Five Chicago Papers Sue City Over Rack Law p.14

By: Mark Fitzgerald

Enraged by the the city’s draconian new plan, newspapers charge it gives government
the sole power to determine which publications have the “right” to be distributed
By mark fitzgerald
Chicago’s two biggest dailies and three free-distribution newspapers filed suit May 12 to throw out a new city ordinance that will replace individual news racks downtown with multiple-title boxes.
In the suit filed in U.S. District Court in Chicago, the newspapers argue the city’s one-year pilot program is unconstitutional for numerous reasons.
Among them, the newspapers argue: The ordinance violates the First Amendment by awarding distribution spots based on a paper’s content; it places unreasonable restrictions on newspapers rather than address specific conditions that meet government concerns about safety and aesthetics; it forces newspapers to turn distribution decisions over to a third-party private company; and it gives excessive discretion to the city’s commissioner of transportation.
Chicago’s ordinance calls for JC Decaux, the French “street furniture” supplier, to install 60 multiple-title boxes along the main streets of the Loop and North Michigan Avenue downtown areas. Right now, the city says, there are some 560 individual news racks in the area.

Mayor in a rush
The ordinance was drafted and passed quickly because Mayor Richard M. Daley wants the new boxes installed in time for the annual gathering of the Travel Industry Association of America. The big convention of travel agents, tour operators and travel writers will be held in Chicago over Memorial Day weekend.
In its rush, City Hall has trampled over the First Amendment and efforts to compromise, newspapers say. And in the process, the city managed to unite not only two daily competitors, but a normally fractious group of free papers as well.
“We felt it was important both legally and morally to make it clear that what we are dealing with here is an assault on the newspaper industry ? the paid dailies, the free-distribution papers and the ethnic newspapers. The real problem here is an over-reaching government,” said Mark Hornung, vice president of circulation of the Chicago Sun-Times, which organized the lawsuit.
“This will probably hurt others more than us, but we wanted to stand by the First Amendment principle here,” said Vincent Casanova, vice president of manufacturing and distribution for the Chicago Tribune.

Five newspapers
Joining in the lawsuit with the Sun-Times and Tribune are two alternative free-distribution papers, the Chicago Reader and New City, and a free-distribution black-interest paper, N’Digo.
The city “is confident it will pass constitutional muster,” said Jennifer Hoyle, a spokeswoman for Chicago’s corporation counsel. She declined to comment further on the lawsuit ? or the newspapers’ complaints about the city’s handling of the pilot program.
Newspapers say City Hall has left them in the dark about the new boxes ? and constantly changed its story.
“We didn’t have any choice but to go down this road, and we still want to settle it,” Tribune’s Casanova said. “But we haven’t even seen what the boxes look like yet.”
At a Friday hearing, U.S. District Court Judge Ruben Castillo granted a temporary restraining order barring the city from installing any racks. The restraining order expires May 26. The city asked to begin installation over the weekend.
In comments at a hearing on Thursday, Castillo indicated that the city’s actions involved serious First Amendment issues and that the city would face a “heavy load” in trying to overcome those issues. He also noted that the sight of newspapers fighting with the city of Chicago is “not going to help tourism. I can’t see how this can help tourism at all.”

Did Decaux mislead publishers?
The Sun-Times’ Hornung said a top Decaux official “misled” him about the design of the boxes ? and by saying Decaux would not go ahead with the pilot program if newspapers were dissatisfied.
Instead, according to the lawsuit, Decaux was quietly working with the city and private architects on plans to “install hundreds of the Decaux structures.”
Decaux even threatened a news rack supplier with a restraint of trade lawsuit if it refused to supply operating mechanisms, the lawsuit says.
Hornung said the supplier, whom he identified as Kaspar Sho-Rack, was reluctant to supply Decaux if its Chicago newspaper customers opposed the multiple-title news box plan. An executive at Sho-Rack said he was not familiar enough with the situation to comment and would relay the request for comment to president Don Kaspar or David Kaspar. Neither called before press time.
Decaux ? best known for its free-standing public toilets, bus shelters and other urban “street furniture” ? could not be reached for comment. While the lawsuit refers to a “JC Decaux Chicago Inc.,” there was no listing for that name in directory assistance.

Doesn’t store enough copies
The newspapers’ lawsuit makes numerous complaints about the Decaux news racks, chief among them that the prototype does not store enough copies of weeklies or show tabloids to advantage.
In addition, the proposed racks will not include newspaper logos or rack cards. However, as part of its city deal, Decaux will be allowed to sell advertising on billboards facing the street side of the racks. Chicago newspapers, the lawsuit claims, are prohibited from buying that advertising space.
The lawsuit asks the court to void the Decaux contract. The lawsuit also says the city reneged on assurances that each paper would have its distribution spots “replicated one for one.” In fact, it was clear at a lottery, held May 12 in City Hall to determine spaces in eight Decaux news racks, that even big papers like the Tribune and Sun-Times will lose spots.
“Of the first eight, the Tribune and the Sun-Times will be in five of them. By my count a total of 16 to 20 of (Sun-Times) boxes in that area will be ‘forcibly removed,’ ” said the Sun-Times’ Hornung, referring to the ordinance’s language permitting city workers to “remove and destroy” any other news rack in the pilot project’s area.
The lottery itself was a comedy of errors which had to be redone when city officials realized they had forgotten to include the Wall Street Journal in the drawing, said Douglas Wertheimer, editor of the Chicago Jewish Star.
“I don’t know why they call Chicago ‘the Second City,’ ” Wertheimer said. “This City Hall is number one in incompetence.”
City workers are empowered to “remove and destroy” any other newsrack in the pilot project’s area.

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?(copyright: Editor & Publisher May 16, 1998) [Caption]

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