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Court rules in city's favor in Contributor lawsuit

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The Sixth District Court of Appeals in Cincinnati issued an opinion in favor of the City of Brentwood Wednesday in the First Amendment case between the city and The Contributor newspaper.

The case, originally filed in 2011 in federal court by the American Civil Liberties Union of Tennessee on behalf of The Contributor, claimed Brentwood violated the freedom of speech and press rights of the newspaper due to an ordinance banning street sales.

The Contributor is a charitable publication that covers the homeless community, predominately in Nashville. Street vendors usually sell the paper to passengers in vehicles stopped at red lights or stop signs.

The original ordinance prohibited all sales on streets, alleys, sidewalks or public right-of-ways, and two vendors were issued citations. The city later revised the law to ban only sales on city streets and to occupants of vehicles.

“The city’s primary concern in this matter has always been public safety,” said then-City Manager Mike Walker. “Selling newspapers or anything else to vehicle occupants on public streets creates a safety risk.”

The city argued there were alternative means to selling the paper, and Judge Todd Campbell dismissed the case in U.S. District Court on Nashville in November 2012.

But on appeal, the ACLU’s attorney Irwin Venick argued last month that the alternative means of distribution suggested by the city would not apply to The Contributor, and that the original dismissal should be overturned.

"I'm disappointed," Venick said of the ruling. "The Court of Appeals essentially adopted the same reasoning of the district court that we felt was wrong then, and think is wrong now. In time, we would hope that the City of Brentwood would revise its ordinance and work with The Contributor."

Representing Brentwood was Nashville attorney Robert Burns, who argued that the city was not responsible for proving other means of sale were viable to The Contributor.

“The city’s position is that the standard is not that The Contributor is entitled to get the best or the only means of communication in which they engage,” Burns said. “Rather, the question is whether there are reasonable opportunities for them to communicate, and we submit that there are.”

The Court of Appeals agreed—“It might be easier for The Contributor and its street vendors to return to its practice of selling to motor-vehicle occupants, but ‘there has been no showing that the remaining avenues of communication are inadequate,’” read the opinion.

“We’re very pleased with the decision,” said city attorney Roger Horner. “It vindicates Brentwood’s efforts to keep our streets safe. The federal courts have recognized that the city can do that in a way that still honors the Constitution.”

During the appeal, Venick argued that because other means of distribution—subscription services or vending machines—are not used by the publication, the ordinance constitutes an absolute ban.

The person-to-person sale is integral to The Contributor’s message, he said.

“The essence of The Contributor message is to create a connection between homeless vendors and the public,” Venick said. “The physical distribution creates a personal interaction between homeless vendors and the interested public.”

The city’s attorneys suggested sidewalks, shopping centers, public sport complexes, churches and door-to-door sales.

There are 900 people per square mile in Brentwood, Burns said, but The Contributor had made no attempt to engage in door-to-door sales. 

Judges on the appeal panel did express skepticism that shopping centers would permit solicitation or that suburban homeowners would open their doors to homeless salespeople, but nevertheless affirmed the suit’s original dismissal.

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