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5th Circuit OKs Houston Newsrack Law

(CN) - The 5th Circuit rejected a newspaper publisher's free-speech claim against a Houston newsrack ordinance.

Enacted in 2007, Houston's ordinance requires newsracks in city rights-of-way to meet material, size, and placement standards and requires publishers using newsracks to pay a permit fee.

The plaintiff, Lauder Inc., publishes the Houston Tribune, a free monthly newspaper funded almost entirely by advertisements and distributed on newsracks.

In a unanimous opinion by a three-judge panel, the 5th Circuit found the publisher's appeal is without merit and agreed with the findings of the district court.

In its per curiam decision, the court said that the "ordinance's requirements of 20-gauge or thicker zinc-coated steel and cement bases are narrowly tailored to the City's substantial interests in public safety and aesthetics and leave open ample alternative means of distribution. The fees under the newsrack ordinance are consistent with the First Amendment because they defray the City's administrative costs. As a content-neutral time, place, and manner restriction that does not leave enforcing officials with unbridled discretion, the newsrack ordinance need not contain an explicit provision for judicial review."

The Houston Tribune claimed that the ordinance violates the First Amendment because it was not based on an established record of specific problems, it imposed detailed requirements without allowing city officials discretion to deviate from them, and was not sufficiently tailored to the problems it was intended to address.

The city responded that the ordinance was carefully drawn, was adopted after hearing from many of those affected, who were given opportunities to express their concerns, and was modeled after similar laws in other cities.

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