Post offices kicking out newsracks: What to do
January 4, 2012
The US Postal Service Retail division recently issued directives to postmasters to require enforcement of 39 C.F.R 232.1, which prohibits vending of products,including newspapers and other publications, on postal grounds. Newspapers around the country are receiving notice that they must remove racks at postoffices.
While the rules prohibiting racks on most postal property have not changed, the enforcement leaves some gray areas.
Here is what publishers need to know.
1. Newspapers generally have the right to place newsracks on public sidewalks, though not all sidewalks around a post office may be public sidewalks. A USPSregulations change in 2005 clarifies that it understands that public accessright. Postmasters should not try to enforce removal of a rack that is on acity sidewalk or on public property. The rule says newsrack prohibitions don’t cover:
“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.” 39 C.F.R. 232.1(a)(ii)
How this exception is interpreted will be a case-by-case situation. If a rack is on a sidewalk that the public may also use to access other retail or office buildings, or is clearly a city sidewalk, for example, it is likely to be “newsrack-eligible.” The stairs into the post office, on the other hand, probably are not eligible. If a sidewalk’s only purpose is to bring people from a parking lot to the post office door, it is less likely to be “newsrack-eligible.”
When a rack threatened with removal appears to be in a public area, postmasters should be asked to take photos of the rack on the property, showing the environs and the nature of the sidewalk or street area, and send it with a query to USPS Area legal counsel before asking the newspaper to remove the rack.
2. Some post offices in malls or private shopping areas may be governed by lease obligations or state laws that would either permit or prohibit vending outlets on sidewalks or parking lots. In some states, such as California, some public forum rights exist even in shoppingmalls. Before accepting a rack removal from shopping areas, consider raising the issue with a mall or retail area owner or, if you are in a state where you believe state law creates broader “First Amendment” rights, contact your attorney general.
3. The 2005 rule also clarified “that the regulations do not apply at all to property that is owned or leased by USPS, but is leased or subleased to private tenants for their exclusive use.” NNA believes that “contract post offices,” which have been common in rural areas, such as a country store with a contract post office inside the store, will be “newsrack-eligible” if the host store allows the racks.
4. USPS does have the right to remove solicitations (racks, included) on its own property, except in the situations described above. The US Supreme Court affirmed that right in1990, in a case involving a political activist group. Postal officials now take the position that they are not allowed to permit some vendors and ban others—except under limited circumstances. Military recruiters and certain labor union activities are permitted. The current basic regulation has been in place in essentially the same form since 1998. It states:
(h) Soliciting, electioneering, collecting debts, vending, and advertising. (1) Soliciting alms and contributions, campaigning for election to any public office, collecting private debts, soliciting and vending for commercial purposes (including, but not limited to, the vending of newspapers and other publications), displaying or distributing commercial advertising, collecting signatures on petitions, polls, or surveys (except as otherwise authorized by Postal Service regulations), are prohibited.
5. USPS has its own law enforcement authority and its own police force. Disobeying an order to remove a rack can lead to fines of $50, 30 days in jail or both. Postmasters are being told to allow 30 days for removal, which allows for time to resolve disputes about the nature of a sidewalk or otherwise public place.
Though regulations are not new, this nationwide enforcement effort is.
National Newspaper Association is particularly concerned about the timing of the enforcement, coming on the heels of multiple aggressive actions against newspapers as mailers. We have expressed our concern to USPS and will follow up with further discussions on the prohibitions. It would be helpful to learn how NNA members are being affected by the enforcement actions. Please email Max at firstname.lastname@example.org or Tonda at email@example.com if you have questions or want to report an enforcement action. Max’s November Pub Aux column reports in depth on the enforcement effort.