THURSDAY, NOVEMBER 29, 2001 — The Back Bay Architectural Commission last night reaffirmed its previous vote banning newspaper boxes from that neighborhood. But it failed to resolve the very legal issue that had necessitated last night’s vote.

Following the commission’s unanimous May 9 vote, several newspapers — a group that eventually grew to include Editorial Humor, the Boston Phoenix and its sister publication Stuff@Night, the Weekly Dig, the Improper Bostonian, and the Real Estate Guide — sued in state court, charging that the news-box ban violated their free-press rights under the First Amendment.

The suit was moved to federal court. And at a pretrial hearing on October 9, US District Court judge Douglas Woodlock made it clear that he wanted the issue of whether the publishers should have been contacted prior to the May 9 vote resolved before the case goes to trial. Noting that the publishers had not been formally notified before that first vote, Woodlock told city officials that the commission should invite every publisher with a licensed news box to a new public hearing and then vote again. "I would strongly encourage you. In fact, I would put it in an order if necessary," Woodlock said at that time (see " Media, " This Just In, October 12).

Despite Woodlock’s clear instructions, last night’s vote took place even though Weekly Dig editor Joe Bonni said he had not received notice of last night’s hearing. "We were not notified. I only found out about this meeting an hour and 45 minutes ago," he said. "Technically, this meeting is illegal. I wasn’t notified, and the judge ordered it."

Bonni’s complaint brought an astonishing response from John Devereaux, a lawyer who is also the vice-chairman of the Neighborhood Association of the Back Bay, which strongly supports the ban. "There was no order from the court," Devereaux informed the commissioners, even though Woodlock had made it clear that he would issue exactly such an order if the issue were not resolved voluntarily.

Devereaux also denied that the publishers had any special right to be invited to a public hearing, noting that the May hearing had been properly posted at City Hall. But Devereaux’s contention is a matter of legal dispute: the plaintiffs in the lawsuit argue that, as licensed, fee-paying box owners, they did have a right to be formally notified. Woodlock, at the October 9 hearing, did not indicate which position he would take. Rather, he urged the commission to make that issue moot by giving the publishers the notification they say they were due, holding another hearing, and voting again.

Thus, because of Bonni’s claim — and because of Editorial Humor publisher Dean Wallace’s contention that others, including the Boston Globe and the Boston Herald, were also not notified — it would appear that the commission last night failed to accomplish the one thing it had set out to do.

Later in the hearing, as the commission was getting ready to vote, commission member Ali Rizvi challenged Bonni. "How do you know that you did not receive it?" asked Rizvi, adding he also wanted to know who else was claiming not to have been notified. Responded Bonni: "I have no idea who else was not notified. I know that I was not notified." Devereaux interjected that the commission should not be swayed by such claims, which could turn out to be true or not true. Rizvi added that Bonni was "hiding" behind the notification issue, which led Bonni to respond, "That’s insulting."

Following the public-comment portion of the hearing, commission chairman Anthony Gordon appeared ready to delay the vote — and to schedule yet another public hearing — if the commission’s legal counsel ruled that last night’s hearing was not in compliance. "There has been a claim that certain people were not notified properly," he said. "I’d hate to misstep along the way."

Others, though, urged him to act. And with little debate, the commission voted by an eight-to-one margin to impose the ban, which would remove all of an estimated 300 news boxes from the district bounded by Boylston, Arlington, and Beacon Streets, and Mass Ave.

The lone dissenter, Iphigenia Demetraides, said that since the opposition to news boxes appeared to be based on the fact that they are a target for vandals and are aesthetically displeasing, then those problems should be addressed rather than moving to a total ban. The boxes, she said, keep the city "vital" rather than "living in the past." Other commissioners countered that past attempts to regulate news boxes have failed, and that the time had come to get rid of them.

"The reason we’re at this impasse is that there have been so many attempts to clean this up," said alternate Ellen Rooney.

The two-and-a-half-hour hearing took place not in the Back Bay but, rather, in an eighth-floor chamber at City Hall named, ironically, for press-loathing former city councilor Albert "Dapper" O’Neil. Despite the location and the 5 p.m. starting time, nearly 40 people turned out.

The early part of the hearing featured a table-thumping, arm-waving performance by Dean Wallace, who expressed outrage that the commission was seeking to take away his First Amendment rights in the midst of a war on terrorism to uphold those rights. "Boston is where American liberty first came — first came. You do understand that, right?" Wallace thundered.

Phoenix and Stuff@Night publisher Stephen Mindich presented about 100 e-mails that had arrived in response to a call asking readers to protest the proposed ban.

"Are they from the district?" asked commission vice-chairman Anthony Casendino.

"They’re citizens," Mindich replied. "And one of them referred to you as the Back Bay Taliban. And I can see why."

What appeared to make the biggest impression on the commission, though, was a poster containing photographs of trashed and vandalized news boxes, with papers strewn across the sidewalk. The photos were presented by Janet Hurwitz, an architect and an activist with the Neighborhood Association of the Back Bay, who said, "The news boxes are inappropriate to the architectural character of the neighborhood."

Wallace and Bonni countered that what the photos really documented was crimes committed against their property. Since they pay fees to the city, they said, they should at the least be notified when such vandalism occurs so they can take care of the problem. That argument, though, appeared to fall on deaf ears.

So did a suggestion for a compromise put forth by several of the publishers that news boxes be banned from the residential portion of the Back Bay, and be allowed on Boylston and Newbury Streets and the streets that connect them. Patti Quinn, a director of the neighborhood association, said more than 100 businesses in the commercial district had signed a petition urging that the news boxes be banned.

Also joining the debate were a pair of activists from the ACLU, both of whom stressed that they were not speaking for that organization and both of whom live in the Back Bay. Woody Kaplan spoke in favor of the news boxes, saying that the " visual clutter " people complain about is "the clutter of ideas." He accused ban proponents of taking "an elitist, almost plastic, almost suburban view" of what the city should look like.

Elliott Laffer responded that the Back Bay is "a living, breathing community where people care about aesthetics. There isn’t a point to having a regulation if it isn’t going to inconvenience somebody." But, he added, a news-box ban was "reasonable."

Despite the concern that chairman Gordon expressed earlier in the hearing that the vote might be legally dubious, he sounded confident after the meeting when asked what he would do to ascertain its validity. "We will assume that that was a legal vote unless we are told otherwise," he said.

If the commission takes no further action, it would appear that the issue will ultimately be resolved as part of the lawsuit in US District Court. Plaintiffs’ lawyer Ian McKenny, of Bingham Dana, said the suit is currently scheduled to go to trial next March.