Under Lexington’s ordinance, newspapers cannot be delivered to residential driveways. Image source: CBS San Francisco.

In a case that we previously reported on last winter, a federal district court in Kentucky ruled last month that Lexington’s law restricting the locations where newspapers may be delivered meets intermediate scrutiny under the First Amendment.  Lexington’s ordinance requires that newspapers be delivered on porches, attached to doors, placed in mail slots, left in distribution boxes, or personally delivered.

The facts of the case can be found in our January 2018 post on the case of Lexington H-L Services, Inc. v. Lexington-Fayette Urban County Government.  After the Sixth Circuit Court of Appeals reversed the district court’s entry of a preliminary injunction in the case, the parties proceeded to summary judgment briefing on the understanding that there were no genuine disputes as to material fact.

In ruling on cross-motions for summary judgment, the court first found that the restriction on the locations where newspaper can be delivered is content neutral:  the regulation is not dependent upon the content of the newspaper, but simply identifies the locations on private property where a newspaper may be delivered.  Moreover, the court observed that the city’s goals in reducing litter, visual blight, and public safety were content neutral in purpose.  The court went on to find that the restrictions on delivery were narrowly tailored to these goals.

Specifically, the court found that the prohibition on driveway delivery—the specific restriction that the plaintiff most stridently objected to—was tailored to the city’s interest in preventing visual blight.  The city had received complaints regarding the piling up of newspapers on driveways, and had further received complaints that newspapers delivered to driveways tend to blow around on windy days.  The court additionally found that ample alternative channels of communication existed for the newspaper, because the law provides six options for delivery of newspapers to private property.  The court rejected arguments made by the plaintiff that Martin v. Struthers, a 1943 U.S. Supreme Court case addressing door-to-door distribution of pamphlets, dictated that the prohibition on driveway delivery of newspapers was unconstitutional.

Lexington H-L Services, Inc. v. Lexington-Fayette Urban County Government, No. 5:17-CV-154-KKC, 2018 WL 3489235 (E.D. Ky. Jul. 19, 2018).

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Photo of Brian J. Connolly Brian J. Connolly

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private covenants and restrictions, land use and zoning litigation, initiatives and referenda associated with land use approvals, and real estate transactions.  Brian additionally specializes in the First Amendment and land use issues associated with outdoor sign and advertising regulation, and fair housing matters in local planning and zoning.