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Fernandina restriction on news boxes raises constitutional red flag

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The news, by some standards, is an ugly business.

In Fernandina Beach, where the historic city center fosters turn-of-the-last-century styling through strict development codes, city leaders determined that news racks and boxes, made of several varieties of metals and brightly colored plastic, upset genteel design sensibilities and purged more than half the boxes from local streets.

Starting this month, newspapers, real estate guides, auto traders and alternative publications, including Folio Weekly, will be more difficult to find. The City Commission approved an ordinance at its March 20 meeting that sets standards for news racks on color (green), styles (with or without a coin box), and locations (designated sites along or near Centre Street from the waterfront to Seventh Street) and limits the number of boxes to 36. Last week, maintenance workers removed 31 of approximately 60 news racks in the historic district that did not comply with the new design criteria and took them to the city maintenance yard, where they await recycling. Two were Folio Weekly boxes.

"This is absolutely an aesthetics issue," said Arlene Filkoff, who directs Fernandina's Main Street program, an ongoing effort to clear the clutter and polish the downtown retail and restaurant district. The nonprofit organization's design council, which includes a couple of city planners, determined the new standards.

According to Filkoff, removing the motley assortment of print publication display boxes frees sidewalk space for pedestrians, signage, benches and flowers.

"If we have space to put something decorative or functional signage, we will need to use it that way," she wrote in an email Monday. "Otherwise, we want to open up for walking as much as possible."

Plans to remove news racks and set uniform standards have been in various stages of discussion for more than a decade. Over the years, City Hall has received a steady stream of complaints about overflow, litter and neglected racks covered with rust or grime. The boxes often served as garbage receptacles or were vandalized, never to be fixed. Under the new rules, the racks must be maintained or owners will face fines and possible removal of their street-side display box. The ordinance requires publications to pay for their own racks and secure a $15 permit. The annual fee is waived this year.

Commissioner Len Kreger said he's glad the "trashy" boxes were removed and said by phone Tuesday that "they've needed to go for a long time."

The ordinance calls the "proliferation" of news racks "a visual impairment for pedestrians and drivers" and claims—in an eight-point list citing the purpose, intent and criteria—that restrictions on placement, type and appearance will "promote the public health, safety and welfare" within the Centre Street area and historic district. Maintaining and preserving freedom of the press is No. 4 on the list.

"You can put anything you want in them," City Attorney Tammi Bach said. "I'm real serious about the First Amendment. I don't want people to be censored."

Still, not all printed material is welcome. "Nothing obscene," she said by phone Tuesday. "Let's be reasonable."

The National Newspaper Association in Springfield, Illinois, maintains that reasonable regulations are allowed under the law.

"It's like putting limits on a parade," said Tonda Rush, the association's legal counsel. "You're allowed to march but the permit is not going to let you have the parade at midnight when people are sleeping," she said. "That's reasonable."

Rush insists that local governments cannot restrict content. "Absolutely not," she said. "Publications have the right to free speech."

Rush says limiting access to publications, such as capping the number of news racks, does impinge on First Amendment rights. "If there is information in the news that the public needs to see and they can't find a paper, then that becomes a problem," she said by phone from her office in Falls Church, Virginia.

Rush also questions the city's plan to have publications buy replacement news racks. "Smaller publications with limited budgets might not have the money to buy a news rack. Is that a way to limit speech? The issue has been raised before," she says.

Rush asks about the local response, which is best described as apathetic. Attorney Bach says the publisher of the community's only local newspaper was satisfied with the current ordinance, though Foy Molloy of the Fernandina Beach News Leader, which publishes on Wednesday and Friday, pushed back hard years ago during the city's first efforts to restrict news racks.

While newspapers struggle with paid circulation, advertising revenue and newsroom employment, Fernandina residents are reading the local newspaper. In a citizens' survey conducted last summer, almost 60 percent of residents told researchers that they get their news from the newspaper.

Mike Lednovich, a golf travel writer and former journalist for the Miami Herald, Fort Lauderdale Sun-Sentinel and California's Orange County Register, who recently filed to run for a seat on the Fernandina Beach City Commission in the November election, wrote in a text message that he had concerns about the ordinance.

"If you're referring to common colors for the racks, that's fine in keeping with the historic theme," he wrote. "But limiting the number of racks infringes on a free press and the people's right to access information and opinions."

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