In a suit brought by the distributor of sexually oriented newspapers, a Superior Court judge has upheld Glendale's right to limit the number of news racks on its streets but has encouraged the distributor to seek an opinion from a higher court.
Paul Duffy, owner of Kimbo Distributors in San Fernando, who alleged the city's restrictions unconstitutionally infringe on free speech, said he will take the issue to the state Court of Appeal.
In the ruling last week, Glendale Superior Court Judge Robert P. Schifferman refused to issue a preliminary injunction stopping the city from removing the racks.
Schifferman said the city's restrictions are "constitutionally rational" because they are designed to eliminate clutter and protect the public from an overabundance of news racks rather than to restrict free speech.
Cites a 'Proliferation'
"There has been in recent years a proliferation of newspapers," Schifferman said. "There is really only so much space on a sidewalk without having a solid string of news racks stretching from block to block."
Duffy's attorney, Donald Cook of Santa Monica, argued that the city's rules are discriminatory.
The regulations give first priority to general circulation newspapers--defined as those that devote at least 25 percent of news space to local or wire service news--covering Los Angeles County. Second priority is given to other daily publications, and last to weeklies like those distributed by Kimbo, such as the Los Angeles Free Press, Impulse, Swing World and Afterhours.
Cook suggested that space be allocated to newspapers on a "random lottery" basis rather than a priority system based on content.
Schifferman called the argument "a fascinating subject," one he said he "could spend two to three hours discussing." Saying he lacked time to debate the issue, however, the Glendale judge denied Duffy's request for a preliminary injunction. Instead, Schifferman suggested that Cook present his arguments to the state Court of Appeal in Los Angeles.
Cook said he expects to file in the appellate court within two weeks.
The city last summer ordered Duffy to remove 18 of his news racks from crowded locations. Scott Howard, assistant city attorney, said the racks were among 55 ordered removed, including ones containing the Wall Street Journal and other major publications.
The city's news rack ordinance, amended in 1975, permits no more than eight news racks in one location and a maximum of 16 on the frontage of a city block.
Howard said Duffy may keep his racks in their existing locations pending the outcome of an appeal.