By Garneau, George
Editor & Publisher , Vol. 124, No. 24
Newsrack regulations struck down in New York City
A state court judge has struck down as unconstitutional a New York City regulation barring "commercial speech" from newsracks.
The decision allows the Learning Annex, an unaccredited, for-profit adult school, to distribute its free magazine from newsracks around the city. The stapled newsprint publication contains mostly course offerings, with several other general-interest articles and ads.
Justice Alice Schlesinger of New York Supreme Court threw out the City Department of Transportation's case.
The city had contended that the publication, the Learning Annex, was commercial speech and could be regulated.
Schlesinger ruled, first, that it was not commercial speech, and, second, even if it were, the regulation banning commercial speech unconstitutionally violates the First Amendment because it is content-based.
"[D]espite the fact that the primary purpose of the publication is to showcase courses offered by [the school] for its profit, it cannot be said that it does no more than propose a commercial transaction," Schlesinger ruled in May.
The regulation barring commercial speech from newsracks "reaches any publication of a commercial nature and constitutes a complete ban on such communication. By doing so, the city deprives the public of all information relating to the availability of these educational services which they can now obtain simply by picking up the Learning Annex at a publicly placed dispensor," she said in an 11-page opinion.
She said the city failed to demonstrate that its interest in preserving cleanliness, aesthetics, health and safety overrode the First Amendment and the public's right to be informed.
The city also failed to show that its goals "cannot be achieved by a regulating scheme which rationally limits the number and location of these receptacles rather than totally bans them. …