Supreme Court Declines to Hear Licensing Case

Grapevine Vendors Will Soon Face City of Cleveland Oversight

by Tom Hayes

            On October 20th, the United States Supreme Court rejected an appeal on behalf of the Northeast Ohio Coalition for the Homeless (publisher of the Homeless Grapevine) and the Nation of Islam (publisher of the Final Call) in their case against the City of Cleveland. The three-year-old suit, brought by the American Civil Liberties Union (ACLU), was intended to stop the implementation of a city ordinance requiring the licensure of newspaper vendors.

            “This is an effort to sweep the streets of Homeless Grapevine and Nation of Islam vendors,” said Kevin O’Neill, lead counsel for the ACLU, “The City has taken a regulatory scheme that has been around since the 1920s, clearly designed to deal with hot dog vendors, vendors of peanuts, and other wares, rather than passing specific legislation. It’s like trying to jam a square peg into a triangular hole—it doesn’t quite fit.”

            The City Law Director, Sharon Sobol Jordan, would make no comment; however, in an article in Issue 20 of the Homeless Grapevine, Sobol Jordan suggested that the City was concerned about fraud by unlicensed vendors. Sobol Jordan did not feel that commenting at this time would be beneficial since the Grapevine was in negotiations with the city on the specifics of licenses.

            In 1994, the City of Cleveland’s police force began routinely ticketing vendors of the Homeless Grapevine and the Final Call newspapers for the unlicensed sale of merchandise on the City’s streets and sidewalks. The question as to whether or not a newspaper constitutes a piece of merchandise to be regulated in the manner of other street commodities is still very much open to debate, even with the recent Court decision.

            “You cannot regulate the sale of a newspaper like you regulate the sale of a hot dog,” said O’Neill. He went on to point out that there is a distinction between merchandise for sale on a street and a newspaper, which is a vehicle for speech—that the Bill of Rights guarantees a superior level of consideration for speech items than for other commodities. Further, O’Neill was quick to address the question of fraud, “any judgment that relies on fraudulence has no application to newspapers…it is opening up a relaxed standard of review. There is a level of intellectual dishonesty underpinning the Sixth Circuit’s decision.”

            In its brief presented to the Supreme Court, the City claimed that its “registration process enables the local authorities to have some ability to account for the many individuals who conduct their commerce on city streets and sidewalks,” that “Cleveland has a legitimate and indeed unchallenged interest in regulating the business of peddling.”

            Section 675.01(a)(2) of the Cleveland ordinance defines “peddling” to “include ‘selling, bartering, or offering or exposing for sale or barter any goods, wares, merchandise, menial tasks, such as painting numbers on curbs, food or beverages from, in, upon, along, or through the highways, streets, or sidewalks of the City, or in the open air or from a temporary

shelter or vending device upon private property in the City.’”

            On July 24, 1992, the peddler license fee was set at $50.00 by ordinance. The component controls associated with the license costs include the “application process, supervisory costs, license issuance, miscellaneous paper costs, and annual field maintenance.” However, specific instances of what each of these component areas includes could not be verified. For instance, does field maintenance include officers already on the street, or will new officers be hired specifically to regulate street vending? In addition a vendor would need to purchase a $100 “peddlers mobile permit” for each downtown zone.

            Brian Davis, Director of the Northeast Ohio Coalition for the Homeless, wondered why a fee should be charged of vendors to cover the expense of something officers were already doing.

            After meeting with initial success in challenging the enforcement of the ordinance, winning a ruling by the United States District Court for the Northern District of Ohio, the newspapers lost on an appeal by the City to the United States Court of Appeals for the Sixth Circuit—a court known to be more conservative in its rulings.

            “The City is playing a shell game with legal precedent,” said O’Neill. The City paid little attention to the free speech element of previous cases, choosing instead to focus on cases for their consideration of the right of regulation. “The City invoked other lines of precedent: parade cases, which charge a preliminary fee” due to the redirection of police, the number of people gathered, clean-up costs, and the upheaval of traffic patterns; and “cases involving regulation of fund-raising and charitable solicitation,” like the Salvation Army’s bell-ringers at Christmas. None of these apply themselves directly to the sale of newspapers, according to O’Neill.

            O’Neill said that the right to express an idea, which is offensive or distasteful to the general public must be guaranteed. Then it can be debated, argued or disregarded, but the city cannot oversee the dissemination of this information. He said that the City has “no legitimate right to function as a gatekeeper” to the expression of ideas on the sidewalks.

            In Issue 20 of the Homeless Grapevine, Law Director Jordan reportedly stated that the law department supports civil rights and the First Amendment, and that “I am pretty sure the Mayor does too.” But, as O’Neill pointed out, the City “drafted a lengthy and well-written brief urging the Supreme Court not to take the case…” and that Mayor White has “shown a lack of sympathy for street newspapers…that the whole impulse to license street newspapers is indicative of this hostility.”

            “This is absolutely a retreat from years of case law that protected the sidewalks as a forum for public speech,” says Davis, “if we no longer have access to the sidewalks to speak to the public, then what is left? The sidewalk was the last place that government had not put its dirty, filthy, censoring hands.”

            Rodney A. Smolla, a Constitutional lawyer, asserts, in his book Free Speech in an Open Society, “We may start with the rationale that humankind’s search for truth is best advanced by a free trade in ideas. In the words of Oliver Wendell Holmes, ‘the best test of truth is the power of the thought to get itself accepted in the competition of the market.’” Smolla, however, is quick to point out some of the flaws with the marketplace theory of speech: “The marketplace of ideas, no less than the marketplace of commerce, will inevitably be biased in favor of those with the resources.” Herein lies one of the greatest problems with the case under consideration: what effect does a $50-$150 license fee have on a homeless vendor of a street newspaper?

            The City has claimed in its brief that the “petitioners (the two newspapers) alleged inability to pay the $50 peddler registration fee was not legally material to determining whether Cleveland’s ordinance violated the First Amendment…” However, the ACLU insisted that this case is “about the power of municipalities to erect steep cost barriers to the sidewalk distribution of political and religious ‘street’ newspapers.” In order to sell their speech, vendors of the newspapers must pay; and the inability to pay results in a necessary and inhibiting silence.

            In an era of welfare reform, with a demand for jobs and an admitted lack of entry-level jobs, Davis wondered where the Grapevine fits. Davis asked, “How will the Mayor’s policy stand up with Governor Voinovich’s plan to ‘shift Ohio’s welfare system from entitlement to employment’—especially when those few homeless people who exercise their entrepreneurial spirit, earning a living by the sale of a newspaper, are now banned from Cleveland?

            “It’s going to be awful,” says Bob U. Banks, a Homeless Grapevine vendor, “They’re putting us in the back roads of the city…they want us to be in areas where you can’t make money.” Banks was further troubled by the ordinance’s effect on his ability to get to “regular” customers who look forward to getting a new Grapevine. “How are you going to bring it to them when they’re in areas you’re not allowed to be?”

            But the implications are far greater than economic. “In my opinion,” says Davis, “[the City is] attempting to assert some control over the sidewalks…we saw that this was behind the mayor’s kidnapping and dumping policy, and now we see a subtle way to implement an out-of-sight, out-of-mind policy toward the homeless.” The City settled a lawsuit with a group of homeless people who were picked up against their will and transported to remote locations by giving $9,000 and issuing public statement guaranteeing the rights of homeless people.

            Any rumination of the facets of this problem make more dubious the City’s assertion in its brief to the Supreme Court that “the petitioners’ misguided attempt to portray themselves as ‘targets’ does not make an otherwise unremarkable case any more significant.”

            Or does it? O’Neill advised caution when considering an administration that “cloaks it actions in the impenetrable prose of legalese to rid the streets of two newspapers the mayor is not happy with.”

            Ultimately, it is difficult to tell what kind of an effect the ordinance will have on the lives of the vendors of the Homeless Grapevine and Final Call, or on the newspapers themselves.

            Davis does not think the ruling will have any effect on the ideal or mission of the Grapevine, which is to “get the words of homeless people on the streets.” However, he admits that the effect on its physical distribution will be difficult to overcome. “Sending a homeless person down to City Hall to get a city-issued license is going to make recruiting new vendors very difficult. Many homeless people are distrusting of the ‘system,’ because most have been betrayed by government.”

            Until any resolution is achieved, the words of the Homeless Grapevine’s Training Director, Stanley Williams, sum up the general feeling of everyone who has a stake in the newspaper, “we’ll bide our time…we’re just waiting to see what happens.”

Copyright NEOCH and the Homeless Grapevine published 1998 Issue 24