New York newsstands in a two-front battle

Folio: The Magazine for Magazine Management, June, 1998 by Jeff Garigliano

The newsstand at 47th Street and 6th Avenue in Manhattan has been in Vito Gasparo's family since 1939, when the city used to charge his father just $20 for a license to operate the business. Over the past few years Gasparo has been paying $538 annually for the license, but if the city has its way, his fees will increase nearly eightfold as part of a new arrangement designed to raise money for the city coffers. At the same time, New York is now trying to limit the number of adult titles Gasparo, and all newsstand operators in the city, can sell.

Gasparo's lawyer says that both moves--increasing licensing fees to raise revenues and placing restrictions on content--violate the First Amendment. Along with Gasparo, four other newsstand operators have Joined together to do what the old cliche says you can't do: fight city hall.

Under a law passed last summer, New York City is converting the old rate scheme (where the fees basically covered administrative costs) to one in which "the operators would be charged based on the value of the real estate they're on," says Gabriel Taussig, chief of the administrative law division in the city's Law Department. Because most newsstands are located on major avenue blocks, they sit on some of the most valuable municipal property in the world. The proposed plan would set up a sliding scale, with fees ranging from $2,500 to $5,000. (Gasparo would pay $3,750.)

The city's 330 newsstand owners were originally given until April 28 to file the new paperwork, but a Federal District Court in Brooklyn pushed that deadline back until late May. Richard Emery, the lawyer for Gasparo and the other four plaintiffs, maintains in a civil complaint that the fee hike unfairly limits their First Amendment right to sell print information. Worse, Emery says, the new plan applies only to newsstands, not to street vendors selling other products in Manhattan. New York has countered by saying that there's no constitutional guarantee of newsstand ownership on city property.

Jonathan Hart, a media lawyer and member of the media and information technologies group of the Washington, D.C., firm Dow Lohnes & Albertson, says New York may be fighting an uphill battle in trying to impose higher fees. "The city is attempting to condition enjoyment of a First Amendment right on a payment that appears to be designed to raise revenue," Hart says. He also notes that since the newsstands are such an integral part of the fabric of New York, a judge may be less likely to support imposing sharply higher fees against them. "Even if the city is correct that there is no constitutional right to construct a newsstand on a city sidewalk, the newsstand guys have his tory on their side," Hart says. "There are some areas in which the courts have recognized that history impacts on constitutional interpretation. The case might conceivably come out differently in a city that did not have the newsstand history that New York has."

The issue of how much a city can charge for the right to sell magazines is not a new one. In Murdoch v. Commonwealth of Pennsylvania, a precedent-setting case in 1943, the Supreme Court limited these fees to only what was required to process and administer the licensing program. Otherwise, the argument went, cities could effectively limit speech by charging exorbitant fees under the guise of raising revenue.

Sales restrictions

The second issue Emery and Gasparo are fighting is the city's proposed limit on adult titles. New York recently began a "quality of fife" crackdown on sex stores and rewrote its zoning codes to prevent them from clustering together in red-light districts. But some officials fear that adult magazines could evade the new zoning by increasing their numbers on local newsstands.

Under the proposal, newsstands would have to limit adult titles to 40 percent of total sales and 25 percent of display space. Emery maintains in his civil complaint that this kind of content-based restriction is unconstitutional, especially given that the titles in question aren't legally obscene.

Hart notes that the city might have a stronger case on this issue. "The hard thing to enforce would be the requirement that 60 percent of all sales be non-adult titles. What a customer buys is the customer's decision, not something you get the newsstands to control. But the display space restriction would be easier to monitor."

At press time, the city was asking newsstand operators to get their applications in by May 18, but Emery has requested that the law be reviewed. Says Taussig, "A lot of things can happen."