A three-judge panel of the U.S. 6th Circuit Court of Appeals ruled Tuesday that Lexington can enforce a 2017 ordinance that would require all unsolicited materials to be delivered to doorsteps or mailboxes.
The Lexington Herald-Leader filed a lawsuit challenging the ordinance in U.S. District Court, saying it violated its First Amendment right to free speech. The Herald-Leader delivers a free weekly newspaper, the Community News, to non-subscribers. U.S. District Court Judge Karen Caldwell issued a temporary injunction in May stopping the Lexington-Fayette Urban County Government from enforcing the ordinance while the lawsuit was pending.
Rufus Friday, president and publisher of the Herald-Leader, said the newspaper is weighing whether it will appeal the decision to the full 6th Circuit Court of Appeals or to the U.S. Supreme Court.
“We believe this is clearly a First Amendment issue,” Friday said.
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Susan Straub, a spokeswoman for the city of Lexington, said the city does not comment on ongoing lawsuits. Straub did not say when the city would start enforcing the ordinance.
The case has been closely watched by others in the news media. The News Media Alliance, a nonprofit that represents more than 2,000 media organizations, filed a brief supporting the newspaper in its fight against the implementation of the ordinance.
The Herald-Leader has argued that recent U.S. Supreme Court cases say governments cannot dictate how news is delivered. Community News contains news and advertising content. The city has countered that it is not restricting free speech — the newspaper can still deliver the Community News — it is only restricting where the newspapers can be delivered.
In its decision released Tuesday, the three-judge panel ruled the newspaper has not shown a likelihood of success on the merits of its challenge to the ordinance. “The ordinance also preserves numerous alternative methods for expression that are inexpensive, efficient and effective,” wrote Judge Eric C. Clay.
Delivering the Community News to doorsteps or mailboxes would be “prohibitively costly” to the newspaper, Friday said.
Under the ordinance, businesses and individuals are required to deliver unsolicited material to the front door, porch or through a mail slot. Violators could face a $200 fine per violation. The Urban County Council voted 9-5 to approve the ordinance in March.
The ordinance was prompted by complaints about delivery of the Community News. Some residents told council members that copies were creating a hazard and blight because the newspapers were found on sidewalks and streets. Newspaper officials have said they have worked with their third-party carrier to stop delivery of Community News for those who request it.
David Thompson, executive director of the Kentucky Press Association, said the case could affect other newspapers in the state.
“I know there are other Kentucky newspapers that have been watching this because they do the same thing,” Thompson said. “But they all have the same opt-out policy that the Herald-Leader has — if you don’t want the publication, just let us know. I know a lot of other newspapers are worried that their city will see what Lexington has done and do the same thing.”