STAR-BULLETIN / 1999 The Honolulu Weekly, a free publication, lost its suit fighting a city ordinance that prevents it from being sold alongside paid-for publications in racks like this one in Waikiki.

City wins federal appeal
on Waikiki news racks

The court reverses a ruling in a suit
by the Honolulu Weekly

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By Debra Barayuga
dbarayuga@starbulletin.com

A city ordinance that requires separate news racks for free and paid-for publications in the Waikiki Special District is constitutional, the 9th U.S. Circuit Court of Appeals has ruled.

The unanimous ruling against the Honolulu Weekly by a three-judge panel yesterday overturns a decision by U.S. District Judge Susan Mollway, who had ruled that the ordinance was discriminatory.

Mollway had granted a permanent injunction in December 1999, ruling that the city could not prohibit publications from bidding for either a coin-operated or non-coin-operated news rack.

Scott Saiki, one of two attorneys representing the Weekly, said the publication still feels the ordinance is discriminatory and is disappointed in the decision "because it diminishes First Amendment rights in Hawaii."

"It allows government or the city to discriminate between speakers through the use of benign classifications such as paid vs. free," he said.

The city passed the ordinance in 1997 in response to the proliferation of news racks on Waikiki sidewalks. It prohibited publishers from placing their own news racks on the sidewalks and required them to use the enclosures erected by the city at specific locations throughout Waikiki.

Officials said the city was regulating the placement of publications to eliminate clutter and preserve the district's aesthetics, promote pedestrian safety and provide an efficient way to distribute publications. Its goal was to get as many publications as possible at each of the locations. The city held two lotteries -- one for coin-operated racks that were larger to accommodate coin collection and make them more secure -- and the other for smaller, non-coin-operated racks.

"This content-neutral scheme balances various needs and goals: maximizing the uniformity in the appearance of news racks, accommodating the coin-collecting apparatus that the charging publications must use, and minimizing the space news racks require on city streets by requiring free publications that do not need a coin-collecting apparatus to use the smaller, space-saving news racks," the appellate judges wrote.

The 9th Circuit's ruling agreed that the city's goals of pedestrian safety, movement and aesthetics were legitimate and that the ordinance is well designed to serve those goals, said University of Hawaii law professor Jon Van Dyke, one of the attorneys who represented the city.

Although Honolulu Weekly is a free publication, it bid on the coin-operated racks because it wanted to be displayed next to the major Honolulu dailies and because the display window for paid publications is larger.

"We argued that the system discriminates because it gave paid publications better distribution opportunities in Waikiki," Saiki said.

The ruling relegates the Weekly to news racks that contain tourist publications, which also means the Weekly will probably have fewer distribution sites than paid publications, Saiki said.

Although the Weekly won 21 spaces in the April 1999 lottery, the city denied its permits after learning it would not be charging its readers.