Weekly granted
injunction in news
rack lawsuit

The city can't exclude
free publications from
coin-op rack lotteries

By Debra Barayuga
Star-Bulletin

The free Honolulu Weekly has won the right to use coin-operated news racks in Waikiki for distribution.

In granting the Weekly a preliminary injunction against the city, U.S. District Judge Susan Oki Mollway yesterday ruled the city can't exclude publications from bidding on coin or non-coin-operated racks in Waikiki based on whether they charge or don't charge.

The Weekly had sued the city, saying its ordinance requiring separate lotteries for coin and non-coin-operated racks discriminates against free publications by requiring them to be placed in smaller, non-coin-operated racks.

The city earlier had denied the Weekly permits for 21 coin-operated racks because it doesn't charge for its publication.

"We expect the city to hold a lottery right away," said James Bickerton, one of the attorneys representing the Weekly. "If they don't, it will be a sure sign they are being vindictive."

City Managing Director Ben Lee said the city is disappointed with the court's order and will be meeting with legal counsel next week to decide whether to appeal.

The city has defended its ordinance, saying it promotes pedestrian safety and improves aesthetics.

"Our goal all along has been to clean up Waikiki, make it safe for pedestrians and ensure the economic well-being of Waikiki, while providing opportunities for free and paid publications to distribute to the public," Lee said.

In her ruling, Mollway said the city ordinance violates the First Amendment because it is not narrowly drawn to advance the government's interest.

"Preventing free publications from using coin-operated dispensing racks (while requiring no actual coins) does not affect aesthetics or safety at all, as there is no relation between the act of paying for a publication and Honolulu's aesthetic or safety purposes," she said.