Rack removal legal, but it’s a bad idea

September 15, 2011

By Tonda F. Rush

WASHINGTON—Another chink in the relationship between newspapers and the U.S. Postal Service—already irritated by service delays and new rules for entry of mail because of the Sarbanes-Oxley Act—developed last fall when the Postal Service issued an order for removal of news vending machines from postal property.

Newspaper executives who were being asked to immediately retrieve their racks peppered the National Newspaper Association with questions. “Is it legal? Can they do that? What about the First Amendment? Could this order be the result of something the newspaper wrote about poor delivery?”

The answers are yes, and yes, and the First Amendment questions are complicated. And although postal employees may well be irritated by news columns from time to time, particularly now that USPS is constantly in the news with post office closings and personnel cuts, this particular action was not part of a vendetta.

The USPS began in the early 1990s to systematically remove news racks as its regulations on use of its property took shape. Having been besieged by political activists, such as campaign workers confronting postal customers on the sidewalks, or young people trying to hawk flowers for a prominent religious organization, the USPS tested the status of sidewalks in numerous court decisions. Courts have generally ruled that sidewalks on postal property are not public forums. So USPS is not required to allow the exercise of First Amendment rights.

An additional complication in some offices is that the Randolph Sheppard Act has long set aside retail space in federal buildings to be operated by and for the benefit of the blind. Some cases tested whether news racks competed with the blind vendors, and the U.S. Court of Appeals for the Ninth Circuit, among courts examining the issue, in 1992 held that it did.

Over periodic protests by NNA, USPS has taken the position that if any First Amendment activity is allowed on its sidewalks, all First Amendment activities must be permitted. So news racks have been banned.

But customer-service minded postmasters have not always followed the rule. News racks have crept in anyway.

Last October, a new purge began. (For more on this, see Max Heath’s column in the November 2010 issue of Pub Aux.)

One publisher wrote NNA stating, “We were given 30 days or the rack would be tossed in the dumpster …. It was the busiest rack we had.”

Others urged NNA to bring a new lawsuit, or threatened their own. NNA contacted USPS headquarters officials to inquire about the new enforcement. The NNA Postal Committee was informally advised that the fall 2010 order to remove racks had occurred because a postal patron complained about the front page of an entertainment/nightlife newspaper showing the bare posterior of a performer. That caused a legal review, and the rediscovery by USPS legal experts that news racks had gotten back into the lobbies, despite the regulation. Out they go, said the lawyers. And the ripple of outrage from publishers has continued since.

Harlan Jacobsen, publisher of a group of free specialty newspapers, recently wrote that he was continuing his legal battles on behalf of his racks. He has won some, but it was his case that led to the 1993 Ninth Circuit decision. He’s looking for help now.

“I’m 82 and I’m running out of money,” he wrote.

NNA has advised member newspapers to look for city/county-owned sidewalks for the racks where possible. Where USPS is a tenant, lease conditions may permit the property owner to allow the racks. A case-by-case solution is required there. Here is the wording of the rule:

“… sidewalks along the street frontage of postal property falling within the property lines of the Postal Service that are not physically distinguishable from adjacent municipal or other public sidewalks, and any paved areas adjacent to such sidewalks that are not physically distinguishable from such sidewalks.”

The Postal Service continues its belief that racks are forbidden. NNA continues its belief that there is a good business reason for USPS to permit them. NNA’s President Elizabeth Parker, Postal Committee Chair Max Heath and I will meet soon with the postmaster general to urge a reconsideration of the rule’s enforcement. Stand by for more news. Meanwhile, kindly refrain from publishing bare bottoms on Page One if you plan to put a rack near a post office.

Tonda F. Rush is NNA chief executive officer and general counsel. She can be reached at tonda@nna.org.

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