Globe Newspaper Company v. Beacon Hill Architectural Commission

We visit this controversy for the second time in as many years. See Globe Newspaper Co. v. Beacon Hill Architectural Comm'n, 40 F.3d 18 (1st Cir.1994). We are left to decide important issues that require a balancing between First Amendment rights and governmental interests.

Defendant-Appellant Beacon Hill Architectural Commission (the "Commission") enacted a regulation, the Street Furniture Guideline, which effectively bans newspaper distribution boxes from the public streets of the Historic Beacon Hill District in Boston, Massachusetts (the "District"). The validity of this regulation was challenged in a suit filed in district court by Plaintiffs-Appellees, a group of newspaper publishers (the "Newspapers"). The district court held that the Commission lacked the authority to adopt the regulation and also that it violated rights guaranteed by the First Amendment. See Globe Newspaper Co. v. Beacon Hill Architectural Comm'n, 847 F.Supp. 178 (D.Mass.1994).

In the ensuing appeal by the Commission, we concluded that the appropriate course of action was to certify the dispositive issue of state law to the Supreme Judicial Court of Massachusetts (the "SJC") and so proceeded. To the question

Did the Beacon Hill Architectural Commission have the authority under 1955 Massachusetts Act Chapter 616 (as amended) to adopt the "Street Furniture Guideline"?

the SJC answered in the affirmative. See Globe Newspaper Co. v. Beacon Hill Architectural Comm'n, 421 Mass. 570, 659 N.E.2d 710 (1996). In its response, the SJC held that the Commission had authority to regulate newsracks and other "street furniture" through rulemaking and to completely ban entire classes of structures such as newsracks. Id. at 590-91, 659 N.E.2d 710. Specifically, it said:

As to streets and sidewalks, the [C]ommission's jurisdiction is concurrent with appropriate municipal agencies. Regulation of the sidewalks is rationally related to the goal of preserving the Historic Beacon Hill District. Section 4 of the enabling [A]ct provides the [C]ommission with the authority to issue rules that govern private conduct within its particular geographic area of responsibility. We conclude that, apart from constitutional considerations, outright bans on certain classes of structures are merely a practical consequence of the [C]ommission's ability to proscribe inappropriate exterior architectural features within the [D]istrict.

Id. We thus focus our attention on the constitutional issue, which requires us to determine whether the Street Furniture Guideline violates rights guaranteed by the First Amendment to the Newspapers. We conclude that it does not and reverse the decision of the district court.

The Historic Beacon Hill District was created by an act of the Massachusetts General Court in 1955. See 1955 Mass. Acts ch. 616 ("the Act"), as amended by 1958 Mass. Acts ch. 314 & 315, 1963 Mass. Acts ch. 622, 1965 Mass. Acts ch. 429, 1975 Mass. Acts ch. 741, and 1982 Mass. Acts ch. 624. The Act is intended to

promote the educational, cultural, economic and general welfare of the public through the preservation of the historic Beacon Hill district, and to maintain said district as a landmark in the history of architecture and as a tangible reminder of old Boston as it existed in the early days of the commonwealth.

1955 Mass. Acts ch. 616, § 2. The District's historical significance can hardly be doubted. See Opinion of the Justices, 333 Mass. 783, 786-87, 128 N.E.2d 563 (1955). Indeed, it was listed in the National Register of Historic Places and designated a National Historic Landmark on October 15, 1966, pursuant to the National Historic Preservation Act of 1966, 16 U.S.C. § 470 et seq.

The Commission was created to review proposed changes to the "exterior architectural feature[s]" of "structures" within the District. See 1955 Mass. Acts ch. 616, § 7; see also id. at § 3 (defining an "exterior architectural feature"); Mass. Gen. L. ch. 143, § 1 (providing definition of "structure"); Globe Newspaper, 40 F.3d at 20. Anyone wishing to construct, reconstruct or alter an exterior architectural feature is required to apply to the Commission for a certificate of appropriateness. The Commission, "[i]n passing upon appropriateness," shall consider, inter alia, "the historical and architectural value and significance, architectural style, general design, arrangement, texture, material and color of the exterior architectural feature involved and the relationship thereof to the exterior architectural features of other structures in the immediate neighborhood." 1955 Mass. Acts ch. 616, § 7. Furthermore, the Commission must "spread upon its records the reasons for [its] determination" that a certificate of appropriateness should not issue. Id. An aggrieved party may appeal the Commission's decision to the Superior Court for Suffolk County, which "shall annul the determination of the [C]ommission" if it is "unwarranted by the evidence" or "insufficient in law." Id. at § 10.

As previously noted it was not surprising that, "given the stream of applications for certificates of appropriateness, the Commission developed uniform policies toward certain recurring types of proposed alterations." Globe Newspaper, 40 F.3d at 20. Specifically, in 1981, it formally adopted the policies as "guidelines." These guidelines regulate exterior architectural features such as masonry, roofs, windows, sash and shutters, doors, trim, paint, and ironwork. One of the guidelines states that "[f]reestanding signs are not permitted."

In the District, the Newspapers distribute their publications via home delivery, mail, store sales, street vendors, and "newsracks."1 Newsracks, we explained, are newspaper distribution boxes painted in various colors and featuring the name of the newspaper and other advertising logos, which are commonly anchored to lampposts, signposts, or fixtures on the sidewalk. The plaintiffs maintain a total of thirty-nine newsracks in the district.2 Within the District, there are eleven stores that distribute, or are available to distribute, the Newspapers' publications. Outside the District, but within one block of the District's boundaries, the Newspapers' publications are sold through stores and newsracks.3 It is undisputed that no point within the District is more than 1,000 feet (approximately 1/5 of a mile) from a source of the Newspapers' publications.

Newsracks were first introduced to the District in the early 1980s, and by 1983, Beacon Hill residents had begun to complain of the "unsightliness, congestion and inconvenience associated with the vending machines." The Commission believed that the newsracks violated the guideline prohibiting free-standing signs. It took no enforcement action, however, because a city-wide regulation of newsracks was being discussed in the early 1980s.

In 1990, no regulation having been adopted, the Beacon Hill Civic Association petitioned the Commission for a guideline to exclude newsracks from the District. After holding a public meeting regarding the petition,4 the Commission conducted a survey and completed, in January, 1991, a study entitled the "Publication Distribution Box Report" (the "Report"). See Exhibit H (in the record). Soon thereafter, on February 21, 1991, the Commission held a public hearing5 on the proposal to adopt guidelines for newsracks and, ultimately, adopted the following guideline:

Publication distribution boxes (any boxes placed on the sidewalks to distribute publications, whether for charge or not) visible from a public way are not allowed within the District.

In its decision, the Commission indicated that the publication distribution guideline ("PDG") was consistent with its guideline banning freestanding signs and the Commission's decisions denying the installation of traffic signal control boxes on the sidewalks, and the regulation of the installation of a cable television system in the District.

A few months later, on April 1, 1991, the Commission notified the Newspapers of the new guideline. One month later, it requested that the Newspapers remove their newsracks by June 1, 1991. Then, after the Newspapers requested that the Commission reconsider its decision to adopt its regulation, the Commission heard testimony from the Newspapers in July, 1991. After voting to deny reconsideration, the Commission extended the removal deadline until October 1, 1991. Within a month, the Newspapers brought suit in district court seeking declaratory relief, damages, and preliminary and permanent injunctive relief from the regulation, on the grounds that it violated their First Amendment right to distribute newspapers in the District.

After a bench trial on stipulated facts, the court ruled from the bench that the regulation offended the First Amendment:..., "instead of being narrowly tailored with respect to the limitation on speech[, the PDG] is narrowly tailored to focus only on speech. It applies to no form of visual clutter other than public[ation] distribution boxes...." Significantly, the trial judge was "troubled whether there is statutory authority for the particular kind of legislative rule making" illustrated by the guideline. He did not decide the case on state law grounds, however, because "the questions about the Architectural Commission's authority are at least debatable on the present record ... and perhaps would require some supplementation of the record in order for the Court to resolve them...."

Globe Newspaper, 40 F.3d at 20 (quoting bench trial transcript).

After the bench ruling but before judgment had entered, the Commission adopted a new guideline--the present Street Furniture Guideline--that bans all "street furniture," not just newsracks, from the District:

Street furniture, as defined below, shall not be permitted in the Historic Beacon Hill District with the exception of approved store-front merchandise stands and those structures erected or placed by authorized public agencies for public safety and/or public welfare purposes. Street furniture is defined as any structure erected or placed in the public or private ways on a temporary or permanent basis.

Authorized public safety/public welfare street furniture includes, but is not limited to, such structures as street lights, traffic lights, mail boxes, fire hydrants, street trees, and trash receptacles. Any such authorized public safety/public welfare street furniture or approved store-front merchandise stands shall be subject to Commission review and shall be in keeping with the architectural and historic character of the District and the criteria for exterior architectural features as specified in Chapter 616 of the Acts of 1955 as amended.

Having done so, the Commission moved for reconsideration of the judgment, arguing that the new guideline was free from the constitutional defects of the old. This time, the district judge not only held that the new guideline fared no better under the First Amendment, but also that the Commission lacked authority under Massachusetts law to adopt the new regulation.6 See Globe Newspaper, 847 F.Supp. at 189.

I. The First Amendment and the Street Furniture Guideline

In an appeal from an adverse ruling after a bench trial on the merits, our review is ordinarily quite circumscribed: we review de novo the district court's legal determinations, according a significant amount of deference to the court's factual determinations and to most of its resolutions of mixed fact/law issues, letting them stand unless they are clearly erroneous. See AIDS Action Comm. v. MBTA, 42 F.3d 1, 7 (1st Cir.1994). In a case such as this one, however, "where the trial court is called upon to resolve a number of mixed fact/law matters which implicate core First Amendment concerns, our review, at least on these matters, is plenary so that we may reduce the likelihood of ' "a forbidden intrusion on the field of free expression." ' " Id. (quoting Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502 (1984) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 729, 11 L.Ed.2d 686 (1964))). Besides furthering other interests, see AIDS Action, 42 F.3d at 7, "de novo review of the trial court's application of a First Amendment standard to the facts before it 'ensures that the federal courts remain zealous protectors of First Amendment rights.' " Id. (quoting Duffy v. Sarault, 892 F.2d 139, 142-46 (1st Cir.1989)).

The First Amendment states that "Congress shall make no law ... abridging the freedom of speech, or of the press." U.S. Const. amend. I. It is beyond dispute that the right to distribute newspapers is protected under the First Amendment. See City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 768, 108 S.Ct. 2138, 2150, 100 L.Ed.2d 771 (1988); Lovell v. Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938); Gold Coast Publications, Inc. v. Corrigan, 42 F.3d 1336, 1343 (11th Cir.1994), cert. denied, --- U.S. ----, 116 S.Ct. 337, 133 L.Ed.2d 236 (1995). Here, the parties do not dispute that the Street Furniture Guideline effectively bans the use of newsracks as a method of distributing newspaper in the District. The issue, of course, is whether under the circumstances of the case, the Newspapers' First Amendment rights are impinged. We know that few constitutional rights, if any, are absolute, and in most constitutional litigation what courts are called upon to do is to balance competing fundamental rights. See, e.g., Denver Area Educ. Telecommunications Consortium, Inc. v. Federal Communications Comm'n, --- U.S. ----, ----, 116 S.Ct. 2374, 2384, 135 L.Ed.2d 888 (1996); Board of County Comm'rs v. Umbehr, --- U.S. ----, ----, 116 S.Ct. 2342, 2352, 135 L.Ed.2d 843 (1996). Such is the present situation.

It is by now axiomatic that the degree of protection provided by the Constitution depends "on the character of the property at issue." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983).7 In the instant case, the "property at issue" is the District's streets and sidewalks. The Supreme Court has repeatedly recognized public streets "as the archetype of a traditional public forum." Frisby v. Schultz, 487 U.S. 474, 480, 108 S.Ct. 2495, 2500, 101 L.Ed.2d 420 (1988) (noting that "[n]o particularized inquiry into the precise nature of a specific street is necessary" as all public streets are public fora). In these traditional public fora, "places which by long tradition or by government fiat have been devoted to assembly and debate," Perry, 460 U.S. at 45, 103 S.Ct. at 954, government's authority to restrict speech is "sharply circumscribed." Id. As the Court in Perry explained,

[f]or the state to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.

Id. In traditional public fora, content-based restrictions are presumptively invalid and subject to "strict" scrutiny. See, e.g., Ackerley Communications of Mass., Inc. v. City of Cambridge, 88 F.3d 33, 36 (1st Cir.1996); National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 736 (1st Cir.1995). The Court in Perry made clear, however, that in traditional public fora

[t]he state may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.

Perry, 460 U.S. at 45, 103 S.Ct. at 955. Such time, place, and manner regulations are subject to "intermediate" scrutiny. See, e.g., National Amusements, 43 F.3d at 736.

Given the "differing analytic modalities, it is unsurprising that many First Amendment battles over the constitutionality of government regulations start with a debate about what level of scrutiny is appropriate." Id. at 737. The instant case is no exception. The key issue is thus determining whether the Street Furniture Guideline is content-based or otherwise has a content-based impact in which publications, particularly newspapers, are singled out for negative treatment, as is claimed by the Newspapers, or is content neutral on its face and application, as is alleged by the Commission. The answer to this inquiry will allow us to establish what level of scrutiny, strict or intermediate, is appropriate, a finding which will ultimately settle the outcome of this controversy.

C. Content-Neutrality and Content-Based Impact

As this circuit has noted, "[t]he concept of what constitutes a content-based as opposed to a content-neutral regulation has proven protean in practice." Id. at 737. The Court's cases "teach that the 'principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.' " Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661 (1989)). "A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Ward, 491 U.S. at 791, 109 S.Ct. at 2754.

Under this test, the Street Furniture Guideline seems to be the very model of a content-neutral regulation. It does not make or otherwise demand reference to the content of the affected speech, either in its plain language or in its application. Indeed, as applied to newsracks, it operates as a complete ban without any reference to the content of a given publication whatsoever: uniquely concerned with the physical structure housing the speech, it restricts only the mode of distribution and would plainly apply even if they were empty. As such, it seems to be an example of the very kind of total ban on newsracks which Justice Stevens was willing to assume arguendo might be constitutional in City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 427-28, 113 S.Ct. 1505, 1515-16, 123 L.Ed.2d 99 (1993) (holding ban on newsracks to be content-based because determining whether a newsrack fell within ban required reference to a publication's content).8 Furthermore, like the ban on posted signs which the Court upheld in Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804-05, 104 S.Ct. 2118, 2128-29, 80 L.Ed.2d 772 (1984), the Street Furniture Guideline is directed at aesthetic concerns and is unrelated to the suppression of ideas: indeed, nothing in the record suggests that the challenged regulation arose out of an effort to suppress any particular message communicated through the newsracks, nor do the Newspapers even contend as much.9 That the Street Furniture Guideline results in a total ban on newsracks is nothing more than an incidental effect of its stated aesthetic goal of enhancing the historic architecture of the District by reducing visual clutter: there is nothing in the record to contradict this.

The Newspapers contend, however, that this directive has a content-based impact, because it singles out publishers, and most significantly daily newspapers, serving Boston for special, negative treatment. In advancing its "targeting," "differential treatment," and "censorial effects" arguments, the Newspapers urge us to test the Street Furniture Guideline against Minneapolis Star & Tribune v. Minnesota Comm'r of Rev., 460 U.S. 575, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983), and Leathers v. Medlock, 499 U.S. 439, 111 S.Ct. 1438, 113 L.Ed.2d 494 (1991). The district court, in their view, correctly concluded that because the regulation exempts store-front merchandise and public safety/welfare structures, it singles the press for special treatment and, thus, raises "similar concerns ... of 'censorial effects' " as found by the Court in Minneapolis Star. Globe Newspaper, 847 F.Supp. at 199.

We disagree. As an initial matter, we are of the view that reliance upon Minneapolis Star by both the Newspapers and the district court is misplaced in the instant case. First, Minneapolis Star, one of a line of cases establishing rules for the economic regulation of the press, did not involve a time, place and manner restriction. The tax on newsprint there was held unconstitutional, because it applied only to the press and discriminated in favor of one class of publishers over another; i.e., it was not generally applicable. Minneapolis Star, 460 U.S. at 581, 103 S.Ct. at 1369-70. More importantly, unlike the Street Furniture Guideline which adversely affects only one method of distribution, the regulation there rendered all forms of circulation more burdensome. Second, unlike the case of a discriminatory tax, the Commission asserts, and the Street Furniture Guideline present regulation advances, colorable non-content-discriminatory purposes: aesthetics. Last, we believe it is not coincidental that neither of the two newsrack cases decided by the Court, Discovery Network and Plain Dealer, engaged in a Minneapolis Star analysis. Indeed, none of the cases that have dealt with restrictions on newsracks have found the restrictions to be content-based, have a content-based impact, or otherwise trigger strict scrutiny because they singled-out the press for regulation; in fact, Minneapolis Star is not even mentioned in the two newsrack cases decided by the Court. See generally Discovery Network, 507 U.S. 410, 113 S.Ct. 1505; Plain Dealer, 486 U.S. 750, 108 S.Ct. 2138.10 That aside, even "inspect[ing] this case through the precedential prism of Minneapolis Star and Leathers," National Amusements, 43 F.3d at 740, leaves us unpersuaded that there is a cognizable basis for invoking strict scrutiny.

In National Amusements, a panel of this court extensively discussed Minneapolis Star and Leathers. After noting the Court's statement in Minneapolis Star that "differential treatment, unless justified by some special characteristic of the press, suggests that the goal of the regulation is not unrelated to suppression of expression, and [that] such a goal is presumptively unconstitutional," Minneapolis Star, 460 U.S. at 585, 103 S.Ct. at 1372, the panel went on to discuss that in Leathers "the Court refined the analysis it had crafted in Minneapolis Star [.]" National Amusements, 43 F.3d at 739. Leathers explains "that targeting engenders strict scrutiny only when regulations (1) single out the press, (2) take aim at a small group of speakers, or (3) discriminate on the basis of the content of protected speech." Id. at 739-40. Essentially, then, because the Street Furniture Guideline does not discriminate on the basis of content, the Newspapers' arguments for strict scrutiny based on targeting and differential treatment hinge on one or both of the first two criteria identified in Leathers.

We note first that, to the extent the Newspapers' "targeting" and "differential treatment" arguments essentially rest upon the notion that strict scrutiny is always justified when the practical effect of a regulation is to regulate the First Amendment rights of a select group, this notion is misguided. National Amusements, 43 F.3d at 739. Simply put, this notion

flies in the teeth of the secondary effects doctrine. Under [this] formulation, any regulation that has an effect on fewer than all First Amendment speakers or messages could be deemed to be a form of targeting and thus subjected to strict scrutiny. Yet the Supreme Court has recognized that a municipality lawfully may enact a regulation that "serves purposes unrelated to the content of expression ... even if it has an incidental effect on some speakers or messages but not others."

Id. at 740 (quoting Ward, 491 U.S. at 791, 109 S.Ct. at 2754). More importantly,

[i]n Minneapolis Star, the Court did not condemn all regulations that single out First Amendment speakers for differential treatment; rather, the Court acknowledged that certain forms of differential treatment may be "justified by some special characteristic " of the regulated speaker.

National Amusements, 43 F.3d at 740 (quoting Minneapolis Star, 460 U.S. at 585, 103 S.Ct. at 1372 (emphasis added)). Most relevant to the instant case, noting that "[s]econdary effects can comprise a special characteristic of a particular speaker or group of speakers," this court concluded that "the language ... quoted from Minneapolis Star comfortably accommodates an exception to the prohibition on differential treatment for regulations aimed at secondary effects, so long as the disparity is reasonably related to a legitimate government i