Globe Newspaper v. Beacon Hill
Case Date: 11/22/1994
Court: United States Court of Appeals
Docket No: 94-1538
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January 2, 1997 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 94-1538 GLOBE NEWSPAPER COMPANY, ET AL., Plaintiffs - Appellees, v. BEACON HILL ARCHITECTURAL COMMISSION, Defendant - Appellant. ____________________ ERRATA SHEET The opinion of this court issued on November 12, 1996 is amended as follows: On page 42, line 6, insert "are" between "we" and "aware" so that the sentence reads "While we are aware. . ." UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 94-1538 GLOBE NEWSPAPER COMPANY, ET AL., Plaintiffs - Appellees, v. BEACON HILL ARCHITECTURAL COMMISSION, Defendant - Appellant. ____________________ ERRATA SHEET The opinion of this court issued on November 12, 1996 is amended as follows: Page 30, line 5, "not" should be deleted. Page 34, line 5 of footnote 19 should read "utterly" instead of "unterrly". UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 94-1538 GLOBE NEWSPAPER COMPANY, ET AL., Plaintiffs - Appellees, v. BEACON HILL ARCHITECTURAL COMMISSION, Defendant - Appellant. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Robert E. Keeton, U.S. District Judge] ___________________ ____________________ Before Torruella, Chief Judge, ___________ Cummings* and Cyr, Circuit Judges. ______________ _____________________ John R. Devereaux, with whom Merita A. Hopkins and Gerald _________________ __________________ ______ Fabiano were on brief for appellant. _______ Edward N. Costikyan, Michael S. Gruen and David Nissenbaum ____________________ ________________ ________________ on brief for The National League of Cities, The United States Conference of Mayors and The Municipal Art Society of New York, amici curiae. James C. Heigham, with whom Choate, Hall & Stewart and __________________ ________________________ Alice Neff Lucan were on brief for appellees. ________________ ____________________ November 12, 1996 ____________________ ____________________ * Of the Seventh Circuit, sitting by designation. TORRUELLA, Chief Judge. We visit this controversy for TORRUELLA, Chief Judge. ___________ the second time in as many years. See Globe Newspaper Co. v. ___ ____________________ Beacon Hill Architectural Comm'n, 40 F.3d 18 (1st Cir. 1994). We ________________________________ are left to decide important issues that require a balancing between First Amendment rights and governmental interests. Defendant-Appellant Beacon Hill Architectural Commission (the "Commission") enacted a regulation, the Street Furniture Guideline, which effectively bans newspaper distribution boxes from the public streets of the Historic Beacon Hill District in Boston, Massachusetts (the "District"). The validity of this regulation was challenged in a suit filed in district court by Plaintiffs-Appellees, a group of newspaper publishers (the "Newspapers"). The district court held that the Commission lacked the authority to adopt the regulation and also that it violated rights guaranteed by the First Amendment. See ___ Globe Newspaper Co. v. Beacon Hill Architectural Comm'n, 847 F. ___________________ ________________________________ Supp. 178 (D. Mass. 1994). In the ensuing appeal by the Commission, we concluded that the appropriate course of action was to certify the dispositive issue of state law to the Supreme Judicial Court of Massachusetts (the "SJC") and so proceeded. To the question Did the Beacon Hill Architectural Commission have the authority under 1955 Massachusetts Act Chapter 616 (as amended) to adopt the "Street Furniture Guideline"? the SJC answered in the affirmative. See Globe Newspaper Co. v. ___ ___________________ Beacon Hill Architectural Comm'n, 421 Mass. 570 (1996). In its ________________________________ response, the SJC held that the Commission had authority to -2- regulate newsracks and other "street furniture" through rulemaking and to completely ban entire classes of structures such as newsracks. Id. at 590-91. Specifically, it said: ___ As to streets and sidewalks, the [C]ommission's jurisdiction is concurrent with appropriate municipal agencies. Regulation of the sidewalks is rationally related to the goal of preserving the Historic Beacon Hill District. Section 4 of the enabling [A]ct provides the [C]ommission with the authority to issue rules that govern private conduct within its particular geographic area of responsibility. We conclude that, apart from constitutional considerations, outright bans on certain classes of structures are merely a practical consequence of the [C]ommission's ability to proscribe inappropriate exterior architectural features within the [D]istrict. Id. We thus focus our attention on the constitutional issue, ___ which requires us to determine whether the Street Furniture Guideline violates rights guaranteed by the First Amendment to the Newspapers. We conclude that it does not and reverse the decision of the district court. BACKGROUND BACKGROUND __________ The Historic Beacon Hill District was created by an act of the Massachusetts General Court in 1955. See 1955 Mass. Acts ___ ch. 616 ("the Act"), as amended by 1958 Mass. Acts ch. 314 & 315, 1963 Mass. Acts ch. 622, 1965 Mass. Acts ch. 429, 1975 Mass. Acts ch. 741, and 1982 Mass. Acts ch. 624. The Act is intended to promote the educational, cultural, economic and general welfare of the public through the preservation of the historic Beacon Hill district, and to maintain said district as a landmark in the history of architecture and as a tangible reminder of old Boston as it existed in the early days of the -3- commonwealth. 1955 Mass. Acts ch. 616, 2. The District's historical significance can hardly be doubted. See Opinion of the Justices, ___ _______________________ 333 Mass. 783, 786-87 (1955). Indeed, it was listed in the National Register of Historic Places and designated a National Historic Landmark on October 15, 1966, pursuant to the National Historic Preservation Act of 1966, 16 U.S.C.A. 470 et seq. ______ The Commission was created to review proposed changes to the "exterior architectural feature[s]" of "structures" within the District. See 1955 Mass. Acts ch. 616, 7; see also id. at ___ ________ ___ 3 (defining an "exterior architectural feature"); Mass. Gen. L. ch. 143, 1 (providing definition of "structure"); Globe _____ Newspaper, 43 F.3d at 20. Anyone wishing to construct, _________ reconstruct or alter an exterior architectural feature is required to apply to the Commission for a certificate of appropriateness. The Commission, "[i]n passing upon appropriateness," shall consider, inter alia, "the historical and __________ architectural value and significance, architectural style, general design, arrangement, texture, material and color of the exterior architectural feature involved and the relationship thereof to the exterior architectural features of other structures in the immediate neighborhood." 1955 Mass. Acts ch. 616, 7. Furthermore, the Commission must "spread upon its records the reasons for [its] determination" that a certificate of appropriateness should not issue. Id. An aggrieved party may ___ appeal the Commission's decision to the Superior Court for -4- Suffolk County, which "shall annul the determination of the [C]ommission" if it is "unwarranted by the evidence" or "insufficient in law." Id. at 10. ___ As previously noted it was not surprising that, "given the stream of applications for certificates of appropriateness, the Commission developed uniform policies toward certain recurring types of proposed alterations." Globe Newspaper, 40 ________________ F.3d at 20. Specifically, in 1981, it formally adopted the policies as "guidelines." These guidelines regulate exterior architectural features such as masonry, roofs, windows, sash and shutters, doors, trim, paint, and ironwork. One of the guidelines states that "[f]reestanding signs are not permitted." In the District, the Newspapers distribute their publications via home delivery, mail, store sales, street vendors, and "newsracks."1 Newsracks, we explained, are ____________________ 1 The record shows that the Newspapers' publications are distributed by the following methods: HERALD USAa GLOBE WSJb NYTc TAB Home Delivery 21% 5% 7% 97.7% 53.3% 0% Store Sales 46% 78% 65% 1.9% 39.6% 0% Street Vendors 23%d 0% 16%e 0% 0% 0% By Mail 0% 5% 0% 0% 0% 79% Newsracks 10% 11% 12% 0.4% 7.1% 21% aAbbreviation is to USA Today. bAbbreviation is to The Wall _________ ________ Street Journal. cAbbreviation is to The News York Times. _______________ _____________________ dStreet vending occurs between 6:00 a.m. and 9:00 a.m. eStreet vending occurs between 5:30 a.m. and 9:30 a.m. -5- newspaper distribution boxes painted in various colors and featuring the name of the newspaper and other advertising logos, which are commonly anchored to lampposts, signposts, or fixtures on the sidewalk. The plaintiffs maintain a total of thirty-nine newsracks in the district.2 Within the District, there are eleven stores that distribute, or are available to distribute, the Newspapers' publications. Outside the District, but within one block of the District's boundaries, the Newspapers' publications are sold through stores and newsracks.3 It is undisputed that no point within the District is more than 1,000 feet (approximately 1/5 of a mile) from a source of the Newspapers' publications. Newsracks were first introduced to the District in the early 1980s, and by 1983, Beacon Hill residents had begun to ____________________ 2 The thirty-nine newsracks maintained by the Newspapers are broken down as follows: Boston Globe (9); Boston Herald (10); _____________ ______________ The New York Times (8); The Wall Street Journal (4); USA Today ___________________ ________________________ _________ (3); and TAB (5). In addition to the Newspapers' newsracks, at ___ least five other publishers maintain newsracks within the District. Agreed Statement of Facts at 4, p. 16. 3 The record shows that the Newspapers' publications are available in stores and newsracks near the District as follows: HERALD USA GLOBE WSJ NYT TAB Stores within one block of 4 2 10 2 4 0 the District Newsracks within one 4 9 7 1 6 7 block of the District -6- complain of the "unsightliness, congestion and inconvenience associated with the vending machines." The Commission believed that the newsracks violated the guideline prohibiting free-standing signs. It took no enforcement action, however, because a city-wide regulation of newsracks was being discussed in the early 1980s. In 1990, no regulation having been adopted, the Beacon Hill Civic Association petitioned the Commission for a guideline to exclude newsracks from the District. After holding a public meeting regarding the petition,4 the Commission conducted a survey and completed, in January, 1991, a study entitled the "Publication Distribution Box Report (the "Report"). See Exhibit ___ H (in the record). Soon thereafter, on February 21, 1991, the Commission held a public hearing5 on the proposal to adopt guidelines for newsracks and, ultimately, adopted the following guideline: Publication distribution boxes (any boxes placed on the sidewalks to distribute publications, whether for charge or not) visible from a public way are not allowed within the District. In its decision, the Commission indicated that the publication distribution guideline ("PDG") was consistent with its guideline banning freestanding signs and the Commission's decisions denying ____________________ 4 Although notice of this meeting was mailed to the Newspapers' main offices, notice was not received by their Circulation Departments and, of the Newspapers, only the TAB appeared and commented on the petition. 5 Again, although notice was mailed, the Newspapers' Circulation Departments did not receive the notice and, thus, did not attend. -7- the installation of traffic signal control boxes on the sidewalks, and the regulation of the installation of a cable television system in the District. A few months later, on April 1, 1991, the Commission notified the Newspapers of the new guideline. One month later, it requested that the Newspapers remove their newsracks by June 1, 1991. Then, after the Newspapers requested that the Commission reconsider its decision to adopt its regulation, the Commission heard testimony from the Newspapers in July, 1991. After voting to deny reconsideration, the Commission extended the removal deadline until October 1, 1991. Within a month, the Newspapers brought suit in district court seeking declaratory relief, damages, and preliminary and permanent injunctive relief from the regulation, on the grounds that it violated their First Amendment right to distribute newspapers in the District. After a bench trial on stipulated facts, the court ruled from the bench that the regulation offended the First Amendment: . . . , "instead of being narrowly tailored with respect to the limitation on speech[, the PDG] is narrowly tailored to focus only on speech. It applies to no form of visual clutter other than public[ation] distribution boxes. . . ." Significantly, the trial judge was "troubled whether there is statutory authority for the particular kind of legislative rule making" illustrated by the guideline. He did not decide the case on state law grounds, however, because "the questions about the Architectural Commission's authority are at least debatable on the present record . . . and perhaps would require some supplementation of the record in order for the Court to resolve them. . . ." -8- Globe Newspaper, 40 F.3d at 20 (quoting bench trial transcript). _______________ After the bench ruling but before judgment had entered, the Commission adopted a new guideline--the present Street Furniture Guideline--that bans all "street furniture," not just newsracks, from the District: Street furniture, as defined below, shall not be permitted in the Historic Beacon Hill District with the exception of approved store-front merchandise stands and those structures erected or placed by authorized public agencies for public safety and/or public welfare purposes. Street furniture is defined as any structure erected or placed in the public or private ways on a temporary or permanent basis. Authorized public safety/public welfare street furniture includes, but is not limited to, such structures as street lights, traffic lights, mail boxes, fire hydrants, street trees, and trash receptacles. Any such authorized public safety/public welfare street furniture or approved store-front merchandise stands shall be subject to Commission review and shall be in keeping with the architectural and historic character of the District and the criteria for exterior architectural features as specified in Chapter 616 of the Acts of 1955 as amended. Having done so, the Commission moved for reconsideration of the judgment, arguing that the new guideline was free from the constitutional defects of the old. This time, the district judge not only held that the new guideline fared no better under the First Amendment, but also that the Commission lacked authority under Massachusetts law to adopt the new regulation.6 See Globe ___ _____ Newspaper, 847 F. Supp. at 189. _________ ____________________ 6 We decline the Commission's invitation to pass upon the validity of the original regulation as that issue is moot. -9- DISCUSSION DISCUSSION __________ I. The First Amendment and the Street Furniture Guideline I. The First Amendment and the Street Furniture Guideline A. Standard of Review A. Standard of Review In an appeal from an adverse ruling after a bench trial on the merits, our review is ordinarily quite circumscribed: we review de novo the district court's legal determinations, ________ according a significant amount of deference to the court's factual determinations and to most of its resolutions of mixed fact/law issues, letting them stand unless they are clearly erroneous. See AIDS Action Comm. v. MBTA, 42 F.3d 1, 7 (1st ___ _________________ ____ Cir. 1994). In a case such as this one, however, "where the trial court is called upon to resolve a number of mixed fact/law matters which implicate core First Amendment concerns, our review, at least on these matters, is plenary so that we may reduce the likelihood of "'a forbidden intrusion on the field of free expression.'" Id. (quoting Bose Corp. v. Consumers Union of ___ __________ __________________ U.S., Inc., 466 U.S. 485, 499 (1984) (quoting New York Times Co. ____ ____ __________________ v. Sullivan, 376 U.S. 254, 285 (1964))). Besides furthering ________ other interests, see AIDS Action, 42 F.3d at 7, "de novo review ___ ___________ _______ of the trial court's application of a First Amendment standard to the facts before it "ensures that the federal courts remain zealous protectors of First Amendment rights." Id. (quoting ___ Duffy v. Sarault, 892 F.2d 139, 142-46 (1st Cir. 1989)). _____ _______ B. Legal Framework B. Legal Framework The First Amendment states that "Congress shall make no law . . . abridging the freedom of speech, or of the press." -10- U.S. Const. amend. I. It is beyond dispute that the right to distribute newspapers is protected under the First Amendment. See City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. ___ _________________ ____________________________ 750, 768 (1988); Lovell v. Griffin, 303 U.S. 444, 452 (1938); ______ _______ Gold Coast Publications, Inc. v. Corrigan, 42 F.3d 1336, 1343 ______________________________ ________ (11th Cir. 1994), cert. denied, ___ U.S. ___, 116 S. Ct. 337 ____________ (1995). Here, the parties do not dispute that the Street Furniture Guideline effectively bans the use of newsracks as a method of distributing newspaper in the District. The issue, of course, is whether under the circumstances of the case, the Newspapers' First Amendment rights are impinged. We know that few constitutional rights, if any, are absolute, and in most constitutional litigation what courts are called upon to do is to balance competing fundamental rights. See, e.g., Denver Area ___ ____ ___________ Educ. Telecommunications Consortium, Inc. v. Federal _________________________________________________ _______ Communications Comm'n, ___ U.S. ___, ___; 116 S. Ct. 2374, 2384 _____________________ (1996); Board of County Comm'rs v. Umbehr, ___ U.S. ___, ___; 116 _______________________ ______ S. Ct. 2342, 2352 (1996). Such is the present situation. It is by now axiomatic that the degree of protection provided by the Constitution depends "on the character of the property at issue." Perry Educ. Ass'n v. Perry Local Educators' _________________ ______________________ Ass'n, 460 U.S. 37, 44 (1983).7 In the instant case, the _____ ____________________ 7 Distinguishing between, say, commercial and non-commercial speech is a relevant factor. See, e.g., Board of Trustees v. ___ ____ __________________ Fox, 492 U.S. 469, 480 (1989). Here, we need not make precise ___ classifications because we test, and ultimately uphold, the Street Furniture Guideline under the more stringent standards governing noncommercial speech. -11- "property at issue" is the District's streets and sidewalks. The Supreme Court has repeatedly recognized public streets "as the archetype of a traditional public forum." Frisby v. Schultz, 487 ______ _______ U.S. 474, 480 (1988) (noting that "[n]o particularized inquiry into the precise nature of a specific street is necessary" as all public streets are public fora). In these traditional public fora, "places which by long tradition or by government fiat have been devoted to assembly and debate," Perry, 460 U.S. at 45, _____ government's authority to restrict speech is "sharply circumscribed." Id. As the Court in Perry explained, ___ _____ [f]or the state to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Id. In traditional public fora, content-based restrictions are ___ presumptively invalid and subject to "strict" scrutiny. See, ___ e.g., Ackerly Communications of Mass., Inc. v. City of Cambridge, ____ _____________________________________ _________________ 88 F.3d 33, 36 (1st Cir. 1996); National Amusements, Inc. v. Town _________________________ ____ of Dedham, 43 F.3d 731, 736 (1st Cir. 1995). The Court in Perry _________ _____ made clear, however, that in traditional public fora [t]he state may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. Perry, 460 U.S. at 45. Such time, place, and manner regulations _____ are subject to "intermediate" scrutiny. See, e.g., National ___ ____ ________ Amusements, 43 F.3d at 736. __________ Given the "differing analytic modalities, it is -12- unsurprising that many First Amendment battles over the constitutionality of government regulations start with a debate about what level of scrutiny is appropriate." Id. at 737. The ___ instant case is no exception. The key issue is thus determining whether the Street Furniture Guideline is content-based or otherwise has a content-based impact in which publications, particularly newspapers, are singled out for negative treatment, as is claimed by the Newspapers, or is content neutral on its face and application, as is alleged by the Commission. The answer to this inquiry will allow us to establish what level of scrutiny, strict or intermediate, is appropriate, a finding which will ultimately settle the outcome of this controversy. C. Content-Neutrality and Content-Based Impact C. Content-Neutrality and Content-Based Impact As this circuit has noted, "[t]he concept of what constitutes a content-based as opposed to a content-neutral regulation has proven protean in practice." Id. at 737. The ___ Court's cases "teach that the 'principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.'" Id. (quoting Ward v. Rock Against Racism, ___ ____ ___________________ 491 U.S. 781, 791 (1989)). "A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Ward, 491 U.S. at 791. ____ Under this test, the Street Furniture Guideline seems -13- to be the very model of a content-neutral regulation. It does not make or otherwise demand reference to the content of the affected speech, either in its plain language or in its application. Indeed, as applied to newsracks, it operates as a complete ban without any reference to the content of a given publication whatsoever: uniquely concerned with the physical structure housing the speech, it restricts only the mode of distribution and would plainly apply even if they were empty. As such, it seems to be an example of the very kind of total ban on newsracks which Justice Stevens was willing to assume arguendo ________ might be constitutional in City of Cincinnati v. Discovery ___________________ _________ Network, Inc., 507 U.S. 410, 427-28 (1993) (holding ban on _____________ newsracks to be content-based because determining whether a newsrack fell within ban required reference to a publication's content).8 Furthermore, like the ban on posted signs which the Court upheld in City of Los Angeles v. Taxpayers for Vincent, 466 ___________________ _____________________ ____________________ 8 Commenting on Justice Steven's observation in Discovery _________ Network, the district court noted that "[t]he notion seems _______ strange that a broader ban on speech is more acceptable than a narrower ban." Globe Newspaper, 847 F. Supp. at 195-96 (citing ________________ Justice Rehnquist's dissenting statement in Discovery Network __________________ that "it scarcely seems logical that the First Amendment compels such a result"). Discussing whether First Amendment doctrine creates--to use the district court's phrase--a "perverse incentive to regulate more speech," id. at 195, does not alter ___ out ultimate conclusion that the present regulation is content- neutral. We, therefore, decline the invitation to engage in this unnecessary dialogue. We note in passing, however, that it is not unprecedented in constitutional jurisprudence that "broader" regulations are constitutional while "narrower" ones are not. See, e.g., 44 Liquormart, Inc. v. Rhode Island, ___ U.S. ___, ___ ____ ____________________ ____________ ___, 116 S. Ct. 1495, 1513 n.20 (1996) (citing R.A.V. v. St. ______ ___ Paul, 505 U.S. 377 (1992) and Cincinnati v. Discovery Network, ____ __________ _________________ 507 U.S. 410 (1993)). -14- U.S. 789, 804-05 (1984), the Street Furniture Guideline is directed at aesthetic concerns and is unrelated to the suppression of ideas: indeed, nothing in the record suggests that the challenged regulation arose out of an effort to suppress any particular message communicated through the newsracks, nor do the Newspapers even contend as much.9 That the Street Furniture Guideline results in a total ban on newsracks is nothing more than an incidental effect of its stated aesthetic goal of enhancing the historic architecture of the District by reducing visual clutter: there is nothing in the record to contradict this. The Newspapers contend, however, that this directive has a content-based impact, because it singles out publishers, and most significantly daily newspapers, serving Boston for special, negative treatment. In advancing its "targeting," "differential treatment," and "censorial effects" arguments, the Newspapers urge us to test the Street Furniture Guideline against Minneapolis Star & Tribune v. Minnesota Comm'r of Rev., 460 U.S. ___________________________ ________________________ 575 (1983), and Leathers v. Medlock, 499 U.S. 439 (1991). The ________ _______ district court, in their view, correctly concluded that because the regulation exempts store-front merchandise and public safety/welfare structures, it singles the press for special ____________________ 9 We note further there is no suggestion, let alone argument, that the Street Furniture Guideline is content-based because it is "format-based," applying only to print media, or "distribution-based," applying only to newsracks: in other words, no argument that the SFG is designed to suppress a particular message carried only through either of these two media. -15- treatment and, thus, raises "similar concerns . . . of 'censorial effects'" as found by the Court in Minneapolis Star. Globe ________________ _____ Newspaper, 847 F. Supp. at 199. _________ We disagree. As an initial matter, we are of the view that reliance upon Minneapolis Star by both the Newspapers and _________________ the district court is misplaced in the instant case. First, Minneapolis Star, one of a line of cases establishing rules for ________________ the economic regulation of the press, did not involve a time, place and manner restriction. The tax on newsprint there was held unconstitutional, because it applied only to the press and discriminated in favor of one class of publishers over another; i.e., it was not generally applicable. Minneapolis Star, 460 ___ ________________ U.S. at 581. More importantly, unlike the Street Furniture Guideline which adversely affects only one method of distribution, the regulation there rendered all forms of circulation more burdensome. Second, unlike the case of a discriminatory tax, the Commission asserts, and the Street Furniture Guideline present regulation advances, colorable non- content-discriminatory purposes: aesthetics. Last, we believe it is not coincidental that neither of the two newsrack cases decided by the Court, Discovery Network and Plain Dealer, engaged _________________ ____________ in a Minneapolis Star analysis. Indeed, none of the cases that ________________ have dealt with restrictions on newsracks have found the _________ restrictions to be content-based, have a content-based impact, or otherwise trigger strict scrutiny because they singled-out the _______ press for regulation; in fact, Minneapolis Star is not even _________________ -16- mentioned in the two newsrack cases decided by the Court. See ___ generally Discovery Network, 507 U.S. 410; Plain Dealer, 486 U.S. _________ _________________ ____________ 750.10 That aside, even "inspect[ing] this case through the precedential prism of Minneapolis Star and Leathers," National ________________ ________ ________ Amusements, 43 F.3d at 740, leaves us unpersuaded that there is a __________ cognizable basis for invoking strict scrutiny. In National Amusements, a panel of this court _____________________ extensively discussed Minneapolis Star and Leathers. After _________________ ________ noting the Court's statement in Minneapolis Star that _________________ "differential treatment, unless justified by some special characteristic of the press, suggests that the goal of the regulation is not unrelated to suppression of expression, and [that] such a goal is presumptively unconstitutional," Minneapolis Star, 460 U.S. at 585, the panel went on to discuss ________________ that in Leathers "the Court refined the analysis it had crafted ________ in Minneapolis Star[.]" National Amusements, 43 F.3d at 739. ________________ ____________________ Leathers explains "that targeting engenders strict scrutiny only ________ when regulations (1) single out the press, (2) take aim at a small group of speakers, or (3) discriminate on the basis of the content of protected speech." Id. at 739-40. Essentially, then, ___ because the Street Furniture Guideline does not discriminate on the basis of content, the Newspapers' arguments for strict ____________________ 10 The only mention of Minneapolis Star is in Chief Justice ________________ Rehnquist's dissent in Plain Dealer, 486 U.S. at 797 & n.17 _____________ (finding Minneapolis Star-based argument that provision was _________________ invalid because it applied only to newsracks and not other "users" of the public streets to be "inapposite and unpersuasive" in that case). -17- scrutiny based on targeting and differential treatment hinge on one or both of the first two criteria identified in Leathers. ________ We note first that, to the extent the Newspapers' "targeting" and "differential treatment" arguments essentially rest upon the notion that strict scrutiny is always justified when the practical effect of a regulation is to regulate the First Amendment rights of a select group, this notion is misguided. National Amusements, 43 F.3d at 739. Simply put, ____________________ this notion flies in the teeth of the secondary effects doctrine. Under [this] formulation, any regulation that has an effect on fewer than all First Amendment speakers or messages could be deemed to be a form of targeting and thus subjected to strict scrutiny. Yet the Supreme Court has recognized that a municipality lawfully may enact a regulation that "serves purposes unrelated to the content of expression . . . even if it has an incidental effect on some speakers or messages but not others." Id. at 740 (quoting Ward, 490 U.S. at 791). More importantly, ___ ____ [i]n Minneapolis Star, the Court did not ________________ condemn all regulations that single out First Amendment speakers for differential treatment; rather, the Court acknowledged that certain forms of differential treatment may be "justified by some special _________________________________ characteristic" of the regulated speaker. ______________ National Amusements, 43 F.3d at 740 (quoting Minneapolis Star, ___________________ ________________ 460 U.S. at 585 (emphasis added)). Most relevant to the instant case, noting that "[s]econdary effects can comprise a special characteristic of a particular speaker or group of speakers," this court concluded that "the language . . . quoted from Minneapolis Star comfortably accommodates an exception to the _________________ -18- prohibition on differential treatment for regulations aimed at secondary effects, so long as the disparity is reasonably related to a legitimate government interest." National Amusements, 43 ____________________ F.3d at 740. The Street Furniture Guideline falls within that exception. As an initial matter, we note that there is no indication that the Commission's alleged "targeting" or "differential treatment" was done in a purposeful attempt to interfere with the Newspapers' First Amendment activities: while it clearly takes away one method of distribution, other methods are left untouched. See ante at 5 n.1 and at 6 n.3; see also ___ ____ ________ Gold Coast, 42 F.3d at 1345 (rejecting disparate treatment ___________ argument where there was no evidence regulation was enacted because of a dislike with the message conveyed). Cf. Leathers, ___ ________ (finding tax measure avoided pitfalls because, for example, there was "no indication" that Arkansas "targeted cable television in a purposeful attempt to interfere with . . . First Amendment activities"). More importantly, "street furniture" can obviously create or add to visual clutter in different ways such that solutions calling for differential treatment might be warranted. Cf. Renton v. Playtime Theaters, Inc., 475 U.S. 41, 49 (1985) ___ ______ ________________________ (noting that city treats certain movie theaters differently based on the markedly different effects upon their surroundings). See ___ Discovery Network, 507 U.S. at 430 (noting that unlike speech in __________________ Renton "there [were] no secondary effects attributable to" the ______ -19- commercial-publication newsracks that distinguished them from the non-commercial publications newsracks). While the Newspapers complain that the Street Furniture Guideline "affects no other similarly situated object" in the District, the truth of the matter is that there simply is no other such object. Not only is there no record evidence that any other entity--public or private--uses newsracks or other objects that are similarly anchored to lampposts, signposts, or fixtures on the sidewalks to distribute its product to the public, but there is also no record evidence that such an entity would not be subject to the challenged regulation. In our view, that there is no such evidence, let alone a suggestion to that effect, only underscores the "uniqueness" of the newsracks and the way in which they impact upon the District. In reaching our conclusion, we are not swayed by the district court's findings that "[g]overnmentally-placed street furniture is exempted, and merchandise-store fronts are subjected to no more stringent review than they ever were" and/or that the "only apparent effect of the [Street Furniture Guideline] will be the removal of [the Newspapers'] publication boxes." Globe _____ Newspaper, 847 F. Supp. at 199. Contrary to the Newspapers' _________ contentions, that exempt street furniture, store-front signs, or other tangible signs of modern life may also constitute or add to "visual clutter" does not necessarily render the differential treatment unjustified: this argument ignores legitimate, if not obvious, differences among those on-street or other visible -20- objects that are essential to the public safety and welfare-- street and traffic lights, mail boxes, fire hydrants, street trees, traffic and parking signs, trash receptacles, parking meters and hitchposts--and the preferred distribution means of private entities. See Plain Dealer, 486 U.S. at 797-98 ___ _____________ (Rehnquist, J., dissenting) (finding difference between "public services of a quasi-governmental nature" and newsracks to be significant). Although the record is devoid of any facts regarding store-front stands,11 the Newspapers' argument also seems to ignore practical and historical differences between merchants' on-site signs and bulky newsracks anchored along the sidewalks. It is safe to assume, at least in the absence of record evidence to the contrary, that the newsracks' overall bulky structure is reasonably predictable as compared to store- front signs, which lend themselves more readily to case-by-case review: designing the newsracks' appearance may reduce their complained-of "unsightliness" but it does not eliminate their complained-of "congestion and inconvenience." Perhaps most importantly, we disagree with the district court's conclusion that, as in Minneapolis Star, "[s]imilar _________________ concerns . . . in the sense of 'censorial effects' are raised by the . . . Street Furniture Guideline[]," Globe Newspaper, 847 F. _______________ Supp. at 199. Not only is there no record evidence to support ____________________ 11 Interestingly enough, the Newspapers did not raise the differential treatment of store-front signs when they challenged the first regulation banning newsracks, despite the fact that it would have the same effect of exempting those structures. -21- the conclusion that, because of the regulation, publishers might be chilled by the threat of restrictions on other methods of distribution, we fail to countenance any reasonable basis upon which to ground such a fear: none of the other methods of distribution depend upon structures which are subject to the Commission's jurisdiction. Furthermore, because it is a complete ban upon newsracks, it does not provide for, or otherwise grant, the Commission any--let alone unbridled--discretion in determining what newsracks will be allowed. See Plain Dealer, ___ ____________ 486 U.S. at 769-72. As to the Newspapers' claim that the censorial effects of the Street Furniture Guideline extend beyond the District, we find nothing in the record, other that this bald assertion, to merit such a conclusion. The allegation that this regulation "sends affected publishers the message that if they criticize, annoy or otherwise offend any official with power over any forum, they may face another expensive and futile court battle" implies that the Commission has acted in a retaliatory manner by enacting this legislation, an argument which is totally unsupported by any evidence. Finally, we are unpersuaded by the Newspapers claim that, because the regulation deprives publishers of an already significant and still growing percentage of their readers, its impact is hardly "incidental." While, as alleged by the Newspapers, newsracks may indeed be the "indisputable workhorse" of the daily press (a contention belied by the evidence regarding the District, ante at 5 n.1), nothing in the record suggests, let ____ -22- alone demonstrates, how the removal of the District's newsracks is so burdensome that it is not "incidental." As we see it, the Newspapers' complaint boils down to the potential reader passing through the District or the non-subscribing resident and, as we discuss later, ample alternative channels exist for the Newspapers to reach even these accidental transients passing through the District as well as those readers with more frequent ties to the District. In sum, we find no cognizable basis for invoking strict scrutiny and, thus, apply an intermediate level of scrutiny. D. The Street Furniture Guideline Under Intermediate Scrutiny D. The Street Furniture Guideline Under Intermediate Scrutiny Strict scrutiny aside, restrictions on the time, place and manner of protected expression in a public forum--and the Street Furniture Guideline's effective ban on newsracks upon the District's public and private ways certainly qualifies as such a restriction--should be upheld so long as they are "content- neutral, . . . narrowly tailored to serve a significant governmental interest, and allow for reasonable alter |