Weekly says
its place is
with newspapers,
not other freebies

By Debra Barayuga
Star-Bulletin

Shoppers won't go looking for toothpaste in with the cantaloupes, says an attorney for the Honolulu Weekly. The same is true for newspaper readers.

"If you want to look for current events, you won't find it in restaurant guides," said attorney James Bickerton.

Bickerton uses the analogy to illustrate an argument he is raising in the Honolulu Weekly's federal court motion for a preliminary injunction against the city.

U.S. District Court Judge Susan Oki Mollway is expected to rule on the request by the end of next week.

The Honolulu Weekly sued the city Department of Customer Services last month, saying an ordinance governing the placement of publication racks in Waikiki, and separate lotteries for coin and non-coin operated racks, favor the major daily newspapers and discriminates against free publications by requiring them to be placed in smaller, non-coin operated news racks.

Mollway last month ruled that the city's regulation was unconstitutional and granted a temporary restraining order that blocked the city from holding a lottery for available news racks.

The dailies occupy about 50 to 60 locations in the Waikiki Special District, while free publications occupy 20 to 30, Bickerton said.

The Honolulu Weekly, which is free, wants to be placed in the larger racks alongside the Honolulu Star-Bulletin and Honolulu Advertiser, saying it doesn't belong with other free publications -- which include restaurant, entertainment, and visitor shopping guides.

"Our toothpaste will be in the cantaloupe section," Bickerton argues.

But Jon Van Dyke, a University of Hawaii law professor hired to represent the city, said the city has bent over backward to accommodate free publications by building more non-coin operated racks and awarding Honolulu Weekly 21 of them.

The Honolulu Weekly initially had applied for coin-operated racks at an April lottery, but the city refused to issue permits because the publication was not going to charge for copies.

The distinction between coin and non-coin operated racks was made out of physical necessity to promote dissemination and not to discriminate against a publication's content, Van Dyke said.

After initially considering banning all news racks from the Waikiki Special District, the city and news organizations after nearly three years hammered out a flexible plan to limit the number of news racks.

The goal was to make the racks as compact as possible to promote pedestrian safety and improve aesthetics, Van Dyke said.

"We hope the judge will understand municipal officials need to make practical decisions in order to govern, and this is a perfectly logical and practical decision," he said.