Spreading the news

Interfering with a newspaper's distribution is an assault on freedom of the press

In authoritarian countries, the question of what to do about nettlesome newspapers and magazines can be answered simply: censor them. There is, fortunately, nothing that approaches that sort of behavior here in the United States. The American people, after all, are protected by the First Amendment, which reads in part: "Congress shall make no law . . . abridging the freedom of speech or of the press." But though publishers in the United States are free to publish, that freedom means little if they cannot get their work into the hands of the public. And when government itself erects barriers making it more difficult to distribute newspapers and magazines, it is not only outrageous, but arguably unconstitutional as well.

Three months ago, the Boston Phoenix switched to an all-free circulation, believing that in the Internet age the future lies in free, not paid, publications. Although many stores continue to carry the Phoenix as a convenience to their customers, many decided not to carry a product that earns them no money. That is their right, of course. But the Phoenix, in order to reach the public, now depends heavily on news boxes, located on sidewalks and in other public places.

So do other free publications, including our sister magazine Stuff@Night and the Community Newspaper Company's Tab papers, as well as Editorial Humor, which is not free. To a lesser extent and to varying degrees, dailies such as the Boston Globe, the Boston Herald, the New York Times, the Wall Street Journal, and USA Today also employ street boxes.

None of these publications claim a right to create a nuisance or endanger public safety with placement of their boxes. They do, however, assert a right -- a constitutionally guaranteed right -- to get their message out. But in recent years, under a number of different guises, distribution efforts have been thwarted and harassed. Last June, aldermen in Waukesha, Wisconsin, tried to limit the placement of news boxes around town. Last August, the City-County Council in Indianapolis ruled that all privately owned news boxes would be removed from city sidewalks and replaced with city-owned multi-publication boxes. Locally, the Boston City Council passed an ordinance in 1996 regulating news-box placement in the city. In 1991, the Beacon Hill Architectural Commission banned all news boxes from the Beacon Hill Historic District -- a decision upheld by the Massachusetts Supreme Judicial Court in 1996.

The most recent assault on news-box distribution came last week, when workers from Somerville's Department of Public Works removed 31 news boxes from Davis Square. The reason given was that the boxes posed a "public-safety hazard" (a claim denied by the Phoenix circulation director). Nevertheless, Boston, Somerville, Cambridge, Brookline, Arlington, and Chelsea have ordinances regulating news boxes. These ordinances vary from city to city, but are essentially the same: news-box owners must register with the city and pay a registration fee. The boxes can't block crosswalks or fire hydrants. They can't be chained to trees. And they must be kept clean and free of graffiti. Most papers are willing to abide by these regulations voluntarily.

It's one thing to obey community guidelines, but it's quite another to pay the government for the right to distribute constitutionally protected material in a public space -- and to give the government the right to regulate that distribution.

These regulations have the biggest impact on publications distributed entirely through news boxes. If you want a Globe or a Herald, after all, you can buy it in just about any store that carries newspapers, or you can have it delivered to your home. Thus, news-box regulations are less onerous, and represent less of a constitutional threat, to the established dailies.

A telling example is that of Editorial Humor. The paid publication, having been unsuccessful at getting placed in stores, is almost entirely dependent on coin-operated boxes. Two of Editorial Humor's boxes were swept up in the recent Davis Square action, according to publisher Dean Wallace. With more coin-op news boxes in Greater Boston than anyone except the Globe and the Herald, and no alternative means of distribution, Wallace fears that his publication could be silenced. He notes, for example, that as a result of the ban on news boxes imposed by the Beacon Hill Architectural Commission, his sales on Charles Street "have gone to zero." That's censorship masquerading as regulation.

When talking about news boxes, we have to keep something in mind: we aren't talking about T-shirt carts or ice-cream stands. We're talking about the distribution of news. The First Amendment guarantees the right to a press free from government control. But this means nothing if the government can regulate how the press is distributed. To impose regulations on news boxes, to charge fees for the use of public space, is to limit the right to speech. Today's news box is the modern-day equivalent of the parchment tacked up to a post in the town square. Government has no right to rip it down.

What do you think? Send an e-mail to letters[a]phx.com.