Herald-Leader fighting ‘unconstitutional’ ordinance

It’s been brewing quite a while, efforts by the Lexington/Fayette County Urban County Council to control distribution of ‘unsolicited print materials.’ While it would appear the Herald-Leader’s ‘Community News’ is at the center of the controversy, the council says it’s an effort to control all printed materials that are thrown on sidewalks and in yards — from pizza coupons to telephone books.

Consideration by the full council gained momentum about three weeks ago when a council committee voted 8 to 2 to move the ordinance to the full council for a vote. That vote could take place within the next couple of weeks.

But arguments in letters submitted by John Bussian with Bussian Law Firm in Raleigh, NC. and renowned newspaper attorney Michael Zinser, with Zinser Law Firm in Nashville, point out a 2015 U.S. Supreme Court decision in 2015 that ruled such regulations are in violation of the First Amendment and are thus unconstitutional. Zinser quoted the same Supreme Court decision — Reed v. Town of Gilbert, 135 S.Ct. 2218 — handed down this past June. Letters have been sent individually to Mayor Jim Gray, Law Commissioner Janet Graham and each council member. KPA also submitted a letter on behalf of the Herald-Leader.

Zinser noted in his letter that he is representing CIPS marketing, the company that has the contract to deliver the Herald-Leader and its related publications.

In their letters to the Urban County council, Bussian and Zinser note that the Supreme Court decision “makes it clear that content-based regulations like your draft ordinance — banning driveway distribution of unsolicited, written materials, while the City and County allow dissemination of solicited, written materials via any mode of distribution — are at odds with the First Amendment and are unconstitutional.

The Herald-Leader has put into place several safeguards to address the “aesthetics and safety concerns” of the Urban County council, including non-delivery of those materials to residents who request the publication not be delivered to their address.

Bussian, in his letter, asks the council at least delay consideration until a conversation can take place between attorneys of both sides. In his letter to Law Commissioner Graham, Zinser asks that the council defeated the ordinance.

Both attorneys have told the council that if it proceeds with the ordinance, the Herald-Leader will file suit “to stop the violation of the First Amendment rights, and will request attorneys’ fees be awarded” by the court against the Fayette County government.

For story on Urban County council committee’s consideration of the ordinance, go here — http://www.kentucky.com/news/local/counties/fayette-county/article107530202.html

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