Bill of Rights guards newsstands against city vending ordinance

Protected under First Amendment press freedom rights, newsstands have a benefit food trucks don't. It's hard to believe the Constitution makes much of a difference for street vending near campus. But as University officials seek a city ordinance to regulate vending on campus streets and sidewalks, First Amendment protections of a free press have Penn and Philadelphia taking care to distinguish newsstands from other vendors. The University delivered its newest proposal for a vending ordinance to City Councilwoman Jannie Blackwell's office last week. The ordinance would formulate tight guidelines establishing where vending is permitted in University City. Though many food truck operators and other street merchandisers have objected to the plan, newsstand operators are resting easy. Because Penn has asked the city government to set up the vending regulations, newsstands -- with their special constitutional protections --Ewill be exempt from whatever ordinance finally emerges from City Council. The only way the city government could force a newsstand to move would be if the stand lacked the proper licenses to operate, according to Robert O'Neil of the Thomas Jefferson Center for Protection of Free Expression in Charlottesville, Va. For example, the city couldn't move or close a newsstand because government officials disliked the content of the publications sold there. Unlike in licensing cases, the First Amendment would protect the stand, O'Neil said. Last winter, acting on a University request, officials from the Philadelphia Bureau of Licenses and Inspections suspended Jatendra Dalwadi's permits to operate his newsstand on 34th and Walnut streets, because he lacked a city permit to use electricity in the stand. The First Amendment didn't cover that fight, though, and the University and the city prevailed in closing the stand. But while the city could not move a newsstand simply because it sold controversial publications, it could relocate the stand regardless of permits if it presented safety or health hazards such as blocking the view of traffic, said attorney Mike Hiestand at the Student Press Law Center in Arlington, Va. Hiestand and O'Neil drew a distinction between regulating the location of a newsstand and regulating what types of publications the newsstands sell, arguing that infringing on freedom of expression would never hold up in court. "The government can regulate the distribution of news as to time, place and manner of the newsstands, but the regulation of content is quite different," O'Neil added. If the city asked a newsstand to relocate or close, the newsstand "would enjoy its First Amendment protections, in so far as the attempt to move the newsstand was content-related," Hiestand said. It is also unclear how much protection a newsstand retains when it sells candy, gum and food, in addition to news-related items. "You wouldn't have a free speech claim when you're talking about foodstuffs," Hiestand said. "The First Amendment holds better when selling newspapers than it does when selling Certs," he explained. The same sort of regulations governing the city hold true for government-funded public universities -- but not private schools like Penn. "I'd say a private university would be able to bar any activity it wished to bar, unless in doing so it would violate some statutory regulation, such as the nondiscrimination policy," O'Neil said. First Amendment considerations don't legally bind private property owners, whether they are schools or private landlords, according to Larry Frankel, executive director of the American Civil Liberties Union in Pennsylvania. Private property owners have the right to regulate all kinds of operations on their property, O'Neil said. "Any vendor that is inside the campus is private property, and therefore a private property owner [such as the University] can do as he wishes," he said. "The First Amendment does not apply at all to how a private institution manages its property," he added. But assuming that the University doesn't try to clear newsstands out without city approval --Ean unlikely scenario --EPenn has essentially waived its immunity from constitutional prohibitions.

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