Does the Back Bay Architectural Commission’s news-box ban violate the First Amendment of the US Constitution?

A federal judge could decide that question — and with it, whether news boxes get to stay in the Back Bay — on Monday.

US District Court judge Douglas Woodlock will hear arguments on whether the Back Bay Architectural Commission’s November 28 news-box ban — which in effect bars from the neighborhood all those publications distributed via the so-called street furniture, including the Phoenix, its sister publication Stuff@Night, Editorial Humor, and the Improper Bostonian — should stand. Both sides have submitted motions for summary judgment, which could end the controversy. If he denies the motions, the judge could also decide to hold a trial on the matter that same day.

Bingham, Dana & Gould’s Mark Batten, the lawyer for the plaintiffs — which include the publishers of Editorial Humor, the Weekly Dig, and the Improper Bostonian — will argue that the news-box ban impinges on free-speech rights more than the law allows. In particular, he will distinguish this case from the one that cheerleaders for the ban like to tout, Globe Newspaper Co. v. Beacon Hill Architectural Commission, which opened the door to news-box bans in Boston back in 1996. In Beacon Hill, the publications could distribute their newspapers through street vendors and other means. Not so here, says Batten. "None of the plaintiff publications in this case has any distribution through street vendors, and all three rely heavily on newsracks," reads the plaintiff’s argument in court papers. "The evidence demonstrates that newsracks are vital to the continuing viability of these ... publications."

Mayor Menino’s press office declined to comment on the controversy because it’s currently in litigation. In court papers, the city argues that the needs of the neighborhood — particularly its aesthetic concerns — outweigh the plaintiffs’ right to distribute their publications in news boxes. As for the claim that the ban prevents publishers from adequately distributing their newspapers, the city says, in effect, let them do it in other ways — never mind the costs. "Nothing here prevents the Plaintiffs from employing other means of distributing their newspapers — whether through private vendors, home delivery, mail, or even handing them out themselves," the city states in court filings. It might put small, financially strapped publications like Editorial Humor out of business, but that matters little to the city. As far as the Back Bay is concerned, aesthetics are far more important than the exchange of ideas.