City wins appeal on news rack ordinance
By Curtis Lum
Advertiser Staff Writer
A federal appeals court yesterday upheld a city law that regulates the location of publication racks in Waikiki and separates them based on whether they contain free or for-sale publications.
The 9th U.S. Circuit Court of Appeals ruling overturned a 1999 injunction by a Honolulu federal court judge that has allowed the free Honolulu Weekly to be placed in racks like those for Honolulu's two daily newspapers, but with the coin mechanisms disabled.
The city had wanted to restrict the weekly to smaller slots intended for free publications.
At issue was a 1997 city ordinance that regulated news racks in Waikiki. The law consolidated publications and was designed to reduce pedestrian obstacles and visual clutter.
Under the law, publications would be assigned rack space in a lottery and there would be separate lotteries for publishers of paid and free publications. The city grouped the racks based on whether they are coin-operated or non-coin-operated because of their difference in size.
The Honolulu Weekly sued the city in 1999 after the free publication was denied access to racks with two paid publications, The Advertiser and the Honolulu Star-Bulletin. The city had awarded 21 racks to the Weekly, but took them away after the Weekly planned to disable the coin-operated mechanisms.
In December 1999, U.S. District Judge Susan Oki Mollway issued an injunction that prohibited the city from enforcing the law. Mollway ruled that the city cannot treat paid and free publications differently.
The city appealed, and the 9th U.S. Circuit Court of Appeals yesterday rejected the Weekly's arguments that the law violated the First Amendment and equal protection clause of the U.S. Constitution.
The court ruled that the law was "content neutral" and not based on a publication's message. The three-judge panel said the Weekly's proposal to separate serious journalism from publications directed at tourists is a "cure that is far worse than the city's method of treating visual blight."
Honolulu Weekly publisher Laurie Carlson could not be reached for comment yesterday. Scott Saiki, an attorney who represents the Weekly, said he was surprised by the ruling and said it may be appealed.
"We thought it was clear that it is not permissible to discriminate between types of publications," Saiki said. "Our whole contention was that the newspapers that charged its readers were given more distribution opportunities in Waikiki than the publications which do not charge the readers."
City spokeswoman Carol Costa said it was too early to say whether the Weekly will be asked to move to news racks with other free publications.
Jon Van Dyke, a professor at the University of Hawai'i's law school who helped with the city's appeal, said: "The court quite rightly said that the line between paid and free is a clean, clear line and it doesn't prohibit anybody from distributing their publication."
