November 8, 1985 Number 4

November 8, 1985 Number 4 Miehael Joseph Connolly Secretary of State State House Boston, Massachusetts 02133 Dear Secretary Connolly: You have asked my opinion whether chapter 416 of the Acts of 1985. entitled "An Act Requiring the Use of Safety Belts in Certain Motor Vehicles." may be the subject of a referendum petition under Article 48 of the Amendments to the Massachusetts Constitution. Your opinion request arose because a referendum petition caMing for the repeal of this law. signed by ten qualified voters, was filed with your office in a timely fashion. For the reasons discussed below. I have concluded that the law in question is an appropriate subject for a referendum petition. A law that relates to any matter excluded from the referendum process may not be the subject of a referendum petition. Amendments, art. 48. The Referendum, pt. III. § 2. 1 have examined the various provisions of the law and find that it does not relate to religion, religious practices, or religious institutions: the appoint- ment, qualification, tenure, removal, or compensation of judges; or the powers, creation, or abolition of courts. The operation of the law is not restricted to a particular town. city, or other political subdivision or to particular districts or localities of the Commonwealth. It does not appropriate money for the current or ordinary expenses of the Commonwealth or for any of its departments, boards, commissions, or institutions. Accordingly, I have concluded that the law does not contain matter excluded from the referendum process and is appropriately the subject of a referendum petition. I have therefore provided you with a fair and concise summary of the law for inclusion on the petitions that you must prepare for use in gathering addi- tional signatures and for inclusion on the ballot should a sufficient number of signatures be filed with your office within the time period allowed by Article 48. Very truly yours. FRANCIS X. BELLOTTI ATTORNEY GENERAL P.D. 12 25 December 11, 1985 Vumber 5 rhe Honorable George Keverian speaker ^ouse of Representatives itate House Boston, MA 02108 Dear Speaker Keverian: On behalf of the House of Representatives, you have asked for my opinion, )ursuant to G.L. c. 12. § 9, concerning the constitutionality of a bill presently )ending before that body. The bill in question. House 6602, would amend chapter of the General Laws to empower municipalities to prohibit vending machines n all areasunder their care and control.' Specifically, you have inquired whether he proposed law would violate the First Amendment to the United States Con- titution or its state counterpart, article 16 as amended by article 77 of the Amendments to the Massachusetts Constitution.- You have also asked whether lunicipalities are presently authorized under the Home Rule Amendment to irohibit or regulate newspaper vending machines. For the reasons discussed below, it is my opinion that the proposed law. as iresently drafted, would be likely to withstand a facial challenge on First Amend- aent grounds. I have further concluded that, even without this law, municipalities iresently have the power to regulate or prohibit newspaper vending machines inder the Home Rule Amendment. An "as applied" challenge to a municipal irdinance or by-law adopted pursuant to House 6602 or the Home Rule Amend- nent. however, would turn on factual determinations beyond the scope of an ipinion of the Attorney General. Where appropriate in the margin of this opinion I lave provided advice concerning the drafting of the bill and its implementation by nunicipalities to lessen the likelihood of successful as applied challenges. I begin my analysis by noting that the questions presented arise only because it s clear from the bilFs title that the proposed law is intended to apply to newspa- ler vending machines. ' Vending machines in general are not protected by the •irst Amendment since they are not designed to communicate or express ideas or ^formation. Cf. Caswell v. Licensing Commission, 387 Mass. 864, 867-68 (1983) holding that video games are not protected by the First Amendment or by article 6). It is well established, however, that the right to freedom of speech and of the iress secured by the First Amendment extends to the distribution and circulation if printed material. Lovell v. Griffin, 303 U.S. at 452; Schneider v. State, 308 U.S. 47, 160 (1939); Talley v. California, 362 U.S. 60, 64 (1960). Several courts that ave considered the question have held that the First Amendment applies to the ale of newspapers through newspaper vending machines."^ Thus, the application of the proposed law to newspaper vending machines urely raises the question of whether the law abridges First Amendment rights. But to say the [statute] presents a First Amendment mi/c is not necessarily to say hat it constitutes a First Amendment violation^' Members of the City Council of .OS Angeles v. Taxpayers for Vincent. 104 S. Ct. 21 18. 2128 (1984). The right to ngage in expressive activity is not absolute, but may be regulated as to time. 26 P.D. 12 place, and manner in order to accommodate competing governmental interests. Such time, place, and manner restrictions are valid, despite their impact on protected activity, provided that they are content neutral (that is, justified without reference to the content of the regulated speech), that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels of communication.'" On its face, the proposed law satisfies these requirements. It is content neutral, since it applies with equal force first to all vending machines and second to all newspaper vending machines. The First Amendment forbids the government from regulating protected activity in ways that favor some viewpoints or ideas at the expense of others. City Council v. Taxpayersfor Vincent, 104 S. Ct. at 2128. The proposed law, in authorizing an absolute ban of all vending machines, would not permit officials to discriminate based upon their disagreement with a particular newspaper's content.^ It is equally like that, even were a municipality to ban ail newspaper vending machines, ample alternative means of distributing newspapers would remain.^ Newsstands, home-delivery, and ambulatory news vendors would be unaffected by the proposed law. It is not dispositive that these methods of distribution may be less efficient or more costly. The First Amendment does not guarantee a right to the least expensive or most advantageous form of expression. City Council v. Taxpayers for Vincent, 104 S. Ct. at 2133; Gannett Satellite Information Network, Inc. r. Metropolitan Transportation Authority, 745 F. 2d at 774. Of course, if it could be shown that, in a particular municipality, newspaper vending machines were the only realistic means of distributing newspapers, an ordinance banning such machines would be vulnerable to an "as applied" attack. Cf Philadelphia News- papers, Inc. V. Borough Council, 381 F. Supp. 228 (E.D. Pa. 1974). Such hypothet- ical factual situations, however, are beyond the scope of this opinion, which considers only the facial constitutionality of the proposed law. The question is thus reduced to whether the proposed law is narrowly tailored to serve a significant governmental interest, an inquiry of somewhat greater complexity. I am assuming that the purpose of the proposed law is twofold: to protect the safety of the public by eliminating obstacles to traffic on public property and to advance esthetic values by prohibiting an intrusive and unattrac- tive format for expression. The Supreme Court has recognized the substantiality of both these interests. See City Council v. Taxpayers for Vincent. 104 S. Ct at 2130 (municipalities have a weighty, essentially esthetic interest in proscribing intru- sive and unpleasant formats for expression); Schneider v. State, 308 U.S. 147, 160 (1939) (municipal authorities have duty to keep streets open and available for movement of people and property, and conduct of those using streets may be lawfully regulated). See also Young v. .American Mini Theatres, 427 U.S. 50, 71 (1976) (plurality opinion) (city's interest in attempting to preserve or improve the quality of life is one that must be accorded high respect). It could be contended, however, that the proposed law is not "narrowly tai- lored" to serve these interests, since there may be means of accomplishing the same objectives short of an absolute prohibition of newspaper vending machines.'*^ The Supreme Court has recently made clear, however, that when it is the "tangible medium" t)f expression itself that conflicts with the substantial governmental interest involved, a law prohibiting that medium curtails no more expression than is necessary to accomplish its purpose. City dmncil v. Taxpayers for lincent, 104 S. Ct. at 2132 (upholding ordinance prohibiting the posting of P.D. 12 27 signs on public property); Clark v. Community for Creative Non-Violence, 104 S. Ct. 3065 (1984) (upholding prohibition on sleeping in certain public parks, and assuming that sleeping was protected by First Amendment under circumstances presented). See also Gannett Satellite Information Network, Inc. v. Metropolitan Transportation Authority, 745 F. 2d at 774-75 (even if licensing fees were so prohibitive that they effectively banned newspaper vending machines, fees were valid since no less restrictive means existed for raising revenue).*^ Furthermore, the requirement that a content-neutral law affecting First Amendment expression be "narrowly tailored" does not mean that the law must precisely fit the contours of the governmental interests involved. "[A]n incidental burden on speech is no greater than is essential, and is therefore permissible . . . , so long as the neutral regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation." United States v. Albertini, 105 S. Ct. 2897, 2907 (1985). Accord Clark v. Community for Creative Non-Violence, 104 S. Ct. at 3071. Therefore, I believe that a content-neutral law, such as the one you have asked me to review, authorizing municipalities to ban newspaper vending machines is sufficiently related to legitimate state interests to withstand a facial challenge. Again, however, it is quite possible that particular ordinances or by-laws enacted pursuant to this law would be subject to successful attack in particular factual situations. In response to your second question, it is my opinion that municipalities pres- ently have the authority under the Home Rule Amendment to the Massachusetts Constitution, art. 89, § 6, to enact ordinances or by-laws regulating or prohibiting the placement of newspaper vending machines in public areas. Indeed, pursuant to my authority under G.L. c. 40, § 32, to approve or disapprove town by-laws, I have approved a number of town vending machine by-laws which, on their face, appear to be reasonable, content neutral, and narrowly tailored to achieve legit- imate municipal objectives, such as protecting public safety, ensuring accessibility to public facilities, and maintaining the neatness and orderliness of public areas.''^ Under the Home Rule Amendment, municipalities "may enact legislation to advance the common good so long as it is not inconsistent with State law." Marshfield Family Skateland, Inc. v. Marshfield, 389 Mass. 436, 440, appeal dis- missed, 464 U.S. 987 (1983). As discussed above, depending on particular factual circumstances, local legislation prohibiting or regulating newspaper vending ma- chines might well be characterized as advancing the public good. Nor am I aware of any state statutes precluding local action of this nature. To the contrary, state law expressly authorizes municipal officials to "grant permits for the placing and maintaining of . . . structures projecting into or placed on or over public ways." G.L. c. 85, § 8. I therefore conclude, subject to the reservations expressed above, that the proposed law could be successfully defended against a facial attack on First Amendment grounds and that, even without the proposed law, municipalities presently have the power to enact ordinances or by-laws reasonably regulating or prohibiting the placement of newspaper vending machines in public places. Very truly yours, FRANCIS X. BELLOTTI ATTORNEY GENERAL 28 P.D. 12 ' The proposed law is worded as follows: "A city acting by and through its council and a town acting by and through its board of selectmen may prohibit vending machines in all areas of said city or town under their care and control." On a point unrelated to the subject of your opinion request and recognizing that my role under G.L. c. 12, § 9, includes advising you on proposed legislation, I would suggest you substitute "town meeting" for "board of selectmen," since the town meeting, not the selectmen, would be the body empowered to enact the ban authorized by the proposed law. See G.L. c. 39, § l;c.40, §21. ~ The First Amendment, which by its terms applies only to laws enacted by Congress, is made applicable to the states by the Fourteenth Amendment. Lovell v. Griffin, 303 U.S. 444. 450 (1938). Since "the criteria . . . forjudging claims arising under the First Amendment . . . are equally appropriate to claims brought under cognate provisions of the Massachusetts Constitution." it is not necessary to analyze separately the article 16 issue. Opinions of the Justices, 387 Mass. 1201. 1202 (1982). But cf. Com- monwealth V. Sees, 374 Mass. 532, 536-3 (1978) (Massachusetts Constitution provides greater protection to nude dancing in bars than does United States Constitution because of lack of preferred position of alcoholic beverages under state Constitution). -^ The bill is entitled "An Act Permitting Cities and Towns to Ban Newspaper Vending Machines." A different title, making it clear this is a bill intended to address the public safety and esthetic features of all vending machines, might be advisable. ^ See, e.g. , Gannett Satellite Information Network, Inc. v. Metropolitan Transp. Auth. , 745 F. 2d 767, 772 (2d Cir. 1984); Miami Herald Publishing Co. v. CityofHallandale, 734 F. 2d 666, 673 (11th Cir. 1984); Gannett Satellite Information Network, Inc. v. Town of Norwood, 579 F Supp. 108, 1 14 (D. Mass. 1984); Southern N.J. Newspapers, Inc. v. N.J. Dep't of Transp., 542 F. Supp. 173, 183 (D.N.J. 1982). ' Clark V. Community^ for Creative Non-Violence, 104 S. Ct. 3065, 3069 (1984); City Council V. Taxpayers for Vincent, 104 S. Ct. at 2130; Perry Educ. Ass'n v. Perry Local Educ. Ass 'n, 460 U.S. 37, 45 (1983). Accord Gannett Satellite Information Network, Inc. V. Metropolitan Transp. Auth., 745 F. 2d at 773 (applying above criteria to regulation of newspaper vending machines). " To the extent that an ordinance adopted pursuant to the proposed law would ban all newspaper vending machines in a particular municipality, such an ordinance would not be subject to challenge on the ground that it vests an impermissible degree of discretion in local officials to select which machines will be permitted. Compare Gannett Satellite Information Network v. Town ofNorwood, 579 F. Supp. 108 (D. Mass. 1984) (town by-laws vested virtually unbridled discretion in town officials to issue permits for newspaper vending machines); Miller Newspapers, Inc. v. City ofKeene, 546 F. Supp. 831 (D.N.H. 1982) (seizure of newspaper vending machines in absence of ordinance setting forth appropriate procedures and standards subjected newspapers to exercise of officials' unbridled discretion and violated due process). It is therefore my advice that any bill you enact on this subject matter restrict the discretion of municipal authorities, channeling it in a manner discouraging content-based discrimination. ^ The proposed law concerns the placement of vending machines only on property under the care and control of a municipality. I have assumed for purposes of this P.D. 12 29 opinion that any ordinance adopted pursuant to this law would effectively prohibit all newspaper vending machines on public property within a particular municipality. It would remain open to newspaper publishers to place their machines on privately owned property, however. Municipalities in which realistic alternative means of dis- tribution do not exist would be ill-advised to adopt by-laws or ordinances of the type contemplated by the bill. ^ For example, municipalities could limit the number of newspaper vending machines or require that they be placed a certain distance apart or that they conform to certain esthetic standards. Such time, place, and manner restrictions may be permissible under the First Amendment, as long as adequate standards are provided to guide the regulators' discretion. See note 6, supra. ^ In Vincent, the Court characterized as inapposite its previous decisions such as Schneider v. State, supra, striking down absolute prohibitions on the distribution of handbills and leaflets. In such cases, the interest advanced in support of the ordinance, e.g., anti-littering, could be addressed without prohibiting the distribution of printed material. In contrast, where the substantive evil addressed by a law is not merely a possible by-product of protected activity, but is created by the medium of expression itself, e.g., a sign, absolute prohibition may be justified. City Council v. Taxpayers for Vincent, 104 S. Ct. at 2132. •" For instance, I have approved by-laws prohibiting the placement of newspaper vending machines in a way that would endanger the safety of persons or property, unreasonably preclude the flow of pedestrian traffic, or preclude entrance or exit from business premises or lawfully parked vehicles. The approved by-laws also prohibit placement of such machines on sites used for public transportation or public utility purposes, impose size restrictions on the machines, and require that they be kept in good condition. In approving those by-laws, as in answering your first question, I confine my analysis to their facial validity, recognizing that an as-applied challenge will turn on factual determinations beyond my purview. 30 P.D. 12