Photo courtesy of here.

In this article, Councilmember Chris Bortz responds to an article posted at The Beacon entitled ”Chris Bortz:  Curb appeal more important than Constitution?” He provides follow-up to some potential misunderstandings from the poorly explained Enquirer article, and addresses issue of free speech access as well as newspaper rack placement.

The simple answer is that the city lost the lawsuit to the bench billboard company because the city did not follow adequate guidelines for notifying the company of an impending bench removal and did not provide for storage for removed benches.  The company suffered damages as a result.

Longer answer: Our first legislation on the subject this past year cleared the way for the city to remove illegally placed benches (they have never been permitted under the conditions outlined in the Enquirer article - none of those requirements are new, e.g. no ad bench may be placed adjacent to existing benches or shelters at bus stops - all that has been the law for years).  Further, though not a major legal issue, the bench company pays the city $30 per year per bench to use the public right of way.  In turn, the company charges anywhere from $18 to $35 per week to advertisers.  The company earns, net of permit expense, a minimum of $900 per year per bench.  There are over 1,000 benches in the city.  The math is straightforward.  In effect, the company makes a substantial profit by using the public right of way.  Given the quality of the benches, it is clear that the company’s profits are not plowed back in to the product.  The city has no say over the content of the paid advertising, the quality or type of bench used, and, until recently, could not legally remove illegally placed benches.  Interestingly, the last time the city tried to deal with the issue, the company offered free advertising to community groups and community councils to win political support.

The next step is to choose between a handful of options: 1. do nothing 2. remove these benches completely and replace with a non-advertising product that provides needed seating at bus stops 3. impose quality control standards and review all application in a public forum and select competitively based on product quality and revenue to the city or 4. select a different, preferred advertising product and grant permits for only that product to any company offering the product.  My personal preference is option 2.  There is no absolute First Amendment right to use the public right of way for profit by placing paid advertising.  That kind of speech (commercial speech) is protected, but the State (read the government) has no obligation to offer public property for private, for-profit use.

As for newspaper racks, some cities across the country have found attractive solutions for the placement of printed materials in the right of way, and those solutions have passed constitutional muster.  There are two examples. One is referred to as a “condo”.  It is essentially a single unit with multiple cubby locations for dispensing publications.  There is an advertising slot on the exterior of each cubby to identify the publications within (some condos identify publications with stenciled ads, in similar style regardless of publication, and others offer a slot into which a publisher may place whatever they want to advertise their product).  Some vendors get very creative with the style and design of the condo.  The condos come in all sizes and can easily accommodate as many as 20 separate publications (both paid and free). The other example, less appealing, is a corral, or essentially a fenced enclosure that is somewhat decorative into which a publisher may place their own dispenser.  They may be built to suit.  Local design firms have shown an interest in taking on the design of these condos or corrals on a pro bono basis.  We could make Cincinnati’s version totally unique.  Whether we charge a nominal fee to users to maintain the condos or corrals is open for discussion.  A fee may be reasonable and may still be cheaper to the publisher than maintaining their own dispensers.

The intent of this exploration is not to remove publications from the right of way, but rather to make the appearance more uniform and attractive, it also provides an opportunity to offer some public art for an otherwise uninteresting venue.  I have no intention of pushing this item without first communicating with the publishers in town.  This is an opportunity for improvement, not a battle. 

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