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Brentwood lawsuit pitted safety vs. first amendment

A Nashville attorney said he was “very disappointed” with Tuesday's court decision that sided with the city of Brentwood in prohibiting the The Contributor and other publications to motorists within city limits.

“We are very disappointed with the court’s decision because we believe it limits freedom of speech and press,” Irwin Venick of the law firm Dobbins, Venick, Kuhn & Byassee said in a statement released to media Wednesday afternoon.

The Contributor provides content relating to homelessness and poverty, its executive director Tasha A. French Lemley said. The newspaper is sold almost exclusively by homeless or recently homeless vendors to motorists at busy intersections in the greater Nashville area.

“Brentwood’s ordinance unfairly targets The Contributor and its vendors, broadly restricting the very type of face-to-face speech central to the paper’s mission of fostering dialogue about homelessness with people who have experienced it,” Venick said.

The ACLU filed the lawsuit in 2011 on behalf of the The Contributor and two of its vendors, Calvin Hart and Andrew Harrington, who Brentwood police cited for violating a city ordinance. The city soon after revised the ordinance “to balance the rights of The Contributor and its vendors with the city's interests in public safety and traffic flow and traffic safety issues,” the judge cited Roger Horner, Brentwood City Attorney, in his recent ruling.

The revised law reads: “No person shall stand on or otherwise occupy any portion of the public right-of-way, including any public street, median, alley, or sidewalk for the purpose of soliciting or accepting a donation or money or any other item from the occupant of any vehicle.”

Mike Walker, Brentwood city manager, said the revised law is intended to address nothing more than public safety.

“The city's primary concern in this matter has always been public safety,” Walker said in a media statement. “Selling newspapers or anything else to vehicle occupants on public streets creates a safety risk. It was never the city's intention to prohibit the sale of newspapers or to exclude anyone from Brentwood.”

In his 10-page ruling, U.S. District Judge Todd J. Campbell agreed with the defendant that safety justifies what some view as a violation of the First Amendment.

“The government may impose reasonable time, place, and manner, content-neutral restrictions on protected speech so long as the restriction is narrowly tailored to serve a significant governmental interest and leaves open ample alternative channels for communication of the information,” Campbell wrote in his judgment.

Campbell also said that the ruling does not impede the publisher from using alternate means of distribution, specifically citing door-to-door sales, subscriptions, on private property with permission, through rack sales, or to pedestrians on sidewalks.

Limiting the means of distribution of a publication, however, impedes the publisher's and its vendors from exercising their rights to free speech, according to Gene Policinski, senior vice president and executive director of the First Amendment Center at Vanderbilt University.

“The manner through which a newspaper distributes its product is as equally protected as the gathering of and publishing of news,” Policinski told the Williamson Herald. “The part that concerns me is [the judge's determination that] there are alternate means to distribute this paper, but this paper has only one distribution model. It's analogous to telling AOL that they're not going to let them distribute their information online. 'Why don't you mail your information to your customers?' ”

Venick said the plaintiff has yet to decide whether to pursue an appeal.

Founded in 2007, The Contributor distributes approximately 120,000 copies of its paper each month, according to Lemley. Its 400 or so vendors – all of whom have each experienced, or are currently experiencing, homelessness – are independent contractors “who own their own micro-businesses,” she said. 

“I founded the paper in order to create a quality news publication that highlighted content relating to homelessness and poverty, including content created by writers who had experienced homelessness,” Lemley said. “[The publication creates] a source of income for impoverished Tennesseans while creating community and dialogue between people who have experienced homelessness and those who have not.”

Posted on: 11/15/2012


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