Lauder, Inc. v. City of Houston, Texas

REVISED
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 10, 2012
No. 10–20802 Lyle W. Cayce
Clerk
LAUDER, INC., doing business as Houston Tribune and Heights Tribune,
Plaintiff – Appellant
v.
CITY OF HOUSTON, TEXAS,
Defendant – Appellee
Appeal from the United States District Court
for the Southern District of Texas
Before DeMOSS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:
This appeal involves a First Amendment challenge to a newsrack
ordinance enacted by the City of Houston in 2007. The ordinance requires
newsracks on the City’s rights-of-way to meet certain material, size, and
placement standards and requires publishers using newsracks to pay a permit
fee. Lauder, Inc., the plaintiff, publishes a free monthly newspaper funded
almost entirely by advertisements and uses newsracks to distribute the paper.
The plaintiff alleged in its complaint that the ordinance violates the First
Amendment because, among other reasons, it was not based on an established
record of specific problems; it imposed detailed requirements without allowing
No. 10–20802
City officials discretion to deviate from them; and it was not sufficiently tailored
to the problems it was intended to address. In response, the City asserted that
the ordinance was carefully drawn; was adopted after hearing from many of
those affected, who were given opportunities to express their concerns; and was
modeled after similar ordinances enacted in other municipalities.
The district court held an evidentiary hearing in 2008 and denied Lauder’s
application for a temporary restraining order. The parties conducted discovery
and the district court held a two-day bench trial. Based on the pleadings, the
evidence, and the applicable legal authorities, the district court determined that
Lauder’s First Amendment challenge to the City’s newsrack ordinance failed as
a matter of law.
The district court’s opinion published on November 4, 2010 was
exceptionally thorough and well reasoned and we AFFIRM. See Lauder, Inc. v.
City of Hous., 751 F. Supp. 2d 920 (S.D. Tex. 2010). The background presented
in that opinion accurately reflects the procedural history, the facts, and the
narrow nature of the newsrack ordinance.
With regard to Lauder’s appeal, we determine that it is without merit for
essentially the reasons stated by the district court. The City’s ordinance’s
requirements of 20-gauge or thicker zinc-coated steel and cement bases are
narrowly tailored to the City’s substantial interests in public safety and
aesthetics and leave open ample alternative means of distribution. The fees
under the newsrack ordinance are consistent with the First Amendment because
they defray the City’s administrative costs. As a content-neutral time, place, and
manner restriction that does not leave enforcing officials with unbridled
discretion, the newsrack ordinance need not contain an explicit provision for
judicial review. As did the district court, we reject Lauder’s First Amendment
challenges to Houston’s newsrack ordinance. AFFIRMED.
2