Globe Newspaper Co. v. Beacon Hill Architectural Commission

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 alternative

channels of communication." Perry, 460 U.S. at 45. See

Discovery Network, 507 U.S. at 428-431 (applying time, place, and

manner test to regulation of newsracks in public forum); Plain

Dealer, 486 U.S. at 763 (noting that the Court would apply time,

place, and manner test to a hypothetical ordinance completely

prohibiting a particular manner of expression); see also National

Amusements, 43 F.3d at 741 (citing other cases). Cf. Capitol Sq.

Review Bd. v. Pinette, U.S. , , 115 S. Ct. 2440 (1996)

-23-

(noting that "a ban on all unattended displays . . . might be" a

reasonable, content-neutral time, place and manner restriction).

As we have already discussed, the Street Furniture Guideline is

content-neutral. We turn, thus, to the remainder of the

analysis.

Aesthetics: A Significant Government Interest?
Aesthetics: A Significant Government Interest?

Pointing to the fact that preservation of the District

"as a landmark" is mandated by state law, see Acts of 1955, ch.

616, 12, the Commission contends that its interest in

preserving the District's historic and architectural character is

a substantial government interest that justifies a narrowly

tailored restriction. The Newspapers roundly disagree, arguing

that the Commission's invocation of its statutory purpose cannot

justify a ban of newsracks in a public forum. The district

court did not decide either way. Instead, it took for granted

that the Commission satisfied the significant government interest

prong when it "assume[d] arguendo that the Commission's

[a]esthetic interest is greater than that of the average

community, because [the District] has been designated a special

historic district." Globe Newspaper, 847 F. Supp. at 194.

The Commission has certainly met the "significant

governmental interest" prong. On more than one occasion, the

"Court has recognized aesthetics . . . as [a] significant

government interest[] legitimately furthered through ordinances

regulating First Amendment expression in various contexts." Gold

Coast, 42 F.3d at 1345 (citing cases). Although there is no need

-24-

to accord the Commission a greater than average interest in

aesthetics, it would not be unreasonable to do so given its

statutory mandate as well as the District's significance to both

Massachusetts and the nation as a whole, as evidenced by its

designation as a National Historic Landmark. See 36 C.F.R. 65.2

(stating that such designations are reserved for "properties of

exceptional value to the nation as a whole rather than to a

particular State or locality").

We are not swayed by the Newspapers' claim that the

Commission's aesthetic interests cannot constitute a significant

government interest where a ban in a public forum is involved.

Although it did not explicitly address, or otherwise test, the

legitimacy of aesthetics through a public forum lens, the Court

in Discovery Network acknowledged that the city's asserted

interest in aesthetics was an "admittedly legitimate" interest

justifying its regulation of sidewalk newsracks. Discovery

Network, 507 U.S. at 424-425 (holding that newsrack regulation's

distinction between commercial and non-commercial speech bore no

relationship "whatsoever" to its asserted aesthetic interest).

Indeed, the Newspapers' contentions to the contrary, there is

abundant authority for the proposition that aesthetic interests

constitute a significant government interest justifying content

neutral, narrowly tailored regulations of a public forum that

leave open ample alternative channels. See, e.g., Gold Coast, 42

F.3d at 1345 (recognizing aesthetics as "significant government

interest[]" when upholding ordinance regulating newsracks in

-25-

traditional public forum); Chicago Observer, Inc. v. City of

Chicago, 929 F.2d 325, 328 (7th Cir. 1991) (upholding regulation

of newsracks' advertising and size as justified by "[c]ities'

[interest in] curtail[ing] visual clutter, for aesthetic and

safety reasons"); Plain Dealer, 794 F.2d at 1147 (recognizing

aesthetics as a "substantial" government interest justifying

total ban of newsracks in residential areas).

Our conclusion that the Commission's specified

interests are "significant" does not end the inquiry. As "[i]n

most cases, the outcome [of this prong] turns not on whether the

specified interests are significant, but rather on whether the

regulation is narrowly tailored to serve those interests." Gold

Coast, 42 F.3d at 1345.

Is the Street Furniture Guideline Narrowly Tailored?
Is the Street Furniture Guideline Narrowly Tailored?

As the district court correctly set forth, the Court in

Ward "explained that the narrow tailoring requirement does not

mandate a least restrictive means analysis: '[r]ather, the

requirement of narrow tailoring is satisfied so long as the . . .

regulation promotes a substantial government interest that would

be achieved less effectively absent the regulation.'" National

Amusements, 43 F.3d at 744 (quoting Ward, 491 U.S. at 799). The

regulation will be valid if it does not burden "substantially

more" speech than is necessary to further the government

interest. Ward, 491 U.S. at 799; see Gold Coast, 42 F.3d at

1345. Where aesthetic interests are at play, the challenged

regulation must be judged by overall context: the government

-26-

must show that the regulation of the feature at issue "would have

more than a negligible impact on aesthetics," which generally

requires that the government be making a bona fide or

"comprehensive coordinated effort" to address aesthetic concerns

in the affected community. See Metromedia, Inc. v. San Diego,

453 U.S. 490, 531 (1980).

In a nutshell, the district court held that the

challenged regulation did not pass muster under the First

Amendment because the Commission "has shown no reason why its

interest in preserving the architectural and historic character

of the [D]istrict cannot be met by, for example, subjecting

newsracks and other street furniture to the same review process

as store-front merchandise racks." Globe Newspaper, 847 F.Supp.

at 194. In reaching this conclusion, the district court took its

cue from the Court's statement in Discovery Network: while a

regulation need not satisfy the "least-restrictive-means" test,12

"if there are numerous and obvious less-burdensome alternatives

to the restriction on . . . speech, that is certainly a relevant

consideration." Discovery Network, 507 U.S. at 417 n.13.13 With

12 See Gold Coast, 43 F.3d at 1346 n.12 (noting that reliance on

newsrack cases using "least restrictive means" is misplaced due
to subsequent Supreme Court cases rejecting that standard).

13 Although the Court in Discovery Network made this observation

while applying the test applied to commercial speech, see, e.g.,

Board of Trustees, 492 U.S. at 480, "[b]ecause commercial speech

receives less First Amendment protection than does non-commercial
speech . . . and [because] intermediate scrutiny also does not
impose a 'least-restrictive-means' analysis, . . . , [this
observation] clearly applies to determinations of narrow
tailoring under intermediate scrutiny." Chesapeake & Potomac

Telephone Co. of VA v. United States, 42 F.3d 181, 199 n.29 (4th

-27-

this in mind, the district court observed that

[t]he SFG assumes that "street lights,
traffic lights, mail boxes, fire hydrants,
street trees, and trash receptacles," can be
designed in such a fashion that they will be
"in keeping with the architectural and
historic character of the District." The
same is true for store-front merchandise
stands. . . . There is no showing that
newsracks are any more inherently out of
keeping with the architectural character of
the [District] than other modern innovations
that have been approved by the Commission on
the basis of their external design features.

Globe Newspaper, 847 F.Supp. at 194-95. In the district court's

view, "the preference given to 'public' street furniture and

store-front stands . . . [i]s evidence that the [Street Furniture

Guideline] . . . is . . . not narrowly tailored," id., and

"burdens substantially more speech than is necessary to serve the

Commission's interest in preserving the character of the

District," id. The Newspapers contend that this is correct.

We disagree, and conclude that the regulation is

narrowly tailored. First, and without a doubt, it promotes the

Commission's significant or substantial14 government interest in

preserving the District's aesthetics: as the SJC observed, "the

[C]ommission has determined that [newsracks] are inappropriate,

in part because they did not exist at the time with which the

Cir. 1994).

14 "The term 'significant interest' is equivalent to the terms
'important interest' and 'substantial interest,' and these
phrases are often used interchangeably." Rodney A. Smolla &
Melvin Nimmer, A Treatise on The First Amendment, 3.02[3][A] at

3-36 & n.95 (1994) (noting that Ward, 491 U.S. at 796, uses

"significant" and "substantial" in adjacent sentences).

-28-

[C]ommission's preservation efforts are concerned." Globe

Newspaper, 421 Mass. at 721. Second, as the Report's review of

the five available alternatives15 indicate, the Commission's

aesthetic interest in preserving the District's historic and

architectural character would not be achieved as effectively,

absent the regulation: banning the newsracks would effectively,

as the Commission's Report observed, most completely "reverse"

their inappropriateness and "be most consistent with the purposes

of the [D]istrict."16 Exhibit H at 7. Finally, it does so

15 The dissent levels several attacks at the Commission's
consideration of the five available alternatives. We believe
that none of these contentions withstand scrutiny. First, if, by
requiring that the Commission "actively consider[] alternative
newsrack design proposals," the dissent means to suggest that the
Commission was required to implement or experiment with other
alternatives before finally choosing the total ban, we simply
disagree that Discovery Network requires this.

Second, that the Commission failed to send notice of
the public hearing to the plaintiffs' circulation departments is
irrelevant because the Commission granted a reconsideration
hearing upon the Newspapers' request after the original ban was
promulgated.
Finally, we disagree with the dissent's last point that
the Commission's failure to regulate newsracks on an
individualized basis, as it does some other appurtenances,
displays a decision lacking careful calculation. That the
Commission has chosen a total ban on only newsracks, and applied
different measures more relevant to the other appurtenances,
shows that the Commission made its determination based on the
interests and concerns uniquely related to newsracks.

16 The dissent contends that the Commission's actions -- holding
two public meetings, conducting a survey, publishing a study, and
taking additional testimony at the Newspapers' request -- do not
evidence a "carefully calculated" determination that the ban on
newsracks is the most suitable solution "proportionate to the
resulting burdens on any protected First Amendment activity."
See post at 5-6 (citing Discovery Network, 507 U.S. at 416

n.12). The dissent suggests that the Commission's decision was
not "carefully calculated" because it failed to employ or
consider incremental, experimental alternatives to a total ban on
newsracks. Id. at 6. We believe, however, that the Commission's

-29-

without burdening "substantially more" speech than is necessary:

it does not burden, or otherwise adversely affect, any other

means of distribution, including the use of street vendors in the

public forum. See ante at 5 n.1. Significantly, we note that

the district court acknowledged, albeit implicitly, that the

challenged regulation meets this test: nowhere in its opinion

did the district court conclude that the Street Furniture

Guideline would fail to advance the Commission's interest or that

its interest would be achieved as effectively absent the

regulation.

In reaching our conclusion, we are mindful of the

district court's "findings" that the Commission's interest could

not be met by, say, "subjecting newsracks and other street

furniture to the same review process as store-front merchandise

racks," and that it treats some "street furniture" with

"preference." Unlike the district court, however, we do not

conclude that such findings compel a determination--at least in

this case--that the Street Furniture Guideline burden

"substantially more" speech than is necessary to accomplish its

purpose and, thus, is narrowly tailored. While the district

study, in addition to its other actions, demonstrate that it in
fact carefully calculated its determination of the alternative
that most comprehensively met each of its interests and, at the
same time, burdened no more speech than necessary to further this
interest. See Ward, 491 U.S. at 799. Additionally, we do not

read National Amusements to require the Commission to engage in

experimental employment of alternative measures or otherwise
engage in further calculation of the "suitability" of
alternatives beyond that which its study demonstrates it has
done.

-30-

court correctly considered the fact that less-burdensome

alternatives exist, it gives too much weight to that fact alone.

In so doing, it essentially discounts from the equation Ward's

inquiry into whether the Street Furniture Guideline "promotes

[the Commission's interests such] that [they] would be achieved

less effectively absent the [Street Furniture Guideline]." Ward,

491 U.S. at 799 (emphasis added).17

We explain: As an initial matter, the Court in

Discovery Network explained that the existence of "numerous and

obvious less-burdensome alternatives . . . is certainly a

relevant consideration." Discovery Network, 507 U.S. at 418 n.13

(emphasis added). Standing alone, this plainly means that, while

"certainly a relevant consideration," id., it is not necessarily

a controlling one: i.e., that "numerous and obvious less-

burdensome alternatives" exist does not automatically compel the

conclusion that a regulation burdens "substantially more" speech

than is necessary. When read in light of Ward, it becomes clear

that less-burdensome alternatives must be considered in

connection with the inquiry into whether, absent the challenged

regulation, the government's interests are achieved less

effectively. Giving too much weight to the existence of

17 The district court, despite its statement to the contrary,
seems to have applied the "least restrictive means" test when it
calibrated the "narrow-tailoring" scales. In closing, it stated:
"A regulator's declaration of benign purpose cannot justify a
needless burden on rights of expression caused by the regulator's
blunt instrument when finer instruments are available." Globe

Newspaper, 847 F. Supp. at 200.

-31-

alternatives, without calibrating the scales to account for

differences between them and the challenged regulation in terms

of overall effectiveness and impact on aesthetics, may result--as

here--in error: that the record, here, reveals that the

Commission's interests are achieved less effectively absent the

Street Furniture Guideline was apparently lost in the shuffle.

In other words, the Court's qualifier in Discovery

Network must, in turn, be qualified--or, rather, "re-qualified"--

by its language in Ward, lest Ward's explicit rejection of the

"least restrictive means" test be reduced to a meaningless

phrase. As the Court made clear in Ward:

So long as the means chosen are not
substantially broader than necessary to
achieve the government's interest, however,
the regulation will not be invalid simply
because a court concludes that the
government's interest could be adequately
served by some less-speech-restrictive
alternative. "The validity of [time, place,
and manner] regulations does not turn on a
judge's agreement with the responsible
decisionmaker concerning the most appropriate
method for promoting significant government
interests" or the degree to which those
interests should be promoted.

Ward, 491 U.S. at 800 (quoting United States v. Albertini, 472

U.S. 667, 689 (1985). As the Sixth Circuit observed, the Court

"has repeatedly deferred to the aesthetic judgments of

municipalities and other government bodies when evaluating

restrictions on protected expression." Gold Coast, 42 F.3d at

1346 (citing, among others, Vincent, 466 U.S. at 807, and

Metromedia, 453 U.S. at 512). Of course, as Discovery Network's

language implicitly reaffirms, courts are not merely to defer to

-32-

the government's subjective judgment; instead, aesthetic

considerations must be judged by overall context and the

government must make its requisite showing. Metromedia, 453 U.S.

at 530.

Under this rubric, while we do not dispute that the

Commission could have adopted a less drastic solution, the fact

that it chose not to does not mean that it did not "carefully

calculate[] the costs and benefits associated with the burden on

speech imposed by [the Street Furniture Guideline]." Discovery

Network, 507 U.S. at 417. In Discovery Network the Court found

that the city there did not make a careful calculation based on

the fact that it did not address its "recently developed concern

about newsracks by regulating their size, shape, appearance, or

number." Id. In this regard, it also noted that the "benefit to

be derived from the removal of 62 newsracks while about 1,500-

2,000 remain in place was considered 'minute' by the [d]istrict

[c]ourt and 'paltry' by the [c]ourt of [a]ppeals." Id.

Unlike the city in Discovery Network, however, the

Commission's actions since newsracks became a subject of concern

in the early 1980s --including survey, report and public

hearings-- demonstrate that it carefully calculated the costs and

benefits. The path it chose to follow--eliminating the newsracks

altogether--is the most effective solution aimed at reducing

visual clutter and preserving the District's historic character.

Designing the newsracks to better "blend in" and conform with the

District's architectural and historic character by having, say,

-33-

an "old-fashioned" or colonial "look," would promote the

Commission's interest by reducing their "unsightliness." It

would not achieve, however, as effective a reduction in "the

visual clutter created by their presence on the sidewalks [which]

clearly detracts from the historic and architectural character of

the [D]istrict,"18 or, for that matter, the long-standing

concerns regarding "congestion and inconvenience."

Our conclusion is not swayed by the Newspapers'

protestations that the Street Furniture Guideline, as applied to

Charles Street (the most commercial in the District), is a "lost

cause" and that the regulation does not remove all evidence of

modern life. It is also not influenced by the district court's

finding that there has been "no showing that newsracks are any

more inherently out of keeping with the architectural character

of the [D]istrict than other modern innovations."19 847 F. Supp.

at 194-95. These contentions miss the point. As the SJC

18 See The Report, Exhibit H at 2.

19 In any event, we disagree with this observation. As the
Agreed Statement of Facts indicates, the District's street
pattern includes many narrow pedestrian streets and lanes. The
newsracks, which began to appear on the scene in the 1980s, are
obviously out of character with the District's street pattern and
it is utterly irrelevant that some streets may not be as narrow
as they once were. Furthermore, as the Agreed Statement of Facts
evidences, much of the exempt "street furniture" that would
constitute "other modern innovations" was installed in the
District long before newsracks came on the scene and, indeed, in
some cases apparently prior to the creation of the District in
1995. That said, we reiterate that this observation ignores the
obvious differences between the public safety/welfare structures
providing indispensable services and private structures erected
on public property whose function, although no doubt important,
can be served in ways that do not require "appropriation" of
public property.

-34-

correctly observed, "the [C]ommission's charge is to preserve

what it can of the . . . District as a tangible reminder of old

Boston. That particular nonconforming uses predated that charge

. . ., or that certain non-conforming uses have since been

allowed to continue, has no effect on ongoing attempts the

[C]ommission makes in preserving the [D]istrict." Id. More

importantly, as the Court in Vincent made clear when it rejected

a similar argument, "[e]ven if some visual blight remains, a

partial, content-neutral ban may nevertheless enhance the City's

appearance." Vincent, 466 U.S. at 811 (rejecting argument that

"the validity of the [a]esthetic interest in the elimination of

signs on public property is not compromised by failing to extend

the ban to private property"). Indeed, in contrast to both

Vincent and Metromedia where the regulations were arguably

"partial-solutions," the Street Furniture Guideline completely

tackles the newsracks' visual clutter and inappropriateness by

eliminating them altogether. See Vincent, 466 U.S. at 811

(banning signs on public property but not private property);

Metromedia, 453 U.S. at 512 (banning off-site advertising but not

on-sign advertising).

What is more, the Newspapers' argument, which is

implicitly based on the notion that newsracks within the District

may only be regulated as part of a comprehensive beautification

or, better yet, "visual clutter reduction" plan, was rejected

foursquare by the Court in Vincent, 446 U.S. at 807 n.5, and

Metromedia, 435 U.S. at 511-12. See Chicago Observer, 929 F.2d

-35-

at 328 (making this observation). In any event, we dismiss as

disingenuous the Newspapers' suggestion that the challenged

regulation is not part of a "comprehensive" plan because it does

not ban all "street furniture" or all evidence of modern life:

not only is the Street Furniture Guideline consistent with its

long-standing prohibition against freestanding signs, the

Commission's guidelines, review process, decisions regarding

cable television control boxes and traffic control boxes, not to

mention its thorough approach regarding newsracks, all speak for

themselves. See Gold Coast, 42 F.3d at 1346 (finding city took

several steps to enhance its aesthetic interest by convening a

task force, conducting research, and revising ordinance).

Last, but not least, contrary to the Newspapers'

suggestion that the Street Furniture Guideline operates as a

complete ban does not, by itself, mean that it is not "narrowly

tailored." While the Court has clearly "voiced particular

concern with laws that foreclose an entire medium of expression,"

City of Ladue v. Gilleo, U.S. , , 114 S. Ct. 2038, 2045

(1994) (invalidating ordinance banning all residential signs),

bans on the use of privately owned structures or displays on

public property have been upheld. See Vincent, 466 U.S. at 804-

05 (upholding ban on signs posted on public utility poles).

In Vincent, the Supreme Court addressed a challenge to

an ordinance banning all posted signs in the city brought by

supporters of a political candidate. Vincent, 466 U.S. at 792-

93. The supporters argued that the ban unconstitutionally

-36-

abridged their freedom of speech. Id. at 802-03. The Court

recognized that the complete ban, like the ban here, "did no more

than eliminate the exact source of the evil it sought to remedy."

Id. at 808. The Vincent Court compared the sign ban to the

ordinance banning handbilling to address littering problems that

the Court struck down in Schneider v. State, 308 U.S. 147 (1939).

In making its determination that the total ban in Vincent was

narrowly tailored to serve the government's interest in

aesthetics, the Court distinguished between the state's

unconstitutional exercise of police power to regulate litter by

prohibiting the distribution of handbills and the constitutional

exercise of that power to completely eliminate the substantive

evil addressed. Unlike the situation of littering, the evil in

Vincent, as here, "is not merely a possible byproduct of the

[protected expressive] activity, but is created by the medium of

expression itself." Id. at 810. The Court held that, because

the Vincent regulation directly resolved the evil the city sought

to address, the medium of expression, the regulation was narrowly

tailored to the city's interest in aesthetics and limiting visual

blight. Id. Similarly, the Commission's ban on the use of

private newsracks, which are both the exact evil presented and

the medium of expression, is narrowly tailored to the government

interest in eliminating the visual blight and congestion on

public property caused by that evil.

Moreover, unlike cases where the medium of expression

involves the exercise of speech by an individual or where the

-37-

medium is a uniquely valuable mode of expression, see, e.g.,

Ladue, U.S. at , 114 S. Ct. at 2045 (citing cases), the

medium of expression here is the use of a privately owned

structure placed on public property for which, as we discuss

below, there are ample alternative channels available for the

distribution of the Newspapers' publications.

In sum, we conclude--contrary to the district court--

that the Street Furniture Guideline is narrowly tailored.

The Final Hurdle: Ample Alternative Channels?
The Final Hurdle: Ample Alternative Channels?

The district court did not reach this final prong,20

but we must before the full First Amendment analysis is

completed.

Below, and on appeal, the Commission claims that ample

alternative channels exist. The challenged regulation, it points

out, leaves unaffected the Newspapers' primary means of

distribution within the District: home delivery, sales by

stores, street vendors, and mail. See ante at 5 n.1. Even

without newsracks, the Commission highlights, the Newspapers'

publications are available within the District 24-hours a day,

seven days a week, through private stores. Further still, 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 publications

and that adjacent to the District numerous additional sources

20 Although the district court found that the PDG did not leave
open ample alternative channels for free publications, such as
the TAB, it did not make this finding regarding the Street
Furniture Guideline.

-38-

exist, including newsracks:21 this, it emphasizes, is well

within the 1/4 mile distance that the Sixth Circuit found

sufficient in Plain Dealer when it upheld a ban on newsracks in a

residential neighborhood. See Plain Dealer, 794 F.2d at 1147.

Relying on Chicago Newspapers Publishers v. City of

Wheaton, 697 F. Supp. 1464, 1470 (N.D. Ill. 1988) ("[t]he

availability of private sellers is irrelevant"); and Providence

Journal Co. v. City of Newport, 665 F. Supp. 107, 118-19 (D.R.I.

1987) (same), the Newspapers counter with the argument that the

availability of private sources is irrelevant to the inquiry.

Accordingly, they claim that the only relevant available means of

distribution is the use of street vendors in the public forum.

While street vendors are unaffected by the Street Furniture

Guideline, the Newspapers nonetheless contend that, because the

cost of 24-hour street vending is substantially more burdensome

than placing stationary newsracks, the regulation fails to leave

available any practical or economical alternative to newsracks.

We are unpersuaded by the Newspapers' arguments

regarding street vendors. Without having to address the merits

of whether the availability of private sources is relevant to the

inquiry,22 or resolve whether it is appropriate to rely on the

21 See ante at 6 n.3.

22 Compare Chicago Newspapers, 697 F. Supp. at 1470; Providence

Journal, 665 F. Supp. at 118-19; with Multimedia Publishing Co.

of S.C., Inc. v. Greenville-Spartenburg Airport Dist., 991 F.2d

154, 160 (4th Cir.1993) (invalidating ban on newsracks in airport
terminal, a non-public forum, due to the lack of market forces
that provide private sources in public fora); Plain Dealer, 794

F.2d at 1147 (existence of alternative channels on private

-39-

proximity of newsracks on the District's boundaries,23 we

conclude that there are ample alternative channels available for

the distribution of the Newspapers' publications. See ante at 5

n.1. Throughout our analysis, we are mindful that "the lens of

inquiry must focus not on whether a degree of curtailment exists,

but on whether the remaining communicative avenues are adequate."

National Amusements, 43 F.3d at 745.

Here, it is undisputed that the Street Furniture

Guideline does not affect the Newspapers' freedom to exercise

their right to distribute publications through street vendors in

the very public forum--the District's sidewalks--from which the

newsracks are banned. See Vincent, 466 U.S. at 812 (finding

ample alternative channels available where ordinance "did not

affect any individual's right to exercise the right to speak and

distribute literature in the same place where the posting of

signs . . . is prohibited"). Thus, without relying on the other

current means of distribution within the District, the numerous

private sources both within and without the District, or the

proximity of newsracks outside the District, we conclude that the

Street Furniture Guideline satisfies this last prong. We note

further that street vendors--or "newsboys" per the Agreed

property considered).

23 See Chicago Newspapers, 697 F. Supp. at 1471 (noting that

city "cannot rely on other municipalities to rescue them from the
consequences of an improperly drawn ordinance") (citing Schneider

v. State, 308 U.S. 147, 163 (1939) ("[O]ne is not to have the

exercise of his liberty of expression in appropriate places
abridged on the plea that it may be exercised in some other
place.")).

-40-

Statement of Facts--began hawking newspapers on the streets of

Boston in approximately 1844; thus, street vending is an

alternative within the public forum that is consistent with the

District's purpose.

In reaching this conclusion we reject as essentially

irrelevant the contention that the cost of street vendors, let

alone 24-hour street vending, is substantially more costly than

placing a stationary newsrack. The First Amendment does not

guarantee a right to the most cost-effective means of

distribution or the rent-free use of public property. Cf.

Capitol Sq. Review Bd. v. Pinette, U.S. , , 115 S. Ct.

2440 (1996) ("It is undeniable, of course, that speech which is

constitutionally protected against state suppression is not

thereby accorded a guaranteed forum on all property owned by the

State."); Regan v. Taxation with Representation, 461 U.S. 540,

546 (1983) (rejecting the notion that "First Amendment rights are

not somehow fully realized unless they are subsidized by the

State"). Moreover, the Newspapers' claim that street vendors are

not a practical alternative is belied by the record, particularly

with respect to the daily papers serving the Boston area: sales

by street vendors for both the Boston Herald and the Boston Globe

exceed those by newsracks. See ante at 5 n.1. What is more, the

record shows that newsracks come in either last or second-to-last

place in terms of percentage of distribution. Id.

While we do not dispute the Newspapers' claims that

newsracks provide a relatively inexpensive means of distribution,

-41-

which in some cases meet distribution needs where others are

either prohibitively expensive or altogether unavailable, nothing

in the record indicates how these concerns are implicated in the

instant case. Indeed, there is nothing in the record to suggest,

let alone show, that the newsracks within the District fulfill a

unique distribution need which is not currently satisfied by

other means of distribution and which could not be satisfied by a

street vendor. As we see it, their claim boils down to the

accidental reader who passes through the District and the

District resident who prefers single-copy sales. Although the

regulation may frustrate the preferences of these readers,

"thwarting . . . an idiosyncratic [or not so idiosyncratic]

preference cannot be equated with a denial of adequate avenues of

communication." National Amusements, 43 F.3d at 745. While the

Street Furniture Guideline diminishes the total quantity of the

Newspapers' publications within the District, that is a necessary

side effect of almost any restriction on speech: "[a]s long as

restrictions are content-neutral, some diminution in the overall

quantity of speech will be tolerated." Id. (citing Vincent, 466

U.S. at 803, 812).24

In addition, our conclusion is not swayed by the

assertion that street vending may not be a viable alternative for

all publications, particularly those that are free, such as the

24 Were we to widen the scope of relevant alternative sources
beyond street vendors, these potential readers could obtain their
preferred publications from newsracks on their way in and/or out
of the District or from one of the numerous stores carrying them.

-42-

TAB.25 While we are aware that the Court, with good reason, "has

shown special solicitude for forms of expression that are much

less expensive than feasible alternatives and hence may be

important to a large segment of the citizenry, . . . this

solicitude has practical boundaries." Vincent, 466 U.S. at 812

n.30 (citations omitted). Given that the regulation neither

affects the TAB's primary means of distribution, the mail, which

accounts for 79% of its distribution, nor prohibits the use of

street vendors, such "practical boundaries" exist here. In any

event, absent any record evidence regarding the feasibility or

infeasibility of street vending for free publications, such as

the TAB, we are particularly reluctant to treat free publications

differently than those "for charge," or to otherwise alter our

conclusion.

In short, "[a]s the Court phrased it: 'That the city's

limitations on volume may reduce to some degree the potential

audience for respondent's speech is of no consequence, for there

has been no showing that the remaining avenues of communication

25 When the district court made its bench ruling that the
original regulation did not leave open ample alternative channels
it noted that "there is a special problem" with respect to the
impact upon free publications, such as the TAB. Although the
Newspapers had not raised this issue and despite the absence of
record evidence, the district court's conclusion was based on the
assumption that stores would not have the same economic incentive
to serve as conduits for the distribution of free publications.
Despite the subsequent admission of evidence showing that "no-
charge" publications were carried in the District's stores, the
court did not abandon its "finding" on this point when it
reconsidered its ruling on the new regulation. There is no
mention of this or any other similar finding in the district
court's opinion regarding the Street Furniture Guideline.

-43-

are inadequate.'" National Amusements, 43 F.3d at 745 (quoting

Ward, 491 U.S. at 802). Here, because the SFG leaves intact an

alternative means of distribution within the public forum, and in

the absence of any record evidence "call[ing] into legitimate

question the adequacy of the alternate routes for

[distribution]," National Amusements, 43 F.3d at 745, we conclude

that the Street Furniture Guideline's effective ban on newsracks

in no way runs afoul of the Newspapers' First Amendment right to

distribute their publications. Accordingly, with this last prong

satisfied, we find that the challenged guideline passes muster

under the First Amendment: it is a reasonable, content-neutral

time, place and manner restriction on the Newspapers' right to

distribute their publications in the District.

Some Additional Thoughts
Some Additional Thoughts

We have considered the Newspapers' other arguments and

find them to be without merit. We pause briefly, however, to

respond to a few of them.

First: Contrary to their contention, and as the

foregoing discussion makes clear, the Street Furniture Guideline

in no way denies the Newspapers the ability to make their

publications available to those "willing to receive" them.

Indeed, there is simply nothing in the record to support this

bald assertion.

Second: We also reject as utterly without merit the

notion that, by upholding a ruling that bans a common and useful

means of newspaper distribution, our decision today opens the

-44-

door to the "piecemeal destruction of the public forum." We are

simply at a loss to see how the public forum is "destroyed" by

such a valid content neutral, time, place and manner restriction

on the distribution of protected speech--particularly where, as

here, the Newspapers are free to distribute their publications

from the very same spot within the public forum where their

newsracks have been located.

Last, but not least: We also dismiss as irrelevant

their claim that the SJC's decision signals a danger for

newsracks in all historic districts: even if this were true, as

long as the regulations are valid content neutral, time, place

and manner restrictions, what of it? As noted above, while the

First Amendment guarantees the right to circulate publications,

it does not guarantee the right to do so through private

structures erected on public property. No one disputes that

regulations governing newsracks, because they facilitate the

distribution of protected speech, are subject to First Amendment

scrutiny. What the Newspapers fail to appreciate is that

newsracks are nothing more than structures occupying, if not

monopolizing, public space on the sidewalks, which--with or

without publications within--simply are not immunized from

regulations passing muster under the First Amendment.

In sum, our opinion today stands unaffected by the

clatter of these alarmist claims. Without more ado, we reverse

the district court's decision.

II. Attorney's Fees
II. Attorney's Fees

-45-

The Commission also appeals from the district court's

award of attorneys fees to the Newspapers as the "prevailing

party" under 42 U.S.C. 1988. In light of our opinion today

reversing the judgment below on the merits, we need not address

the Commission's claims of error. As a judgment in favor of the

Newspapers is reversed on the merits, that party is no longer a

"prevailing party" under 42 U.S.C. 1988 and, thus, no longer

entitled to attorney's fees under that statute. See, e.g., Lewis

v. Continental Bank Corp., 494 U.S. 472, 483 (1990); Clark v.

Township of Falls, 890 F.2d 625, 626-28 (3d Cir. 1989).

CONCLUSION
CONCLUSION

For the foregoing reasons, the district court's

decision is reversed, the award of attorneys' fees is vacated,
reversed vacated

and the case remanded to the district court for entry of judgment

in favor of the Commission, and for such further necessary and

appropriate proceedings and orders as are consistent with this

decision.

Costs are granted to Appellant.

"Dissent Follows"

-46-

CYR, Circuit Judge (dissenting). As I agree with the
CYR, Circuit Judge (dissenting).

district court, see Globe Newspaper, 874 F. Supp. at 193-95, that

the Commission has yet to establish, inter alia, that its Street

Furniture Guideline is "narrowly tailored," Perry, 460 U.S. at

45; see North Ave. Novelties, Inc. v. City of Chicago, 88 F.3d

441, 444 (7th Cir. 1996) (noting that government must show that

its "time, manner, and place" restriction on protected speech is

"narrowly tailored"), I respectfully dissent.

This case turns on whether the Commission established

that its outright ban on all newsracks within the District

represents a reasonable means to its concededly legitimate

regulatory end, in the sense that the ban "is in proportion to

the interest served"; that is to say, "not necessarily the least

restrictive means," but one which is "narrowly tailored to

achieve the desired objective." Cincinnati, 113 S. Ct. at 1510

n.12 (quoting Board of Trustees of State Univ. of N.Y. v. Fox,

492 U.S. 469, 480 (1989)) (internal quotation marks and citations

omitted). As the Supreme Court has made clear, both in Fox and

Cincinnati, the government must demonstrate that it "carefully

calculated" the resulting burdens on expressive activity

protected by the First Amendment, Cincinnati, 113 S. Ct. at 1510

n.12, which involves something more than simply identifying a

legitimate regulatory purpose.

The Commission is specifically charged with preserving

the District as a unique "old Boston" community and the

importance of preserving the architectural and historical

-47-

esthetics within the District, for the benefit of the community,

the Commonwealth, and the Nation, is not in question. See

Vincent, 466 U.S. at 806-07. Nonetheless, the sweeping

presumption indulged by the Commission that the nonconforming

nature of all newsracks represents an esthetic blight only an

outright ban can remedy is not entitled to deference in the

First Amendment context. The Commission is required first to

demonstrate that it carefully considered obvious alternative

regulatory means before imposing its outright ban against all

newsracks within the District. See Cincinnati, 113 S. Ct. at

1510 n.13 (rejecting "mere rational basis review"). The record

does not demonstrate that the Commission has met its burden.

By the same token, the unquestionable efficiency of a

total ban on all newsracks does not satisfy the "narrow

tailoring" requirement. Otherwise, there would be virtually no

role left to be served by the requirement that governmental

entities "carefully calculate" the burdens their regulatory

actions impose on protected expressive activity, see id. at 1510

n.12, since an outright ban will almost invariably prove most

efficient in rooting out unbecoming appurtenances. Moreover,

unlike public-safety regulations, for example, esthetics-based

regulations often stem from subjective assessments not readily

amenable either to objective measurement or empirical refutation,

thereby warranting careful judicial scrutiny. See Metromedia,

453 U.S. at 510; see also Ward, 491 U.S. at 793.

The historical basis for the Commission ban against all

-48-

newsracks within the District is incontestable: newsracks "did

not exist at the time with which the [C]ommission's efforts are

concerned." While the District is "a tangible reminder of old

Boston," however, it nonetheless remains a contemporary

residential and commercial community. Charles Street, for

example, accommodates numerous modern commercial conveniences

(e.g., gas stations) presumably alien, if not offensive, to the

esthetic sensibilities of even the most indurate "old Bostonian."

Thus, notwithstanding the Commission mandate to preserve the

District's colonial and post-colonial characteristics, residents

rely upon (or at least tolerate) many uncharacteristic

obtrusions, at least one of which (cable television boxes)

presumably was introduced after the Commission came into

existence in 1955. Various other anachronous utilities abound as

well including paved roads and sidewalks, automobiles, traffic

signals, streetlights, trash receptacles, mail boxes, and fire

hydrants not only along Charles Street but throughout the

District. Even though many of these nonconforming modernities

are regulated by the Commission often robustly rather than

banned outright, the Commission concedes that newsracks are the

only "street furniture" it subjects to an outright ban.

As the district court correctly noted, there can be no

question that an outright ban on all nonconforming modernities

(e.g., as at Plymouth Plantation or Williamsburg) offers the most

efficient approach to restoring historical and architectural

integrity. Where the First Amendment is implicated, however,

-49-

efficient governmental regulation must be "narrowly tailored."

Yet the Commission neither demonstrates that "obvious less-

burdensome alternatives" are unavailable, Cincinnati, 113 S. Ct.

at 1510 n.13, nor explains why the ad hoc permitting process it

uses to regulate anachronous utilities such as cable television

boxes should not be enlisted for newsrack regulation. Cf.

Vincent, 466 U.S. at 808 (noting Metromedia plurality's view that

"[i]t is not speculative to recognize that billboards by their

very nature, wherever located and however constructed, can be

perceived as an `esthetic harm'") (emphasis added).

Furthermore, the Commission has not explained its

rationale for concluding let alone demonstrated, see

Cincinnati, 113 S. Ct. at 1510 that a permissible basis exists

for assuming that newsracks, without regard to size, signage,

design, color, location or number, cannot comport with its

esthetic standards. See Chicago Newspaper Publishers Ass'n v.

City of Wheaton, 697 F. Supp. 1464, 1470 (N.D. Ill. 1988) (noting

that city "has not explained . . . how a newsrack on a

residential street destroys the `character' of the neighborhood

any more than a mailbox, utility pole, fire hydrant, or traffic

sign").26 Nor has the Commission shown that any perceived

26 In its Staff Report, the Commission cites its 1983 and 1990
surveys of the District's newsracks, and identifies five
alternatives: (1) an outright ban on all newsracks; (2) an
outright ban on all newsracks, except those distributing non-
"commercial" speech, whose design and placement would be
regulated; (3) an outright ban on all newsracks in District
residential areas, with design and placement regulations for non-
"commercial" newsracks on Charles Street; (4) no outright ban on
any newsrack, but general regulation of their size, design,

-50-

"visual clutter" could not be addressed by restricting, severely

if necessary, the location (e.g., within the Charles Street

"commercial" zone) and the number of newsracks within the

District. Plainly, these obvious alternatives, if efficacious,

color, location, and attachment; and (5) delaying any District
regulation pending the City's decision whether to regulate
newsracks city-wide. The Staff Report fails to demonstrate the
required "narrow tailoring," for three reasons.
First, the Report was based solely on surveys of then-

existing newsracks, see Commission Staff Report, at 65 ("None of

the distribution box designs can be said to be architecturally
appropriate"), and does not consider the feasibility of a
different newsrack design more consonant with the desired
esthetics. Indeed, the analysis of Alternative #4 merely states
that any such design criteria would have "to be drafted" at some
later time. See id. at 68. This plainly does not amount to

"careful calculation."

Second, the Commission points to no other record evidence
that it ever actively considered alternative newsrack design
proposals. Even though the Commission now acknowledges that it
failed to send notice of its November 15, 1990, public hearing to

plaintiffs' respective circulation departments, the Staff Report
touts the fact that, after years of public opposition to a
newsrack ban, plaintiffs had lodged no comments at the public
hearing. In a letter to the Commission shortly after the first
guideline was promulgated, however, the Boston Globe not only
objected to the "notice" provided by the Commission, but reminded
the Commission of the Globe's "historical willingness" throughout
the preceding eight-year period to negotiate a mutually agreeable
newsrack guideline short of a total ban.

Finally, the Report rejects Alternatives 2-4 on the ground
that they would tax the Commission's limited enforcement
resources. Administrative burden is an appropriate consideration
in the "careful calculation" inquiry. Yet even accepting the
Commission's uncorroborated reference to its limited
administrative resources, it fails because it simply presumes,
sub silentio, that the expressive activity here involved is

somehow due less protection than the anachronous appurtenances
the Commission has decided to regulate, but not to ban, and
therefore that it is less deserving of individualized treatment
under the Commission's ad hoc permitting process. Nor does the

Report attempt a comprehensive overview of current Commission
administrative enforcement expenditures relating to its
regulation of these other unhistorical appurtenances.

-51-

would be much less burdensome on the important First Amendment

expressive activity the Commission proposes to ban outright.

As the court appropriately acknowledges, of course,

considerable deference is due the Commission. See supra p. 31.

Nevertheless, deference to an outright ban on protected

expressive activity cannot be predicated on anything less than a

reasoned showing that the Commission "carefully calculated"

alternative means with a view to their suitability to address

legitimate regulatory interests proportionate to the resulting

burdens on any protected First Amendment activity. Cincinnati,

113 S. Ct. at 1510 n.12; see also Vincent, 466 U.S. at 803 n.22

(warning that courts "may not simply assume that the ordinance

will always advance the asserted state interests sufficiently to

justify its abridgment of expressive activity"). The Commission

adopted its outright District-wide ban on all newsracks without

either attempting less draconian regulation or evaluating by

incremental experimentation alternative approaches to controlling

and reducing any visual blight caused by contemporary newsracks.

See Cincinnati, 113 S. Ct. at 1510 (noting that newsrack ban was

not a "reasonable fit," since city "failed to address its

recently developed concern about newsracks by regulating the

size, shape, appearance, or number").

I do not suggest that government invariably must engage

in actual experimentation before settling on an outright ban,

especially if it can demonstrate that the particular expressive

activity creates a serious public nuisance too pressing to

-52-

countenance delay. Nevertheless, outright bans on protected

modes of expressive activity such as newspaper distribution are

not entitled to judicial deference absent the required showing

that less burdensome alternatives were "carefully calculated."

See Ward, 491 U.S. at 799 (noting that there is no "narrow

tailoring" if government "regulate[s] expression in such a manner

that a substantial portion of the burden on speech does not

serve to advance its goals"); Lakewood 486 U.S. at 750;

Providence Journal Co. v. City of Newport, 665 F. Supp. 107, 110

(D.R.I. 1987) (collecting cases holding that newsracks are

entitled to "full First Amendment protection"); cf. Vincent, 466

U.S. at 813 (noting that specific locations (utility poles) for

posting signs were not traditionally recognized public fora like

public streets); Metromedia, 453 U.S. at 490 (upholding outright

ban on off-premises billboards carrying less-protected commercial

speech). On the other hand, "narrow tailoring" in the present

context does not require the government to employ the "least

restrictive means," but to demonstrate that it "carefully

calculated" the suitability of obvious alternatives proportional

to its legitimate esthetic objectives. Each case is to be judged

on its particular facts, of course, and a total ban might pass

muster were it made to appear that the Commission "carefully

calculated" less burdensome alternatives and justifiably found

them wanting.

The failure to make such a showing is especially

flagrant in the present context, since the Commission settled on

-53-

a total ban because newsracks were unknown in post-colonial

times, yet it continues to regulate, rather than prohibit

outright, numerous post-colonial appurtenances, without

explaining why a newsrack need inevitably be more unbecoming

historically and architecturally than a trash receptacle or a

streetlight pole. If its response is merely that the trash

receptacle or streetlight pole serves a more useful purpose which

must somehow be tolerated, then the Commission seriously

undervalues both the utility of expressive activity (i.e.,

newspaper distribution) and the First Amendment protection to

which it is entitled. As the failure to demonstrate the required

"narrow tailoring" undermines the challenged Street Furniture

Guideline under the three-part Perry test, I would affirm the

district court judgment.

-54-