Parties: Lakewood v. Plain Dealer Pub. Co.
Date: 1988-06-17
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Paragraph: 55 - Just as there is no First Amendment right to operate a bookstore or locate a movie theater however or wherever one chooses notwithstanding local laws to the contrary, see Arcara v. Cloud Books, Inc., 478 U.S. 697, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986); Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), the First Amendment does not create a right of newspaper publishers to take city streets to erect structures to sell their papers.
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Paragraph: 27 - The dissent's recharacterization of the issue is not merely semantic; substituting the time, place, or manner for the activity itself allows the dissent to define away a host of activities commonly considered to be protected. The right to demonstrate becomes the right to demonstrate at noise levels proscribed by law; the right to parade becomes the right to parade anywhere in the city 24 hours a day; and the right to circulate newspapers becomes the right to circulate newspapers by way of newsracks placed on public property. Under the dissent's analysis, ordinances giving the Mayor unbridled discretion over whether to permit loud demonstrations or evening parades would not be vulnerable to a facial challenge, since they would not "requir[e] a license to engage in activity protected by the First Amendment." Post, at 777. But see Grayned, 408 U.S., at 113, 92 S.Ct., at 2302 (implying that a law banning excessively loud demonstrations was not facially invalid because its terms could not invite "subjective or discriminatory enforcement").
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Paragraph: 51 - As I read our precedents, the Lovell-Freedman line of cases is applicable here only if the Plain Dealer has a constitutional right to distribute its papers by means of dispensing devices or newsboxes, affixed to the public sidewalks. I am not convinced that this is the case.
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Paragraph: 52 - Appellee has a right to distribute its newspapers on the city's streets, as others have a right to leaflet, solicit, speak, or proselytize in this same public forum area. But this N207* "does not mean that [appellee] can . . . distribute [its newspapers] where, when and how [it] chooses." See Breard v. Alexandria, 341 U.S. 622, 642, 71 S.Ct. 920, 932, 95 L.Ed. 1233 (1951). More specifically, the Plain Dealer's right to distribute its papers does not encompass the right to take city property—a part of the public forum, as appellee so vigorously argues—and appropriate it for its own exclusive use, on a semi-permanent basis, by means of the erection of a newsbox. "The publisher of a newspaper. . . . has no special privilege to invade the rights and liberties of others," Associated Press v. NLRB, 301 U.S. 103, 132-133, 57 S.Ct. 650, 656, 81 L.Ed. 953 (1937); these protected "rights of others" have always included the public-at-large's right to use the public forum for its chosen activities, including free passage of the streets.
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Paragraph: 55 - While there is a First Amendment right to publish newspapers, publishers have no right to force municipalities to turn over public property for the construction of a printing facility. There is a First Amendment right to sell books, but we would not accept an argument that a city must allow a bookseller to construct a bookshop—even a small one—on a city sidewalk. The right to leaflet does not create a right to build a booth on city streets from which leafletting can be conducted. Preventing the "taking" of public property for these purposes does not abridge First Amendment freedoms.
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Paragraph: 56 - It may be that newspaper distributors can sell more papers by placing their newsracks on city sidewalks. But those seeking to distribute materials protected by the First Amendment do not have a right to appropriate public property merely because it best facilitates their efforts.
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Paragraph: 61 - In sum, I believe that the First Amendment does not create a right of newspaper publishers to take a portion of city property to erect a structure to distribute their papers. There is no constitutional right to place newsracks on city sidewalks over the objections of the city.
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Paragraph: 17 - The effectiveness of the newsrack as a means of distribution, especially for low-budget, controversial neighborhood newspapers, means that the twin threats of self-censorship and undetectable censorship are, if anything, greater for newsracks than for pamphleteers.
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Paragraph: 20 - In contrast, a law or policy permitting communication in a certain manner for some but not for others raises the specter of content and viewpoint censorship. This danger is at its zenith when the determination of who may speak and who may not is left to the unbridled discretion of a government official.
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Paragraph: 26 - The actual "activity" at issue here is the circulation of newspapers, which is constitutionally protected. After all, N64* "[l]iberty of circulating is as essential to [freedom of expression] as liberty of publishing; indeed, without the circulation, the publication would be of little value."
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