The First Amendment still applies in City of Yonkers

The Westchester Guardian is a community newspaper distributed around Westchester County, providing political coverage and commentary about public officials. I see its newsracks every time I go to the White Plains courthouse. In 2007, the newspaper and its distribution boxes began mysteriously disappearing at Yonkers City Hall and throughout the City after the Guardian ran highly critical articles about City officials. Eventually, the Guardian's owner was given a summons while distributing the paper at City Hall, and the City acknowledged seizing 35 Guardian news racks. These and other tactics by the City end up in Federal court, where Judge Brieant in White Plains entered an injunction in favor of the Guardian.

The case is Guardian News v. Amicone, 2008 U.S. Dist. LEXIS 16965 (S.D.N.Y. March 3, 2008). The court found that the local ordinance governing the placement of newsracks may apply even-handedly to all newspaper distributors. But the evidence adduced at the preliminary injunction hearing confirmed that City officials had unduly focused on the Guardian's recognizable blue newsracks and did not remove newsracks maintained by other publications in 2007. In violation of the Constitution, the City was selectively enforcing its laws to punish the Guardian.

Judge Brieant further concluded that City officials had expressed hostility towards the Guardian and did not even believe it was a real newspaper, deeming it "propaganda" not worthy of the privileges accorded other publications. After noting that the newspaper had run articles critical of the City administration, the court concluded, "it is a fair inference that the response of the City was motivated largely by the abusive content of the Guardian. Under familiar First Amendment principles, this is simply not permitted." Under Judge Brieant's order, the newsboxes are permitted anywhere in the City so long as this placement does not violate the City code. That includes City Hall.

Finally, Judge Brieant struck down Yonkers' prohibition against distributing handbills or other printed matter within any park or any public place. In light of landmarks like Marsh v. Alabama, 326 U.S. 501 (1946) and Hague v. C.I.O., 307 U.S. 496 (1939), this provision is so unconstitutional that Judge Brieant observed, "after 80 years of First Amendment case precedent, this Court would be astonished to find that Defendants do not believe that in-hand distribution of printed materials on public City sidewalks is a Constitutionally protected activity." That part of the ordinance is stricken and the Guardian may be distributed by hand on sidewalks and anywhere else where this activity would not obstruct traffic.