The War on a Rack


Depending on where you stand, T. Gorman Reilly is either the patron saint of good taste—or a First Amendment ignoramus. The bow-tied Upper East Sider was the star witness at a December 9 City Council hearing concerning Local Law 23, which regulates the placement and appearance of “news racks,” the boxes used to distribute newspapers on city sidewalks. While publishers want to soften the law, Reilly thinks the route to a beautiful city is “more enforcement,” not less. “We think it ill-fits news rack owners to be complaining when they aren’t doing the basic job of maintaining the racks themselves,” he said in an interview last week.

Where Reilly sees a failure to remove eyesores, publishers say they are being nickeled-and-dimed by the city in a manner that interferes with free speech. “With all the issues the city has to wrestle with, focusing all of this effort on news racks is just absurd,” said Michelle Rea, executive director of the New York Press Association, which represents about 200 weekly community, ethnic, and religious newspapers in the city.

Since the city’s Department of Transportation began enforcing the law this past April, inspectors have issued 12,000 notices and assessed more than 2,000 fines, totaling almost $1 million. About two-thirds of the tickets so far are for $500 “aesthetic violations”—which publishers call unconstitutional, because the city has yet to define a nice rack. Indeed, the law is so vague that a “dirty box” might be one that is graffiti-covered or one that displays a coffee stain, a splash of mud, or a one-inch flick from a Magic Marker.

Reilly testified on behalf of Civitas and several other Upper East Side community groups. Every week since the law came into effect, he and his citizen inspectors have canvassed an area from 52nd Street to 96th Street and from Fifth Avenue to the East River, photographing and taking notes on news racks. At first, they were shocked to find a “breathtaking” number of violations, ranging from dirty boxes to so-called location violations—boxes inside a bus stop, atop a manhole, or too close to a fire hydrant. Lately, they have been shocked again to find “widespread lawlessness” on the street, with alleged “prime offenders” being the Learning Annex, AM New York, and the New York Press. (The Voice has been on Reilly’s short list in the past.)

The publishers’ response to his crusade can be summed up in two words: Shut up! The December 9 hearing attracted lawyers and execs from nearly every newspaper in the city, as well as businesses that use racks to advertise, such as the Learning Annex and Gotham Writers’ Workshop. Though some media types dislike being lumped in with what one calls “the riffraff,” news rack owners aim to present a united front.

Peter Donohue, USA Today‘s general manager for New York circulation, says that while his paper has fewer than 200 boxes in the city and receives few complaints, it sees the current law as “unworkable” and wants it amended so that it can stand the test nationwide. The First Amendment covers all news rack owners, including advertisers, he points out, adding, “We have to watch out for their interests, too.”

Harry Javer, a Learning Annex VP, denied Reilly’s allegations. “We got a report from him about a month ago and corrected everything,” says Javer. “We have five full-time employees taking care of our boxes. They’re in good shape.”

All publishers’ reps interviewed by the Voice expressed satisfaction with the hearings, particularly the moment when Transportation Commissioner Iris Weinshall said the law is “too rigid” and needs to be amended. And most want to work with the council to amend the law. The centrist group includes USA Today, The New York Times, the New York Post, and the Voice (all of which testified at the hearing), as well as the Daily News and the Tribune Company, which uses racks to distribute Hoy and AM New York.

Some companies now lobbying the city began meeting early on to negotiate the terms of the current law. That group includes the Times and Village Voice Media. In an interview, Times attorney George Freeman explained that his paper has not changed its position, but wants the law amended because its implementation “is very different than what we expected,” adding, “We are willing to live with what we thought we were getting.”

What the publishers did not think they were getting was a zero-tolerance policy that makes it all but impossible for them to distribute their products. Reps testified that unforeseen forces can put them out of compliance at any moment, including bad weather, store owners who push boxes away, and bigots who routinely trash gay and ethnic boxes.

While large companies resent the time and money spent on a Kafkaesque appeals process, the burden is even greater for smaller businesses. According to New York Press publisher Charles Coletti, who has received fines of almost $100,000, the cost of compliance includes paying employees to inspect the boxes, paying a cleaning contractor, and paying an attorney to handle appeals. For Manhattan Media, which publishes Our Town and West Side Spirit, fines of $30,000 could mean losing a reporter. For ethnic communities, the law threatens to put their only editorial voices out of business.

It’s no wonder the little guys want to take the law to court and get rid of it. “We think the law is unconstitutional and that if we challenge it we will win,” said Rea of the New York Press Association, stressing that she prefers for the city to “dramatically revisit” the law. Said Coletti, “If I had my way, we’d scrap this thing and start over.”

Reilly has his allies, including the Times Square B.I.D., whose rep warned that a terrorist might hide a bomb in a news box. But Reilly didn’t win many friends when he testified that distributing newspapers in public is a “privilege” conditioned on the owners’ “responsibility” to keep the boxes looking nice.

Upon hearing that argument, Councilmember Lewis Fidler snapped that distributing news is a constitutional “right,” not a “privilege,” and warned that attempts to monitor the appearance of news racks can morph into attacks on undesirable content. In an interview, one mainstream newspaper rep called Reilly’s attitude “dismissive of First Amendment rights and unrealistic,” adding, “He’s living in a dream world.”

Counters Reilly, “I don’t have to be lectured on the First Amendment. It is not an absolute right. There is always a balancing.”

Transportation Committee chair John Liu gently put Reilly in his place in an interview, arguing that “aesthetic considerations are secondary to safety considerations.” The proper balancing act for legislators, Liu says, is between “the need to keep our sidewalks safe and the need for publishers to provide information to the public.” He expects to introduce proposed amendments early next year.