LAUDER, INC. v. CITY OF HOUSTON, TEXAS (S.D.Tex. 11-4-2010)

799 (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)) (alterations in Ward); Sonnier, 613 F.3d at 441 (citing SEIU, 595 F.3d at 596). Only "[i]f `a substantial portion of the burden on speech does not serve to advance' the ordinance's stated goals, [will a court conclude that] the ordinance is not narrowly tailored." See Knowles, 462 F.3d at 434 (quoting Ward, 491 U.S. at 799).

Lauder argues that the ordinance is invalid because it could have been less restrictive. Specifically, Lauder argues that the ordinance should permit publishers to use newsracks made of a greater variety of materials than the specified steel of a minimum gauge and should permit the use of other means to stabilize and weigh the newsracks besides a concrete base. Lauder argues that the ordinance should permit its newsracks like its newsracks, which are plastic and use removable bags of sand or gravel or bricks as weights.

The City has presented evidence that the ordinance requirements of steel of at least a certain gauge and a cement base further the significant interests in both public safety and aesthetics. The City wanted materials that would withstand corrosion and wear; that would present a uniform look and not deteriorate over time; that would be stable and would not fly in a high wind or tip; and that could be removed for repair or other needs. The record showed that the material specifications and the range of permitted weights and dimensions serves these interests but do not eliminate substantially more speech than necessary.

The ordinance's requirements of steel racks and cement bases are narrowly tailored. The City enacted the ordinance to make newsracks more attractive and safer. To further its aesthetic interests, the City enacted a consistent set of standards to govern newsracks' materials and color and imposed a range of permitted dimensions. Courts have held that imposing uniform requirements on newsracks' appearance is a narrowly tailored way to advance a municipality's significant interest in aesthetics. Honolulu Weekly, 298 F.3d 1037 at 1045; Gold Coast Publ'ns, 42 F.3d at 1346. The photographs of compliant newsracks in the record show a great reduction in visual clutter. (Pl's Exs. 13-18). Instead of a chaotic rainbow of newsracks made of disparate materials, ranging from cracked and deteriorated neon plastics to rusted metal, of different sizes and shapes and facing various directions, the ordinance requires neatly arranged rows of forest-green boxes on cement bases. The photographs in the record demonstrate the results. Requiring zinc-coated steel of a certain gauge means that the newsracks also resist rust, corrosion, and deterioration, important in a city with a climate as humid, hot, and otherwise challenging as Houston's. Cf. MIAMI-DADE CNTY., FLA., CODE OF ORDINANCES § 54-268(a) (requiring construction of "galvanized steel with corrosive resistant hardware and door assembly").

The steel material and cement-base requirements also further the City's interest in public safety. Steel of the required gauge and finish is durable. A 95-pound cement base prevents newsracks from tipping over, being displaced or moved, or being blown in a high wind. At one point, the City considered bolting the newsracks down as an alternative, but as explained during the hearings, (Def.'s Ex. 4), that would make the racks harder to service and difficult for emergency personnel to move if they were in the way. A City engineer also testified that the low center of gravity of the cement base helps prevent the newsracks from tipping — or being tipped — over or from blowing. Comments at the hearings and photographs in the record suggest these were significant problems before the ordinance.

The City also presented evidence to support its decision to require a cement base as opposed to allowing a hollow plastic or steel base that could be filled with bags of sand or gravel or bricks. Such bags readily deteriorate in Houston's climate, allowing the sand and gravel to escape, resulting in both a source of litter and an ineffective base weight. And the bags or bricks can be readily removed, for purposes ranging from commercial uses to vandalism.

Lauder has not contended that the ordinance restricts any expressive quality in the materials used for the newsracks. Lauder does not challenge the requirement of a single color. Gold Coast Publ'ns, 42 F.3d at 1350. Lauder has not argued that the locations available under the newsrack ordinance are insufficient. Nor has Lauder argued that the newsrack ordinance prevents speech by requiring features that do not correspond to newsracks that are readily available in the marketplace. The record includes promotional materials for a compliant newsrack, (Def.'s Ex. 18), and successful applications for newsrack permits, (Def.'s Ex. 6). Lauder's major argument is that by imposing such stringent requirements on the materials permitted for newsracks, the ordinance increased the price to acquire a newsrack. Cheaper newsracks mean that more publishers can get distribute their publications on the City's rights-of-way. Lauder's preference for newsracks made of plastic over metal is based on the cheaper cost of plastic. Lauder's preference for newsracks mounted on a base that is made of hollow plastic with a bag of sand or gravel or a brick placed inside, rather than a cement base, is based on the cheaper cost of the materials and labor required for placement. Witnesses put the cost of compliant newsracks at between $200 and $300 for each rack.

Mark Rome testified that Rumbo opposed the color restrictions, and Doris Ellis of the Houston Sun also objected to the monochrome requirement. Choosing one color for newsracks furthers the City's interest in aesthetics and does not sweep too broadly. Publishers may still identify their publications through labeling.

"Although the [Supreme] Court has shown special solicitude for forms of expression that are much less expensive than feasible alternatives and hence may be important to a large segment of the citizenry, this solicitude has practical boundaries." Taxpayers for Vincent, 466 U.S. at 812 n. 30 (citations omitted). The role of costs in the First Amendment analysis is functional, not absolute. "[T]he First Amendment does not guarantee a right to the least expensive means of expression." Gannett Satellite Info. Network, Inc. v. Metro. Transp. Auth., 745 F.2d 767, 774 (2d Cir. 1984) (citing Heffron, 452 U.S. at 654-55; Kovacs v. Cooper, 336 U.S. 77, 88-89 (1949); accord Globe Newspaper Co., 100 F.3d at 193 ("The First Amendment does not guarantee a right to the most cost-effective means of distribution or the rent-free use of public property.") (citing Capitol Sq. Review Bd. v. Pinette, 515 U.S. 753, 761 (1995)); Jacobsen, 869 F.2d at 1174 ("[T]he City need not provide . . . the least expensive method of exercising . . . first amendment freedoms.") (affirming liability-insurance requirement for newsracks).

The parties have not cited, and this court has not found, a decision invalidating on First Amendment grounds an otherwise valid newsrack restriction because of compliance costs. See, e.g., Globe Newspaper Co., 100 F.3d at 193-94 (holding that when the challenged regulation had the practical effect of eliminating all newsracks, street vendors were an adequate alternative channel for distribution because the "First Amendment does not guarantee a right to the most cost-effective means of distribution or the rent-free use of public property"); Gannett Satellite Info. Network, Inc., 745 F.2d at 774 ("Gannett cannot successfully argue that the more expensive alternative distribution methods deprive it of its First Amendment right to distribute its papers. As a large commercial distributor, it should be ready to absorb increases in the cost of doing business." (citations omitted)).

At the same time, the City does not cite newsrack cases concluding that compliance costs are irrelevant. Evidence that compliance costs are "prohibitive" are part of the functional analysis of the impact of the ordinance and the availability of alternative means of distribution. See Globe Newspaper Co., 100 F.3d at 194 ("While we do not dispute the Newspapers' claims that newsracks provide a relatively inexpensive means of distribution, which in some cases meet distribution needs where others are either prohibitively expensive or altogether unavailable, nothing in the record indicates how these concerns are implicated in the instant case."); Hop Publ'ns v. City of Boston, 334 F. Supp. 2d 35, 46-47 (D. Mass. 2004) (refusing to find insufficient alternatives for distribution of a small publication because there "is not a sufficient factual basis for the conclusion that [available means of distribution] are prohibitively expensive for plaintiffs' businesses as a whole"); see also Kovacs, 336 U.S. at 88-89 ("That more people may be more easily and cheaply reached by sound trucks . . ., is not enough to call forth constitutional protection for what those charged with public welfare reasonably think is a nuisance when easy means of publicity are open.").

Lauder's arguments against narrow tailoring are not persuasive under the narrow tailoring — as opposed to the least-restrictive-means analysis — that this court must apply. Ward, 491 U.S. at 799. First, Lauder argues that the ordinance should allow publishers to purchase newsracks made of plastic as well as metal. Ms. Lauder testified that she believed she could have plastic newsracks painted the forest-green color required by the ordinance. It is true that plastic newsracks come in a variety of colors. Included in the evidence are several photographs of Lauder's newsracks, including one in color. But the plastic newsracks in the photographs, and those that were common before the ordinance, simply do not look like the metal newsracks required by the ordinance. An employee of the Houston Press testified that the publication decided to abandon its plastic newsracks "because of the quality." "They don't look as good," he explained. "They don't weather as well. . . ." (Def.'s Ex. 26). Lauder has presented no evidence other than Ms. Lauder's unsupported opinion that it is possible to paint plastic racks to make them look like metal.

Lauder also objects that the choice of steel for newsracks is not tailored to the purpose of avoiding deterioration because steel rusts. Lauder offered photographs of a rusty metal newsrack, (Pl.'s Exs. 67-69). But Ms. Lauder conceded that she did not know how old that newsrack was or when it was painted. Ms. Lauder testified that her personal experience with steel newsracks was limited to a period early in her career as a publisher. Her career began in 1986. She presented a witness, Emilio Martinez, who testified that steel newsrack durability had improved substantially in recent years. The City presented evidence that steel would meet the objectives of durability and strength. Many other recently enacted municipal newsrack ordinances also specify steel of similar minimum gauge and treatment. See, e.g., MIAMI BEACH, FLA., CODE OF ORDINANCES, § 82-256(4)(a) (requiring construction of "galvanized steel with corrosive resistant hardware and door assembly"); MIAMI-DADE CNTY., FLA., CODE OF ORDINANCES § 54-268(a) (same); EL PASO DE ROBLES, CAL., MUNICIPAL CODE, § 11.35.040(A)(1) (requiring newsracks to be "metal" and "equivalent" to certain makes and models); LOS ANGELES, CAL., MUNICIPAL CODE § 42.00(f)(7)(B)(3) (requiring that newsracks be "primarily constructed of metal"); PHILADELPHIA, PA., CODE OF ORDINANCES § 9-211(3)(a)(.2) (requiring boxes of "20-gauge zinc-grip steel or thicker").

Lauder's counsel at one point highlighted that the materials requirement is not just for steel of a minimum gauge, but for zinc-coated steel. This specification neither shows a failure of narrow tailoring nor inadequate alternatives. Lauder has not indicated, for example, that zinc coating significantly increases the cost of a newsrack or that newsracks made of steel but not coated in zinc are available.

Lauder argues that requiring a heavy material for the base is unnecessary because the necessary stability and weight can be obtained by placing bricks, concrete blocks, or bags of sand or gravel inside a hollow base. The advantage of this approach for a small publisher is that it facilitates removing newsracks from the public rights-of-way for maintenance. Ms. Lauder testified that although she could not lift a steel newsrack with a cement base, she could remove a brick, block, or bag from the hollow bottom of a newsrack and remove it on her own, avoiding the need to hire labor to retrieve newsracks. But placing readily removable bricks or blocks in the base presents the problem that they are readily removable, by vandals and children as well as others. Using bags of sand or gravel presents additional problems of corrosion and leakage of the contents.

Lauder also argues that requiring cement bases does not further the City's interest in public safety because the bases present a tripping hazard. Under the ordinance, the cement bases must measure 23 inches, front to back, and must extend no further than 1.5 inches beyond the sides of the newsracks. (Def.'s Ex. 1, § 40-455(b)(5)). As already explained, using uniform cement bases to stabilize newsracks is a narrowly tailored means to improving aesthetics and safety. During one hearing, the Committee's chair, Holm, defended the uniform front-to-back dimension requirements as essential to making tripping less likely. The approach Lauder advocates of using hollow bases of different dimensions in which different kinds of weights could be placed could add to, rather than reduce, the tripping hazard.

An earlier version of the ordinance did have a uniform requirement for the newsrack bases' width. A representative from the Houston Chronicle complained that having a uniform base width would limit the number of newsracks that could fit in the ten-foot banks permitted under the ordinance. The draft ordinance was amended to allow flexibility on width.

Lauder fails to show that the City imposed newsrack requirements that were either ineffective to meet the ordinance objectives or that unnecessarily increased the costs of compliance. There is no evidence of the kind of substantial burden on speech required to defeat narrow tailoring under intermediate scrutiny. Ward illustrates the limited but important discretion cities enjoy in setting time, place, and manner restrictions. The issue in Ward was New York City's requirement that bands giving concerts in Central Park use a city sound technician. Ward, 491 U.S. at 787. The city enacted the regulation in response to complaints about noise from other park users. Id. The court of appeals concluded that there was no narrow tailoring because several less restrictive alternatives existed, including directing band technicians to keep the volume below a certain level, using a volume-limiting device, or simply pulling the plug on anyone whose concert was too loud. Id. at 789. In reversing, the Supreme Court concluded that "[t]he alternative regulatory methods hypothesized by the Court of Appeals reflect nothing more than a disagreement with the city over how much control of volume is appropriate or how that level of control is to be achieved." Id. at 801. Lauder's arguments against the City's ordinance requirements, and the absence of greater flexibility in the choice of materials and method of stabilizing and weighting the newsracks suffer from the same flaw. None of the arguments shows that the ordinance hinders the means of distributing publications so much as to defeat narrow tailoring. "Whenever government draws a line, there will be cases close to the mark. One can always claim that a small change could have accommodated more conduct, at a little sacrifice in the government's objective. Choosing how much to accommodate at what sacrifice in other objectives is precisely the business of government. . . ." Gold Coast Publ'ns, 42 F.3d at 1348 (quoting Chicago Observer, 929 F.2d at 329).

Lauder argues that the ordinance should have been less prescriptive and instead provided for flexible alternatives with more discretion in the parking management division officials. Lauder points to the newsrack ordinance in Gold Coast Publications as support. That ordinance required using one of several specific makes and models of newsracks or an "equivalent," defined as the "same size, dimensions, and style of the specified newsrack." Id. at 1341 (quoting the ordinance). To the extent Lauder argues that the City of Houston should have allowed racks made of plastic and weighted by bricks as an "equivalent" to what the ordinance required, the record defeats her argument. Although the ordinance left open various ways in which publishers could comply — a range of heights and shapes, and the ability to use different kinds of identifying labels — the record shows that the City decided that newsracks lacking cement bases and steel construction were not sufficient to meet the ordinance goals and were not equivalent to the newsracks the ordinance requires. To the extent Lauder argues that the ordinance is constitutionally invalid because it gives officials too little discretion to deviate from the requirements, the law does not support her argument. There are constitutional concerns that arise when content-neutral time, place, and manner restrictions leave such discretion to government decisionmakers, raising the specter of covert content discrimination. See, e.g., Lakewood, 486 U.S. at 757. Not all discretion is constitutionally impermissible, see Int'l Women's Day March, 619 F.3d at 364, but Lauder would have this court significantly curtail the discretion the government enjoys in crafting such restrictions by forcing it to have more discretion in enforcing "flexible" restrictions. When fears of content discrimination are least, narrow tailoring provides "state and local governments . . . some degree of flexibility to regulate . . . speech." Lutz v. City of York, Pa., 899 F.2d 255, 269 (3d Cir. 1990). The City has acted within the range of constitutionally permissible regulation in this case.

3. Lauder Has Ample Alternatives for Distribution

Having determined that the ordinance is narrowly tailored, the next question is whether it leaves open ample alternatives for communication. "While the First Amendment does not guarantee the right to employ every conceivable method of communication at all times and in all places, a restriction on expressive activity may be invalid if the remaining modes of communication are inadequate." Int'l Women's Day March, 613 F.3d at 371 (quoting Taxpayers for Vincent, 466 U.S. at 812). Alternative means of reaching an audience may be adequate even when there is a "`reduction in the potential audience' for speech in the alternative venue." Id. at 372 (quoting Sullivan v. City of Augusta, 511 F.3d 16, 44 (1st Cir. 2007)).

There is no dispute that publishers who comply with the ordinance may place their newsracks on the City's rights-of-way. Lauder does not argue that there is insufficient space left open on the City's rights-of-way for its newsracks. Nor does it appear that there is difficulty in obtaining a compliant newsrack. The record includes advertisements for compliant newsracks, (Def.'s Ex. 18), and successful applications for newsrack permits. (Def.'s Exs. 18). An employee of the Houston Press testified that the steel specifications were industry standard. (Def.'s Ex. 26). Buena Suerte's employee Martinez testified that he had been able to buy compliant newsracks and put them on the streets. Without considering compliance costs, there are clearly ample distribution alternatives to Lauder's noncompliant plastic newsracks. See, e.g., Globe Newspaper Co., 100 F.3d at 193 (holding that street vendors were adequate alternative when newsracks were banned) (citing Taxpayers for Vincent, 466 U.S. at 812 (finding ample alternative channels available where ordinance "did not affect any individual's right to exercise the right to speak and distribute literature in the same place where the posting of signs . . . is prohibited")). Lauder's only argument that it is that it cannot afford compliant newsracks.

As noted above, although no court has struck down a newsrack ordinance because of compliance costs, the cases leave open the possibility that compliance costs can be problematic if they are "prohibitively expensive." Hop Publ'ns, 334 F. Supp. 2d 35, 46-47. Here, as in Hop Publications, the evidence does not show that the costs of compliance leave Lauder with inadequate alternative means of reaching its readers.

Before looking to the record evidence on the effect of the costs on Lauder's ability to comply with the ordinance requirements, it is helpful to note that the City modified the ordinance to give publishers time to comply and to spread the costs of doing so. The City Council passed the ordinance on February 14, 2007. The newsrack specifications first took effect in the Central Business District at the end of the year, on December 31, 2007. Lauder had an additional year, until December 31, 2008, to comply outside the CBD, nearly two years after the ordinance's enactment. The City decided to stagger the effective date partially in response to publishers' concerns. Those concerns included that the financial impact on smaller publishers, such as Lauder. The question is not whether Lauder had cash on hand for immediate compliance, but whether it could afford to purchase compliant newsracks over the nearly-two year period before the ordinance would affect the last of its newsracks in the City's right-of-way.

Ms. Lauder's testimony and the argument of her counsel left it unclear whether she believed the cost to Lauder was beyond its financial capability, as opposed to a cost it would rather not assume. For example, Ms. Lauder testified at the preliminary injunction hearing that she considered it unreasonable that Lauder would have to remove the plastic newsracks it already owned from the public rights-of-way — although it could continue to use them elsewhere — and replace them with compliant newsracks. Ms. Lauder testified that she did not think Lauder should have to take out a loan to comply with the ordinance. But, as noted above, the First Amendment does not protect a right to the most financially advantageous method of distribution.

To the extent Lauder argues that the compliance costs are prohibitive, the record does not support that assertion. Ms. Lauder testified that Lauder owns 65 newsracks, of which 24 to 28 were in the CBD. She estimated the cost of a compliant newsrack to be approximately $300. Assuming that Lauder had 28 newsracks in the CBD and that the cost estimates are accurate, Lauder had ten months to raise $8,400 if it wanted to replace all the CBD newsracks. Lauder then had another year

The City's witness, Maria Irshad, testified that the City had obtained estimates of approximately $200 for a compliant newsrack and base.

to spend another $11,100 to replace the 37 remaining newsracks outside the CBD. Ms. Lauder's testimony shows that Lauder's cost of compliance is approximately $19,500 over a two-year period.

The question, assuming that the compliance costs can make alternatives inadequate, is whether this level of expense is "prohibitively expensive." Lauder has not suggested the appropriate metric for determining whether the compliance costs are prohibitive. But the evidence shows that Lauder could pay the compliance costs. Lauder's tax returns show that its revenues from 2004 to 2008 ranged from between $96,778 in 2006 to $113,507 in 2004, averaging just over $106,700. The cost of replacing Lauder's entire stock of affected newsracks with compliant newsracks would have been approximately 10 percent of the revenues for two years. Lauder has presented no other evidence of its ability to pay. The record shows that Lauder had the financial resources to purchase compliant racks to continue distributing newspapers on the public rights-of-way.

By comparison, Lauder estimated that she had spent between $15,000 and $20,000 on this case by the preliminary injunction hearing.

The First Amendment allows some reduction in potential audience by a valid regulation. See Int'l Women's Day March, 619 F.3d at 372. Even if Lauder could not replace all the newsracks covered by the ordinance, the evidence suggests that it could strategically place compliant newsracks to maximize circulation. Ms. Lauder testified that she stocked the newsracks with approximately 300 copies of the Tribune each month. She would restock some newsracks that ran out of newspapers midmonth. She did not testify that she restocked all newsracks, suggesting that there may be considerable variation from newsrack to newsrack. There is no evidence of the extent of such variation. But whatever the extent, if Lauder could not replace every one of her newsracks, she could prioritize and replace those that reach the most readers, further reducing the compliance costs.

The Fifth Circuit has referred to access to a "potential audience" when considering adequate alternatives. Int'l Women's Day March, 2010 WL 3491532, at *20. This may not correlate perfectly with the Tribune's actual distribution figures, but the actual audience seems the most likely indicator of the potential audience. In any event, the record contains no other evidence that bears on potential audience.

It is also unclear to what extent the Tribune's circulation decline resulted from the ordinance. Ms. Lauder testified that she distributed the Tribune through newsracks located on public rights-of-way and on private property, such as in restaurants, as well as some subscriptions. Total circulation hovered between 20,000 and 22,000 per month. Although Ms. Lauder testified that she believed her circulation decreased "considerably" after the ordinance, she could not testify how much. The evidence does not distinguish between the number of newspapers Lauder distributed through the newsracks on the public rights-of-way as opposed to newsracks located elsewhere.

To the extent that Lauder relies on the cost of plastic newsracks that it can no longer use in the City's rights-of-way, it is not clear that these sunk costs, as opposed to compliance costs, are relevant to determining whether the ordinance compliance costs are prohibitive. Even if relevant, the record provides no basis to determine their extent. And Lauder could use its noncompliant newsracks outside the public rights-of-way.

The record shows that Lauder has alternative means of distribution besides placing newsracks on the public rights-of-way. These alternative means include newsracks on private places frequented by the public. One of Lauder's witnesses was Roy Malonson of the African-American American News, who testified that his company reaches readers by using newsracks located in the underground tunnel system that honeycombs downtown Houston, in other public places that are not City rights-of-way, and in private businesses. Another witness, Ted Weisgal, the president of Leisure Learning Unlimited, Inc., testified that his company was able to distribute schedules for its classes inside private buildings and in the City Hall annex, the downtown tunnels, libraries, and in some street-level businesses in the CBD. Weisgal testified that those locations allowed him to get his message out "to a large extent, but not completely." Although he testified that enrollment in his company's courses had dropped since the ordinance's enactment — from 22,000 in 2008 to 19,000 in 2009 — he acknowledged that economic conditions were also a factor in the decline. Dorris Ellis, publisher of the Houston Sun, testified that she distributes 10,000 copies of her paper each week through approximately 250 locations, none of which are in public rights-of-way. She reached this level of circulation without using any newsracks in public rights-of-way.

Courts have disagreed whether considering means of communication outside a public forum is appropriate. Compare, e.g., Providence Journal, 665 F. Supp. at 118 (rejecting private means outside the public forum) with Gannett Satellite Info. Network, Inc. v. Metro. Transp. Auth., 745 F.2d 767, 774 (2d Cir. 1984) (considering a newsstand as distribution alternative); Plain Dealer Publ'g Co. v. City of Lakewood, 794 F.2d 1139, 1147 (6th Cir. 1986), aff'd on other grounds, 846 U.S. 750 (1988); see also Globe Newspaper Co., 100 F.3d at 192-93 (noting but declining to resolve the disagreement); Gannett Satellite Info. Network, 709 F. Supp. at 536 n. 3 (same). The Supreme Court and the Fifth Circuit have, however, considered private means of communication outside the desired forum to be adequate alternatives. Christian Legal Soc'y Chapter of the Univ. of Calif., Hastings Coll. of the Law v. Martinez, 130 S.ct. 2971, 2991 (2010) (considering an online Yahoo! message group as an alternative to a public law school's bulletin board); Int'l Soc'y for Krishna Consciousness of New Orleans, Inc. v. City of Baton Rouge, 876 F.2d 494, 498-99 (5th Cir. 1989) (upholding a ban on soliciting automobile drivers that left open alternatives of "door-to-door canvassing [and] telephone solicitations"). Moreover, Lauder has not argued that it is inappropriate to consider such alternatives.

Unlike many other cities, where foot traffic is almost exclusively at street level, much of Houston's foot traffic in the CBD is in a private system of tunnels that connect many of the City's major office buildings. Pedestrians use the tunnels to avoid the heat of the summer, traffic, and inclement weather. The tunnels contain many shops and restaurants, drawing pedestrians — that is, potential readers — underground.

Ms. Lauder's testimony, although equivocal, does not suggest that these opportunities are unavailable to the Tribune. During her testimony, she stated, "I keep trying to put them up in the buildings, you know, in the little shopping centers. . . . So I put two [newsracks] . . . in shopping centers. Then I got called by the shopping centers to pick them up, they don't want them there. So anyway, it's difficult to get into somebody's shopping center." Ms. Lauder's testimony does not, however, indicate that she sought permission to place her newsracks at a shopping center before doing so. More importantly, she testified that the Tribune is already available in private locations. This court finds that distribution through newsracks and other means with private-property owners' permission is a significant alternative means of distribution.

Another alternative is door-to-door distribution. Ms. Lauder testified that she distributed the Tribune door to door for the first three to five years of its publication. She faulted door-to-door distribution as a less efficient means of distribution because many free publications distributed to homes go into the trash unread, while a reader who takes a copy from a newsrack is more likely to read it. This does not, however, show that door-to-door distribution is unavailable as an additional way to distribute newspapers. Cf. Globe Newspaper Co., 100 F.3d at 193 (considering street vendors as an adequate alternative to newsracks, even though more expensive).

The Tribune is also available online, which is another alternative means of distribution unaffected by the ordinance. Ms. Lauder testified that she did not know how much online readership the Tribune receives and pointed to the financial problems of being an online-only publication. Ms. Lauder testified that in her experience, advertisers and readers demand a print edition. The Supreme Court has recognized that internet publication may be an adequate alternative to more traditional forms of communication, but that case, decided earlier this year, concerned a university, where students have more consistent computer and internet access than other members of the population. See Christian Legal Soc'y, 130 S.ct. at 2991. There is insufficient evidence in this record to allow a finding as to the extent of Lauder's online circulation. But the record is sufficient to find that it is one of several means of distribution available to Lauder unaffected by the newsrack ordinance.

In some cases, it may be important for a publication to have newsracks on a public right-of-way. Cf. Int'l Women's Day March, 619 F.3d at 372 (noting that "courts have at times struck down ordinances `that push protestors far away from their intended audience'" (quoting Citizens for Peace in Space v. City of Colo. Springs, 477 F.3d 1212, 1225 (10th Cir. 2007))). Ernesto Martinez, who works for the Spanish-language publication Buena Suerte, testified that it was important to have this publication distributed near bus stops on public rights-of-way because many Spanish speakers rely on buses. Lauder did not, however, introduce any similar evidence suggesting that having newsracks on the City's rights-of-way is particularly important to reaching its readers. See, e.g., Weinberg v. City of Chicago, 310 F.3d 1029, 1041-42 (7th Cir. 2002) (concluding that bookstores and the Internet were not adequate substitutes for the parking lot outside the Chicago Blackhawks' arena for an author of a book critical of Blackhawks' management because "Blackhawk fans are a fundamentally different market than the market for bookstore readers or Internet users"); Bay Area Peace Navy v. United States, 914 F.2d 1224, 1229 (9th Cir. 1990) (75-yard security zone prevented anti-war protestors' demonstration from reaching the intended audience, military leaders); Students Against Apartheid Coalition v. O'Neil, 660 F. Supp. 333, 339-40 (W.D. Va. 1987) (school regulation prohibiting protest shanties on lawn of building where board of visitors meets is not rendered valid by permission to erect shanties in other places not visible to members of Board, who were the intended audience); Dr. Martin Luther King, Jr. Movement, Inc. v. City of Chicago, 419 F. Supp. 667, 674 (N.D. Ill. 1976) (permitting a parade route through black neighborhood not a sufficient alternative to a route through white neighborhood when white people were the intended audience). Lauder argued that having some newsracks visibly present on City rights-of way may be important to potential Tribune advertisers. Lauder pointed to declining advertising revenues after the ordinance became effective as support for her argument, but in her testimony, Ms. Lauder conceded that the economic downturn also played a role.

Under the case law, the ordinance requirements for making newsracks consistent in size and color and using decals to identify the publication are properly treated as restrictions on commercial speech, which receive less First Amendment scrutiny. Hoover v. Morales, 164 F.3d 221, 225 (5th Cir. 1998); see also Gold Coast Publ'ns, 42 F.3d at 1347 (treating restrictions on newsrack labeling that made the newsracks less distinctive as restrictions on commercial speech). Even if there were evidence showing that ordinance made placing such decal-adorned newsracks on the streets prohibitively expensive — and there is not — this aspect of the ordinance would nonetheless be constitutional. Although using newsracks as advertisements is more efficient and less burdensome than such alternatives as door-to-door or telephone solicitation, Lauder has not presented any evidence that these alternatives are inadequate. See Int'l Soc'y of Krishna Consciousness of New Orleans, 876 F.2d at 498-99.

The ordinance is constitutional facially and as applied to Lauder. The requirements of using steel of a minimum thickness and a protective coating, and a cement base, are narrowly tailored to the City's substantial interests in aesthetics and public safety and leave ample alternative channels of communication. Considering distribution alternatives other than the rights-of-way makes it even clearer that Lauder has ample alternatives to reach its potential readers and advertisers. Even assuming that an otherwise constitutional ordinance may be unconstitutional because it the costs of compliance are prohibitive, the record does not show that the costs to Lauder of replacing enough of its newsracks in the affected areas to reach a roughly similar audience would have been so prohibitive over the nearly two-year phased implementation period as to raise a constitutional problem.

C. The Permit and Application Fees

Lauder also argues that the fees under the ordinance are excessive. The ordinance requires a one-time application fee of $300 from any publisher wishing to place newsracks in public rightsof-way. Publishers must also seek a permit for each newsrack, at a cost of $5 per newsrack, renewable each year. The City issues a label when the permit is issued, which the publisher must affix to the newsrack. Under certain circumstances, such as if the decal becomes worn, the City may require that the publisher pay $1 to replace it.

"Government cannot tax First Amendment rights, but it can exact narrowly tailored fees to defray administrative cost of regulation." TK's Video, Inc. v. Denton Cnty., Tex., 24 F.3d 705, 710 (1994) (citing Cox v. New Hampshire, 312 U.S. 569, 576-77 (1941)), abrogated on other grounds, City of Littleton, Colo. v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774, 778 (2004); accord Int'l Women's Day March, 619 F.3d at 370. Under this test, courts have approved fees on newsrack permits. See, e.g., Jacobsen v. Harris, 869 F.2d at 1174. "[D]istinguishing a proper `cost of regulation fee' from an impermissible `flat license tax' is a slippery process." Fernandes v. Limmer, 663 F.2d 619, 633 (5th Cir. 1981). Like other content-neutral regulations of speech, fees must be narrowly-tailored. Horton v. City of Houston, 179 F.3d 188, 195 (5th Cir. 1999). Showing narrow tailoring is the City's burden. Int'l Women's Day March, 619 F.3d at 369 n. 31 (citing Hays Cnty. Guardian v. Supple, 969 F.2d 111, 118 (5th Cir. 1992)). For the City's fee to survive Lauder's First Amendment challenge, it must "demonstrate a link" between the amount of the fee and the costs of enforcement. Fernandes, 663 F.2d at 633. There is no requirement that the City recover all of its enforcement costs; a "realistic dent" is enough. Int'l Women's Day March, 619 F.3d at 370 (quoting Horton v. City of Houston, 179 F.3d 188, 196 (5th Cir. 1999)).

Lauder alleges that the licensing and decal fees are beyond the amounts necessary to defray reasonable administrative costs. (Docket Entry No. 24, ¶ 78). The City has presented uncontroverted evidence that the costs of enforcing the ordinance exceed the permit and application revenues. In response to a question from the City's lawyer about whether the fees "covered your administrative cost for enforcement of the program," Maria Irshad, an employee in the City's Parking Management Division, responded, "No." She explained that she and another Parking Management Division employee, Carlos Medel, patrol the CBD and send out notices to violators. Medel also testified and elaborated on the costs. He testified that the City purchased a truck with a lift on the back, which it uses to seize noncompliant newsracks as well as for other purposes. He testified that three to five City employees survey newsracks on public rights-of-way to determine compliance. This work, and the seizure of noncompliant racks, often takes place on Saturdays, requiring the City to pay overtime. The employees' testimony was credible. Lauder has offered no evidence in response. The court finds that the revenue collected through application and permit fees does not exceed the City's implementation and enforcement costs.

The fees are in line with those charged by other cities under similar ordinances. See, e.g., BOSTON, MASS., CODE § 16-38.2(f) (requiring yearly payment of $300 plus $25 per newsrack); DALLAS, TEX., CODE OF ORDINANCES § 43-115(a)(3) (requiring $5 per newsrack per year); MIAMI-DADE CNTY., FLA., CODE OF ORD., § 54-266 (requiring $10 per newsrack per year); SAN FRANCISCO, CAL., PUBLIC WORKS CODE 184.12(d)(6) (charging $30 per newsrack per year).

D. Judicial Review

Before trial, this court dismissed Lauder's claim that the ordinance was unconstitutional because it gave City officials too much discretion. The claim that the City had insufficient procedures for judicial review remained. If a provision for judicial review was required, the ordinance would be unconstitutional. It provides an administrative appeal, but makes that appeal process final. After further consideration, this court concludes that the ordinance, as a contentneutral time, place, and manner restriction that does not vest the City with excessive or unbridled discretion, does not require an explicit procedure for judicial review of newsrack application denials.

Lauder has not asserted a due process claim. See, e.g., Jacobsen, 869 F.2d at 1174 (considering the plaintiff's argument that his due process rights were violated by removing his newsracks before holding a hearing).

In Freedman v. Maryland, the Supreme Court held that a Maryland law requiring government censors to approve films before their release was constitutional. 380 U.S. 51, 58 (1965). The Court stated that judicial review of official decisions censoring speech under this content-based prior restraint was essential to its constitutionality. "First, any restraint before judicial review occurs can be imposed only for a specified brief period during which the status quo must be maintained; second, prompt judicial review of that decision must be available; and third, the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof in court." N.W. Enters. Inc. v. City of Houston, 352 F.3d 162, 193-94 (5th Cir. 2003) (citing Freedman, 380 U.S. at 58-59).

"Until [2002], it was unclear whether the Freedman formulation applied to content-neutral permit schemes designed to ensure public safety in a traditional public forum." Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248, 1260 (10th Cir. 2004) (quoting New England Reg'l Council of Carpenters v. Kinton, 284 F.3d 9, 21 (1st Cir. 2002)). With its decision in Thomas v. Chicago Park District, 534 U.S. 316 (2002), "the Supreme Court erased that uncertainty." Kinton, 284 F.3d at 21. In Thomas, the Court considered a Chicago ordinance that required a permit for certain activities in the city's parks. 534 U.S. at 318-19. Concluding that the factors permitting the parks department to deny a permit were content-neutral, the Court held that " Freedman is inapposite because the licensing scheme at issue here is not subject-matter censorship but content-neutral time, place, and manner regulation of the use of a public forum." Id. at 322. As a result, the ordinance had to "contain adequate standards to guide the official's decision and render it subject to effective judicial review" to pass constitutional muster.

Some courts have interpreted the phrase "subject to effective judicial review" as requiring only sufficient detail to guide decisionmaking and not separate court proceedings. Granite State Outdoor Adver., Inc. v. City of St. Petersburg, Fla., 238 F.3d 1278, 1282 (11th Cir. 2003) ("[W]e are simply required to assess whether the ordinance contains adequate standards to guide official decisionmaking." (citing Thomas, 534 U.S. at 323-24)); New England Reg'l Council, 284 F.3d at 21 (quoting only the requirement of "adequate standards to guide the official's decision"). Although the Ninth Circuit has interpreted the phrase as requiring an explicit provision for judicial review, see Seattle Affiliate of Oct. 22nd Coalition to Stop Police Brutality, Oppression the Criminalization of a Generation v. City of Seattle, 550 F.3d 788, 800-01 (9th Cir. 2008), that is inconsistent with both the First and Eleventh Circuit reading of Thomas as holding that, without narrow, reasonable, and definite standards for issuing permits, a permit, a court cannot effectively review such decisions. The case on which Thomas relies, Niemotko v. Maryland, 340 U.S. 268 (1951), says nothing about judicial review. Thomas, 534 U.S. at 323. Instead, Niemotko noted that the Court has "condemned statutes and ordinances which required that permits be obtained from local officials as a prerequisite to the use of public places, on the grounds that a license requirement constituted a prior restraint on freedom of speech, press and religion, and, in the absence of narrowly drawn, reasonable and definite standards for the officials to follow, must be invalid." 340 U.S. at 271 (citing cases). This is consistent with the approach taken in the First and Third Circuits. Under this approach, Thomas does not require a content-neutral time place, and manner restriction such as the ordinance at issue to include an explicit provision for judicial review, if, as here, the ordinance does not give the licensing official "unduly broad discretion in determining whether to grant or deny a permit." Thomas, 534 U.S. at 323.

III. CONCLUSIONS OF LAW

The City's newsrack ordinance's requirements of 20-gauge or thicker zinc-coated steel and cement bases are narrowly tailored to the City's substantial interests in public safety and aesthetics and leave open ample alternative means of distribution.

The fees under the newsrack ordinance are consistent with the First Amendment because they defray the City's administrative costs.

As a content-neutral time, place, and manner restriction that does not leave enforcing officials with unbridled discretion, the newsrack ordinance need not contain an explicit provision for judicial review.

This court rejects Lauder's First Amendment challenges to Houston's newsrack ordinance. Final judgment is entered by separate order.