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United States District Court Judge Federico Moreno gave the City of Coral Gables a spanking this past Thursday in federal court and upheld the right of New Times to be distributed in distinctive red boxes throughout the so-called City Beautiful.
Since seizing seven New Times boxes and 400 copies of the paper on March 13, 1991, Coral Gables code enforcement officers have pressed the newspaper to comply with the city's newsrack ordinance. The ordinance requires that all newspaper distribution boxes be painted beige and brown and have lettering no taller than a matchbook. In addition the law regulates the style and placement of newsracks in microscopic detail and stipulates insurance requirements and licensing fees.
In his 34-page opinion, Moreno declared unconstitutional the city's uniform color and lettering requirements and ruled that the style requirements allowed city officials too much discretion. He upheld the city's regulation of newsrack placement, as well as its liability insurance and licensing rules. In doing so, Moreno said he hoped Coral Gables commissioners would dwell on the words of statesman and social philosopher Thomas Jefferson next time they considered passing a newsrack ordinance: "Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government," Jefferson wrote to a friend in 1787, "I should not hesitate a moment to prefer the latter.
Citing Metromedia Inc. v. City of San Diego, a U.S. Supreme Court decision that warns lower courts to guard against pettifogging bureaucrats, Moreno wrote, "The City reiterated repeatedly that Coral Gables, the City Beautiful, has focused on developing its aesthetic environment since its inception.... The court is not persuaded, however, that requiring newsracks to be of uniform color and restricting the size of lettering on the sides of newsracks are regulations narrowly tailored to serve those goals."
Moreno noted that attorneys representing Coral Gables had failed to show any legal precedent for regulating color and lettering. He also said he suspected that the city's enforcement of aesthetic restrictions was somewhat selective. "Trash barrels, owned by the city, are multicolored and the lettering on the sides of these receptacles is not limited to 1 3/4 inches," Moreno pointed out.
"We were very pleased with the order," says Sanford L. Bohrer, New Times's counsel. "Denial of freedom of the press for the sake of aesthetics will not be tolerated, and this ruling proves it. I hope this sends a clear message to other cities who are thinking about doing similar things. Even small newspapers with limited resources get the full protection of the law."
Charles George, a lawyer representing Coral Gables, says he will strongly recommend that the city appeal Moreno's decision. "Needless to say, I'm disappointed," George says. "The real issue is whether the newspaper has a right to advertise via their newsboxes, on public property. We take the position that Coral Gables [has] a right to regulate those things on public property. The U.S. Supreme Court and other federal courts have held that safety and aesthetic considerations are well within the legitimate purview of local government regulation." George acknowledges that drab beige newsracks might adversely affect New Times's circulation and profitability, but says that is not the city's problem.
Judge Moreno's ruling came in response to a request by the weekly Spanish-English tabloid Exito! for an injunction against Coral Gables code enforcement officers. New Times had joined Exito! in federal court to support that newspaper's challenge to the Gables ordinance. In a separate case, New Times is suing Coral Gables in state court, claiming the newsrack ordinance hinders the circulation of tabloid-size publications and gives a competitive advantage to older newspapers that don't depend so much on eye-catching newsracks for economic survival.
Bohrer, the New Times attorney, predicts Moreno's ruling will lead to a swift resolution of the state lawsuit in the newspaper's favor. He also anticipates that either the federal or state court will order Coral Gables to pay the entire amount of New Times's attorney fees, which total approximately $80,000. As of April, before entering federal court, Coral Gables had paid more than $50,000 to the law firm of George Hartz Lundeen Flagg and Fulmer to defend the state court lawsuit.
"The citizens of Coral Gables should be appalled that their elected officials have squandered so much money," says New Times editor Jim Mullin. "There are far better uses for taxpayer dollars."
Coral Gables City Attorney Robert Zahner did not return phone calls.