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                            Department of Customer Services

                            City & County of Honolulu







            The U.S. Court of Appeals for the Ninth Circuit issued an opinion today upholding the City’s 1997 Waikiki Newsrack ordinance. The appellate court reversed U.S. District Judge Susan Oki Mollway who had issued a permanent injunction blocking the City from enforcing the part of the ordinance that separated publications into two categories—those that require coins and those that are distributed free.


            Mayor Jeremy Harris hailed the appeals court ruling as vindication for a City ordinance that was designed to reduce pedestrian obstacles and visual clutter in Waikiki and not discriminate against Honolulu Weekly or any other free publication.


            Mayor Harris also praised the legal team that secured this legal victory: Kathleen Sullivan, Dean, Stanford Law School, who argued the appeal before the Ninth Circuit; Corporation Counsel David Z. Arakawa, Deputy Corporation Council Gregory J. Swartz, and Jon M. Van Dyke, Professor, William S. Richardson School of Law, University of Hawaii at Manoa.


            The ordinance was enacted by the City Council in order to consolidate the newsracks that had been proliferating in Waikiki. Pursuant to the ordinance, publishers were required to put their publications in City-designated and constructed enclosures.


            Because paid publications require bulky coin mechanisms and must be heavier to protect against theft, the City separated paid and free publications to allow the most number of publications to be displayed at each location.


            After the Honolulu Weekly challenged this distinction, Judge Mollway ruled that it was not rational because “whether a publication is free or for sale has nothing at all to do with those safety hazards (and) does not affect aesthetics.”


            But the three judge appellate panel reversed, finding the City’s ordinance to be a “content-neutral scheme (that) balances various needs and goals: maximizing the uniformity in the appearance of newsracks, accommodating the coin-collecting apparatus that the charging publications must use, and minimizing the space newsracks require on city streets by requiring free publications that do not need a coin-collecting apparatus to use the smaller, space-saving newsracks.”


            The appellate court explained that “the district court tried a little too hard to imagine an ordinance that would best balance the goals of the City with the desires of publishers” and that courts should uphold ordinances that serve “substantial government interests that would not otherwise be achieved without the regulation.”



Friday, August 02, 2002

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