The ban on newspaper boxes in the Back Bay is on hold — perhaps for some time to come.

Last Friday, August 31, Suffolk Superior Court judge Carol Ball granted a temporary restraining order that stopped city officials from moving ahead with their plans to begin enforcing the ban the next day. This Friday, September 7, lawyers for several newspaper publishers will be back in court seeking a preliminary injunction, which would prevent the city from enforcing the ban until a lawsuit challenging its legality can be heard — a process that could take months or even years.

The suit was brought by Dean Wallace, the publisher of Editorial Humor, a paid weekly whose distribution is almost entirely dependent on news boxes. Also joining the initial suit was the Weekly Dig, a free paper. Wallace was virtually the only publisher not to remove his boxes from the Back Bay after the ban went into effect on August 9. He says he would have faced financial disaster if the city had begun enforcing the ban, with its $1000-a-day fines: this is the week of his annual back-to-school issue, traditionally his biggest seller.

" This is a First Amendment issue, make no mistake about it, " Wallace says of the ban, which was passed earlier this year by the Back Bay Architectural Commission.

Judge Ball’s decision to grant temporary relief makes it likely that other publishers will join in the lawsuit. Already on board is Stephen Mindich, chair of the Phoenix Media/Communications Group, whose holdings include the Boston Phoenix and Stuff@Night, free publications that depend heavily on news boxes.

In a written statement, Mindich repeated his opposition to the ban " from the highly trafficked, populated, and clearly commercial areas along Newbury Street and Boylston Street. " He added, " I look forward to a full hearing before the court, where we expect to demonstrate that such a ban is in violation of basic rights guaranteed to the citizens of the commonwealth under the Massachusetts Declaration of Rights, as well as the First and 14th Amendments to the US Constitution. "

In approving the ban, the Back Bay commission and city officials have relied on a 1996 federal appeals-court decision upholding a similar ban on Beacon Hill. But John Swomley, the publishers’ lawyer, says the Back Bay case is different for several reasons: some of the newspapers do not have alternative means of distribution, an important factor in the 1996 decision; the Back Bay Architectural Commission may not enjoy the same sweeping powers as the Beacon Hill Architectural Commission; and the city, by proposing to replace the news boxes with " street furniture " to be supplied by a private vendor who would pay for the privilege, has a legally dubious financial incentive to ban the boxes.

Swomley adds that the 1996 decision needs to be revisited, since it appears to give an unreasonable amount of power to local officials to ban publications from public places such as parks and street corners. " This is the cradle of liberty, " Swomley says. " It’s an irony that shouldn’t be lost on people. "

Sarah Wunsch, a staff attorney for the American Civil Liberties Union of Massachusetts, is also working with the publishers. " I think the First Amendment impact is very serious, " she says. " These are not papers that are going to be sold in your corner store. To me, it’s not a city anymore, it’s not a vibrant urban area, if you can’t get hold of all kinds of newspapers. "

But Mayor Tom Menino’s spokeswoman, Carole Brennan, says the ban is exactly the same as the Beacon Hill ban that was already upheld in the 1996 appeals-court decision. She also notes that city officials have met several times with publishers to discuss replacing the news boxes with " street furniture, " although she concedes that the installation of such furniture could be some months away.

As for the First Amendment argument, Brennan, a former publisher of the Tab newspapers, says, " It’s not a First Amendment issue. It’s a marketing issue. "

Issue Date: September 5, 2001