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STREET STRUCTURES & NEWSPAPER BOXES Street structures & newspaper boxes 1 a .` 1e - h I CITY OF SALEM - MASSACHUSETTS KEVIN T.DALY Legal Department LEONARD F FEMINO City Solicitor 93 Washington Street Assistant City Solicitor 508-745-0500 Salem, Massachusetts 01970 508-921-1990 July 12, 1991 John R. Serafini, Jr. , Esq. 63 Federal Street Salem, MA 01970 Re: Salem Evening News Vending Machine Dear Attorney Serafini: Relative to the above named matter, kindly file the appropriate applications with the Historical Commission at your earliest possible convenience. This matter must be resolved promptly or the members of the Commission will take appropriate action if your client does not cooperate. Thank you for your attention to this matter. Very truly yours, Kevin T. Daly, City Solicitor KTD/amt pc: Historical Commission coshcl2 y�.acm0.'i0 S 1991 AlE,aj CITY OF SALEM De MASSACHUSETTS FSA partment ���, KEVIN T.DALY 9C�Y n City Solicitor LF�ONR F FEMINO 93 Washington Street Ass sta LCi 508-las-0500 t Solicitor Salem, Massachusetts 01970 508-921-1990 May 31, 1991 John R. Serafini, Jr. , Esquire 63 Federal Street vaiein, rail 01970 Re: Salem Evening News Vending Machine Dear Attorney Serafini: Relative to the Salem Evening News Vending Machine issue which recently arose, please find enclosed the necessary applications and instructions, you will be required to bring this matter before the Historical Commission. Please do so at your earliest possible convenience. Thank you for your attention to this matter. Very truly yours, Kevin T. Daly, City Solicitor KTD/amt enclosures Pc: Salem Historical Commission coshc3l s t CITY OF SALEM - MASSACHUSETTS KEVIN T.DALY Legal Department LEONARD F FEMINO City Solicitor 93 Washington Street Assistant City Solicitor 508-74[i-0500 Salem,Massachusetts 01970 508-921-1990 May 3, 1991 John R. Serafini, Jr. , Esquire 63 Federal Street Salem, MA 01970 Re: Salem Evening News Vending Machine Dear Attorney Serafini: Relative to the Salem Evening News Vending Machine located at the Federal/Beckford Streets intersection, I have reviewed the extensive documentation provided me by both yourself and the Historical Commission. Accordingly, I acknowledge the criteria established in the case of Providence Journal Co. vs. City of Newport. However, it is my opinion that the aggrieved neighbors are entitled to a forum within which to air their complaints and concerns. Should the ! criteria established in the Newport case be met, then the Historic Commission may regulate the location of the machine in question. I therefore request that the Salem Evening News apply immediately for a Certificate of Appropriateness in order that this matter may be heard promptly before the Historic Commission. Thank you for your attention to-this matter. Very truly yours, Kevin T. Daly, City Solicitor KTD/amt pc: Salem Historic Commission coshc2 r a !y Sr p'°annve�p� Salem Historical Commission ONE SALEM GREEN. SALEM,MASSACHUSETTS 01970 February 12, 1991 Kevin Daly City Solicitor City of Salem 93 Washington Street Salem, MA 01970 RE : Salem Evening News vending machine Dear Attorney Daly: Enclosed please find a copy of a letter sent to the Salem Evening News on November 15, 1990, requesting that they remove a newspaper vending machine from the intersection of Federal and Beckford Streets . The letter further requests that the Salem Evening News apply for and receive the necessary approvals before installing such structures in historic districts . To this date, the Salem Historical Commission has not received an application for the vending machine, nor has it been removed. The Commission respectfully requests that a letter be sent from the City Solicitor ' s office to the Salem Evening News informing them that they must comply with the regulations of M.G.L. Chapter 40C by applying for and receiving a Certificate of Appropriateness, Hardship or Non-applicability prior to any installation of newspaper vending machines within historic districts . In this regard, please request that the Salem Evening News comply with our letter dated November 15, 1990 and remove the structure from the Federal/Beckford Street intersection until such time as they have completed the normal application process and the necessary approvals have been obtained. The Commission further asks that you respond as to the status of this issue prior to its next meeting on March 6, 1991 . Also attached for your information is a legal opinion from the Massachusetts Historical Commission . Thank you for your assistance in this matter. S * a--, THE SALEM HISTORICAL COMMISSION Annie C . Harris Chairman J4008 cm nir\ 1 �'llll\E Salem Hisroricai ommissi®n ONE SALEM GREEN, SALEM, MASSACHUSETTS 01970 November 15, 1990 The Salem Evening News 155 Washington Street Salem, MA 01970 Attention : Circulation Dear Sir or Madam: It has come to the attention of the Salem Historical Commission that a newspaper vending machine has been installed at the intersection of Federal and Beckford Streets which is located within the McIntire Historic District . Any permanent structure located within a local historic district requires that a Certificate of Appropriateness, Certificate of Hardship or Certificate of Non-applicability be obtained prior to its installation. Therefore, the Commission respectfully requests that the Salem News vending machine located at the intersection of Federal and Beckford Streets be removed forthwith and that the Salem Evening News apply for and receive the necessary approvals before installing any newspaper dispensing containers in an historic district. Thank you for your cooperation in this matter . Sincerely, THE SALEM HISTORICAL COMMISSION Annie C . Harris Chairman e{i S,jT TS *� V) ;. G hl October 20, 1989 -7 4ftiIISS% iCC� c� nWea.lth Cynthia Kaleskas Holden Historical District Commission 1662 Wachusett Street Jefferson, MA 01552 Dear Ms. Kaleskas: Enclosed please find an opinion of the Attorney General regarding the ability of municipalities to regulate or prohibit vending machines in all public areas or areas under their control. Opinion of the Attorney General, 85/86-5 (December 11, 1985). One such area where municipalities exert some control is within local historic districts G.L. c. 40C (1988 ed.) . I have also enclosed correspondence from the Groton Historic District Commission which addresses their procedure and decision on the Lowell Sun Publishing Campany's placement of newspaper vending machines in a local historic district. In Groton the Lowell Sun applied for a certificate of appropriateness to place two vending machines in Groton's Historic District. After an open hearing the Commission cited the rural nature of the town and district, as opposed to the "urban" "impersonal" characteristics of the vending machines. The Commission also noted that newspapers were available within the district at several stores and that the sign associated with the vending machine was not compatable with the characteristics of the district. Also, it has found that all newspaper vending machines, not the Lowell Sun in particular, would be inappropriate and not in conformity with the character of the district. The Massachusetts Historical Commission is in agreement with the decision of the Groton Commission for several reasons. First the requirement of a Certificate of Appropriateness is the proper procedure to follow since the newspaper seeks to install into the district a combination of materials forming a shelter for property, i.e. , there newspapers and coins. Also the machine acts as a sign, advertising the newspaper. G.L. c. 40C Section 5 (1988 ed.). Therefore, a Certificate of Appropriateness must be obtained before the machine is intsalled. G.L. c. 40C Section 6 (1988 ed.). Massachusetts Historical Commission,Valerie A.Talmage,Executive Director. State Historic Preservation Officer 80 Boylston Street, Boston, Massachusetts 02116 (617) 727-8470 Office of the Secretary of State, Michael J. Connolly,Secretary J � _ Second, the Commission in its decision reviewed the design of the machine and its characteristics in relation to the characteristics and features of the buildings and structures in the district. G.L. c.40 Section 7 (1988 ed.) and Decision of the Groton Historic Districts Commission at paragraphs 2, 4 and 5. Finally, the Commission noted that this restriction has merely one of the ;y time place and manner. of how the newspaper was sold and not a prohibition against the sale of the newspaper or this particular newspaper. Decision at paragraphs 3, 4 and 6. See, Gannett Satellite Information Network n M Inc Metropolitan Trans. Au h t r o it 7 45 F. 2d 767 773 — y 2nd Cir the time place on manner test to newspaper vending(machines)1�84 (applying Therefore, if anyone wishes to install newspaper vending machines in a local historic district a certificate of appropriateness must be obtained and review of that application must be in conformity with G.L. c. 40C. If you have anyuestions 4 please ease call me Sincerely, Michael J. Pise Staff Attorney Massachusetts Historical Commission Enclosures MJP/b.1 85/85- 5 THE COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE ATTORNEY GENERAL JOHN W. MC CORMACK STATE OFFICE BUILDING ONE ASHBURTON PLACE.BOSTON 02106-1698 FRANCIS T wTTONNEY 'n GENERAL December 11 , 1985 The Honorable George Keverian Speaker House of Representatives State House Roston, MA 02108 Dear Speaker Keverian : On behalf of the House of Representatives , you have asked for my opinion, pursuant to G .L. c. 12 , § 9 , concerning the con- stitutionality of a bill presently pending before that body. The bill in question , House 6602 , would amend chapter 40 of the General Laws to empower municipalities to prohibit vending machines in all areas under their care and control . L/ l/ The proposed law is worded as follows : " A city acting by and through its council and a town acting by and through its board of selectmen may prohibit vending machines in all areas of said city or town under their care and control . " On a point unrelated to the subject of your opinion request and recognizing that my role under G .L. c. 12 , � 9 , includes advising you on proposed legislation , I would suggest you substitute "town meet- ( footnote continued) The Honorable George Keverian December 11 , 1985 Speaker Page 2 House of Representatives p ntatives Specifically, you have inquired whether the proposed law would violate the First Amendment to the United States Constitution or its state counterpart , article 16 as amended by article 77 of the Amendments to the Massachusetts Constitution./ You have also asked whether municipalities are presently authorized under the Home Rule Amendment to prohibit or regulate newspaper vending machines . For the reasons discussed below, it is my opinion that the proposed law, as presently drafted , would be likely to withstand a facial challenge on First Amendment grounds . I have further concluded that, even without this law, municipalities presently ( footnote continued) ing" for "board of selectmen, " since the tow.n meeting, not the selectmen, would be the body empowered to enact the ban author- ized by the proposed law. See G.L . c . 39, S 1 ; c. 40 , 5 21 . 2/ The First Amendment , which by its terms applies only to laws enacted by Congress , is made applicable to the states by the Fourteenth Amendment. Lovell v. Griffin , 303 U . S . 444 , 450 ( 1938 ) . Since "the criteria for judging claims arising under the First Amendment . . . are equally appropriate to claims brought unaer cognate provisions of the Massachusetts Constitution, " it is not necessary to analyze separately the article 16 issue . Opinions of the Justices , 387 Mass . 1201 , 1202 (1982 ) . But cf . Commonwealth v . Sees , 374 Mass . 532 , 536-37 ( 1978 ) (Massachusetts Constitution provides greater pro- tection to nude dancing in bars than does United States Consti- tution because of lack of preferred position of alcoholic bev- erages under state Constitution) . The Honorable George Keverian December 11 , 1985 ., Speaker Page 3 House of. Representatives have the power to regulate or prohibit newspaper vending machines under the Home Rule Amendment . An was applied" chal- lenge to a municipal ordinance or by-law adopted pursuant to House 6602 or the Home Rule Amendment, however , would turn on factual determinations beyond the scope of an opinion of the Attorney General . Where appropriate in the margin of this opin- ion I have provided advice concerning the drafting of the bill and its implementation by municipalities to lessen the likeli- hood of successful as applied challenges . I begin my analysis by noting that the questions presented arise only because it is clear from the bill ' s title that the proposed law is intended to apply to newspaper vending ma- chines .3/ Vending machines in general are not protected by the First Amendment since they are not designed to communicate or express ideas or information. Cf . Caswell V. Licensing Com- mission, 387 Mass. 864 , 867-68 ( 1983 ) (holdina that video games are not protected by the First Amendment or by article 16 ) . It is well established, however , that the right to freedom of speech and of the press secured by the First Amendment extends 3/ The bill is entitled "An Act Permitting Cities and Towns to Ban Newspaper Vending Machines . ' A different title, making it clear this is a bill intended to address the public safety and esthetic features of all vending machines , might be advisable . The Honorable George Keverian December 11 , 1985 Speaker Page 4 House of Representatives to the distribution and circulation of printed material . Lovell v. Griffin, 303 U. S . at 452; Schneider v. State , 308 U. S. 147 , 160 ( 1939 ) ; Talley v . California , 362 U. S. 60 , 64 ( 1960 ) . Sev- eral courts that have considered the question have held that the First Amendment applies to the sale of newspapers through newspaper vending machines .4/ Thus , the application of the proposed law to newspaper vend- ing machines surely raises the question of whether the law abridges First Amendment rights . "But to say the ( statute ) ' presents a First Amendment issue is not necessarily to say that it constitutes a First Amendment violation. " Members of the Citv Council of Los Angeles v. Taxpayers for Vincent , 104 S . Ct . 2118 , 2128 ( 1984 ) . The right to engage in expressive activity is not absolute , but may be regulated as to time , place , and manner in order to accommodate competing governmental interests. Such time, place, and manner restrictions are valid , despite their impact on protected activity, provided that they are con- 4/ See , e . g. , Gannett Satellite Information Network , Inc. v. Metropolitan Transn. Auth . , 745 F. 2d 767 , 772 ( 2d 'Cir . 1984 ) ; Miami Herald Publishin Co . v. Cit of Hallandale , 734 F . 2d 666 , 673 ( 11th Cir . 1984 ) ; Gannett Satellite information Network , Inc. v. Town of Norwood , 579 F . Supp. 108 , 114 ( D. Mass . 1984 ) ; Southern N.J. Newspapers , Inc . v. N .J. Den ' t of Transp. , 542 F . Supp. 173 , 183 ( D. N.J . 1962 ) . The Honorable George Keverian December 11 , 1985 Speaker Page 5 House of Representatives tent neutral ( that is , justified without reference to the con- tent of the regulated speech) , that they are narrowly tailored to serve a significant governmental interest , and that they leave open ample alternative channels of communication.!/ On its face , the proposed law satisfies these requirements . It is content neutral , since it applies with equal force first to all vending machines and second to all newspaper vending ma- chines . The First Amendment forbids the government from regu- lating protected activity in ways that favor some viewpoints or ideas at the expense of - others . City Council v. Taxpayers for Vincent, 104 S. Ct. at 2128 . The proposed law, in authorizing an absolute ban of all vending machines , would not permit offi- cials to discriminate based upon their disagreement with a par- ticular newspaper ' s content . 6/ 5/ Clark v . Community for Creative Non-Violence , 104 S . Ct. 3065 , 3069 ( 1984 ) ; City Council v . Taxpavers for Vincent , 104 S. Ct. at 2130 ; Perr Educ . Assn v. Perry Local Educ. Assn , 460 U.S. 37 , 45 1983 . Accord Gannett Satellite Information Network , Inc. v . Metropolitan Transp. Autn . , 745 F . 2d at 773 ( applying above criteria to regulation of newspaper vending ma- chines ) . 6/' To the extent that an ordinance adopted pursuant to the pro- posed- ,law .would ban-.all -newspaper vending machines in a par- ticular municipality, such an ordinance would not be subject to challenge on the ground that it vests an impermissible degree of ( footnote continued) The Honorable George Keverian December 11 , 1985 Speaker Page 6 House of Representatives It is equally likely that, even were a municipality to ban all newspaper vending machines , ample alternative means of dis- tributing newspapers would remain.!/ Newsstands , home- delivery, and ambulatory news vendors would be unaffected by the .proposed law. It is not dispositive that these methods of distribution may be less efficient or more costly. The First Amendment does not guarantee a right to the least expensive or most advantageous form of expression. City Council V. Taxpayers ( footnote continued ) discretion in local officials to select which machines will be permitted. Compare Gannett Satellite Information Network v Town of Norwood, 579 F. Supp. 108 ( D. Mass . 1984 ) ( town by-laws vested• virtually unbridled discretion in town officials to issue permits for newspaper vending machines ) ; Miller News- D_apers , Inc . v. City of Keene , 546 F. Supp . 831 ( D.N .H. 1982) ( seizure of newspaper vending machines in absence of ordinance setting forth appropriate procedures and standards subjected newspapers to exercise of officials ' unbridled discretion and violated due process ) . It is therefore my advice that any bill you enact on this suject matter restrict the discretion of mu- nicipal authorities , channeling it in a manner discouraging con- tent-based discrimination. 7/ The proposed law concerns the placement of vending machines only on property under the care and control of a municipality. I have assumed for purposes of this opinion that any ordinance adopted pursuant to this law would effectively prohibit all newspaper vending machines on public property within a particu- lar .municipality. It :would remain, open to newspaper publishers to place their machines on privately owned property, however . Municipalities in which realistic alternative means of distribu- tion do not exist would be ill-advised to adopt by-laws or ordinances of the type contemplated by the bill. The Honorable George Keverian December 11 , 1985 Speaker Page 7 House of Representatives for Vincent , 104 S. Ct . at 2133 ; Gannett Satellite Information Network, Inc. v. Metropolitan Transportation Authority , 745 F . 2d at 774 . Of course, if it could be shown that , in a particular municipality, newspaper vending machines were the only realistic means of distributing newspapers , an ordinance banning such ma- chines would be vulnerable to an "as applied" attack . Cf . Phil- adelphia Newspapers , Inc . v. Borough Council , 381 F . Supp. 228 (E.D. Pa. 1974 ) . Such hypothetical factual situations , however , are beyond the scope of this opinion , which considers only the facial constitutionality of the proposed law. The question is thus reduced to whether the proposed law is narrowly tailored to serve a significant governmental interest , an inquiry of somewhat greater complexity. I am assuming that the purpose of the proposed law is twofold: to protect the safety of the public by eliminating obstacles to traffic on pub- lic property and to advance esthetic values by prohibiting an intrusive and unattractive format for expression. The Supreme Court has recognized the substantiality of both these interests . See City Council V. Taxpayers for Vincent , 104 S . Ct . at 2130 (municipalities have a weighty, essentially esthetic interest in proscribing intrustive and unpleasant formats for expres- sion) ; Schneider v. State , 308 U. S. 147, 160 ( 1939 ) (municipal The Honorable George Keverian December 11 , 1985 Speaker Page 8 House of Representatives authorities have duty to keep streets open and available for movement of people and property, and conduct of those using streets may be lawfully regulated) . See also Young v. American mini Theatres , 427 U. S . 50 , 71 ( 1976 ) (plurality opinion) ( city ' s interest in attempting to preserve or improve the qual- ity of life is one that must be accorded high respect ) . It could be contended, however , that the proposed law is not "narrowly tailored" to serve these interests , since there may be means of accomplishing the same objectives short of an absolute prohibition of newspaper vending machines Y The Supreme Court has recently made clear , however , that when it is the "tangible medium" of expression itself that conflicts with the substantial governmental interest involved, a law prohibit- ing that medium curtails no more expression than is necessary to accomplish its purpose . City Council v. Taxpayers for Vin- cent, 104 S. Ct. at 2132 ( upholding ordinance prohibiting the posting of signs on public property) ; Clark v. Community for 8/ For example, municipalities could limit the number of news- paper vending machines or require that they be placed a certain distance apart or that they conform to certain esthetic stan- dards . . Such time-, ,-place , and manner restrictions may be permis- sible under the First Amendment, as long as adequate standards are provided to guide the regulators ' discretion. See note 6 , supra. The Honorable George Keverian December 11 , 1=985 Speaker Page 9 House of Representatives Creative Non-Violence , 104 S . Ct. 3065 ( 1984 ) ( upholding prohi- bition on sleeping in certain public parks , and assuming that sleeping was protected by First Amendment under circumstances presented) . See also Gannett Satellite Information Network Inc. v . Metropolitan Transportation Authority, 745 F . 2d at 774-75 ( even if licensing fees were so prohibitive that they effectively banned newspaper vending machines , fees were valid since no less restrictive means existed for raising reve- nue) .9/ Furthermore, the requirement that. a content-neutral law af- fecting First Amendment expression be ."narrowly tailored" does not mean that the law must precisely fit the contours of the governmental interests involved. " (A)n incidental burden on speech is no greater than is essential , and is therefore permis- sible . . . , so long as the neutral regulation promotes a sub- 9/ In Vincent, the Court characterized as inapposite its pre- vious aecisions such as Schneider v. State , supra, striking down absolute prohibitions on the distribution of handbills and leaf- lets . In such cases , the interest advanced in support of the ordinance, e . g. , anti-littering, could be addressed without pro- hibiting the distribution of printed material . In contrast , where the substantive evil addressed by a law is not merely a possible by-product of protected activity, but is, created by the medium of expression itself , e .g. , a sign , absolute prohibi- tion may be justified. City Council v. Taxnavers for Vincent , 104 S. Ct. at 2132 . The Honorable George Keverian December 11 , 1985 , ., Speaker Page 10 House of Representatives staritial governmental interest that would be achieved less ef- fectively absent the regulation. " United States v. Albertini , 105 S. Ct . 2897 , 2907 ( 1985 ) . Accord Clark v. Community for Creative Non-Violence, 104 S . Ct . at 3071 . Therefore, I believe that a content-neutral law, such as the one you have asked me to review, authorizing municipalities to ban newspaper vending machines is sufficiently related to legitimate state interests to withstand a facial challenge . Again, however , it is quite possible that particular ordinances or by-laws enacted pursuant to this law would be subject to suc- cessful attack in particular factual situations . In response to your second question, it is my opinion that municipalities presently have the authority under the Home Rule Amendment to the Massachusetts Constitution,. art . 89 , § 6 , to enact ordinances or by-laws regulating or prohibiting the place- ment of newspaper vending machines in public areas . Indeed, pursuant to my authority under G.L. c . 40 , 5 32 , to approve or disapprove town by-laws , I have approved a number of town vend- ing machine by-laws which, on their face, appear to be reason- able, content neutral , and narrowly tailored to achieve legiti- mate municipal objectives , such as protecting public safety, ensuring accessibility to public facilities , and maintaining The Honorable George Keverian December 11 , 1985 Speaker Page 11 House of Representatives the neatness and orderliness of public areas . l0/ Under the Home Rule Amendment , municipalities "may enact legislation to advance the common good so long as it is not in- consistent with State law. " Marshfield Familv Skateland , Inc v . Marshfield , 389 Mass . 436 , 440, appeal dismissed, 464 U. S. 987 ( 1983 ) . As discussed above, depending on particular fac- tual circumstances , local legislation prohibiting or regulating newspaper . vending machines might well be characterized as ad- vancing the public good . Nor am I aware of any state statutes precluding local action of this nature. To the contrary, state law expressly authorizes municipal officials to "grant permits for the placing and maintaining of . . . structures projecting into or placed on or over public ways . " G. L. c . 85 , § 8. 10/ For instance, I have approved by-laws prohibiting the placement of newspaper vending machines in a way that would en- danger the safety of persons or property, unreasonably preclude the flow of pedestrian traffic, or preclude entrance or exit from business premises or lawfully parked vehicles . The ap- proved by-laws also prohibit placement of such machines on sites used for public transportation or public utility purposes , im- pose size restrictions on the machines , and require that they be kept in good condition. In approving those by-laws , as in answering your first question, I confine my analysis to their facial validity, recognizing that an as-applied challenge will turn- on -factual determinations beyond my purview. The Honorable George Keverian December 11 , 1985 Speaker Page 12 n- House of Representatives I therefore conclude , subject to the reservations expressed above, that the proposed law could be successfully defended against a facial attack on First Amendment grounds and that , even without the proposed law, municipalities presently have the power to enact ordinances or by-laws reasonably regulating or prohibiting the placement of newspaper vending machines in public places . Ve tr4GENERAL , FRAN STTI ATT NE Town of Groton �g HISTORIC DISTRICTS COMMISSION Y, Y_ -�+`iv../��'ti ' line f DEC 1 198F Monday, December 5, 1988 MASS. W—Q-i Mr. David Rowe, Circulation Manager The Lowell Sun Publishing Company 15 Kearnnv C 'u T.,,� quare, P.O. ox 1 Lowell, Massachusetts, 01853 Dear Mr. Rowe On Tuesday, November 22nd, our Commission met to review your applications for Certificates of Appropriateness for the placement of two newspaper vending machines in Groton's Historic Districts, one in front of the P K C Market, the other next to the mail boxes near the Post Office. Your applications were very clearly presented by your attorney, Mr. Goldman, and both you and Mr. Wallace, General Manager of the Sun, `vere present to express your support for the matter. After a presentation and discussion lastingal,ian hour, the Com;itission voted unanimously not to approve these two applications. The five Commissioners voting were Paul Matisse, Chairman; John Tyler, Vice-Chairman; Adelaide Luca, Member;Joseph Kilbridge, Member; Clement S lvp estro Alternate nat., on one application; Alternate, on the other. This letter is to inform You of t}7C and Michael Roberts, Commission's vote was based. Y grounds on which the In discussing whether the vending machines were apl.ropriate in the Historic Districts, the Commission members brought out the following point;; 1) Consideration was focussed on the equipment itself, 1rre.c-rectivr /1f ngirlt rnlnr. If ttl/' m•�rl,,:..,... ..... 1„„t her r ind appropriate in the Districts, the Commission would then have discussed paint colors. 2) In discussing the acceptance of newspaper vending machines in the Historic Districts of both Lowell and New Bedford, the Commission made the point that it snob• Groton as a rural town, different from Lowell and New Bedford, which it considered urban settings. After long discussion it I seemed that we felt the boxes wereinappropriate because they were so particularly characteristic of our current urban scene. In the last few years, these vending machines have g ae Proliferated ced together by many different hsetndorst hey ends upsall llchained together in rows. Since there is no coordination of design, save for the boldness of their advertising, their presence expresses the fact that those who are responsible for their placement do not care what they look like, and do not care what effect their presence may have on their immediate e*mironmow 'rl,,.t, n„rpnCe is to cell newspapers, and other considerations are irrelevant. In any large city today, this tendency toward lack of caring seems to be the norm. A small town is different, and a small town which has met the requirements for establishing an Historic Districts is very different. One of the visible characteristics of a town like Groton is that its appearance is cared for. Its buildings are cared for, and its residents know each other and behave with care for each other. The result of this communal agreement is expressed by the harmony of the buildings and signs that make up the architectural elements of the town. In the Historic Districts, this harmony is what we all strive to maintain. Coin-operated newspaper vending machines are characteristically modern, urban devices. Because they bring with y them the fast-paced, mechanical and impersonal character of current city life, thecannot be appropriate in our Historic Districts; their presence destroys the peace of an architecturally cared for environment. The Historic Districts Act, Chapter 40C of the Massachusetts General Laws states that its purpose "is to promote the educational, cultural, economic and general welfare of the public through the preservation and protection of the distinctive characteristics of buildings and places significant in the history of the commonwealth and its cities and towns or their architecture, and through the maintenance and improvement of settings for buildings and places..." such 3) With respect to your suggestion that the question involved Your company's first amendment rights, the Commissioners felt that such determinations were properly established in a court of law, and that the only question which they were authorized by law to answer was whether or not, within the meaning of State Law and their own published Rules & Regulations, the proposed structures would be appropriate in the Ilistoric Districts. 4) With respect to the particulars of your circulation plans, percentages of sales through such boxes and the like, the Commission appreciated your arguments but felt, as in #3 above, tha r or nottittflt the boxes determination were apprropr ate. It was salso lre y on ognizedethat the Lowell Sun, like other papers, has long sold its newspapers through several stores in the Historic Districts, and thus that there was no question of hardship in the matter. 5) There was also some discussion that related to signage. One of the Commission's usual tasks is to review signs for appropriateness in the Districts. Virtually all of the signs reviewed are essentially advertising, and there is always a tendency on the part of a merchant proposing a sign to equate size and visibility with effectiveness and greater profits. The Commission, however, feels that every added sign only further complicates the visual image of Groton, and therefore strongly urges applicants to keep their signs to a minimum. A newspaper vending machine is also a sign. It carries the publishing company's name on its front, sides, and rear, and usually the entire top half of the newspaper's first pngc behind glass. Thus bold headlines and photographs arc par* o , df t1, _;Iyvisual impact Of these machines. As such, they firing to a rural Historic Districts yet another visunl accent that is totally inappropriate. fr,r,,f�•n to it, v"hich is to say 6) In the.course of the discussion period scvcrd of the Commissioners tried to identify the reasons that led them to find these vending machines inappropriate. It was not the scale of the machines, nor their color. It was not even their particular placement, for Commission members were in agreement that they would find the machines inappropriate virtually anywhere in the Districts. In reviewing your application, our Commission was guided by this purpose. The Main Street of Groton is indeed a Massachusetts "setting' of considerable grace and distinction The vote of the Commissioners,mission ers, all of whom know ow Groton very well is the result on desire t ryh of their o maintain and improve rov realize that our determination will b e the historic character of this setting. Although we e a disappointment for a PP o you, it is our h you appreciate the serious deliberation that went into it, and that you will respect our tdecis on as an expression of the wishes of our townspeople at large. Sincerely yours, Paul Matisse, Chairman Historic Districts Commission CC: Kendall Wallace, General Manager, Lowell Sun Robert Goldman, Lowell Sun Counsel Board of Selectmen, Groton Tom Park, Groton Town Clerk Peter Cole, Groton Town Counsel Members of the Groton Historic Districts Lunm;it;;uii i i ' {1 108 574 FEDERAL SUPPLEMENT = EXDIR C—Continued I LON, .�_aND RAILROAD STATIONS 11. Merilon Station W�iwnd,on platform 12. Nassau Blvd. Station-Westbound,on platform 13. Mineola Station-We,Y±und,on platform { 14. East Williston Stab:=-Alongside station house s 15. Bethpage Station-Wc_bound,on platform �+ 16. Bethpage Station-is to-king area 17. Malverne Station-Rebound,on platform j 18. Baldwin Station-A::mzside stairwell at entrance from parking area 19. Merrick Station-A _amide stairwell from parking area i ! 20. Merrick Station-A:J�7_sde stairwell from parking area - 21. Seaford Station-Wes:S>und,on platform y: 22. Massapequa Station-Alongside station house i' 23. Massapequa Park S:an,,�;-Alongside stairwell to Westbound platform 24. Massapequa Park S_ran-Alongside stairwell to westbound platform 25. Massapequa Park 5::.1on-Alongside stairwell to Westbound platform j 26. Cedarhurst Station-Westbound on platform - I 27. Lawrence Station-A:asgside station house 28. Island Park Station-Alongside station house - 29. Cold Springs Hart:.- Station-Alongside newsstand so that newsdealer _ I can fill rack after be closes for business in the morning ' 30. Deer Park Station-Alongside station house 31. Copaique Station-Alongside station house 32. Lindenhurst Station-Alongside station house i" 33. Bayshore Station-A'cpside station house j34. Islip Station-Alongsda station house 35. Republic Station-Westbound, on platform - 36. Wyandanch Station-Westbound,on platform t I r �. GANNETT SATELLITE INFOR>IATION NETWORK, INC., Plaintiff, junctive relief from towns' alleged interfer- ence with distribution of newspapers. On �4 V. publisher's motion for summary judgment TOWN OF N'ORWOOD, Defendant. and for permanent injunctive relief, the t It District Court, Caffrey, Chief Judge, held ) GANNETT SATELLITE INFORMATION that- (1) in view of fact that ordinance : bv, !f 1 NETWORK, INC., Plaintiff, which town proceeded against newspaper V. publisher for placing newsracks on public `iMCTOWN OF RANDOLPH, Defendant. streets and sidewalks within town without J: GANNETT SATELLITE INFORMATION a permit was not unconstitutional on its NETWORK, INC., Plaintiff, face, and that state courts might very well construe ordinance narrowly so as to pass V. constitutional muster, state forum was par- i z ; OWN OF WINCHESTER. Defendant. ticularly appropriate, and state criminal Civ. A. Nos. 83-2750-C, 83-_'751-C proceeding brought against publisher and 83-2752-C. would not be enjoined by federal district _ f ' United States District Courtcourt on ground that ordinance was fla- a D. Massachusetts, grant) �S and patently unconstitutional, and Jan. 20, 1984. 12) because towns' bylaws vested virtually i unbridled discretion in town officials to Newspaper publisher filed civil actions grant or deny permit requests for place- against tow_ns seeking declaraton_ and in- ment of newsracks within rthm towns bylaws ' 'sa GANNETT SATELLITE INFO. NETWORK v. TOWN OF NOKWpOD CiteF . E were unconstitutional and v ry los 1191 1�9 ness. void for vague- constitutional muster, Prehmina ticularly a state forum was ry injunction appropriate, Par- t complaint dismissed. dissolved and proceedingand state criminal would tbrought against publisher not be enjoined by federal district court on ground that ordinance was fla- ra grantly and patently unconstitutional. 1, Constitutional Law 12=.90(1 i A person face ) 5• Constitutional d with an unconstitution- Law c5g01(8) el licensing law may Newspapers are arm with impunity Y Ignore it and Amendment entitled to First -� yin exercise of right of gage are Protection, despite arm expression for which law g free sold commerciall fact they rm i quire a license. Purports to re- Amend. 1. v' U'S.C.A. Const. 2. Courts 0;'508(7) 6• Constitutional Law ca ' ,ealer Where town had alread The First Amendment protects the dis- :iness 1 essary and 3 taken all nec- tribution and circulation proper steps to begin a forma] U.S.C.A. ConsLAmend. 1. °f news criminal action against news Papers. Pub er in state court for violation of newspaper nane 7. Constitutional Law restricting placement Of newsracks by time Publisher filed suit in federal court against dom Freedom guar town challenging of the press guarantees free- g g constitutionalit from the licensor. nonce, state criminal action was e ordi- Amend. 1. LI S.C.A. Const. i for purposes of determiningPending I } to apply rule that a federal cot should t en oin a 8• Constitutional Law c� rfer ((t ) criminal action pending in 90.1(g) court prior to commencement of federal A municipality M. impose reasonable ++ suit, despite fact that actual complaint had time, place and manner restrictions on sale zed irs. on not been filed. and distribution of newspapers capers. p❑ narrowly drawn , but only b }•_judgment regulations designed o relief, the 3, Courts cam-008(7) serve those interests without unnecessarily interfering Judge, held A federal court may exercise its discre- doms. U.S.C.AhConsttAm rid dment 'dinance by tion to en loin a free- from J state criminal proceeding1. newspaper enforcing a statute flagrant] 9. Constitutional Law on Public Patently violative of express constitutional Fact that newsracks a e entitled to fu11 ':n without Prohibitions in ever 90.1(8) Paragraph, and in Y clause, sentence, and First Amendment Dal on Its whatever protection, very against whomever an effort 'night and their use in a coupled with y well public for requires is to pass to apply it ght be made courts be especially certain the that was par- lation of newsracks is r anv regu. criminal 4. Courts c� 1ow1Y drawn. Precisely and Dar. 008(7) L S.C.A. Const.Amend. 1, publisher In view of fact that ordinance b "� district town proceeded a Y which ]0. Constitutional Law was fla. er for against newspaper publish- 251,4 placing newsracks on public streets Because •nal, and and sidewalks towns' bylaws vested virtually within town without o unbridled discretion in virtually mit was not unconstitutional on i Per- town to icials to and that state courts is face, grantment of or deny permit requests for lPla Place- ,r place- strue ordinance might very well con- were unconstitutional andnewsracks Dvtowns, P ce- narrowlY so as to bylaws bylaws pass ness. U. void for vague- C.A.S.C.A. COnst.Amend. 1. gue- 110 579 FEDERAL SUPPLEMENT Douglas P. Woodlock, Marjorie R. Cor- after Honorable David A. Nelson of this man, Goodwin, Procter d Hoar, Boston, Court ordered them to do so. This Court Mass., for plaintiffs. issued a preliminary injunction on October William Carr, Town Counsel for Town of 17, 1983, enjoining the towns from interfer- Randolph, Boston, Mass., for defendant in ing with distribution of the newspapers. I No. 83-2751-C. The cases are now before the Court on f plaintiff's motion for summary judgment Justin C. Barton, Town Counsel of Nor- and for permanent injunctive relief. I wood, Norwood, Mass., for defendant in j No. 83-2750-C. Gannett v. Towrz of.Nom,00d ' Douglas A. Randall, Town Counsel for In early summer 1983, GannettTanned Town of Winchester, Quincy, Mass., for to begin distributing USA TODAY mNor- defendant in No. 83-2152-C. wood starting in September. By letter dat- ed July S, 1983, Gannett asked the Town to MEMORANDUM send it copies of all town regulations, rules- or ordinances applicable to circulation of CAFFREY, Chief Judge. newspapers by the use of newsracks within These are three civil actions seeking de- the Town. Without identifying any by-law claratory and injunctive relief for alleged as applying specifically to the newsracks, violations of 42 U.S.C. § 1983 and the First Robert M. Thornton, Town Clerk and Ac- and Fourteenth Amendments to the United countant, sent to Gannett a copy of the States Constitution. This Court has juris- Town's entire by-laws. diction under 28 U.S.C. §§ 1331, 1343, and By letter dated August 5, 1983, Gannett 2201. informed Thomas Riolo, Chairman of the Plaintiff Gannett Satellite Information Norwood Board of Selectmen, that it in- Network, Inc., ("Gannett") publishes, tended to proceed with its plan to place TODAY, a nationally distributed daily newsracks in the Town beginning August morning newspaper, published Mondac lo, 1983. Gannett also notified the Chief through- Friday. Gannett first published of the Norwood Police Department by let- USA TODAY in September 1982, and be- ter dated .August 9, 1983, that it planned to gan distributing the newspaper in New begin placing the newsracks on that date. England on September 12, 1983. On September 3. 1983, Gannett placed four newsracks in public areas within the Town. 1? USA TODAY's newsracks are approxi- mately four feet high and two feet wide. By letter dated September 9, 1983, John The newspapers are contained in a box J. Carroll, General Manager of the Town, situated on top of a pedestal approximately advised Gannett that "at their meeting of two and one half feet high. The newsracks Wednesday, September 7, 1983, the Board are blue, white and black and bear the of Selectmen [had] ordered the removal of 11! words, "USA TODAY," on three sides. all USA TODAY boxes from all public }) The newspapers are visible through the ways in the Town of Norwood," that all 64 clear plastic front of the box. four boxes had been removed, and that the boxes would be released only to a duly ` Defendants are three Massachusetts authorized representative of USA TODAY. towns in which Gannett has begun distrib. On September 20, 1983, Judge Nelson or- o' uting USA TODAY. The Town of Ran- dered the Town to return the boxes to dolph has threatened to remove the new Gannett, and on or about September 22, �1 racks. Norwood and Winchester actually 1983, Gannett returned the boxes to their [ ' seized the newsracks, ut- returned them locations within the Town. flt Yl GANNETT SATELLITE INFO. NETWORK v. TOWN OF N ORWOOD -'1S Clte ac 579 F. 111 on of this i'. swp.108 o9aq This Court <' In its answer, Norwood alleges that 1983. Gannett also advised O.J. Benjarl o on October q placement of the newsracks violates "the no, the Town's Police Chief, by letter dated rom interfer- j Zoning By-Law of the Town of Norwood; August 9, 1983, that it intended to begin newspapers. :± Section 31 of Article X11-Police Regulations placing the newsracks on August 15, 1983, ie Court on .` of the general by-laws of the Town of and that it intended to begin distributing Norwood; and Chapter 93D of the [Massa. the newspapers on September 12, 1983. -y judgment - elief, chusetts] General Laws." The Tomm-points By letter dated August 26, 1983, Chair- ti 0 1ao no specific zoning•_4vv which Gannett man Yorra informed Gannett that "permis- sion has violated by placing the newsracks insion to place newsracks in various locations i the Town. Article XII 4 31 iet[ planned of the general throughout the Town of Randolph for pur- i by-laws provides: 'AY in Nor- poses of selling [USA TODAY] is denied." authority On September 7, 1983, Gannett placed six v letter dat- No person shall, without the auth ( p y of USA TODAY newsracks in public locations the Town to the Board of Selectmen, place, paint or within the Town. Chairman Yorra :tions; rules affix any sign, picture, political poster orSept then notified Gannett by letter dated Sept culation of advertising material of an ember y kind upon 13, 1983, that the Board Selectmen had acks within any post, tree, sign, rock or other fixed voted that "the publishers of 'USA TO- any by-law place or object within the limits of any DAY' be notified to have the newsracks, public way in the Town. 'USA TO- rk and Ac- Anyone violating this BY-Law shall be LDAY' vending machines removed from the sidewalks of Randolph by next Monda 'tpy of the subject to a fine not in excess of Twenty September 19, 1983, by noon." y ($20.00) Dollars for each offense. M.G.L. c. 93D regulates outdoor adverbs- In a letter dated September 14, 1983 ; 3, Gannett William Carr, Town Counsel, mailed to iiii ing adjacent to the interstate and primary Gannett copies of three of the Town's by- ian of the t highway systems. that it in- laws. The by-laws, set out in the margin, n to place prohibit use of the Town's sidewalks, Ig August Gannett v. Town of Randolph streets and public ways to sell or display the Chief By letter dated July 8, 1983, Gannett _any merchandise without permission of-the ient by let- asked the Town of Randolph to send it Board of Selectmen.' -- planned to copies of any town rules, regulations or On September 20, 1983, Judge Nelson that date. ordinances pertaining to circulation of enjoined the Town from removing or dis- laced four newspapers by the use of newsracks within turbing the newsracks. the Town. the Town. Joan F. Ward, the Town Clerk, responded on July 12, 1983, by sending to Gannett V. Town of Winchester 983, John Gannett a copy of the Town's by-laws. By letter dated July 8, 1983, Gannett he Town, i Gannett informed Alvin J. Yorra, Chairman asked the Town of Winchester to send it eeting of of the Town's Board of Selectmen, by letter copies of all town rules, regulations or ordi- he Board dated August 5, 1983, that it intended to nances pertaining to circulation of newspa- moval of q proceed with its plan to place the news- pers by the use of newsracks within the Il public racks in the Town starting August 15, Town. When it received no response, Gan- that all that the - 1. Section 14 of Article 16, 1931 Town Meetin a duly provides: g, No person shall use or occupy part of a public TODAY. _ street or sidewalk For the purchase, sale, stor- No person shall obstruct the free, open and age or display of merchandise or other arti- -'Ison or- convenient use by the public for travel of any cles except by license of the Board of Select- Joxes to sidewalk, by occupying the same with goods, men. nber 22, wares, merchandise or other chattels,or truck Section 2 of Article 99, 1973 Town Meeting, unloading merchandise, or by using the same provides: to their as a place of resort, amusement, recreation or No person shall sell, solicit or display goods, business. articles, wares or merchandise upon the pub: Section 18 of Article 86, 1965 Town Meeting, he ways of the Town unless duly licensed to provides: do so by first having obtained a written per. mit from the Board of Selectmen. t 112 579 FEDERAL SUPPLEMENT nett informed the Town's Board of Select- Nelson ordered the Town to return the men by letter dated July 29, 1983, that it boxes. ' intended to begin placing USA TODAY newsracks within the Town on August 15, [1) The record shows with respect to all s 1983. three towns that, although Gannett has Douglas A. Randall, Town Counsel, refused to comply with town procedures it ! re- sponded by letter dated August 4, 1983, considers unconstitutional, it has attempted that Chapter 8 § 10 of the Town's by-laws at all times to accommodate the safety (! �.t(prohibits placing any obstruction on any concerns of town officials. And, of course, v,tir.5 public street or sidewalk without a permit "a person faced wit}��_�11untDnstllution- i from the Board of Selectmen. He opined all licensing law ma}more it and en from s " o --- with impunity, in the exercise of. the right that the machines "would constitute an un- .- --- .-- - - lawful purpresture under the common of free expression for which the law J pur- _law ports to requve a license." Shuttlesworth v. Birmingham, 394 U.S. 197, 151, 89 S.Ct. By letter dated August 9, 1983, Gannett 935, 9389 32 L.Ed.2d 162 (1969); Lovell v. advised the Town's Police Chief that it in- Griffin, 303 U.S. 444, 452-53, 58 S.Ct. 666, tended to begin placing the newsracks on 669, 82 L.Ed. 949 (1938). August 15, and to begin distributing the newspapers on September 12. On August 26, 1983, Gannett installed five newsracks YOUNGER Abstention i in public locations in the Town. The Town of Winchester urges this Acting on the suggestion of the Board of Court to abstain under principles set out by 1 Selectmen, Gannett applied for a permit for the Supreme Court in Younger v. Harris, the newsracks by letter dated September 1, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 [� 1983, while preserving its objection that the (1971). The Court in Younger ruled that a 1 Town's by-laws were unconstitutionally federal court should not enjoin a criminal vague and overbroad as they applied to its action pending in state court prior to com- newsracks. On September 12, Gannett be- mencement of the federal suit, absent cer- tain gan distributing USA TODAY in the Town. tam extraordinary circumstances. And i On the same day, Gannett's counsel ap- "where an injunction would be impermissi- '� peared at a permit hearing before the ble under [Younger] principles, declarato. Board of Selectmen. At the close of the ry relief should ordinarily- be denied as meeting, the selectmen voted to deny the well." Samuels v. Mackell, 401 L'.S. 66, 1` permit because Gannett had failed to show 73 91 S.Ct. 764 768 27 L.Ed.2d 688 (1971). a that the newsracks would not be a danger On September 12, 1983, Andrew Craw- to public safety nor inconvenience public ford, the Prosecuting Officer of the Win- travel, because they would substantially chester Police Department, filed an a lica- r: P PP i-' W interfere with removal of snow from Town ��' tion for a complaint in the Woburn Division ij'• sidewalks, because they may become a of the Massachusetts District Court De- safety hazard to young children, and be- partment (4th District, Eastern Middlesex) 33 cause "placement of the boxes in the down- against Gannett and its counsel. The appli- ,f:i town area is contrary to the Winchester cation alleged that Gannett and counsel Center Urban Design Improvement Project _ jj g P ] "[d]id without obtaining a permit from the now underway." Board of Selectmen, did [sicJ place an ob- Ei On September 12, 1983, the Town insti- struction in the streets and sidewalks with- @ : in the Town of Winchester and allow them toted criminal proceedings against Gannett P g g as- ree f e d e for obstructing Town streets and sidewalks to remain there so as to impede p without first obtaining a permit from the sage of pedestrians and snow removal $" Board of Selectmen. On or about Se tem- equipment: to wit: USA TODAY news a IrF; PP - her 16, 1983, the Town removed the five per vending machines," in violation of { �- newsracks. On September 20, 1983, Judge Chapter 8 § 10 of the Town's by-laws. A GANNETT SATELLITE INFO. NETWORK v. TOWN OF NORWOOD 113 cite as 579 FSupp.108 (19") to return the hearing to show cause was scheduled for preme Court has recognized to the doe- September 27, 1983, but was continued un- trine. The record contains no showing that th respect to all til October 11, apparently at Gannett's re- the Town of Winchester commenced crimi- h Gannett has quest. At the hearing, the Deputy Clerk of nal proceedings in bad faith, or in order to n procedures it ? the state District Court found probable harass Gannett. A federal court may exer- t has attempted cause to believe the Town's by-law had cise its discretion to enjoin a state criminal ate the safety been violated and endorsed six separate proceeding from enforcing a statute "fla- applications for complaint.' The parties And, of course, grantly and patently violative of express unconstitution- have not notified this Court of a trial date constitutional prohibitions in every clause, } it and engage for the state criminal case. Gannett filed �I sentence and paragraph, and in whatever se of the right suit in federal court on September 19, 1983. { g manner and against whomever an effort h the law pur- [21 Gannett argues against abstention might be made to apply it." Younger v. Shuttlesivorth that on September 12, 1983, the Town filed Harris, 401 U.S. at 53-4, 91 S.Ct. at 754- k 17, 151, 89 S.Ct. merely an application for complaint, not an 55, quoting Watson v. Buck, 313 U.S. 387, 969); Lovell v. actual complaint. Because "a criminal pro- 402, 61 S.Ct. 962, 967, 85 L.Ed. 1416 (1941). ,3, 58 S.Ct. 666, ceeding (is) commenced in the District But that is not this case. The ordinance by Court by a complaint, . . ." Mass.R.Crim.P. which the Town proceeds against Gannett 3(a), Gannett argues, no criminal proceed- is not unconstitutional on its face and be- ing necessary to trigger Younger absten- cause the state courts might very well con- tion had yet been filed at the time Gannett strue the ordinance narrowly so as to pass -er urges this filed suit in federal court on September 19. iples set out by But application of the Younger doctrine constitutional muster, the state forum is Ager v. Harris, does not depend on so wooden an approach particularly appropriate. Moore v.d Sims, 27 L.Ed.2d 669 to the date when a state criminal action (19 U.S. ush a S.Ct. 2371, 60 hburnd 994 ier ruled that a begins. By the time Gannett filed suit in (1979); Rushio v. Town oj.4shburnham, .join a criminal federal court, the Town had already taken Massachusetts, 701 F.2d 7 (1st Cir.1983). -t prior to com- all necessary and proper steps to begin a I rule that the preliminary injunction uit, absent cer- formal criminal action against Gannett in should, therefore, be dissolved as against .stances. And state court. The same concerns the Su- the Town of Winchester and the complaint be impermissi- preme Court cited in requiring abstention dismissed. Gannett is free to seek an in- .pies, declarato- in Younger-notions of comity, federal- junction in state court against the criminal be denied as ism, and equitable restraint-militate proceeding currently pending against it and 1, 401 U.S. 66, against interfering with the criminal pro- against future criminal proceedings. Ken- d.2d 688 (1971). cess in this case which has already begun. yon v. City of Chicopee, 320 Mass. 528, 70 Andrew Craw- A decision on the merits by this Court ME.2d 241 (1946); see also Norcisa v. er of the Win- would likely result in some "disruption of Board of Selectmen of provincetomn, 368 'iled an applies- the State criminal justice system," and Mass. 161, 166-168, 330 N.E.2d 830 (1975); oburn Division - could be "interpreted as reflecting nega- Dunigan Enterprises, Inc. v. District At- rict Court De- tively upon the state court's ability to en- torney for the Northern District, 11 Mass. :ern Middlesex) force constitutional principles." Stefjel v. App 254 - 1981 Mass.App.Ct.Adv.Sh. :sel. The appli- Thompson, 415 U.S. 452, 462, 94 S.Ct. 192, 195, 415 N.E.2d 251. The Court recog- -t and counsel 1209, 1217, 39 L.Ed.2d 505 (1974). For nizes that the Town has repeatedly ex- -ermit from the those reasons, I rule that there is presently pressed its intention to seize the newsracks -1 place an ob- pending a state criminal action for pur- immediately if and when the injunction idewalks with- poses of Younger analysis. should be lifted. But Mass.R.Civ.P. 65er- and_allow them [3,41 Because Younger applies, Gan- mics Gannett to seek the same relief in ipede free pas- nett must show that this case falls within state court, including a temporary restrain- snow removal one of the very limited exceptions the Su- ing order, it has sought here, while avoid- )DAY newspa- n violation of 2. After the Town filed its original application October 11, 1983, one for each newsrack Gan- for complaint on September 12, 1983, it filed nett had placed in the Town. is by-laws. A. five additional applications for complaint dated I 114 579 FEDERAL SUPPLEMENT ing unnecessary federal interference in the zees for a Better Environment, 444 U.S. state's criminal proceedings.' 620, 637, 100 S.Ct. 826, 836, 63 L.Ed.2d 73 � j Because the record contains no showing (1980). that either Norwood or Randolph has filed Speech and expressive conduct_on.streets ' r a criminal action against Gannett or in- and public ways deserve special protection. { ? tends to file one, the Younger doctrine "Wherever the title of streets and parks does not prevent this Court's reaching the may rest, they have immemorially been merits of Gannett's suits against them. held in trust for the use of the public and, ` time out of mind, have been used for pur- 1 Merits ses of assembly, communicating [5,61 Newspapers_are-_entitled to full. Po First Amendment protection, despite the thoughts between citizens, and discussing blic I _ questions." Carey v. Brown, 447 y---are sold commercially. New fact theP 1 YorkTimes v. Sullivan, 376 U.S. 254, 266, U.S. 455, 460, 100 S.Ct. 2286, 2289, 65 84 S.Ct. 710, 718, 11 L.Ed.2d 686 (1964). L.Ed.2d 263 (1980), quoting Hague v. CIO, The First Amendment protects the distribu- 307 U.S. 496, 515, 59 S.Ct. 954, 963, 83 tion and circulation of newspapers. "Liber- L.Ed. 1423 (1939). ty of circulating is as essential to [the [9l The fact that the newsracks are en- freedom of the press) as liberty la publish- titled to full First Amendment protection, ing; indeed, without the circulation, the coupled with their use in a public forum, publication would be of little value." Lo- requires that this Court be especially cer- vell v. Griffin, 303 U.S. 444, 452, 58 S.Ct. Lain that any regulation of the newsracks is 666, 669, 82 L.Ed. 949 (1938); see also precise and narrowly drawn. Accord Miller Newspapers, Inc. v. City of Keene, Southern Nein Jersey Newspapers, Inc. v. 546 F.Supp. 831, 833 (D.N.H.1982); Phila- delphia Newspapers, Inc.Ina v. Borough rou h State ojNeu: Jersey, 592 F.Supp. 173, 183 N.J.1982) (and cases cited therein). By (D Council, Mayor, Manager and Director of contrast, Norwood and Randolph rely on no S warth- ' Works o the Borough of by- more, e or b f ordinance more, 381 F.Supp. 228, 240 (E.D.Pa.1974). narrowly drawn newsracks statute, o Y law to regulate newsracks in the towns. [7,8) The freedom of the press guaran- Instead, they rely only on their general tees freedom from the licensor. Lovell v. by-lawsprohibiting use of the towns' Griffin, 303 U.S. 444, 451, 58 S.Ct. 666, streets and public ways for advertising or 668, 82 L.Ed. 949 (1938). "[Aln ordinance_. selling merchandise without a license or which .. . makes the,peaceful enjoyment-of permit from the boards of selectmen. The freedoms which the Constitution guaran- by-laws contain no concrete standards tees contingent upon-the uncontrolled-will whatsoever to guide or limit the discretion 4 of an official-as by requiring a.permit or of town officials. license which may be granted or withheld Norwood relies in addition on M.G.L. C. y' in the.discretion of such officcial-is an un- 93D, which regulates outdoor advertising F constitutional censorshipg or prior restraint_ upon the enjoyment of those freedoms." "within six hundred and sixty feet of the Staub v. City of Baxley, 355 U.S. 313, 322, nearest edge of the right-of-way and visible 78 S.Ct. 277, 282, 2 L.Ed.2d 302 (1958). A from the main travelled way of a highway _ municipality may impose reasonable time, in the interstate or primary [highway] sys- i - oplace and manner restrictions on sale and terns." M.G.L. c 93D, § 2. Even if Chap- it distribution of newspapers, but only "by ter 93D applies to the newsracks in this { ? �j narrowly drawn regulations designed to case-which is doubtful-it does not pur- l'.: serve those interests without unnecessarily port to grant the town's board of selectmen Cil interfering with First Amendment free- the right or duty to issue or deny permits doms." Village of Schaumburg v. Citi- to advertisers, or to remove advertising 3. This Court, of course,expresses no opinion on ing or any future stale litigation between the the merits of either the state criminal proceed- parties. GANNETT SATELLITE INFO. NETWORK v. TOWN OF NORWOOD 115 Cite u 579 F.Supp.log 0964) ament, 444 U.S. erected in violation of the Chapter. The ORDER 6, 63 L.Ed.2d 73 statute simply permits "any city or town or In accordance with memorandum filed any officer thereof' to petition the Su- this date, it is ORDERED: induct on streets preme Judicial or Superior Courts to enjoin --.)ecial protection. j violations of the statute. /d. § 5. 1. Plaintiff's motion for summary judg- reets and parks 1101 Because the by-laws of Norwood ment is allowed. nemorially been and Randolph vest virtually unbridled dis. 2. Application of Article XII, Section 31 f the public and, j cretion in town officials to grant or deny of the general by-laws of the Town of an used for pur- permit requests for placement of news- Norwood to placement of USA TODAY communicating racks within the towns, they are unconsti- newsracks within the Town is declared un- and discussing tutional and void for vagueness as the constitutional in violation of the First and v. Brown, 447 towns have sought to enforce them against Fourteenth Amendments to the United 2286, 2289, 65 Gannett. States Constitution. Hague v. CIO, The Court recognizes that the towns 3. Defendant, its officers, agents, ser- i. 954, 963, 83 have a -substantial interest in the safety vants, employees and all persons acting in and convenience of their residents, Kovacs concert or participation with the defendant v. Cooper, 336 U.S. 77, 81-83, 69 S.Ct. 448, or with any of the foregoing are perma- wsracks are en- 450-451, 93 L.Ed. 513 (1949); Sai¢ v. New nently enjoined from applying Article XII, nent protection, York, 334 U.S. 558, 562, 68 S.Ct. 1148, Section 31 of the general b -laws of the a public forum, 1150, 92 L.Ed. 1574 (1948), and the aesthet- Town of Norwood so as to: i e especially cer- ics or appearance of the towns, Metrome- _he newsracks is dia, lnc. v. City of San Diego, 453 U.S. (a) prevent plaintiff from placing USA rawn. Accord 490, 507-08, 101 S.Ct. 2882, 2892, 69 TODAY newsracks in public areas of spapers, Inc. V. L.Ed.2d 800(1981). But this Court believes the Town of Norwood; '.Supp. 173, 183 that the towns can serve those interests by (b) remove, tamper with, limit, impose d therein). By narrowly drawn statutes which do not con- fees or conditions upon, or in any dolph rely on no stitute prior restraints of the press nor set way interfere with plaintiff's placing rdinance or by- up_town officials as censors. USA TODAY newsracks in public ar. !i in the towns. - eas of the Town of Norwood; ') Order accordingly. li i their general (c) condition plaintiff's placing USA TO- of the towns' GANNETT SATELLITE INFORMATION .4Y newsracks in public areas of the .E advertising or NETWORK, INC., D it a license Plaintiff, Town of Norwood upon the obtaining <e]ectmen. Thhee v of a permit or license. GANNETT SA rete standards TOWN OF WINCHESTER, NETWORK, INC LUTE INFORMATION t the discretion ORDER Defendant. Plaintiff, V. ,n on M.G.L. c. In accordance with memorandum filed )or advertising this date, it is ORDERED: TOWN OF RANDOLPH, xty feet of the - 1. The preliminary injunction issued by Defendant. way and visible this Court on October 17, 1983, is hereby ORDER of a highway dissolved. In accordance with memorandum filed [highway) sys- 2. Complaint dismissed without preju- this date, it is ORDERED: Even if Chap- dice. I. Plaintiff's motion for summary judg- sracks in this ment is allowed. dogs not pur- GANNETT SATELLITE INFORMATION rd of selectmen NETWORK, INC., 2_ Application of the following by-laws r deny permits Plaintiff, of the Town of Randolph to placement of ve advertising V. USA TODAY newsracks within the Town is declared unconstitutional in violation of ion between the TOWN OF NORWOOD, the First and Fourteenth Amendments to Defendant. the United States Constitution: 116 579 FEDERAL. SUPPLEMENT -•(a) Section- 14 of Article 16, 1931 Town were neverthele Meeting; Elsie Viola MILLER and Oretta Bernice immunity. (b) Section 18 of Article 86, 1965 Town Lancaster, doing business as the Junc- Order accor tion Cafe and Tavern; Taylor's Coffee Meeting; Shop, Inc., dba Rennie's Landing; (c) Section 2 of Article 99, 1973 Town W ian, Inc., dba Barney's Cable; indi- Meeting. vidually and as representatives of oth- ers similarly situated; Plaintiffs; ` Since liquor 3. Defendant, its officers, agents, ser- __ quired only umvants, employees and all persons acting in V. necessary eleme, concert or participation witb the defendant William H. HEDLUND, Sylvia S. Beding- ing, and thus Or or with any of the foregoing are perma- field. Reuden A. Worster. Stan Auder- did not authoriz. nently enjoined from applying the afore- kirk, and Jill Thorne, individually in necessarily consi mentioned by-laws so as to: their representative capacities as the trust laws and, . Commissioners of the Oregon Liquor not subject to pr (a) prevent plaintiff from placing USA Control Commission; C. Dean Smith, TODAY newsracks in public areas of individually in his capacity as Adminis- Trust Act, § 1 e the Town of Randolph; trator for the Oregon Liquor Control seq. (b) remove, tamper with, limit, impose Commission; Oregon Beer and Wine 2. Monopolies c fees or conditions upon, or in any Distributors Association, Inc.; Spear Beverage Co., Inc.; Coast Distributors. By requiring way interfere with plaintiff's placing adhere to deliver Inc.; and United Beer Distributing USA TODAY newsracks in public ar- Company; individually and as repre- count rules, sta eas of the Town of Randolph; sentatives of others similarly situated; . wholesalers to a; (c) condition plaintiff's placing USA TO- Defendants. - straints as a con, DAY newsracks in public areas of the Civ. No. 78-259-FR. business, and th Town of Randolph upon the obtaining was present and United States District Court, conduct that was of a permit or license. D. Oregon. Sherman Act. Jan. 24, 1984. § 1 et seq., 15 L 3. Monopolies c w Owners of cafe and tavern brought Delivered pr o s«n xusea«srnrn suit against Oregon State Liquor Commis- T rules, by which s sion, certain liquor wholesalers, and associ- liquor wholesaler ations of liquor wholesalers, contending that pricing practices of Oregon beer and condition for co wine wholesalers violated Sherman Act. were entitled to The United States District Court for the antitrust action, District of Oregon, Frye, J., dismissed, and articulated and t appeal was taken. The Court of Appeals, state policy and Wallace, Circuit Judge, 688 F.2d 1222, re- existed because r versed and remanded. Following remand, state agency its( motions for summary judgment were filed. wholesalers and The District Court, Frye, J., held that: (1) - price-posting and postoff rules were not subject to preemption by Sherman Act be- Dave Frohnm; cause they did not mandate or authorize McCulloch, Jr., conduct constituting a per se antitrust vio- W. Muir, Asst. . lation, and (2) insofar as delivered price and state defendants quantity discount rules might mandate or Garry P. McM authorize per se anti-trust violation, they Ronald L. Wade, sky 8 Doherty, defendants. i 3.