Rest-stop newsrack ban struck down

SOUTH DAKOTA–The U.S. Court of Appeals in St. Louis (8th Cir.) upheld a 1995 federal District Court ruling that state regulations limiting vending machines at rest stops violate a newspaper publisher’s First Amendment rights.

In a late-March opinion, a unanimous panel of the court held that the distribution of newspapers at interstate highway rest stops is “fully compatible with the state’s interests in providing safety, rest, and information to interstate travellers.” The court concluded that the statutes restricting commercial sales and distribution are unreasonable and unconstitutional when applied to newspapers.

Harlan Jacobsen, the publisher and distributer of Solo RFD, a newspaper for single adults, sued the state transportation and highway safety departments after a Solo RFD vending machine was removed from a rest stop by a state employee. The newsrack was removed in accordance with state statutes prohibiting all commercial activities except soft drink vending at rest areas and information centers.

Jacobsen, who sells his papers from newsracks in Iowa, Minnesota, Wisconsin, Missouri and Kansas rest stops, argued that the South Dakota regulations are unconstitutional and that the removal of his vending machine constituted a seizure of property without due process.

The state argued that a rest area is a nonpublic forum, subject to the state’s regulation. It maintained that a federal statute stating that “vending machines may only dispense such food, drink, and other articles as the State highway department determines are appropriate and desirable [and may] only be operated by the State” delegated the authority to regulate vending machines at interstate rest areas to the states. The district court rejected this argument and found that the federal statute granted states limited authority to control the placement of vending machines.

The state also contended that since the purpose behind both statutes is to prohibit commercial activity at interstate rest areas, the prohibitions only incidentally regulate speech. However, the appellate court ruled that because the statutes ban the sale of newspapers, the interdiction is not “incidental” and the statutes are unconstitutional when used to limit news distribution. (Jacobsen v. Howard; Media Counsel: pro se)