincent, 113 S.Ct. at 1510 n. see also city ... explained “has not how a newsrack U.S. at 803 n. 2127 n. destroys the ‘charac on a residential street (warning “may simply that courts assume neighborhood any ter’ the more of always that the ordinance will advance the mailbox, hydrant, utility fire or traffic pole, sufficiently justify asserted state interests to sign”).26 Nor the Commission shown has expressive activity”). The abridgment its any perceived could not “visual clutter” adopted outright Commission its District- by restricting, severely nec addressed if all either wide ban on newsracks without essary, (e.g., within the the location Charles zone) attempting regulation draconian or eval less “commercial” and the number of uating Plainly, experimentation alter District. incremental newsracks within the these alternatives, efficacious, controlling reducing approaches if native to would be and obvious though acknowledges Report, cites Commission now its Staff the Commission its the surveys to send notice of its November and 1990 the District’s news- failed n publichearing plaintiffs' respective racks, (1) to circulation an and identifies five alternatives: out- that, newsracks; departments, Report the Staff touts the fact (2) outright right all ban ban on an years public opposition to newsracks, after a newsrack except distributing those on all non- ban, plaintiffs lodged had no comments at speech, design place- whose ''commercial” public hearing. In a (3) letter Commission outright regulated; would be ment shortly guideline promulgated, was areas, after the first all newsracks in District residential however, only objected to Boston Globe not design placement regulations for non-"com- Commission, provided by the but the "notice” Street; (4) mercial” newsracks Charles "histor- reminded Commission of Globe's newsrack, outright general regu- any ban on preceding eight- willingness” throughout the ical size, location, color, design, of their lation period negotiate mutually agreeable year attachment; (5) regula- delaying any District guideline of a total ban. newsrack short pending City’s regu- decision whether tion Report Finally, rejects 2-4 on Alternatives Report city-wide. late newsracks The Staff fails ground they would tax the Commission's required tailoring,” to demonstrate the “narrow limited resources. Administrative enforcement for three reasons. appropriate consideration in burden is an First, Report solely surveys was based accept- inquiry. Yet even "careful calculation” newsracks, then-existing see Staff Commission ing the uncorroborated reference Commission’s ("None Report, resources, at 65 distribution box it fails administrative limited to. because it appro- designs architecturally silentio, can be to be said simply presumes, sub feasibility priate"), not consider the of a activity and does expressive due here involved is somehow design appurte- different newsrack more consonant with protection than anachronous less Indeed, analysis regulate, desired esthetics. decided nances Commission has ban, merely #4 such Alternative states that de- is less and therefore that but not to sign "to be deserving criteria would have drafted” some under the of individualized treatment plainly process. permitting at 68. does not Nor later time. id. This ad hoc Commission's comprehensive Report attempt over- amount to “careful calculation.” does Second, points en- to no administrative view of current Commission relating actively expenditures evidence it ever considered record forcement appurtenances. design proposals. unhistorical Even these other alternative newsrack *22 times, blight by contemporary yet regulate, caused colonial visual continues Cincinnati, prohibit outright, post- than See rather numerous newsraeks. (noting that appurtenances, explaining newsrack ban colonial without fit,” city why inevitably' was not a “reasonable since “failed a newsrack need be more recently developed unbecoming historically architecturally its to address concern size, receptacle regulating pole. trash a streetlight about newsraeks or number”). shape, response If appearance, merely recep- that trash pole streetlight tacle or serves more useful suggest government I do invari tolerated, purpose which must be somehow ably engage experimentation must in actual seriously then the Commission undervalues ban, settling outright especially on an before (i.e., activity utility expressive both the particular if it can demonstrate ex - distribution) newspaper and the First pressive activity creates serious nui protection Amendment to which it is entitled. pressing delay. sance too to countenance required As the failure to demonstrate Nevertheless, outright protected bans on tailoring” “narrow chal- undermines activity expressive newspa modes of such as lenged Street Furniture Guideline under the per judicial distribution are not entitled to test, three-part Perry I would affirm the required showing deference absent the judgment. district court “carefully less burdensome alternatives were Ward, calculated.” (noting that there is “narrow

tailoring” government “regulate[s] expres if

sion such manner that a substantial

portion of the burden does not Lakewood, goals”);

serve advance

U.S. at 108 S.Ct. at Providence City Newport, Journal Co. v. PETTIWAY, Ansley Plaintiff-Appellant, 107, 110(D.R.I.1987) (collecting holding cases that newsraeks are entitled to “full First Vincent, protection”); cf. George VOSE, al., A. et Defendants- (noting U.S. at 104 S.Ct. at 2133 Appellees. (utility specific poles) posting locations signs traditionally recognized public were not No. 96-1482. streets); Metromedia, fora like of Appeals, United States Court U.S. at (upholding S.Ct. at 2883-84 First Circuit. outright off-premises billboards car rying less-protected speech). commercial Sept. Heard 1996. hand, tailoring” On “narrow Decided Nov. present require govern context does not employ means,” ment to the “least restrictive “carefully demonstrate that it calculat suitability

ed” the of obvious alternatives

proportional legitimate objec to its esthetic

tives. Each ease is to judged on its facts, course,

particular and a total ban pass

might muster appear were made to “carefully calculated”

less burdensome justifiably alternatives and wanting.

found them showing failure such a make

especially flagrant context, present

since the Commission settled on a total ban in post- newsraeks were unknown