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This page contains a single entry from the blog posted on June 13, 2007 2:37 AM. The previous post in this blog was "Organic" Budweiser?. The next post in this blog is Scooter Libby to judge: "I'm scared of the bloggers". Many more can be found on the main index page or by looking through the archives.

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Wednesday, June 13, 2007

Sidewalk newsracks and the law in Portland

Don't get me wrong. I love the newspapers. If the job paid halfway decently, I'd be a newspaperman myself, just like in my youthful days.

But all this talk about the need for Portland's sidewalks to be free -- free of duct tape on the eve of a parade, free of homeless people and other panhandlers -- gets me thinking about the newsracks that clutter up so much of our public rights-of-way. If we're really on a mission to clear the sidewalks of things (and people) that oughtn't to be there, what about all those newspaper vending boxes? Are there rules governing them? And are they ever enforced?

I started ruminating about this the other night, and it's worth pursuing some more. Let's start with some basics. In Portland, as in most cities, there are ordinances against obstructing streets and sidewalks. As to leaving objects in them (as opposed to plopping your body down on them -- a related but separate issue, very much in the news these days), here's what the city code says:

17.44.010 Unlawful Acts Enumerated.

A. It is unlawful for any person to obstruct or cause to be obstructed any roadway, curb or sidewalk by leaving or placing, to remain longer than 2 hours any object, material or article which may prevent free passage over any part of such street or sidewalk area. This Section does not authorize any action in violation of any other Title or regulation...

D. This section shall not apply to:

1. Any use, sign, or structure for which a permit has been issued or which is erected under authority of any Title;

2. Motor vehicles lawfully parked pursuant to City Regulations;

3. Barricades placed by or with the approval of the City Engineer or the Traffic Engineer; nor

4. Temporary closures and occupancies pursuant to this Chapter.

Under these rules, unless an object is issued a permit by the city, it's illegal for a private company to leave it anywhere on a sidewalk for more than two hours. There are large exceptions for those awful Tri-Met bus benches, for sidewalk cafes, and for sidewalk vendor carts, but unless I'm mistaken, there's no such exception for newsracks.

So then how do these dispensers remain on our sidewalks? It must be because there are freedom of speech limitations on the city's ability to regulate them. But unless I'm misreading the city code (entirely possible), or there's some sort of permitting system that I've never heard of (less likely), newsracks are illegal in Portland, except to the extent that the federal or state constitutions or statutes make them legal.

Now, I'm going to take a wild guess that there's nothing in federal or state statutes on this -- maybe some laws about disability access touch on it, but I'll assume for purposes of this post that it all boils down to the constitutions. Those precious documents forbid many restrictions on speech, but if I'm recalling correctly, it's not at all clear that they forbid the city from restricting the time, manner, or place of speech. The city can't ban all newsracks, nor can it discriminate against one newsrack or another based on content, but it seems likely that it can regulate many aspects of their placement on city streets.

Indeed, as noted here the other day, the city has extensive regulations on the books as to newsracks on the transit mall. They can be found here. But those sections of the city code don't apply in other parts of town.

As for the rest of Portlandia, citywide rules of general application apply. For example, nothing, including a newsrack, is supposed to be chained or otherwise attached to at least certain types of city-owned poles:

17.64.040 Use of City Poles or Posts.

A. It is unlawful for any person to attach any animal, or to affix or attach any bill, sign, advertisement of any kind, or any contrivance or device of any kind or nature other than City official notices, to any pole, post, wire, cable, fixture or equipment of City of Portland owned telecommunications lines and equipment, street lighting, or traffic signal systems, except as authorized by the City.

Which brings us back to where the boxes are allowed, and where they aren't. This gets a little tricky, I think. There's nothing that I can find in the city code that says anything about it. But the city does have quite detailed "pedestrian design guidelines" that speak to these issues. I don't know what the precise legal effect of these guidelines is, but they have been part of the city's pedestrian master plan (huge pdf thingy) since at least 1998.

The "guidelines for street corners," which are here, are pretty clear about where objects like newsracks are and aren't supposed to go. Here's what they say:

B2 DESIGNING AND IMPLEMENTING CORNER IMPROVEMENTS

B2.1 Obstruction-Free Area

Since the corner area must accommodate a concentration of pedestrian activities, and since sight lines need to be maintained for all street users, it is important to maintain an area that is free of obstructions.

B2.1a Obstruction-Free Area Defined

The obstruction-free area of a street corner is the space between the curb and the lines created by extending the property line (or the line of a public walkway easement) to the curb face, as shown in the adjacent illustration. Signal poles, street lights, telephone poles, hydrants, trees, benches, signs, controller boxes, private uses, and other vertical elements should not be located within this area.

Keeping these elements out of the Obstruction-Free Area should not result in placing them in other locations where they are an obstruction to pedestrians, such as the Through Pedestrian Zone in the Sidewalk Corridor.

The obstruction-free area of a street corner is the space between the curb and the lines created by extending the property line to the curb face. All new or reconstructed corners must have curb ramps.

B2.1b Exceptions to Obstruction-Free Area

Exceptions to the obstruction-free guideline include bollards to separate pedestrians from traffic, and low posts for pedestrian call buttons at actuated signal controls....

B2.2 "No Private Use" Area

To provide enough space for all the hardware that must be accommodated near the corner area, and to ensure good visibility at the corners, private temporary uses such as street vendors, sidewalk cafes, A-boards and newspaper vending machines are not permitted in an area 1.5 m (5'-0") back from the extension of the property line at any corner, as shown in the adjacent illustration.

Here's the illustration on the last point. No newsracks are supposed to go anywhere near the corner -- they're to be five feet back from the extended property line:


There's probably more, but that's all I've been able to dig up about the legal side of these things. I hope that some knowledgeable readers can tell me what I've got right and what I've got wrong about the current state of the law in this area.

However we come out on that, tomorrow we'll head out to a corner near us and see how the newsrack folks are doing in complying with the city's rules and guidelines. If you're interested, why not go out to a corner near you and do the same? We can compare notes tomorrow.

Comments (30)

I'll check the latest newspaper box installed at 23rd & Hawthorne, but I know when it was installed some time ago --and I called to complain it interferred with the sight lines for drivers pulling out-- the answer was something along the lines of "constitutional right" for the newspaper folks to put the damn thing wherever they wanted.

As a neighborhood transportation chair, I used to gripe to the City and TriMet about this.

The answer we got was that they can't require permits because of the 1st amendment issues. If the boxes actually obstruct use of the sidewalk (or access to a bus stop) the agencies will physically move them out of the way, but that's all they believe they have the ability to do.

Someone is badly mis-reading the Constitution if they believe that the freedom of the press clause requires government to provide free space on public property for the distribution of newspapers. It's possible that our idiot judges have made this determination, but if that is not the case, I'd like to see Portland ordinance these things out of existence - which would end up in court. An argument and outcome there would be instructive.

I'd be more willing to go along with the freedom of speech arguement if the newspaper was free (I'm looking at you, Oregonian). Also, a lot of those boxes are distributing apartment/housing ads or auto ads. Can't we at least get rid of those?

" our idiot judges
Nice. I suppose you want them tarred and feathered and run out of town on a rail too?

I don't remember a case in constitutional law in which metal boxes with springs were found to have first amendment rights.

I have doubts about any first amendment arguments requiring public space allotments for newspaper distribution boxes.

Now if the city tried to bar people from distributing or selling papers on sidewalks (like the Streetroots guys here or the kids who sell papers near subway entrances in larger cities) I would think they might have some problems.

I'd love to see the boxes go away altogether. Stores and retaurants can permit news box distribution for their patrons on their own premises.

More sidewalk space, less litter.

Twophrases, each containing two words words: Bolt cutters. Self help.

There is this to consider: take away the boxes altogether, and you'll seriously curtail the circulation of the Portland Tribune and Willamette Week, which will cost them ad revenue and might make their business model break. I think that would be unfortunate. This isn't the whole issue, but it is a not-so-small part of it.

I appreciate your attention to the sidewalks, BoJack. Good luck in your efforts—hey, if you need any advice on how to bring publicity for your efforts, feel free to give us a call at the Mercury. We're considering setting up a consultancy.

Other fields of expertise will include "the first amendment" and what it says about interfering with freedom of the press.

Since when is disrupting someone's "business model" a major concern for the City when pursuing "good public policy"?

I don't know why the local papers should be offered any more "business model" considerations than the City has provided to auto dealers, Walmart, convenience stores, payday lenders, etc...

The only First Amendment case pertaining to newsracks that I know about is Cincinnati v. Discovery Network, 507 U.S. 410 (1993). In that case, Cincinnati had attempted to ban commercial newsracks containing advertising publications and located on public property, but leave other newsracks containing newspapers in place. This would have eliminated only 62 of the city’s more than 1500 newsracks located on public property. The city claimed the ban was intended to protect safety and aesthetics of the community. The Court overturned the ban, saying that the paltry reduction in the overall number of newsracks that would occur with the ban could not justify the regulation.

Furthermore, the Court wrote, “In our view, the city’s argument attaches more importance to the distinction between commercial and noncommercial speech than our cases warrant and seriously underestimates the value of commercial speech.” The Court continued, “Not only does Cincinnati's categorical ban on commercial newsracks place too much importance on the distinction between commercial and noncommercial speech, but in this case, the distinction bears no relationship whatsoever to the particular interests that the city has asserted. It is therefore an impermissible means of responding to the city's admittedly legitimate interests.”

Finally, the Court determined that the ban could not be considered a valid content-neutral regulation of “time, place, and manner” because the very basis for the regulation was the difference in content between commercial and noncommercial news racks.

The Cincinnati newsrack ban provides a classic example of the way cities often go astray when it comes to the First Amendment. In other land use, cities can regulate based on common sense or what seems to be rational to them. But when the land use involves speech, the Court's standards are much higher and the cities have to actually prove that the regulation will do what they say it will, that no other less speech-restrictive means exists by which to do that necessary public good, and that the regulation goes no further than necessary. In an attempt to deal with a legitimate problem (i.e. public safety and aesthetics), cities frequently pass regulations (i.e. banning commercial newsracks from public property) based on rational-sounding reasons (i.e. commercial publications tend to proliferate, are not well-maintained, and pose a hazard in the right-of-way), without scientific analysis that would prove whether the regulation will address the problem (i.e. a study showing that the regulation will only rid the city of 62 of its 1500+ newsracks).

If enforcement is applied equally to all newsracks, regardless of content, and if a legitimate public purpose is being served, such as protecting the public safety by ensuring drivers have a clear view of the street, then the regulation should be allowable. I think the permitting issue is probably one of prior restraint of speech.

I'm all for leaving the newsracks on the street, but enforcing the rules regarding preventing their placement at corners where they could endanger the public's safety.

Other fields of expertise will include "the first amendment" and what it says about interfering with freedom of the press.

Son, I know all about the constitution, since long before you came to this country.

legitimate public purpose is being served, such as protecting the public safety by ensuring drivers have a clear view of the street, then the regulation should be allowable

It's pedestrians and cyclists as well as drivers.

'Since when is disrupting someone's "business model" a major concern for the City when pursuing "good public policy"?'

I don't know. Did somebody say it was?

I'm the circulation director at the Portland Mercury. The perceived "nefarious" activities such as chaining boxes to poles or other fixtures is hardly my (or my counterparts at the other papers) motivation. We comply with the "law of the land" with regard to respecting handicap access and refraining from blocking fire hydrants and other safety features and the Mercury's boxes are not tall enough to impede line-of-sight. We are even (mostly) respectful of Trimet's "hot lava" bricked areas that the Oregonian is mysteriously immune to.

My objective is to simply make available our free newspaper to everyone in Portland. Especially people who don't have the benefit of internet access or lots of money to spend in boutiques or bistros--people who want to read the actual paper. We try to be egalitarian that way and the street boxes are an important part of that.

As far as lashing out against the Mercury or other publications by vandalizing or stealing the boxes--that's my bread and butter. A lot of what I do is making the boxes safe and presentable to the average reader. Removing them in either a clandestine or civic-routed manner would ultimately reduce the variety in our town and hurt working-class people like myself and the other circulation directors in Portland. If exacting a human toll for your knee jerk hobby is your cup of tea, then by all means--drink it.

Interesting that the shoe is on the other foot for the Mercury with regard to private use of our public sidewalks. Of course this is where Jack was going with this all along; it's just nice to see someone from the Merc finally take the bait!

Sure... they follow the "law of the land" as it's been defined by, uh, what? Decades of tradition? Heh heh heh. This should be good.

Interesting that the shoe is on the other foot for the Mercury with regard to private use of our public sidewalks.

-What!? Shoes hurt my feet.

Of course this is where Jack was going with this all along; it's just nice to see someone from the Merc finally take the bait!

-Mmmmmmmm, bait.

Sure... they follow the "law of the land" as it's been defined by, uh, what? Decades of tradition?

-um, city codes as they are currently enforced.

Heh heh heh. This should be good.

-indeed.

"My objective is to simply make available our free newspaper to everyone in Portland. Especially people who don't have ... lots of money to spend in boutiques or bistros. ... We try to be egalitarian that way."

Oh. How giving of you. And here I thought your objective was to make sure that the Mercury's circulation was high enough to justify your ad rates. Those boxes on the sidewalk aren't making the city uglier, or blocking off a part of the public right-of-way, they're a way of giving back to the community!

Lance, there's nothing you've said that explains why your paper has to put its box on the sidewalk. Your paper could get by distributing solely within businesses, perhaps? And pointing out that the city has done nothing about your newspaper boxes doesn't mean the "law of the land" gives you that right.

Applying the "parade tape test" to these boxes, isn't it just as okay for someone to remove these boxes from the sidewalk as it is for you to leave them there? Which, of course, was Jack's point all along.

Feel free to reply with mumbly, point-by-point sarcasm.

As far as lashing out against the Mercury or other publications by vandalizing or stealing the boxes--that's my bread and butter.

No one here has suggested anything of the kind. The only people who do that sort of thing are the clowns who work with you.

city codes as they are currently enforced.

Meaning, not at all, I suppose.

If any of your boxes are attached to a city telecommunications, street lighting, or traffic signal pole, you're in violation of the city code, as you may soon be finding out.

as you may soon be finding out.

Mmmmm...parking meters for newspaper boxes.

city codes as they are currently enforced.

Just like the tapers, Lance, just like the tapers.

There are twenty --TWENTY-- newspaper boxes at ONE corner of SW First and Columbia, near my office building. I never actually counted them before.

17 in a row on the southwest side of the corner, and 3 on the northest (and I'm not talking about across the street, where there are more. I'm talking ONE corner. I think I can claim this as a record? And, yes, this IS where I get my Mercury, Trib and Willamette Week...but remember the old days when there used to be newspaper STANDS, with people actually selling newspapers. (I know, I know, how old fashioned...but I've seen a few remaining still..at least in NY and Paris.)

20 battle weary, nasty, butt-ugly newspaper boxes. Why not forty? Maybe a hundred? Is there a line we cross at some point where we start to wonder...is this a problem?

Wait... I find it odd that the usual conservatives here are nodding their head at Jack's post. Likely the same folks who scream "Social engineering!" at every liberal-ish initiative in Portland. So now you're all for government enforcing beautification/codes and telling business what to do?

Hillarious.

Also... the last time I checked, Portland is a city. Not a metropolis, obviously, but it's a city. Cities have newspaper stands. It's part of the streetscape. A city's streetscape does not look like Main St, USA's streetscape (although newspaper boxes are there too).

There can be some unwritten rules that we can all agree on, right? Why bring up newspaper boxes to make a point about the relatively new phenomenon of parade tape?

Because it's all supposedly about the "freedom" of our sidewalks, which I find quite hypocritical. I agree that we must have newsstands of some kind. But they shouldn't be the ugly, wild west mess we have now, and they shouldn't be a hazard to pedestrians, cyclists, and motorists, which they are in many cases now.

the last time I checked,

You might want to take a look at our comments policy and the line between conversation and argumentativeness.

I had no idea that would be crossing the line. My apologies.

Not a problem. Actually, it was no snarkier than I get on a routine basis, so I probably shouldn't have snapped at you.

I wish the meth addicts and graffiti vandals would attract the similar levels of municipal enforcement and ordinance writing that Fireman Randy is devoting to biofuels, signage, and Bushwhacking.


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F. Scott Fitzgerald - The Great Gatsby
William Shakespeare - A Midsummer Night's Dream
Ivan Doig - Bucking the Sun
Penda Diakité - I Lost My Tooth in Africa
Grace Lin - The Year of the Rat
Oscar Hijuelos - Mr. Ives' Christmas
Madeline L'Engle - A Wrinkle in Time
Steven Hart - The Last Three Miles
David Sedaris - Me Talk Pretty One Day
Karen Armstrong - The Spiral Staircase
Charles Larson - The Portland Murders
Adrian Wojnarowski - The Miracle of St. Anthony
William H. Colby - Long Goodbye
Steven D. Stark - Meet the Beatles
Phil Stanford - Portland Confidential
Rick Moody - Garden State
Jonathan Schwartz - All in Good Time
David Sedaris - Dress Your Family in Corduroy and Denim
Anthony Holden - Big Deal
Robert J. Spitzer - The Spirit of Leadership
James McManus - Positively Fifth Street
Jeff Noon - Vurt

Road Work

Miles run year to date: 319
At this date last year: 172
Total run in 2013: 257
In 2012: 129
In 2011: 113
In 2010: 125
In 2009: 67
In 2008: 28
In 2007: 113
In 2006: 100
In 2005: 149
In 2004: 204
In 2003: 269


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