I've been "invested" -- to use Council President Todd Stevenson's term -- in the fight against the proposed newspaper vending machine ordinance since August 5th when I first found out about it. (The text of my speech to the Common Council on August 6th can be found here and the audio here.)
I'm only going to post the speech I made last night, September 23rd, at the Public Services and Safety Committee meeting, as well as the rebuttals by Mayor George Scherck and Stevenson. Commentary will come later after I've slept off the cold I have right now.
First, my speech. This was given before the PS&SC. In the audience were three members of the Neenah Business Improvement District who all were "invested" in the outcome, too:
I'd like to return to a theme from August 6th: Anything can be prohibited: just require a permit.
Four weeks ago, Mr. Stevenson, at the last Public Service & Safety Committee meeting, mentioned that the cost of putting in a city-approved newspaper vending machine is simply a business thing and it can be budgeted for and overcome. But lets look at the magnitudes: purchase price, installation, inspection, and permit fee, the total comes close to a thousand dollars - a total 40 times more than the permit fee alone.
I don't see any of the business owners on Wisconsin Avenue spending $1000 each to prevent newspaper vending machines -- NVM's -- from cluttering up their sidewalks. No, all they have to do is pull a string or two, speak a few words into someone's ear…and voila! An inspiringly-worded ordinance! Of course, research and due diligence had to be performed to determine what the city's limitations are. How far can the city go to inject prettification language into an ordinance that steps on the First Amendment?
The business and store owners along Wisconsin Avenue don't like how these things look. But if the city doesn't word this ordinance just right to accomplish the goal of eliminating NVM's, it could get challenged in court and the city might be embarrassed.
So the ordinance contains all those sections about morals and public safety and convenience. These, we are told, are the virtues that trump the First Amendment-protected status of NVM's. But the business owners on Wisconsin Avenue don't have to spend a thousand dollars to revoke the currently legal status and privileges of NVM's. The vendors get to do that themselves!
What is the deal, really? I saw the slides that Mr. Haese prepared for the last PS&SC meeting, the ones showing NVM's in a jumble after a heavy snow. Some poor sap who wants to clear away the snow from the front of his shop doesn't have a clear shot with a shovel out to the curb because these public blights are in the way.
If there MUST be a law, how about my suggestion from four weeks ago? Require an imprint on the side of each machine in clear view that is a telephone contact for the person or organization responsible for its installation and maintenance. Somebody gets a burr under his saddle that the machine is out of place, or it's tipped over, empty, or broken…one phone call to the contact phone number and the vendor's got 12 hours to rectify the situation. If not, take the darned thing off the street.
Why require the purchase of expensive, city-approved equipment, and the installation, leveling, and permit fee for a lousy NVM for free newspapers? Why is this so urgent?
We have a lot of people on the BID Board that have an ability to get things done. They also have an aversion to being thwarted. They like getting their own way. They've spent time and money to improve their little piece of downtown Neenah. They speak persuasively and eloquently about making and keeping the downtown as attractive as possible. And they know how to play the political game.
Now they're presented with these things, these newspaper vending machines. They don't line up, they're not uniform in color or shape or size. They're not full of fresh papers all the time. But the business owners are wary: that's private property that has a special Constitutionally-protected status. Right there in front of their stores.
So, in their capacity as community organizers and leaders and by virtue of their close association with the city of Neenah … How about getting an ordinance passed? Thereby they don't have to spend anything to get rid of these things. Through the democratic process and a simple majority vote of the City Council, they get to deprive others of rights those others used to have. And, in the process, force those others to spend a considerable sum to swallow a reduced set of rights.
Instead of handling this as one neighbor to another, this group of "neighbors" in downtown Neenah wants to invoke the full force and authority of the law to put the hammer down on currently law-abiding citizens.
People might not give two figs for NVM's. They may never have pulled a paper out of one of those things, whether they're free or you have to plug 'em with a quarter. But the idea that through the use of the democratic process, what was once legal now becomes illegal because one group didn't like the way NVM's look makes the whole system look bad. Pretty it up with talk of protecting morals and public safety and freedom of the press, but strip away the flowery language and the feel-good chatter and tell it like it is: the newspaper vendors are to be made to pay for having their rights taken away.
It isn't fair. It isn't American.
After I spoke, the three worthies from the BID Board spoke in favor of the proposed ordinance, using well-worn arguments for orderliness, uniformity, safety, convenience, and apple pie. Then the Mayor spoke. These are his comments:
If this was really about the First Amendment, newspapers are really vigilant on that subject, and if they really saw this as an attack on the First Amendment they’d have been all over us; and yet they’ve been strangely silent.
Secondly, with all due respect, Steve, your speech was eloquent, but criticism of the BID Board may have been a little over-the-top. This is a group of people…in fact it’s interesting if you look at the three people that are here representing the BID Board and where their locations are of their businesses, they’re not straight downtown. They’re on the extreme end, end, end. So they’re on the outskirts of what could be called the core downtown.
This is not an ordinance that’s aimed at the 100 and 200 block even though that’s where the problem is most pronounced. I think it’s important that we recognize that the BID Board is a group of people that, in effect, voted to tax themselves so that they can raise additional funds so that the city didn’t always have to do everything; that the private sector could step in and take care of maintenance issues to keep the downtown vibrant … and the results are obvious: we have a 97% occupancy rate downtown when most downtowns are dying.
And then finally I think, you know, the issue of a permit. I heard a comment at one of our earlier meetings that the permit would drive some people out of business. Certainly if a $25 permit is going to drive them out of business, they are probably better off looking for another line of work. The thousand dollar cost…these machines are made out of metal and are going to last a long time so if you amortize over a period of years it’s really not an extremely high cost.
We regulate and permit lots of things, and the purpose is not to drive it out of business or to destroy it, it’s to regulate it; so that the city has control over what we should have control over. The best example recently is signage. If anything fits under the broad umbrella of First Amendment it would be signs, and yet we passed a rather restrictive sign ordinance that specifies where they can be, how big they can be, location … and if I’d had my say it would have gone probably a little further than that. We certainly had no difficulty regulating that.
I think we have a basic responsibility to what do we want the community to look like, is what it comes down to. If you want it to look like those pictures that you saw that’s one thing; if you want it to be in keeping with the money that this community has poured into a lot of sections of our community … Lets not forget that this is not a downtown issue. If it’s where there’s lots of traffic I can think of a whole lot of places that I’d put a box. Because there’s lots of places where there’s a lot of people. And if all I had to do was take a cheap plastic box and chain it to something, might as well chain ‘em to the roundabouts or anyplace else where there’s lots of traffic; and you could start peddling your wares.
So I think it’s a mistake if we focus on – even though the representatives that are here are speaking for the downtown area – this could affect Westowne; that could be the next major location. That’s a growing, prosperous section of our community. I can see a lineup of boxes on Winneconne Avenue which would certainly be a great entrance to the city. They could be a lot of places: the new Pick ‘n Save, you name it.
I think we have to be a little bit careful here when we start making generalizations about where this applies and what it’s designed to do. It’s certainly not an attack on the First Amendment, because there’s nothing that prevents the distribution.
Finally, the comments of Council President Stevenson:
This issue has gained a lot higher of a profile than I would have assumed that it would have ever gained when it was first brought to us. It’s gained that profile, I guess, because there’s a constituency out there evidently on both – I’m not going to call them “sides” – on each of the dynamics within the issue, whether it’s political or whether it’s functional, that have a vested interest in it. When I first read the ordinance I thought, my goodness, we’re going to limit people by having a 14-and-a-half by 7…and if it’s not quite 7, another manufacturer comes out and says this is good enough…and so we identified the over-specification of the issue to the point where we are today.
I’ve always been of the opinion that if … with … and this seems to have had the First Amendment overtake the right and responsibility of ownership aura. We have the responsibility to manage a safe and protective environment for those that utilize downtown; whether they are a business owner, whether they are some young sap … and I would agree with the Mayor, Steve, on your interpretation of, not only the BID Board – you can talk to those people any way you want – but when you start classifying someone who is earning a fair living, trying to reduce snow as a “poor sap”, I think that’s a bit far.
We have a responsibility to those people to be able to manage though their areas that they have an investment in, in a safe and clean manner, and at the same time challenge those that want to impose the First Amendment on us to do it in a responsible way that protects the investment that we made in downtown and protects the investment that the individual property owners that are forced to deal with the current situation in the manner that if I was … had a business downtown and every morning I had to come and pull the lightweight plastic whatever container out of my doorstep because the wind blew it up there again, and, OK, so it happens in the summertime, but if it happens in winter, now I’ve gotta trudge through the snow and get rid of that first and I gotta help shovel and get my people, and I’ve gotta move it somewhere because I want to make sure I’m getting my customers into my business but I have to deal with these other issues.
We have a responsibility to manage our property in a safe and controlled environment. Now is we start seeing this same development out in Westowne and on private property, I think we owe it to those property owners to give them the tools that they can effectively control their investment in those properties to make sure that they’re not overburdened … and I’m probably going to get called on the carpet for THIS comment … but by those that insist that their First Amendment right takes dominance over their control and rights and responsibility of ownership.
So, evidently the marketplace itself hasn’t controlled this well enough whereas these First Amendment publications or, lets put it this way, these newspapers slash bulletins have not been responsible in the way that they’ve presented themselves to our community…and hence, we’re being forced to take action to try to control that and control our investment. It’s my opinion, quite honestly, that we have a responsibility based on – and I’m not sure about current law, current statute or whatever – but my God! And I mentioned this at the last committee meeting, if someone chooses under the First Amendment right to take five of these and line ‘em up across, perpendicular to the sidewalk, are we not gonna move ‘em? Are we not gonna attempt to control ‘em? Of course we are! My position is that we should have the authority to do that.
Now, if there’s a perception within staff and within the community that we don’t, and we need something like this then, I guess, the private sector – those trying to encroach on our rights of ownership – have to have some legislation put in place so that we CAN control our interest and our ability to maintain safety, so that one of these doesn’t blow in front of my car as I’m driving down Wisconsin Avenue.
I’m not for – like I said, when I first saw the first draft of this, oh, my goodness! You know, then I read on the Post Crescent web site all these blogs about “I can’t believe the city’s really dealing with this issue!” and “Get a life!” and “Is this all you have to talk about?”. Well this is what we have a responsibility to talk about. This is what our job is. Our job is to manage the community in a safe manner; and if the issue is that we have to deal with newspaper boxes because those that own them AREN’T dealing with it, then I guess we are going to have to deal with it. And that’s what we’re going to do tonight, I think, one way or another.
So from here I see if I can contact the vendors of the free newspapers that are the subject of this proposed legislation to see if they'll come to the Council meeting next Wednesday to register their disapproval.