Legal Update

From the Legal Hotline (877-NEWS-LAW)

Newspaper distribution complaints, website copyright issues and more in today’s Legal Hotline recap.

Q. A homeowner is complaining about our newspaper being thrown on his property by our distributor/carrier, claiming that this violates litter laws and subjects us to a private lawsuit or county enforcement fines. He also says that if the litter harms his pets, it is punishable under animal cruelty laws. Is there any validity to these claims regarding the paper or the distributor?

A. The first part of this question actually involves complicated legal issues so pardon the lengthy answer. First, regarding a private lawsuit (as opposed to a city or county enforcement action (see below)), I think it will be difficult for the paper or distributor to defend against using First Amendment claims. The reason is because the few courts that have weighed in on the question (Florida courts have not, far as I know) have said there is no constitutional right to continue to deposit newspapers on private property of an unwilling recipient who has given notice of his objection. As a result, I do think the homeowner in this case could theoretically file a lawsuit seeking damages under the old common law theory of trespass or nuisance, and such lawsuit would not be thrown out summarily on First Amendment grounds. (By the way, I would just note that this is not 100% clear—there actually are a few cases that MIGHT support an unlimited constitutional right to leave newspapers on objecting owners of private property—but I think this is the minority view).

As far as state and local litter laws/ordinances are concerned, the homeowner cannot sue to enforce them—rather, enforcement is the responsibility of code officials and law enforcement officers. The state law DOES give the homeowner the right to seek court damages for violations but only for a “felony,” which means dumping large amounts of litter or litter that contains hazardous waste, which will not apply here.

As far as the paper’s liability is concerned, I would think that any such lawsuit would be limited because you did not distribute the paper. However, this would not prevent the homeowner from naming the newspaper in any lawsuit at the outset, and regardless, if not sued, you could be pulled into it in some manner in the fact-discovery stage.

Further, regarding the distributor’s liability, I think the distributor, based on the evidence, would have defenses against any trespass or nuisance claim based on the distributor’s actions, knowledge, and intent—policies to prevent unwelcome distribution, no-throw lists/data base, communications to drivers, reflective stickers, pick-up of wrong deliveries, etc. But even if after the evidence were reviewed and liability WAS found, I find it hard to believe any court would impose compensatory or punitive damages on the distributor. At best, I would think there could be an injunction preventing distributor from delivering on the property and perhaps some form of nominal damages ($1, $10, $100) recognizing the plaintiff was right but had no financial damage.

Regarding county enforcement action, I suppose it is possible that the owner could complain loudly enough to provoke some action by the county code officials to enforce the county ordinance or the state litter law. In that case, you and your distributor will be in a much better position to challenge such action in court and there will be much greater constitutional scrutiny on the local government action and the underlying state statute and local ordinance as well. The courts will give a lot of credence to First Amendment protection of news distribution and likely will attack the statute/ordinance on the basis of over-broadly comparing “paper litter” with a printed product that brings valuable information to citizens. There are a lot of cases that would support your/the distributor’s right to have any enforcement action in this situation dismissed.

I do suggest considering policies to reduce any unwanted distribution. I also agree it is good practice to recognize the homeowner’s problem and attempt to address it and alert the distributor. Maybe the distributor also should be alerted that there is potential liability in continuing to deliver over objection and that he must be diligent about this.

As a practical matter, if feasible, you might consider placing a street rack and stopping delivery around this person. Finally, perhaps the papers are being placed there as a prank by teenagers or others—if so, maybe the distributor can do some investigating?

As far at the animal cruelty law, that seems pretty far-fetched to me.

Q. We are looking into putting a policy in place that would stop people from copying our stories off our website and posting them on their own sites. And I don’t mean linking to our site, which I think would be fine. For example, the arts group I wrote about this past week posted the story on their site. Our website gets little enough traffic as is and it’s already free so it ticks me off when people take it even a step further and then it gets spread on social media and we get no web traffic. When I see it, I could ask people nicely at first to just link to our site, but I didn’t want to do anything like that without a policy in place. Do you have any info how we can protect our content from web sites using our content without permission or asking. Do we need to copyright our papers?

A. For guidance on this question, we turned to our copyright expert in Tampa, Jim McGuire, with the Thomas & LoCicero firm. Jim advise that other websites do not have the right to copy an article from a newspaper’s website onto their own site. That conduct is straightforward copyright infringement. The paper, however, cannot bring a copyright lawsuit unless and until it registers the copyright. The cost of registering every issue of the paper may be prohibitive for some papers.

At the same time, even without registration, the paper owns the copyright and needs to let infringers know that their copying is not permitted and could lead to a lawsuit. (Keep in mind that the infringer won’t know whether the paper has registered the copyright, and may not know that registration is necessary.)

In the instance described below, Jim thinks the best approach is a friendly but strongly worded email stating that the paper is the author of the work and the owner of the copyright, the paper incurs significant costs to report the news, and that the paper has not granted anyone permission to copy or re-publish its work. Such copying or republication is copyright infringement. Accordingly, the paper requests that the infringer immediately remove the copies of the work from its website; posting a link to the work is fine. Obviously, the paper hopes to avoid litigation over this matter and expects its request to be complied with promptly, etc.

Q. Our fair city is implementing a rack ordinance because we understand the mayor really hates the newspaper boxes (all of them not just ours). The draft ordinance would require us to replace our boxes and secure them to prevent being cited for code violation. We will also have to get permits for each box.

A. Here are some thoughts on the proposed ordinance:

Generally, although the right to distribute newspapers is a constitutionally protected activity (Orlando Sentinel v. Watts (1991 11 Cir.)), the city can choose, limit and restrict the total number of rack locations in the designated areas. However, there are some limitations on that ability. First and foremost the location criteria must be content-neutral. That does not seem to be a problem for the most part here as the permit and standards in the ordinance are not based on anything to do with what is contained in the publication.

Beyond the content-neutral requirement, the placement limitations must be “narrowly tailored to serve a significant government interest.” Usually in rack cases, the courts will not dispute the local government’s claimed interest of aesthetics, pedestrian safety, traffic management, etc. Rather, they will focus on whether the regulation scheme is narrowly tailored to serve those interests. In other words, the courts will ask if the city’s plan is “substantially broader than necessary.”

The main problem with the ordinance is the required submittal of an engineer’s installation certification with each rack application. This presumably expensive requirement does not appear to be necessary and/or narrowly focused to serve the city’s (granted, legitimate) interest in protecting citizens and property. It seems those interests can be adequately served by requiring some basic criteria for the rack design/construction to secure the racks in high winds/storms (e.g., racks must be bolted on specified base plate, mounted on specified concrete sidewalk or slab, certain bolt criteria, etc.). Further on this point, some cities impose a liability insurance requirement in addition to general mounting criteria—is this an option?

Also, are the racks being singled out for disparate treatment? For example, vending machines are “outdoor displays” but they do not need an engineer’s certification—although they do have to be “removed and placed inside a…building at the end of each business day.” Additionally, regarding signs, there are a lot of regulations in these other codes but I did not see anything equivalent to this one for racks.

Regarding the $50 permit application fee in the city ordinance, “one permit for each rack is required.” Also, it appears the permit is for a set period, as it expires Jan. 31 of the year following permit issuance. This means the $50 fees could add up pretty quickly. To reduce this, some ordinances allow submittal of multiple locations in one application. Further, some cities require a general fee from the rack owner, say $50, and an additional $10 per rack. Finally, some localities require only a one-time permit that remains in place unless there is a violation. The legal background is that licensing fees are permissible but the city my charge no more than what is needed to cover administrative costs and it may not profit by imposing the permit fee on First Amendment rights. I don’t know if the fee is a problem for you but I wanted to raise it.

Regarding location standards, the ordinance says that each rack permit application must identify the “specific location” of the rack. After receiving the application, the city will then specify in the permit “the exact location of the news rack.” However, the location criteria seem vague or over-restrictive to me. Namely, the city has confined racks to within 20 feet of a variety of reference points, including rights of way, marked and unmarked crosswalks, driveways, mailboxes, utility poles, permanent fixtures in a right of way, etc. However, how will the applicant know where the legal “rights of way” are located? What is a “permanent fixture”? What constitutes a “mailbox”? Maybe the ordinance should incorporate specific visual references (marked cross-walks, private driveway, traffic signs, etc.). Also, the 20 feet is across the board—some points may justify a shorter distance.

Finally, the maintenance criteria should at least refer to being “reasonably” free of those conditions cited. There are harsh results possible for a citation–short notice to correct “violations” and a $100 fine per day if not corrected.

Overall, it is hard to predict if a Florida court would find this ordinance valid or invalid on its face. Although the general test for viewing it will be as outlined, different courts have placed greater weight on different components of the test. There is case law if you need that–the Gold Coast case comes to mind.

Q. Florida law (section 63.212) prohibits ads that a minor is available or sought for adoption, except by “adoption entities” which include “intermediaries,” which include Florida attorneys. Is a notice of publication and order from a state court such a prohibited ad?

A. No, this is a court ordered notification for constructive service of the defendant not an actual “ad” within the meaning of the statute. It is further differentiated from an ad seeking an adoption in that it appears that the child will be referred to only as “minor child.”