
USCA1 Opinion

	




          January 2, 1997   UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1538                           GLOBE NEWSPAPER COMPANY, ET AL.,                               Plaintiffs - Appellees,                                          v.                        BEACON HILL ARCHITECTURAL COMMISSION,                                Defendant - Appellant.                                 ____________________                                     ERRATA SHEET               The opinion of  this court  issued on November  12, 1996  is          amended as follows:               On page 42, line 6, insert "are" between "we" and "aware" so          that the sentence reads "While we are aware. . ."                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1538                           GLOBE NEWSPAPER COMPANY, ET AL.,                               Plaintiffs - Appellees,                                          v.                        BEACON HILL ARCHITECTURAL COMMISSION,                                Defendant - Appellant.                                 ____________________                                     ERRATA SHEET               The opinion of  this court  issued on November  12, 1996  is          amended as follows:               Page 30, line 5, "not" should be deleted.               Page 34, line 5 of footnote 19 should read "utterly" instead          of "unterrly".                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1538                           GLOBE NEWSPAPER COMPANY, ET AL.,                               Plaintiffs - Appellees,                                          v.                        BEACON HILL ARCHITECTURAL COMMISSION,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                          Cummings* and Cyr, Circuit Judges.                                             ______________                                _____________________               John R. Devereaux,  with whom Merita  A. Hopkins and  Gerald               _________________             __________________      ______          Fabiano were on brief for appellant.          _______               Edward N.  Costikyan, Michael S. Gruen  and David Nissenbaum               ____________________  ________________      ________________          on brief for  The National  League of Cities,  The United  States          Conference of Mayors and  The Municipal Art Society of  New York,          amici curiae.               James  C.  Heigham, with  whom  Choate, Hall  &  Stewart and               __________________              ________________________          Alice Neff Lucan were on brief for appellees.          ________________                                 ____________________                                  November 12, 1996                                 ____________________                                        ____________________          *  Of the Seventh Circuit, sitting by designation.                    TORRUELLA, Chief Judge.   We visit this controversy for                    TORRUELLA, Chief Judge.                               ___________          the  second time in  as many years.   See Globe  Newspaper Co. v.                                                ___ ____________________          Beacon Hill Architectural Comm'n, 40 F.3d 18 (1st Cir. 1994).  We          ________________________________          are  left to  decide important  issues that  require  a balancing          between First Amendment rights and governmental interests.                    Defendant-Appellant    Beacon     Hill    Architectural          Commission (the  "Commission") enacted  a regulation, the  Street          Furniture   Guideline,   which    effectively   bans    newspaper          distribution boxes from the public streets of the Historic Beacon          Hill  District in  Boston, Massachusetts  (the "District").   The          validity of this  regulation was  challenged in a  suit filed  in          district  court by  Plaintiffs-Appellees,  a group  of  newspaper          publishers (the "Newspapers").   The district court held that the          Commission lacked the authority to adopt the  regulation and also          that it violated rights  guaranteed by the First Amendment.   See                                                                        ___          Globe Newspaper Co. v.  Beacon Hill Architectural Comm'n,  847 F.          ___________________     ________________________________          Supp. 178 (D. Mass. 1994).                      In the  ensuing appeal by the  Commission, we concluded          that  the  appropriate  course  of  action  was  to  certify  the          dispositive issue of state  law to the Supreme Judicial  Court of          Massachusetts (the "SJC") and so proceeded.  To the question                    Did the Beacon Hill  Architectural Commission                    have the authority  under 1955  Massachusetts                    Act  Chapter 616  (as amended)  to adopt  the                    "Street Furniture Guideline"?          the SJC answered in the affirmative.   See Globe Newspaper Co. v.                                                 ___ ___________________          Beacon Hill Architectural Comm'n,  421 Mass. 570 (1996).   In its          ________________________________          response,  the  SJC held  that  the Commission  had  authority to                                         -2-          regulate   newsracks   and  other   "street   furniture"  through          rulemaking  and to  completely ban  entire classes  of structures          such as newsracks.  Id. at 590-91.  Specifically, it said:                              ___                    As    to    streets   and    sidewalks,   the                    [C]ommission's  jurisdiction   is  concurrent                    with    appropriate    municipal    agencies.                    Regulation  of  the  sidewalks is  rationally                    related  to   the  goal  of   preserving  the                    Historic Beacon Hill District.   Section 4 of                    the enabling [A]ct provides  the [C]ommission                    with the authority to issue rules that govern                    private   conduct   within   its   particular                    geographic  area  of   responsibility.     We                    conclude  that,   apart  from  constitutional                    considerations,  outright   bans  on  certain                    classes  of structures are merely a practical                    consequence of the [C]ommission's  ability to                    proscribe        inappropriate       exterior                    architectural features within the [D]istrict.          Id.  We  thus focus  our attention on  the constitutional  issue,          ___          which  requires  us to  determine  whether  the Street  Furniture          Guideline violates  rights guaranteed  by the First  Amendment to          the Newspapers.   We  conclude that it  does not and  reverse the          decision of the district court.                                      BACKGROUND                                      BACKGROUND                                      __________                    The Historic Beacon Hill District was created by an act          of the Massachusetts General Court in 1955.   See 1955 Mass. Acts                                                        ___          ch. 616 ("the Act"), as amended by 1958 Mass. Acts ch. 314 & 315,          1963 Mass. Acts ch. 622, 1965 Mass. Acts ch. 429, 1975 Mass. Acts          ch. 741, and 1982 Mass. Acts ch. 624.  The Act is intended to                    promote  the educational,  cultural, economic                    and general welfare of the public through the                    preservation  of  the  historic  Beacon  Hill                    district, and to maintain said district  as a                    landmark in  the history of  architecture and                    as a  tangible reminder  of old Boston  as it                    existed    in   the   early   days   of   the                                         -3-                    commonwealth.          1955  Mass. Acts  ch.  616,     2.    The  District's  historical          significance can hardly be doubted.  See Opinion of the Justices,                                               ___ _______________________          333 Mass.  783, 786-87  (1955).   Indeed,  it was  listed in  the          National Register  of Historic  Places and designated  a National          Historic Landmark on October  15, 1966, pursuant to the  National          Historic Preservation Act of 1966, 16 U.S.C.A. 470 et seq.                                                             ______                    The Commission  was created to review  proposed changes          to the "exterior architectural feature[s]" of "structures" within          the  District.  See 1955 Mass. Acts ch. 616,   7; see also id. at                          ___                               ________ ___            3 (defining an "exterior architectural feature"); Mass. Gen. L.          ch.  143,     1  (providing  definition  of  "structure");  Globe                                                                      _____          Newspaper,  43  F.3d   at  20.    Anyone  wishing  to  construct,          _________          reconstruct  or   alter  an  exterior  architectural  feature  is          required  to  apply  to  the  Commission  for  a  certificate  of          appropriateness.       The   Commission,   "[i]n   passing   upon          appropriateness," shall consider, inter alia, "the historical and                                            __________          architectural  value  and   significance,  architectural   style,          general design,  arrangement, texture, material and  color of the          exterior  architectural  feature  involved  and  the relationship          thereof  to   the  exterior   architectural  features  of   other          structures  in the immediate neighborhood."   1955 Mass. Acts ch.          616,    7.   Furthermore,  the Commission  must "spread  upon its          records the  reasons for [its] determination"  that a certificate          of appropriateness should not issue.  Id.  An aggrieved party may                                                ___          appeal  the  Commission's  decision  to the  Superior  Court  for                                         -4-          Suffolk  County,  which "shall  annul  the  determination of  the          [C]ommission"  if   it  is  "unwarranted  by   the  evidence"  or          "insufficient in law."  Id. at   10.                                   ___                    As previously noted it  was not surprising that, "given          the stream  of applications for  certificates of appropriateness,          the   Commission  developed   uniform  policies   toward  certain          recurring types  of proposed  alterations."  Globe  Newspaper, 40                                                       ________________          F.3d  at  20.   Specifically, in  1981,  it formally  adopted the          policies  as "guidelines."   These  guidelines regulate  exterior          architectural features such as  masonry, roofs, windows, sash and          shutters,  doors,  trim,  paint,  and   ironwork.    One  of  the          guidelines states that "[f]reestanding signs are not  permitted."                    In  the  District,  the  Newspapers   distribute  their          publications  via  home  delivery,   mail,  store  sales,  street          vendors,  and   "newsracks."1    Newsracks,  we   explained,  are                                        ____________________          1    The  record  shows that  the  Newspapers'  publications  are          distributed by the following methods:                              HERALD  USAa    GLOBE   WSJb   NYTc   TAB             Home Delivery     21%     5%      7%    97.7%  53.3%    0%             Store Sales       46%     78%     65%    1.9%  39.6%    0%             Street Vendors    23%d    0%     16%e     0%     0%     0%             By Mail            0%     5%      0%      0%     0%    79%             Newsracks         10%     11%     12%    0.4%   7.1%   21%          aAbbreviation  is to  USA Today.   bAbbreviation  is to  The Wall                                _________                          ________          Street  Journal.    cAbbreviation  is  to  The  News York  Times.          _______________                            _____________________          dStreet vending occurs between  6:00 a.m. and 9:00 a.m.   eStreet          vending occurs between 5:30 a.m. and 9:30 a.m.                                         -5-          newspaper  distribution  boxes  painted  in  various  colors  and          featuring the name of the  newspaper and other advertising logos,          which are commonly anchored  to lampposts, signposts, or fixtures          on  the sidewalk.  The plaintiffs maintain a total of thirty-nine          newsracks in  the  district.2   Within  the District,  there  are          eleven stores  that distribute,  or are available  to distribute,          the Newspapers'  publications.  Outside the  District, but within          one  block   of  the   District's  boundaries,   the  Newspapers'          publications  are sold  through  stores and  newsracks.3   It  is          undisputed that no point  within the District is more  than 1,000          feet  (approximately  1/5  of  a  mile)  from  a  source  of  the          Newspapers' publications.                      Newsracks were first introduced  to the District in the          early  1980s, and  by 1983,  Beacon Hill  residents had  begun to                                        ____________________          2   The thirty-nine  newsracks maintained  by the Newspapers  are          broken down as  follows:  Boston  Globe (9); Boston  Herald (10);                                    _____________      ______________          The  New York Times (8);  The Wall Street  Journal (4); USA Today          ___________________       ________________________      _________          (3); and TAB (5).  In  addition to the Newspapers' newsracks,  at                   ___          least  five  other  publishers  maintain  newsracks   within  the          District.  Agreed Statement of Facts at 4, p. 16.          3     The  record  shows that  the  Newspapers'  publications are          available in stores and newsracks near the District as follows:                              HERALD   USA    GLOBE   WSJ    NYT    TAB             Stores within             one block of       4       2      10      2      4      0             the District             Newsracks                                               within one         4       9       7      1      6      7             block of the             District                                         -6-          complain  of the  "unsightliness,  congestion  and  inconvenience          associated with  the vending machines."   The Commission believed          that   the   newsracks   violated   the   guideline   prohibiting          free-standing  signs.   It took  no enforcement  action, however,          because a  city-wide regulation of newsracks  was being discussed          in the early 1980s.                     In 1990, no regulation  having been adopted, the Beacon          Hill Civic Association petitioned  the Commission for a guideline          to exclude newsracks from  the District.  After holding  a public          meeting  regarding  the  petition,4  the Commission  conducted  a          survey  and completed,  in January,  1991, a  study entitled  the          "Publication Distribution Box Report (the "Report").  See Exhibit                                                                ___          H (in the record).   Soon thereafter, on  February 21, 1991,  the          Commission  held  a  public  hearing5 on  the  proposal  to adopt          guidelines for  newsracks and, ultimately, adopted  the following          guideline:                    Publication  distribution  boxes  (any  boxes                    placed   on   the  sidewalks   to  distribute                    publications,  whether  for  charge  or  not)                    visible  from a  public way  are not  allowed                    within the District.           In its  decision, the  Commission indicated that  the publication          distribution guideline  ("PDG") was consistent with its guideline          banning freestanding signs and the Commission's decisions denying                                        ____________________          4   Although notice of this meeting was mailed to the Newspapers'          main  offices,  notice  was  not received  by  their  Circulation          Departments and,  of the  Newspapers, only  the TAB  appeared and          commented on the petition.          5  Again, although notice was mailed, the Newspapers' Circulation          Departments did not receive the notice and, thus, did not attend.                                         -7-          the  installation   of  traffic  signal  control   boxes  on  the          sidewalks,  and the  regulation of  the installation  of a  cable          television system in the District.                     A few months  later, on April  1, 1991, the  Commission          notified the Newspapers of  the new guideline.  One  month later,          it requested that the  Newspapers remove their newsracks by  June          1,  1991.    Then,  after  the   Newspapers  requested  that  the          Commission reconsider  its decision to adopt  its regulation, the          Commission  heard testimony  from the  Newspapers in  July, 1991.          After voting to deny reconsideration, the Commission extended the          removal  deadline until  October 1,  1991.   Within a  month, the          Newspapers  brought suit  in  district court  seeking declaratory          relief,  damages, and preliminary and permanent injunctive relief          from  the regulation, on the grounds that it violated their First          Amendment right to distribute newspapers in the District.                     After  a bench  trial  on stipulated  facts, the  court          ruled from  the  bench that  the  regulation offended  the  First          Amendment:                     . .  . , "instead of  being narrowly tailored                    with  respect to  the limitation  on speech[,                    the PDG] is  narrowly tailored to  focus only                    on speech.  It  applies to no form  of visual                    clutter other than public[ation] distribution                    boxes. . . ."  Significantly, the trial judge                    was  "troubled  whether  there  is  statutory                    authority   for   the   particular  kind   of                    legislative rule making"  illustrated by  the                    guideline.   He  did not  decide the  case on                    state  law  grounds,  however,  because  "the                    questions     about     the     Architectural                    Commission's authority are at least debatable                    on the present record . . . and perhaps would                    require some supplementation of the record in                    order for the Court to resolve them. . . ."                                         -8-          Globe Newspaper, 40 F.3d at 20 (quoting bench trial transcript).          _______________                    After the bench ruling but before judgment had entered,          the  Commission  adopted  a  new  guideline--the  present  Street          Furniture  Guideline--that bans all  "street furniture," not just          newsracks, from the District:                    Street furniture, as defined below, shall not                    be  permitted  in  the  Historic  Beacon Hill                    District  with  the  exception   of  approved                    store-front  merchandise   stands  and  those                    structures  erected  or placed  by authorized                    public  agencies  for  public  safety  and/or                    public welfare purposes.  Street furniture is                    defined as any structure erected or placed in                    the public or private  ways on a temporary or                    permanent basis.                    Authorized   public   safety/public   welfare                    street furniture includes, but is not limited                    to, such structures as street lights, traffic                    lights,  mail  boxes,  fire hydrants,  street                    trees,  and  trash  receptacles.    Any  such                    authorized   public   safety/public   welfare                    street  furniture   or  approved  store-front                    merchandise  stands  shall   be  subject   to                    Commission review  and  shall be  in  keeping                    with the architectural and historic character                    of the District and the criteria for exterior                    architectural   features   as  specified   in                    Chapter 616 of the Acts of 1955 as amended.           Having done so, the Commission  moved for reconsideration of  the          judgment,  arguing  that  the new  guideline  was  free  from the          constitutional defects of the old.  This time, the district judge          not only  held that the new  guideline fared no better  under the          First Amendment,  but also  that the Commission  lacked authority          under  Massachusetts law to adopt the new regulation.6  See Globe                                                                  ___ _____          Newspaper, 847 F. Supp. at 189.          _________                                        ____________________          6   We  decline  the Commission's  invitation  to pass  upon  the          validity of the original regulation as that issue is moot.                                         -9-                                      DISCUSSION                                      DISCUSSION                                      __________              I.  The First Amendment and the Street Furniture Guideline              I.  The First Amendment and the Street Furniture Guideline                                A.  Standard of Review                                A.  Standard of Review                    In an appeal from an adverse ruling after a bench trial          on  the merits, our review is ordinarily quite circumscribed:  we          review   de  novo  the  district  court's  legal  determinations,                   ________          according  a  significant  amount  of deference  to  the  court's          factual  determinations and to  most of its  resolutions of mixed          fact/law  issues,  letting them  stand  unless  they are  clearly          erroneous.   See  AIDS Action Comm.  v. MBTA,  42 F.3d  1, 7 (1st                       ___  _________________     ____          Cir. 1994).   In a  case such  as this one,  however, "where  the          trial court is called upon to resolve a number of mixed  fact/law          matters  which  implicate  core  First  Amendment  concerns,  our          review,  at least on  these matters,  is plenary  so that  we may          reduce  the likelihood of "'a forbidden intrusion on the field of          free expression.'" Id. (quoting Bose Corp.  v. Consumers Union of                             ___          __________     __________________          U.S., Inc.,  466 U.S. 485, 499 (1984) (quoting New York Times Co.          ____  ____                                     __________________          v.  Sullivan, 376  U.S. 254,  285 (1964))).   Besides  furthering              ________          other interests, see  AIDS Action, 42 F.3d at 7,  "de novo review                           ___  ___________                  _______          of the trial court's application of a First Amendment standard to          the  facts before  it   "ensures that  the federal  courts remain          zealous  protectors of  First  Amendment rights."   Id.  (quoting                                                              ___          Duffy v. Sarault, 892 F.2d 139, 142-46 (1st Cir. 1989)).            _____    _______                                 B.  Legal Framework                                 B.  Legal Framework                    The First Amendment states that "Congress shall make no          law .  . . abridging  the freedom  of speech, or  of the  press."                                         -10-          U.S. Const. amend.  I.  It  is beyond dispute  that the right  to          distribute  newspapers is  protected under  the First  Amendment.          See City of  Lakewood v.  Plain Dealer Publishing  Co., 486  U.S.          ___ _________________     ____________________________          750, 768 (1988);  Lovell v.  Griffin, 303 U.S.  444, 452  (1938);                            ______     _______          Gold  Coast Publications, Inc.  v. Corrigan,  42 F.3d  1336, 1343          ______________________________     ________          (11th Cir.  1994), cert. denied,  ___ U.S.  ___, 116  S. Ct.  337                             ____________          (1995).    Here,  the parties  do  not  dispute  that the  Street          Furniture  Guideline effectively bans  the use of  newsracks as a          method  of distributing newspaper in the District.  The issue, of          course,  is  whether under  the  circumstances of  the  case, the          Newspapers' First  Amendment rights are  impinged.  We  know that          few  constitutional rights,  if  any, are  absolute, and  in most          constitutional litigation what courts are called upon to do is to          balance  competing fundamental  rights.   See, e.g.,  Denver Area                                                    ___  ____   ___________          Educ.    Telecommunications    Consortium,   Inc.    v.   Federal          _________________________________________________         _______          Communications Comm'n, ___ U.S.  ___, ___; 116 S. Ct.  2374, 2384          _____________________          (1996); Board of County Comm'rs v. Umbehr, ___ U.S. ___, ___; 116                  _______________________    ______          S. Ct. 2342, 2352 (1996).  Such is the present situation.                    It is by  now axiomatic that  the degree of  protection          provided by  the Constitution  depends "on  the character  of the          property  at issue."  Perry Educ. Ass'n v. Perry Local Educators'                                _________________    ______________________          Ass'n,   460 U.S.  37,  44 (1983).7   In  the  instant case,  the          _____                                        ____________________          7    Distinguishing between,  say, commercial  and non-commercial          speech is  a relevant factor.   See,  e.g., Board of  Trustees v.                                          ___   ____  __________________          Fox, 492  U.S. 469, 480 (1989).   Here, we need  not make precise          ___          classifications  because  we  test, and  ultimately  uphold,  the          Street  Furniture Guideline  under  the more  stringent standards          governing noncommercial speech.                                         -11-          "property at issue" is the District's streets and sidewalks.  The          Supreme Court  has repeatedly  recognized public streets  "as the          archetype of a traditional public forum."  Frisby v. Schultz, 487                                                     ______    _______          U.S. 474,  480 (1988)  (noting that "[n]o  particularized inquiry          into the precise nature of a specific street is necessary" as all          public  streets are  public fora).   In these  traditional public          fora,  "places which by long tradition or by government fiat have          been devoted  to assembly and  debate,"   Perry, 460 U.S.  at 45,                                                    _____          government's   authority   to   restrict   speech   is   "sharply          circumscribed."  Id.  As the Court in Perry explained,                           ___                  _____                    [f]or  the state  to enforce  a content-based                    exclusion it must show that its regulation is                    necessary   to   serve  a   compelling  state                    interest  and that  it is  narrowly drawn  to                    achieve that end.          Id.   In traditional public fora,  content-based restrictions are          ___          presumptively  invalid and  subject to  "strict" scrutiny.   See,                                                                       ___          e.g., Ackerly Communications of Mass., Inc. v. City of Cambridge,          ____  _____________________________________    _________________          88 F.3d 33, 36 (1st Cir. 1996); National Amusements, Inc. v. Town                                          _________________________    ____          of Dedham, 43 F.3d 731,  736 (1st Cir. 1995).  The Court in Perry          _________                                                   _____          made clear, however, that in traditional public fora                     [t]he  state may also  enforce regulations of                    the  time,  place, and  manner  of expression                    which   are  content-neutral,   are  narrowly                    tailored  to  serve a  significant government                    interest,  and  leave open  ample alternative                    channels of communication.          Perry, 460  U.S. at 45.  Such time, place, and manner regulations          _____          are  subject to  "intermediate"  scrutiny.   See, e.g.,  National                                                       ___  ____   ________          Amusements, 43 F.3d at 736.          __________                    Given  the  "differing   analytic  modalities,  it   is                                         -12-          unsurprising  that   many  First   Amendment  battles   over  the          constitutionality of  government regulations start with  a debate          about what level  of scrutiny is appropriate."  Id.  at 737.  The                                                          ___          instant  case is no exception.  The key issue is thus determining          whether  the  Street  Furniture  Guideline  is  content-based  or          otherwise has  a  content-based  impact  in  which  publications,          particularly newspapers,  are singled out for negative treatment,          as is  claimed by the  Newspapers, or  is content neutral  on its          face  and  application, as  is alleged  by  the Commission.   The          answer to this inquiry will allow  us to establish what level  of          scrutiny, strict or intermediate, is appropriate, a finding which          will ultimately settle the outcome of this controversy.                   C.  Content-Neutrality and Content-Based Impact                   C.  Content-Neutrality and Content-Based Impact                    As  this  circuit has  noted,  "[t]he  concept of  what          constitutes  a  content-based  as opposed  to  a  content-neutral          regulation has  proven protean in  practice."   Id. at 737.   The                                                          ___          Court's cases  "teach that the 'principal  inquiry in determining          content neutrality, in speech cases generally and in time, place,          or manner  cases in  particular,  is whether  the government  has          adopted a regulation  of speech because of  disagreement with the          message  it conveys.'"  Id. (quoting Ward v. Rock Against Racism,                                  ___          ____    ___________________          491  U.S. 781, 791 (1989)).   "A regulation  that serves purposes          unrelated to the content of expression is deemed neutral, even if          it has an incidental  effect on some speakers or messages but not          others."  Ward, 491 U.S. at 791.                      ____                    Under this  test, the Street  Furniture Guideline seems                                         -13-          to be the very  model of a  content-neutral regulation.  It  does          not  make or  otherwise demand  reference to  the content  of the          affected  speech,  either  in  its  plain  language  or   in  its          application.  Indeed, as  applied to newsracks, it operates  as a          complete  ban without  any reference  to the  content of  a given          publication whatsoever:   uniquely  concerned  with the  physical          structure  housing  the speech,  it  restricts only  the  mode of          distribution and would plainly apply even if they were empty.  As          such, it seems to be an example  of the very kind of total ban on          newsracks which  Justice Stevens  was willing to  assume arguendo                                                                   ________          might  be  constitutional  in  City of  Cincinnati  v.  Discovery                                         ___________________      _________          Network, Inc.,  507  U.S.  410,  427-28 (1993)  (holding  ban  on          _____________          newsracks to  be  content-based  because  determining  whether  a          newsrack fell  within ban  required reference to  a publication's          content).8  Furthermore, like  the ban on posted signs  which the          Court upheld in City of Los Angeles v. Taxpayers for Vincent, 466                          ___________________    _____________________                                        ____________________          8    Commenting  on  Justice Steven's  observation  in  Discovery                                                                  _________          Network,  the  district  court  noted that  "[t]he  notion  seems          _______          strange that  a broader ban on  speech is more acceptable  than a          narrower ban."  Globe  Newspaper, 847 F. Supp. at  195-96 (citing                          ________________          Justice Rehnquist's  dissenting  statement in  Discovery  Network                                                         __________________          that "it scarcely seems logical that  the First Amendment compels          such  a result").   Discussing  whether First  Amendment doctrine          creates--to   use  the   district  court's   phrase--a  "perverse          incentive  to regulate more speech,"  id. at 195,  does not alter                                                ___          out ultimate  conclusion that the present  regulation is content-          neutral.  We, therefore, decline the invitation to engage in this          unnecessary  dialogue.  We note  in passing, however,  that it is          not unprecedented in  constitutional jurisprudence that "broader"          regulations  are constitutional  while "narrower"  ones  are not.          See, e.g., 44  Liquormart, Inc.  v. Rhode Island,  ___ U.S.  ___,          ___  ____  ____________________     ____________          ___,  116 S.  Ct. 1495, 1513  n.20 (1996)  (citing R.A.V.  v. St.                                                             ______     ___          Paul,  505 U.S. 377  (1992) and Cincinnati  v. Discovery Network,          ____                            __________     _________________          507 U.S. 410 (1993)).                                         -14-          U.S.  789,  804-05  (1984),  the Street  Furniture  Guideline  is          directed  at   aesthetic  concerns   and  is  unrelated   to  the          suppression of  ideas:  indeed,  nothing in  the record  suggests          that the challenged regulation arose out of an effort to suppress          any particular message communicated through the newsracks, nor do          the  Newspapers even contend as much.9  That the Street Furniture          Guideline results in  a total  ban on newsracks  is nothing  more          than an  incidental  effect  of  its  stated  aesthetic  goal  of          enhancing the  historic architecture of the  District by reducing          visual clutter:   there is  nothing in the  record to  contradict          this.                     The  Newspapers contend,  however, that  this directive          has a  content-based impact,  because it singles  out publishers,          and  most significantly  daily  newspapers,  serving  Boston  for          special,  negative  treatment.   In  advancing  its  "targeting,"          "differential  treatment," and "censorial effects" arguments, the          Newspapers urge us to test the Street Furniture Guideline against          Minneapolis  Star & Tribune v. Minnesota Comm'r of Rev., 460 U.S.          ___________________________    ________________________          575 (1983),  and Leathers v. Medlock,  499 U.S. 439 (1991).   The                           ________    _______          district court,  in their view, correctly  concluded that because          the  regulation   exempts  store-front  merchandise   and  public          safety/welfare  structures,  it  singles the  press  for  special                                        ____________________          9   We note further there  is no suggestion,  let alone argument,          that the  Street Furniture Guideline is  content-based because it          is   "format-based,"   applying   only   to   print   media,   or          "distribution-based,"  applying  only  to  newsracks:   in  other          words,  no  argument  that the  SFG  is  designed  to suppress  a          particular  message  carried only  through  either  of these  two          media.                                           -15-          treatment and, thus, raises "similar concerns . . . of 'censorial          effects'"  as  found by  the Court  in  Minneapolis Star.   Globe                                                  ________________    _____          Newspaper, 847 F. Supp. at 199.          _________                    We  disagree.  As an initial matter, we are of the view          that  reliance upon Minneapolis  Star by both  the Newspapers and                              _________________          the  district court  is misplaced  in the  instant case.   First,          Minneapolis Star, one of  a line of cases establishing  rules for          ________________          the economic regulation  of the  press, did not  involve a  time,          place and manner  restriction.   The tax on  newsprint there  was          held unconstitutional,  because it applied only to  the press and          discriminated in favor  of one class of  publishers over another;          i.e., it  was not generally  applicable.   Minneapolis Star,  460                        ___                          ________________          U.S.  at  581.   More  importantly, unlike  the  Street Furniture          Guideline   which  adversely   affects   only   one   method   of          distribution,  the   regulation  there  rendered  all   forms  of          circulation  more  burdensome.   Second,  unlike  the  case of  a          discriminatory  tax,  the  Commission  asserts,  and  the  Street          Furniture Guideline  present regulation advances,  colorable non-          content-discriminatory purposes:   aesthetics.   Last, we believe          it is not  coincidental that  neither of the  two newsrack  cases          decided by the Court, Discovery Network and Plain Dealer, engaged                                _________________     ____________          in a Minneapolis Star  analysis.  Indeed, none of the  cases that               ________________          have  dealt  with  restrictions   on  newsracks  have  found  the                                                _________          restrictions to be content-based, have a content-based impact, or          otherwise  trigger strict scrutiny  because they  singled-out the                                              _______          press for  regulation;  in fact,  Minneapolis  Star is  not  even                                            _________________                                         -16-          mentioned in the two  newsrack cases decided  by the Court.   See                                                                        ___          generally Discovery Network, 507 U.S. 410; Plain Dealer, 486 U.S.          _________ _________________                ____________          750.10   That  aside,  even "inspect[ing]  this case  through the          precedential prism  of Minneapolis Star and  Leathers,"  National                                 ________________      ________    ________          Amusements, 43 F.3d at 740, leaves us unpersuaded that there is a          __________          cognizable basis for invoking strict scrutiny.                    In  National   Amusements,  a   panel  of  this   court                        _____________________          extensively  discussed  Minneapolis  Star and  Leathers.    After                                  _________________      ________          noting   the  Court's   statement   in   Minneapolis  Star   that                                                   _________________          "differential  treatment,  unless   justified  by  some   special          characteristic  of  the press,  suggests  that  the goal  of  the          regulation  is not  unrelated to  suppression of  expression, and          [that]   such  a   goal   is   presumptively   unconstitutional,"          Minneapolis Star, 460 U.S. at  585, the panel went on to  discuss          ________________          that in Leathers "the  Court refined the analysis it  had crafted                  ________          in Minneapolis Star[.]"   National  Amusements, 43  F.3d at  739.             ________________       ____________________          Leathers explains "that targeting engenders  strict scrutiny only          ________          when regulations  (1) single  out the  press, (2) take  aim at  a          small group of speakers, or (3)  discriminate on the basis of the          content of protected speech."  Id. at 739-40.  Essentially, then,                                         ___          because the  Street Furniture Guideline does  not discriminate on          the  basis  of  content,  the Newspapers'  arguments  for  strict                                        ____________________          10   The only  mention of  Minneapolis Star  is in Chief  Justice                                     ________________          Rehnquist's  dissent  in Plain  Dealer, 486  U.S.  at 797  & n.17                                   _____________          (finding  Minneapolis  Star-based  argument  that  provision  was                    _________________          invalid because  it  applied  only  to newsracks  and  not  other          "users" of the public streets to be "inapposite and unpersuasive"          in that case).                                         -17-          scrutiny based  on targeting and differential  treatment hinge on          one or both of the first two criteria identified in Leathers.                                                              ________                    We  note  first that,  to  the  extent the  Newspapers'          "targeting"  and  "differential treatment"  arguments essentially          rest  upon the notion  that strict  scrutiny is  always justified          when  the practical  effect of  a regulation  is to  regulate the          First  Amendment  rights  of  a  select  group,  this  notion  is          misguided.  National  Amusements, 43  F.3d at 739.   Simply  put,                      ____________________          this notion                     flies in the  teeth of the secondary  effects                    doctrine.    Under  [this]  formulation,  any                    regulation  that has an  effect on fewer than                    all  First  Amendment  speakers  or  messages                    could be deemed to be a form of targeting and                    thus subjected  to strict scrutiny.   Yet the                    Supreme   Court   has   recognized   that   a                    municipality lawfully may enact  a regulation                    that  "serves  purposes   unrelated  to   the                    content of expression . . . even if it has an                    incidental   effect   on  some   speakers  or                    messages but not others."            Id. at 740 (quoting Ward, 490 U.S. at 791).  More importantly,           ___                 ____                    [i]n  Minneapolis Star,  the  Court  did  not                          ________________                    condemn all regulations that single out First                    Amendment    speakers     for    differential                    treatment;  rather,  the  Court  acknowledged                    that certain forms of  differential treatment                    may   be   "justified    by   some    special                                _________________________________                    characteristic" of the regulated speaker.                    ______________          National Amusements,  43 F.3d  at 740 (quoting  Minneapolis Star,          ___________________                             ________________          460 U.S. at 585 (emphasis added)).  Most relevant  to the instant          case,  noting that  "[s]econdary effects  can comprise  a special          characteristic  of a  particular speaker  or group  of speakers,"          this  court  concluded  that "the  language  .  .  . quoted  from          Minneapolis  Star comfortably  accommodates an  exception to  the          _________________                                         -18-          prohibition on  differential treatment  for regulations  aimed at          secondary effects, so long as the disparity is reasonably related          to a  legitimate government  interest."  National  Amusements, 43                                                   ____________________          F.3d at 740.                      The  Street  Furniture  Guideline  falls   within  that          exception.   As  an  initial matter,  we  note that  there is  no          indication   that   the  Commission's   alleged   "targeting"  or          "differential  treatment" was  done  in a  purposeful attempt  to          interfere with the Newspapers' First Amendment activities:  while          it clearly  takes away one method of  distribution, other methods          are  left untouched.   See ante at 5  n.1 and at  6 n.3; see also                                 ___ ____                          ________          Gold  Coast,  42  F.3d  at 1345  (rejecting  disparate  treatment          ___________          argument  where  there was  no  evidence  regulation was  enacted          because of a dislike  with the message conveyed).   Cf. Leathers,                                                              ___ ________          (finding tax measure avoided pitfalls because, for example, there          was "no indication" that Arkansas "targeted cable television in a          purposeful  attempt  to interfere  with  .  .  . First  Amendment          activities").                      More  importantly,  "street  furniture"  can  obviously          create  or  add to  visual clutter  in  different ways  such that          solutions calling  for differential treatment might be warranted.          Cf. Renton v.  Playtime Theaters,  Inc., 475 U.S.  41, 49  (1985)          ___ ______     ________________________          (noting that city treats certain movie theaters differently based          on the  markedly different effects upon their surroundings).  See                                                                        ___          Discovery  Network, 507 U.S. at 430 (noting that unlike speech in          __________________          Renton "there  [were] no  secondary effects attributable  to" the          ______                                         -19-          commercial-publication newsracks that distinguished them from the          non-commercial publications  newsracks).   While  the  Newspapers          complain that  the Street  Furniture Guideline "affects  no other          similarly  situated object"  in the  District, the  truth  of the          matter is that there simply is no other such object.  Not only is          there  no  record  evidence  that  any  other  entity--public  or          private--uses  newsracks or  other  objects  that  are  similarly          anchored to lampposts, signposts, or fixtures on the sidewalks to          distribute its product to the public, but there is also no record          evidence  that such  an  entity  would  not  be  subject  to  the          challenged  regulation.   In  our view,  that  there is  no  such          evidence, let alone a suggestion to that effect, only underscores          the  "uniqueness"  of the  newsracks and  the  way in  which they          impact upon the District.                     In reaching  our conclusion, we  are not swayed  by the          district  court's  findings that  "[g]overnmentally-placed street          furniture is exempted, and merchandise-store fronts are subjected          to no  more stringent review than they ever were" and/or that the          "only apparent effect of the [Street Furniture Guideline] will be          the  removal  of [the  Newspapers']  publication  boxes."   Globe                                                                      _____          Newspaper,  847 F.  Supp. at  199.   Contrary to  the Newspapers'          _________          contentions, that exempt street  furniture, store-front signs, or          other tangible signs of modern life may also constitute or add to          "visual  clutter"  does not  necessarily render  the differential          treatment unjustified:  this  argument ignores legitimate, if not          obvious,  differences  among  those  on-street  or  other visible                                         -20-          objects  that are  essential to the  public safety  and welfare--          street  and traffic  lights,  mail boxes,  fire hydrants,  street          trees,  traffic  and parking  signs,  trash  receptacles, parking          meters  and hitchposts--and the  preferred distribution  means of          private  entities.    See  Plain  Dealer,  486   U.S.  at  797-98                                ___  _____________          (Rehnquist, J.,  dissenting) (finding difference  between "public          services  of a  quasi-governmental  nature" and  newsracks to  be          significant).   Although  the  record  is  devoid  of  any  facts          regarding  store-front stands,11  the  Newspapers' argument  also          seems  to  ignore practical  and  historical  differences between          merchants' on-site  signs and bulky newsracks  anchored along the          sidewalks.   It is  safe to  assume, at least  in the  absence of          record  evidence to  the  contrary, that  the newsracks'  overall          bulky structure  is reasonably predictable as  compared to store-          front signs,  which lend themselves more  readily to case-by-case          review:   designing  the newsracks'  appearance may  reduce their          complained-of  "unsightliness"  but it  does not  eliminate their          complained-of "congestion and inconvenience."                     Perhaps most importantly, we disagree with the district          court's conclusion  that,  as  in  Minneapolis  Star,  "[s]imilar                                             _________________          concerns . . . in the  sense of 'censorial effects' are raised by          the  . . . Street Furniture Guideline[]," Globe Newspaper, 847 F.                                                    _______________          Supp. at  199.  Not only  is there no record  evidence to support                                        ____________________          11    Interestingly  enough, the  Newspapers  did  not raise  the          differential treatment of store-front  signs when they challenged          the  first regulation banning newsracks, despite the fact that it          would have the same effect of exempting those structures.                                         -21-          the conclusion that, because  of the regulation, publishers might          be  chilled by  the threat  of restrictions  on other  methods of          distribution, we  fail to  countenance any reasonable  basis upon          which to  ground such  a  fear:   none of  the  other methods  of          distribution  depend upon  structures  which are  subject to  the          Commission's jurisdiction.  Furthermore, because it is a complete          ban  upon newsracks, it does not provide for, or otherwise grant,          the   Commission   any--let   alone    unbridled--discretion   in          determining what  newsracks will be  allowed.  See  Plain Dealer,                                                         ___  ____________          486  U.S.  at 769-72.    As  to the  Newspapers'  claim that  the          censorial effects of the Street Furniture Guideline extend beyond          the District, we find nothing in the record, other that this bald          assertion,  to merit such a conclusion.  The allegation that this          regulation "sends  affected publishers  the message that  if they          criticize, annoy or otherwise offend any official with power over          any  forum,  they may  face  another expensive  and  futile court          battle"  implies that the  Commission has acted  in a retaliatory          manner by enacting this legislation, an argument which is totally          unsupported by any evidence.                    Finally, we  are unpersuaded  by  the Newspapers  claim          that, because  the regulation  deprives publishers of  an already          significant and  still growing  percentage of their  readers, its          impact  is  hardly  "incidental."    While,  as  alleged  by  the          Newspapers, newsracks may indeed be  the "indisputable workhorse"          of the daily press (a contention belied by the evidence regarding          the District, ante at 5 n.1), nothing in the record suggests, let                        ____                                         -22-          alone demonstrates,  how the removal of  the District's newsracks          is  so burdensome that it is not "incidental."  As we see it, the          Newspapers' complaint boils down  to the potential reader passing          through  the District or the  non-subscribing resident and, as we          discuss  later,   ample  alternative  channels   exist  for   the          Newspapers  to  reach even  these  accidental transients  passing          through  the District as well as those readers with more frequent          ties to the District.                    In sum, we find no cognizable basis for invoking strict          scrutiny and, thus, apply an intermediate level of scrutiny.            D.  The Street Furniture Guideline Under Intermediate Scrutiny            D.  The Street Furniture Guideline Under Intermediate Scrutiny                    Strict scrutiny aside, restrictions on the time,  place          and manner  of protected  expression in  a public forum--and  the          Street Furniture Guideline's effective  ban on newsracks upon the          District's public  and private ways certainly qualifies as such a          restriction--should  be  upheld so  long  as  they are  "content-          neutral,   .  .  .  narrowly  tailored  to  serve  a  significant          governmental  interest,  and  allow  for  reasonable  alternative          channels  of communication."    Perry,  460  U.S.  at  45.    See                                          _____                         ___          Discovery Network, 507 U.S. at 428-431 (applying time, place, and          _________________          manner test  to regulation of  newsracks in public  forum); Plain                                                                      _____          Dealer, 486 U.S. at 763 (noting that  the Court would apply time,          ______          place,  and manner  test to  a hypothetical  ordinance completely          prohibiting a particular manner of expression); see also National                                                          ________ ________          Amusements, 43 F.3d at 741 (citing other cases).  Cf. Capitol Sq.          __________                                        __  ___________          Review Bd.  v. Pinette, ___ U.S. ___, ___, 115 S. Ct. 2440 (1996)          __________     _______                                         -23-          (noting that "a ban  on all unattended displays . . . might be" a          reasonable, content-neutral time, place and manner restriction).           As  we have already discussed, the  Street Furniture Guideline is          content-neutral.    We  turn,  thus,  to  the  remainder  of  the          analysis.                     Aesthetics:  A Significant Government Interest?                   Aesthetics:  A Significant Government Interest?                    Pointing to the fact  that preservation of the District          "as a landmark" is mandated  by state law, see Acts of  1955, ch.                                                     ___          616,     12,  the  Commission   contends  that  its  interest  in          preserving the District's historic and architectural character is          a  substantial  government  interest  that  justifies a  narrowly          tailored restriction.   The Newspapers  roundly disagree, arguing          that the Commission's invocation  of its statutory purpose cannot          justify a  ban of newsracks  in a  public forum.    The  district          court  did not decide either  way.  Instead,  it took for granted          that the Commission satisfied the significant government interest          prong  when  it   "assume[d]  arguendo   that  the   Commission's          [a]esthetic  interest  is  greater   than  that  of  the  average          community, because  [the District] has been  designated a special          historic district."   Globe Newspaper, 847 F. Supp. at 194.                                 _______________                    The  Commission  has  certainly  met  the  "significant          governmental interest"  prong.   On more  than one occasion,  the          "Court  has  recognized  aesthetics  .  .  . as  [a]  significant          government interest[] legitimately  furthered through  ordinances          regulating First Amendment expression in various contexts."  Gold                                                                       ____          Coast, 42 F.3d at 1345 (citing cases).  Although there is no need          _____                                         -24-          to  accord  the Commission  a  greater than  average  interest in          aesthetics,  it  would not  be unreasonable  to  do so  given its          statutory mandate as well as the District's significance  to both          Massachusetts  and the  nation as  a whole,  as evidenced  by its          designation  as a National Historic Landmark.  See 36 C.F.R. 65.2                                                         ___          (stating that  such designations are reserved  for "properties of          exceptional  value to  the nation  as a  whole  rather than  to a          particular State or locality").                    We are  not swayed  by the  Newspapers' claim  that the          Commission's  aesthetic interests cannot constitute a significant          government  interest where a ban  in a public  forum is involved.          Although it  did not explicitly  address, or otherwise  test, the          legitimacy  of aesthetics through a  public forum lens, the Court          in  Discovery  Network  acknowledged  that  the  city's  asserted              __________________          interest in  aesthetics was  an "admittedly  legitimate" interest          justifying  its  regulation  of sidewalk  newsracks.    Discovery                                                                  _________          Network, 507 U.S. at  424-425 (holding that newsrack regulation's          _______          distinction between commercial and non-commercial speech  bore no          relationship  "whatsoever" to  its asserted  aesthetic interest).          Indeed,  the Newspapers'  contentions to  the contrary,  there is          abundant authority for the  proposition that aesthetic  interests          constitute a significant  government interest justifying  content          neutral,  narrowly tailored  regulations of  a public  forum that          leave open ample alternative channels.  See, e.g., Gold Coast, 42                                                  ___  ____  __________          F.3d  at 1345 (recognizing  aesthetics as "significant government          interest[]"  when  upholding  ordinance  regulating  newsracks in                                         -25-          traditional  public forum);  Chicago  Observer, Inc.  v. City  of                                       _______________________     ________          Chicago, 929 F.2d 325, 328  (7th Cir. 1991) (upholding regulation          _______          of  newsracks' advertising  and size  as justified  by "[c]ities'          [interest in]  curtail[ing]  visual clutter,  for  aesthetic  and          safety  reasons"); Plain  Dealer, 794  F.2d at  1147 (recognizing                             _____________          aesthetics  as  a  "substantial" government  interest  justifying          total ban of newsracks in residential areas).                    Our   conclusion   that   the  Commission's   specified          interests are "significant" does  not end the inquiry.   As "[i]n          most cases, the  outcome [of this prong] turns not on whether the          specified interests  are significant,  but rather on  whether the          regulation is narrowly tailored to serve those interests."   Gold                                                                       ____          Coast, 42 F.3d at 1345.          _____                 Is the Street Furniture Guideline Narrowly Tailored?                 Is the Street Furniture Guideline Narrowly Tailored?                    As the district court correctly set forth, the Court in          Ward "explained  that the  narrow tailoring requirement  does not          ____          mandate  a  least restrictive  means  analysis:   '[r]ather,  the          requirement of narrow tailoring is satisfied so long as the . . .          regulation promotes a substantial government interest that  would          be achieved  less effectively absent the  regulation.'"  National                                                                   ________          Amusements, 43 F.3d at 744 (quoting  Ward, 491 U.S. at 799).  The          __________                           ____          regulation will  be valid  if it  does not burden  "substantially          more"  speech  than  is   necessary  to  further  the  government          interest.   Ward, 491  U.S. at  799; see Gold  Coast, 42  F.3d at                      ____                     ___ ___________          1345.    Where aesthetic  interests are  at play,  the challenged          regulation must  be judged  by overall context:   the  government                                         -26-          must show that the regulation of the feature at issue "would have          more  than a  negligible impact  on aesthetics,"  which generally          requires  that   the  government  be   making  a  bona   fide  or                                                            ___________          "comprehensive  coordinated effort" to address aesthetic concerns          in  the affected community.   See Metromedia, Inc.  v. San Diego,                                        ___ ________________     _________          453 U.S. 490, 531 (1980).                    In  a  nutshell,  the  district  court  held  that  the          challenged  regulation  did  not  pass  muster  under  the  First          Amendment because  the Commission  "has shown  no reason  why its          interest in preserving  the architectural and historic  character          of  the [D]istrict  cannot  be met  by,  for example,  subjecting          newsracks  and other street furniture to  the same review process          as store-front merchandise racks."   Globe Newspaper, 847 F.Supp.                                               _______________          at 194.  In reaching this conclusion, the district court took its          cue from the  Court's statement  in Discovery Network:   while  a                                              _________________          regulation need not satisfy the "least-restrictive-means" test,12          "if there are  numerous and obvious less-burdensome  alternatives          to the restriction on . .  . speech, that is certainly a relevant          consideration."  Discovery Network, 507 U.S. at 417 n.13.13  With                           _________________                                        ____________________          12  See Gold Coast, 43 F.3d at 1346 n.12 (noting that reliance on              ___ __________          newsrack cases  using "least restrictive means"  is misplaced due          to subsequent Supreme Court cases rejecting that standard).          13  Although the Court in Discovery Network made this observation                                    _________________          while applying the test applied to commercial  speech, see, e.g.,                                                                 ___  ____          Board of Trustees, 492 U.S. at 480, "[b]ecause commercial  speech          _________________          receives less First Amendment protection than does non-commercial          speech  . . . and  [because] intermediate scrutiny  also does not          impose  a  'least-restrictive-means'  analysis,  . .  .  ,  [this          observation]   clearly  applies   to  determinations   of  narrow          tailoring  under intermediate  scrutiny."   Chesapeake  & Potomac                                                      _____________________          Telephone Co. of VA v. United States, 42 F.3d 181,  199 n.29 (4th          ___________________    _____________                                         -27-          this in mind, the district court observed that                    [t]he  SFG  assumes   that  "street   lights,                    traffic  lights,  mail boxes,  fire hydrants,                    street trees, and  trash receptacles," can be                    designed in such a  fashion that they will be                    "in  keeping  with   the  architectural   and                    historic  character of  the  District."   The                    same  is  true  for  store-front  merchandise                    stands.  .  . .    There is  no  showing that                    newsracks  are  any  more inherently  out  of                    keeping with the  architectural character  of                    the [District] than other  modern innovations                    that have been approved by the  Commission on                    the basis of their external design features.           Globe  Newspaper, 847 F.Supp. at 194-95.  In the district court's          ________________          view,  "the preference  given  to 'public'  street furniture  and          store-front stands . . . [i]s evidence that the [Street Furniture          Guideline]  . .  . is  .  . .  not narrowly  tailored," id.,  and                                                                  ___          "burdens substantially more speech than is necessary to serve the          Commission's  interest  in  preserving   the  character  of   the          District," id.  The Newspapers contend that this is correct.                     ___                    We  disagree,  and  conclude  that  the  regulation  is          narrowly tailored.  First,  and without a doubt, it  promotes the          Commission's significant or  substantial14 government interest in          preserving the District's aesthetics:  as the SJC observed,  "the          [C]ommission  has determined that  [newsracks] are inappropriate,          in part  because they did  not exist at  the time with  which the                                        ____________________          Cir. 1994).          14  "The term  'significant interest' is equivalent to  the terms          'important  interest'  and  'substantial  interest,'   and  these          phrases  are  often used  interchangeably."   Rodney A.  Smolla &          Melvin Nimmer, A Treatise on The First Amendment,   3.02[3][A] at                         _________________________________          3-36 &  n.95 (1994)  (noting that  Ward,  491 U.S.  at 796,  uses                                             ____          "significant" and "substantial" in adjacent sentences).                                         -28-          [C]ommission's   preservation  efforts  are  concerned."    Globe                                                                      _____          Newspaper,  421 Mass. at 721.  Second,  as the Report's review of          _________          the  five  available  alternatives15 indicate,  the  Commission's          aesthetic interest  in  preserving the  District's  historic  and          architectural  character would  not  be achieved  as effectively,          absent the regulation:   banning the newsracks would effectively,          as the  Commission's Report  observed, most completely  "reverse"          their inappropriateness and "be most consistent with the purposes          of  the [D]istrict."16   Exhibit  H at  7.   Finally, it  does so                                        ____________________          15    The  dissent levels  several  attacks  at  the Commission's          consideration  of the  five available  alternatives.   We believe          that none of these contentions withstand scrutiny.  First, if, by          requiring  that the  Commission "actively  consider[] alternative          newsrack design proposals," the dissent means to suggest that the          Commission  was required  to implement  or experiment  with other          alternatives  before finally  choosing the  total ban,  we simply          disagree that Discovery Network requires this.                        _________________                    Second, that  the Commission  failed to send  notice of          the public hearing to  the plaintiffs' circulation departments is          irrelevant  because  the  Commission  granted  a  reconsideration          hearing upon the Newspapers'  request after the original  ban was          promulgated.                    Finally, we disagree with the dissent's last point that          the   Commission's  failure   to   regulate   newsracks   on   an          individualized  basis,  as  it  does  some  other  appurtenances,          displays  a  decision  lacking  careful calculation.    That  the          Commission  has chosen a total ban on only newsracks, and applied          different  measures more  relevant  to  the other  appurtenances,          shows that  the Commission  made its  determination based  on the          interests and concerns uniquely related to newsracks.          16  The dissent contends that the Commission's actions -- holding          two public meetings, conducting a survey, publishing a study, and          taking additional testimony at the  Newspapers' request -- do not          evidence a  "carefully calculated" determination that  the ban on          newsracks  is the  most suitable  solution "proportionate  to the          resulting  burdens  on any  protected First  Amendment activity."          See  post at  5-6  (citing Discovery  Network,  507 U.S.  at  416          ___  ____                  __________________          n.12).  The dissent  suggests that the Commission's  decision was          not  "carefully  calculated"  because  it  failed  to  employ  or          consider incremental, experimental alternatives to a total ban on          newsracks.  Id. at 6.  We believe, however, that the Commission's                      ___                                         -29-          without burdening "substantially more"  speech than is necessary:          it  does not  burden, or  otherwise adversely  affect, any  other          means of distribution, including the use of street vendors in the          public forum.   See ante at  5 n.1.  Significantly,  we note that                          ___ ____          the  district court  acknowledged,  albeit implicitly,  that  the          challenged regulation  meets this test:   nowhere in  its opinion          did  the  district  court  conclude  that  the  Street  Furniture          Guideline would fail to advance the Commission's interest or that          its  interest  would  be   achieved  as  effectively  absent  the          regulation.                    In  reaching  our conclusion,  we  are  mindful of  the          district court's "findings" that the Commission's interest  could          not be  met  by,  say, "subjecting  newsracks  and  other  street          furniture to  the same review process  as store-front merchandise          racks,"  and   that  it  treats  some   "street  furniture"  with          "preference."    Unlike the  district court,  however, we  do not          conclude that  such findings compel a  determination--at least in          this   case--that   the   Street   Furniture   Guideline   burden          "substantially more"  speech than is necessary  to accomplish its          purpose  and, thus,  is narrowly  tailored.   While the  district                                        ____________________          study, in addition to  its other actions, demonstrate that  it in          fact carefully  calculated its determination  of the  alternative          that most comprehensively met  each of its interests and,  at the          same time, burdened no more speech than necessary to further this          interest.   See Ward, 491 U.S.  at 799.  Additionally,  we do not                      ___ ____          read National Amusements  to require the Commission  to engage in               ___________________          experimental  employment of  alternative  measures  or  otherwise          engage   in  further   calculation   of   the  "suitability"   of          alternatives  beyond that  which  its study  demonstrates it  has          done.                                         -30-          court   correctly  considered   the  fact   that  less-burdensome          alternatives  exist, it gives too much weight to that fact alone.          In so  doing, it essentially  discounts from the  equation Ward's                                                                     ____          inquiry into  whether  the Street  Furniture Guideline  "promotes          [the Commission's  interests such] that [they]  would be achieved                                                                   ________          less effectively absent the [Street Furniture Guideline]."  Ward,          ________________________________________________________    ____          491 U.S. at 799 (emphasis added).17                    We explain:    As  an  initial  matter,  the  Court  in          Discovery Network  explained that the existence  of "numerous and          _________________          obvious  less-burdensome  alternatives  .  .  .  is  certainly  a                                                                          _          relevant consideration."  Discovery Network, 507 U.S. at 418 n.13                                    _________________          (emphasis added).  Standing alone, this plainly means that, while          "certainly a relevant consideration,"  id., it is not necessarily                                                 ___          a  controlling  one:  i.e.,  that  "numerous  and  obvious  less-                                ____          burdensome alternatives" exist does  not automatically compel the          conclusion that a regulation  burdens "substantially more" speech          than is  necessary.  When read in light of Ward, it becomes clear                                                     ____          that   less-burdensome  alternatives   must   be  considered   in          connection with  the inquiry into whether,  absent the challenged                                                      _____________________          regulation,   the  government's   interests  are   achieved  less          __________                                         ______________          effectively.    Giving  too  much  weight  to  the  existence  of          ___________                                        ____________________          17   The district court,  despite its statement  to the contrary,          seems  to have applied the "least restrictive means" test when it          calibrated the "narrow-tailoring" scales.  In closing, it stated:          "A  regulator's declaration  of benign  purpose cannot  justify a          needless burden on rights of expression caused by the regulator's          blunt instrument  when finer  instruments are available."   Globe                                                                      _____          Newspaper, 847 F. Supp. at 200.          _________                                         -31-          alternatives,  without  calibrating  the scales  to  account  for          differences between  them and the challenged  regulation in terms          of overall effectiveness and impact on aesthetics, may result--as          here--in  error:    that  the  record,  here,  reveals  that  the          Commission's interests  are achieved less  effectively absent the                                      _____________________________________          Street Furniture Guideline was apparently lost in the shuffle.          __________________________                    In  other  words,  the Court's  qualifier  in Discovery                                                                  _________          Network must, in turn, be qualified--or, rather, "re-qualified"--          _______          by  its language in Ward,  lest Ward's explicit  rejection of the                              ____        ____          "least  restrictive  means"  test  be reduced  to  a  meaningless          phrase.  As the Court made clear in Ward:                                               ____                      So  long  as  the  means  chosen  are   not                    substantially   broader  than   necessary  to                    achieve  the government's  interest, however,                    the  regulation will  not  be invalid  simply                    because   a   court   concludes    that   the                    government's  interest  could  be  adequately                    served   by    some   less-speech-restrictive                    alternative.  "The validity of  [time, place,                    and manner]  regulations does  not turn  on a                    judge's   agreement   with  the   responsible                    decisionmaker concerning the most appropriate                    method  for promoting  significant government                    interests"  or  the  degree  to  which  those                    interests should be promoted.          Ward,  491 U.S. at 800  (quoting United States  v. Albertini, 472          ____                             _____________     _________          U.S. 667, 689 (1985).   As the Sixth Circuit  observed, the Court          "has  repeatedly   deferred   to  the   aesthetic  judgments   of          municipalities  and  other   government  bodies  when  evaluating          restrictions on protected  expression."  Gold  Coast, 42 F.3d  at                                                   ___________          1346  (citing,  among  others,  Vincent, 466  U.S.  at  807,  and                                          _______          Metromedia,  453 U.S. at 512). Of  course, as Discovery Network's          __________                                    _________________          language implicitly reaffirms,  courts are not merely to defer to                                         -32-          the   government's   subjective   judgment;  instead,   aesthetic          considerations  must  be  judged   by  overall  context  and  the          government must make its requisite showing.  Metromedia, 453 U.S.                                                       __________          at 530.                      Under  this rubric, while  we do  not dispute  that the          Commission could have adopted  a less drastic solution, the  fact                     _____          that it chose  not to does  not mean that  it did not  "carefully          calculate[]  the costs and benefits associated with the burden on          speech imposed  by [the Street Furniture  Guideline]."  Discovery                                                                  _________          Network, 507 U.S. at 417.   In Discovery Network the Court  found          _______                        _________________          that the city there  did not make a careful calculation  based on          the  fact that it did not address its "recently developed concern          about newsracks  by regulating their size,  shape, appearance, or          number." Id.   In this regard, it also noted that the "benefit to                   ___          be  derived from the removal  of 62 newsracks  while about 1,500-          2,000 remain in place  was considered 'minute' by  the [d]istrict          [c]ourt and 'paltry' by the [c]ourt of [a]ppeals."  Id.                                                               ___                    Unlike the  city  in Discovery  Network,  however,  the                                         __________________          Commission's actions since newsracks  became a subject of concern          in  the  early  1980s   --including  survey,  report  and  public          hearings-- demonstrate that it carefully calculated the costs and          benefits.  The path it chose to follow--eliminating the newsracks          altogether--is  the most  effective  solution  aimed at  reducing          visual clutter and preserving the  District's historic character.          Designing the newsracks to better "blend in" and conform with the          District's architectural  and historic character  by having, say,                                         -33-          an  "old-fashioned"   or  colonial  "look,"  would   promote  the          Commission's  interest by  reducing  their  "unsightliness."   It          would  not achieve,  however,  as effective  a reduction  in "the          visual clutter created by their presence on the sidewalks [which]          clearly detracts from the historic and architectural character of          the   [D]istrict,"18  or,  for  that  matter,  the  long-standing          concerns regarding "congestion and inconvenience."                     Our  conclusion  is  not   swayed  by  the  Newspapers'          protestations that the Street  Furniture Guideline, as applied to          Charles  Street (the most commercial in the District), is a "lost          cause"  and that the regulation  does not remove  all evidence of          modern life.   It is also not influenced  by the district court's          finding  that there has been  "no showing that  newsracks are any          more inherently  out of keeping with  the architectural character          of the [D]istrict than other modern innovations."19  847 F. Supp.          at  194-95.   These  contentions  miss the  point.    As the  SJC                                        ____________________          18  See The Report, Exhibit H at 2.              ___          19   In any event,  we disagree  with this observation.   As  the          Agreed  Statement  of  Facts  indicates,  the  District's  street          pattern includes many narrow  pedestrian streets and lanes.   The          newsracks, which  began to appear on the  scene in the 1980s, are          obviously out of character with the District's street pattern and          it is utterly irrelevant that some  streets may not be as  narrow          as they once were.  Furthermore, as the Agreed Statement of Facts          evidences,  much  of the  exempt  "street  furniture" that  would          constitute  "other  modern  innovations"  was  installed  in  the          District  long before newsracks came on the scene and, indeed, in          some  cases apparently prior to  the creation of  the District in          1995.   That said, we reiterate that this observation ignores the          obvious differences between the public  safety/welfare structures          providing indispensable services  and private structures  erected          on public  property whose function, although  no doubt important,          can  be served  in ways  that do  not require  "appropriation" of          public property.                                         -34-          correctly  observed, "the  [C]ommission's charge  is to  preserve          what it can of  the . . . District as a  tangible reminder of old          Boston.  That particular  nonconforming uses predated that charge          .  . .,  or  that certain  non-conforming  uses have  since  been          allowed  to  continue,  has  no effect  on  ongoing  attempts the          [C]ommission makes  in preserving  the [D]istrict."    Id.   More                                                                 ___          importantly,  as the Court in Vincent made clear when it rejected                                        _______          a  similar argument,  "[e]ven if  some  visual blight  remains, a          partial, content-neutral ban may  nevertheless enhance the City's          appearance."   Vincent, 466 U.S. at 811  (rejecting argument that                         _______          "the validity of  the [a]esthetic interest in  the elimination of          signs  on public property is not compromised by failing to extend          the  ban  to private  property").   Indeed,  in contrast  to both          Vincent  and  Metromedia  where  the  regulations  were  arguably          _______       __________          "partial-solutions,"  the  Street Furniture  Guideline completely          tackles the  newsracks' visual  clutter and  inappropriateness by          eliminating  them  altogether.   See  Vincent,  466  U.S. at  811                                           ___  _______          (banning  signs on  public  property but  not private  property);          Metromedia, 453 U.S. at 512 (banning off-site advertising but not          __________          on-sign advertising).                      What  is  more,  the  Newspapers'  argument,  which  is          implicitly based on the notion that newsracks within the District          may only be regulated as  part of a comprehensive  beautification          or,  better yet,  "visual clutter  reduction" plan,  was rejected          foursquare  by the Court  in Vincent,  446 U.S.  at 807  n.5, and                                       _______          Metromedia, 435 U.S. at  511-12.  See Chicago Observer,  929 F.2d          __________                        ___ ________________                                         -35-          at 328 (making this  observation).  In  any event, we dismiss  as          disingenuous  the  Newspapers'  suggestion  that  the  challenged          regulation  is not part of a "comprehensive" plan because it does          not  ban all "street furniture"  or all evidence  of modern life:          not  only is the  Street Furniture Guideline  consistent with its          long-standing   prohibition   against  freestanding   signs,  the          Commission's  guidelines,  review  process,  decisions  regarding          cable  television control boxes and traffic control boxes, not to          mention its thorough approach  regarding newsracks, all speak for          themselves.  See Gold Coast, 42  F.3d at 1346 (finding city  took                       ___ __________          several steps  to enhance its  aesthetic interest by  convening a          task force, conducting research, and revising ordinance).                    Last,  but  not  least,  contrary  to  the  Newspapers'          suggestion  that the  Street  Furniture Guideline  operates as  a          complete ban does not,  by itself, mean that it  is not "narrowly          tailored."    While  the  Court has  clearly  "voiced  particular          concern with laws that foreclose an entire medium of expression,"          City of Ladue v. Gilleo, ___ U.S. ___, ___, 114 S. Ct. 2038, 2045          _____________    ______          (1994)  (invalidating ordinance  banning all  residential signs),          bans  on the  use of  privately owned  structures or  displays on          public property have  been upheld.  See Vincent, 466 U.S. at 804-                                              ___ _______          05 (upholding ban on signs posted on public utility poles).                    In Vincent, the Supreme  Court addressed a challenge to                       _______          an  ordinance banning  all posted  signs in  the city  brought by          supporters of a political  candidate.  Vincent, 466 U.S.  at 792-                                                 _______          93.    The  supporters  argued that  the  ban  unconstitutionally                                         -36-          abridged their  freedom of  speech.  Id.  at 802-03.   The  Court                                               ___          recognized that the complete ban, like the ban here, "did no more          than eliminate the exact source of the evil it sought to remedy."          Id.  at 808.   The  Vincent Court  compared the  sign ban  to the          ___                 _______          ordinance banning handbilling to address littering problems  that          the Court struck down in Schneider v. State, 308 U.S. 147 (1939).                                   _________    _____          In making its  determination that  the total ban  in Vincent  was                                                               _______          narrowly  tailored   to  serve   the  government's   interest  in          aesthetics,   the  Court   distinguished   between  the   state's          unconstitutional exercise  of police power to  regulate litter by          prohibiting the distribution of handbills and  the constitutional          exercise of  that power  to completely eliminate  the substantive          evil addressed.  Unlike  the situation of littering, the  evil in          Vincent,  as here,  "is not  merely a  possible byproduct  of the          _______          [protected expressive]  activity, but is created by the medium of          expression itself."   Id. at 810.   The Court held  that, because                                ___          the Vincent regulation directly resolved the evil the city sought              _______          to address, the medium of expression, the regulation was narrowly          tailored to the city's interest in aesthetics and limiting visual          blight.   Id.   Similarly,  the Commission's  ban on  the use  of                    ___          private newsracks,  which are both  the exact evil  presented and          the medium of  expression, is narrowly tailored to the government          interest  in  eliminating the  visual  blight  and congestion  on          public property caused by that evil.                    Moreover,  unlike cases where  the medium of expression          involves the exercise  of speech  by an individual  or where  the                                         -37-          medium is  a uniquely  valuable  mode of  expression, see,  e.g.,                                                                ___   ____          Ladue, ___  U.S. at ___, 114  S. Ct. at 2045  (citing cases), the          _____          medium  of  expression  here is  the  use  of  a privately  owned          structure  placed on  public property  for which,  as  we discuss          below,  there are  ample alternative  channels available  for the          distribution of the Newspapers' publications.                    In sum, we conclude--contrary  to the district  court--          that the Street Furniture Guideline is narrowly tailored.                    The Final Hurdle:  Ample Alternative Channels?                    The Final Hurdle:  Ample Alternative Channels?                    The district  court did  not reach this  final prong,20          but  we  must  before  the   full  First  Amendment  analysis  is          completed.                    Below, and on appeal,  the Commission claims that ample          alternative channels exist.  The challenged regulation, it points          out,  leaves   unaffected  the   Newspapers'  primary   means  of          distribution  within  the  District:   home  delivery,  sales  by          stores,  street vendors,  and mail.   See  ante at  5 n.1.   Even                                                ___  ____          without  newsracks, the  Commission  highlights, the  Newspapers'          publications are  available within  the District 24-hours  a day,          seven days a week, through private stores.  Further still,  it is          undisputed that no point  within the District is more  than 1,000          feet  (approximately 1/5 of a mile) from a source of publications          and  that adjacent  to the  District numerous  additional sources                                        ____________________          20  Although the district court found that the PDG  did not leave          open ample  alternative channels  for free publications,  such as          the  TAB, it  did  not make  this  finding regarding  the  Street          Furniture Guideline.                                         -38-          exist,  including  newsracks:21   this,  it  emphasizes, is  well          within  the  1/4  mile  distance that  the  Sixth  Circuit  found          sufficient in Plain Dealer when it upheld a ban on newsracks in a                        ____________          residential neighborhood.  See Plain Dealer, 794 F.2d at 1147.                                     ___ ____________                    Relying  on Chicago  Newspapers  Publishers v.  City of                                _______________________________     _______          Wheaton,  697 F.  Supp.  1464,  1470  (N.D.  Ill.  1988)  ("[t]he          _______          availability of private sellers  is irrelevant"); and  Providence                                                                 __________          Journal Co. v. City of Newport,  665 F. Supp. 107, 118-19 (D.R.I.          ___________    _______________          1987) (same), the  Newspapers counter with the  argument that the          availability  of private  sources is  irrelevant to  the inquiry.          Accordingly, they claim that the only relevant available means of          distribution  is the use of  street vendors in  the public forum.          While  street  vendors are  unaffected  by  the Street  Furniture          Guideline, the Newspapers nonetheless  contend that, because  the          cost of  24-hour street vending is  substantially more burdensome          than placing stationary newsracks,  the regulation fails to leave          available any practical or economical alternative to newsracks.                    We  are   unpersuaded  by  the   Newspapers'  arguments          regarding street  vendors.  Without having to  address the merits          of whether the availability of private sources is relevant to the          inquiry,22  or resolve whether it  is appropriate to  rely on the                                        ____________________          21  See ante at 6 n.3.              ___ ____          22   Compare Chicago Newspapers, 697 F. Supp. at 1470; Providence               _______ __________________                        __________          Journal, 665 F. Supp.  at 118-19; with Multimedia Publishing  Co.          _______                           ____ __________________________          of S.C.,  Inc. v. Greenville-Spartenburg Airport  Dist., 991 F.2d          ______________    _____________________________________          154, 160 (4th Cir.1993) (invalidating ban on newsracks in airport          terminal,  a non-public forum, due  to the lack  of market forces          that provide private  sources in public fora); Plain  Dealer, 794                                                         _____________          F.2d  at  1147  (existence  of alternative  channels  on  private                                         -39-          proximity  of  newsracks  on   the  District's  boundaries,23  we          conclude that there are  ample alternative channels available for          the  distribution of the Newspapers' publications.  See ante at 5                                                              ___ ____          n.1.  Throughout our  analysis, we are mindful that  "the lens of          inquiry must focus not on whether a degree of curtailment exists,          but on whether the remaining communicative avenues are adequate."          National Amusements, 43 F.3d at 745.            ___________________                    Here,  it  is  undisputed  that  the  Street  Furniture          Guideline  does not  affect the  Newspapers' freedom  to exercise          their right to distribute  publications through street vendors in          the  very public forum--the  District's sidewalks--from which the          newsracks  are banned.   See  Vincent, 466  U.S. at  812 (finding                                   ___  _______          ample alternative  channels available  where  ordinance "did  not          affect  any individual's right to exercise the right to speak and          distribute literature  in the  same place  where  the posting  of          signs . . . is prohibited").  Thus, without relying  on the other          current means  of distribution within the  District, the numerous          private  sources both  within and  without the  District, or  the          proximity of newsracks outside the District, we conclude that the          Street Furniture  Guideline satisfies this  last prong.   We note          further  that   street  vendors--or  "newsboys"  per  the  Agreed                                        ____________________          property considered).          23   See  Chicago Newspapers, 697  F. Supp. at  1471 (noting that               ___  __________________          city "cannot rely on other municipalities to rescue them from the          consequences of an improperly drawn ordinance") (citing Schneider                                                                  _________          v. State, 308  U.S. 147, 163  (1939) ("[O]ne is  not to have  the             _____          exercise  of  his liberty  of  expression  in appropriate  places          abridged on  the plea  that it  may  be exercised  in some  other          place.")).                                         -40-          Statement of  Facts--began hawking  newspapers on the  streets of          Boston  in  approximately  1844;   thus,  street  vending  is  an          alternative  within the public forum that  is consistent with the          District's purpose.                     In reaching  this conclusion we  reject as essentially          irrelevant the  contention that the  cost of street  vendors, let          alone 24-hour  street vending, is substantially  more costly than          placing  a stationary  newsrack.   The  First Amendment  does not          guarantee   a  right   to  the   most  cost-effective   means  of          distribution  or the  rent-free  use  of  public property.    Cf.                                                                        __          Capitol Sq.  Review Bd. v. Pinette, ___ U.S. ___, ___, 115 S. Ct.          _______________________    _______          2440 (1996) ("It is  undeniable, of course, that speech  which is          constitutionally  protected  against  state  suppression  is  not          thereby  accorded a guaranteed forum on all property owned by the          State."); Regan  v. Taxation  with Representation, 461  U.S. 540,                    _____     _____________________________          546 (1983) (rejecting the notion that "First Amendment rights are          not  somehow fully  realized unless  they  are subsidized  by the          State").  Moreover, the Newspapers' claim that street vendors are          not a practical alternative is belied by the record, particularly          with respect to the daily papers serving the Boston area:   sales          by street vendors for both the Boston Herald and the Boston Globe                                         _____________         ____________          exceed those by newsracks.  See ante at 5 n.1.  What is more, the                                      ___ ____          record shows that newsracks come in either last or second-to-last          place in terms of percentage of distribution.  Id.                                                         ___                    While  we do  not dispute  the Newspapers'  claims that          newsracks provide a relatively inexpensive means of distribution,                                         -41-          which in  some cases  meet  distribution needs  where others  are          either prohibitively expensive or altogether unavailable, nothing          in  the record indicates how these concerns are implicated in the          instant case.  Indeed, there is nothing in the record to suggest,          let  alone show, that the newsracks within the District fulfill a          unique  distribution need  which  is not  currently satisfied  by          other means of distribution and which could not be satisfied by a          street  vendor.   As we  see it,  their claim  boils down  to the          accidental  reader  who  passes  through  the  District  and  the          District resident  who prefers  single-copy sales.   Although the          regulation  may  frustrate  the  preferences  of  these  readers,          "thwarting  . .  .  an idiosyncratic  [or  not so  idiosyncratic]          preference cannot be equated with a denial of adequate avenues of          communication."   National Amusements, 43 F.3d at 745.  While the                            ___________________          Street Furniture  Guideline diminishes the total  quantity of the          Newspapers' publications within the District, that is a necessary          side  effect of almost any  restriction on speech:  "[a]s long as          restrictions are content-neutral, some diminution in  the overall          quantity  of speech will be tolerated."  Id. (citing Vincent, 466                                                   ___         _______          U.S. at 803, 812).24                     In  addition,  our  conclusion  is not  swayed  by  the          assertion that street vending may not be a viable alternative for          all publications, particularly those that  are free, such as  the                                        ____________________          24   Were we  to widen the scope  of relevant alternative sources          beyond street vendors, these potential readers could obtain their          preferred  publications from newsracks on their way in and/or out          of the District or from one of the numerous stores carrying them.                                         -42-          TAB.25  While we are aware that the Court, with good reason, "has          shown special  solicitude for forms  of expression that  are much          less  expensive  than  feasible  alternatives and  hence  may  be          important to  a  large  segment of  the  citizenry, .  .  .  this          solicitude has practical boundaries."   Vincent, 466 U.S. at  812                                                  _______          n.30  (citations omitted).    Given that  the regulation  neither          affects the TAB's primary means of  distribution, the mail, which          accounts  for 79% of its  distribution, nor prohibits  the use of          street vendors, such  "practical boundaries" exist here.   In any          event, absent  any record  evidence regarding the  feasibility or          infeasibility of  street vending  for free publications,  such as          the TAB, we are particularly reluctant to treat free publications          differently than those  "for charge," or  to otherwise alter  our          conclusion.                     In short,  "[a]s the Court phrased it: 'That the city's          limitations on volume  may reduce  to some  degree the  potential          audience  for respondent's speech is of no consequence, for there          has been no  showing that the remaining  avenues of communication                                        ____________________          25    When the  district  court made  its  bench ruling  that the          original regulation did not leave open ample alternative channels          it noted that  "there is a special  problem" with respect  to the          impact upon free  publications, such  as the TAB.   Although  the          Newspapers had not raised  this issue and despite the  absence of          record evidence, the district court's conclusion was based on the          assumption that stores would not have the same economic incentive          to serve  as conduits for the distribution  of free publications.          Despite the  subsequent admission  of evidence showing  that "no-          charge" publications  were carried in the  District's stores, the          court  did  not  abandon its  "finding"  on  this  point when  it          reconsidered  its  ruling on  the new  regulation.   There  is no          mention  of this  or any  other similar  finding in  the district          court's opinion regarding the Street Furniture Guideline.                                         -43-          are inadequate.'"   National Amusements, 43 F.3d  at 745 (quoting                              ___________________          Ward, 491 U.S. at 802).   Here, because the SFG leaves  intact an          ____          alternative means of distribution within the public forum, and in          the  absence of  any record  evidence "call[ing]  into legitimate          question   the    adequacy   of   the    alternate   routes   for          [distribution]," National Amusements, 43 F.3d at 745, we conclude                           ___________________          that the Street Furniture  Guideline's effective ban on newsracks          in no way runs afoul of  the Newspapers' First Amendment right to          distribute their publications.  Accordingly, with this last prong          satisfied, we  find that  the challenged guideline  passes muster          under the First  Amendment:  it is  a reasonable, content-neutral          time, place  and manner restriction  on the Newspapers'  right to          distribute their publications in the District.                               Some Additional Thoughts                               Some Additional Thoughts                    We have considered the  Newspapers' other arguments and          find them  to be without  merit.   We pause briefly,  however, to          respond to a few of them.                    First:    Contrary  to  their contention,  and  as  the          foregoing discussion makes clear, the Street Furniture  Guideline          in  no  way  denies the  Newspapers  the  ability  to make  their          publications  available  to  those  "willing  to  receive"  them.          Indeed, there is  simply nothing  in the record  to support  this          bald assertion.                      Second:   We also reject  as utterly without  merit the          notion that, by upholding a ruling that bans  a common and useful          means  of newspaper  distribution, our  decision today  opens the                                         -44-          door to the "piecemeal destruction of the public forum."  We  are          simply at  a loss to see  how the public forum  is "destroyed" by          such a valid content neutral, time, place and  manner restriction          on  the distribution of  protected speech--particularly where, as          here, the  Newspapers are  free to distribute  their publications          from  the  very same  spot within  the  public forum  where their          newsracks have been located.                      Last, but  not least:   We also  dismiss as  irrelevant          their  claim  that  the  SJC's  decision  signals  a  danger  for          newsracks in all  historic districts:  even if this were true, as          long as  the regulations are  valid content neutral,  time, place          and manner restrictions,  what of it?  As  noted above, while the          First Amendment guarantees  the right to  circulate publications,          it  does not  guarantee  the  right  to  do  so  through  private          structures erected  on public  property.   No  one disputes  that          regulations  governing newsracks,  because  they  facilitate  the          distribution of protected speech,  are subject to First Amendment          scrutiny.    What  the  Newspapers fail  to  appreciate  is  that          newsracks  are nothing  more  than structures  occupying, if  not          monopolizing, public  space  on  the  sidewalks,  which--with  or          without  publications  within--simply   are  not  immunized  from          regulations passing muster under the First Amendment.                      In  sum, our  opinion  today stands  unaffected by  the          clatter of these alarmist  claims.  Without more ado,  we reverse          the district court's decision.                                 II.  Attorney's Fees                                 II.  Attorney's Fees                                         -45-                    The Commission  also appeals from the  district court's          award  of attorneys  fees to  the Newspapers  as the  "prevailing          party" under  42 U.S.C.    1988.  In  light of our  opinion today          reversing the judgment below  on the merits, we need  not address          the Commission's  claims of error.  As a judgment in favor of the          Newspapers  is reversed on the merits,  that party is no longer a          "prevailing  party" under 42 U.S.C.    1988 and,  thus, no longer          entitled to attorney's fees under that statute.  See, e.g., Lewis                                                           ___  ____  _____          v. Continental Bank  Corp., 494  U.S. 472, 483  (1990); Clark  v.             _______________________                              _____          Township of Falls, 890 F.2d 625, 626-28 (3d Cir. 1989).            _________________                                      CONCLUSION                                      CONCLUSION                                      __________                    For  the   foregoing  reasons,  the   district  court's          decision is reversed,  the award of  attorneys' fees is  vacated,                      reversed                                     vacated          and the case remanded to the district court for entry of judgment          in  favor of the Commission,  and for such  further necessary and          appropriate proceedings  and orders  as are consistent  with this          decision.                    Costs are granted to Appellant.                    ______________________________                                                          "Dissent Follows"                                         -46-                    CYR, Circuit  Judge (dissenting).  As I  agree with the                    CYR, Circuit  Judge (dissenting).                           ______________          district court, see Globe Newspaper, 874 F. Supp. at 193-95, that                          ___ _______________          the  Commission has yet to establish, inter alia, that its Street                                                _____ ____          Furniture Guideline  is "narrowly  tailored," Perry, 460  U.S. at                                                        _____          45; see  North Ave. Novelties, Inc.  v. City of Chicago,  88 F.3d              ___  __________________________     _______________          441, 444 (7th Cir.  1996) (noting that government must  show that          its "time, manner, and place" restriction  on protected speech is          "narrowly tailored"), I respectfully dissent.                    This case  turns on whether the  Commission established          that  its outright  ban  on  all  newsracks within  the  District          represents  a  reasonable  means  to  its  concededly  legitimate          regulatory end, in the  sense that the  ban "is in proportion  to          the  interest served"; that is to say, "not necessarily the least          restrictive  means,"  but  one  which is  "narrowly  tailored  to          achieve the desired objective."   Cincinnati, 113 S. Ct.  at 1510                                            __________          n.12 (quoting  Board of Trustees of  State Univ. of N.Y.  v. Fox,                         _________________________________________     ___          492 U.S. 469, 480 (1989)) (internal quotation marks and citations          omitted).  As  the Supreme Court has made clear,  both in Fox and                                                                    ___          Cincinnati, the  government must demonstrate  that it  "carefully          __________          calculated"   the  resulting   burdens  on   expressive  activity          protected  by the First Amendment, Cincinnati, 113 S. Ct. at 1510                                             __________          n.12,  which involves  something more  than simply  identifying a          legitimate regulatory purpose.                    The Commission is  specifically charged with preserving          the  District  as  a  unique  "old   Boston"  community  and  the          importance   of  preserving  the   architectural  and  historical                                         -47-          esthetics within the District, for the benefit of the  community,          the  Commonwealth, and  the  Nation, is  not  in question.    See                                                                        ___          Vincent,  466   U.S.  at  806-07.     Nonetheless,  the  sweeping          _______          presumption indulged by the  Commission    that the nonconforming          nature  of all newsracks  represents an  esthetic blight  only an          outright ban  can remedy     is not entitled to  deference in the          First Amendment context.   The  Commission is  required first  to          demonstrate  that  it  carefully  considered  obvious alternative          regulatory  means before  imposing its  outright ban  against all          newsracks within the  District.   See Cincinnati, 113  S. Ct.  at                                            ___ __________          1510 n.13 (rejecting  "mere rational basis review").   The record          does not demonstrate that the Commission has met its burden.                    By the  same token, the unquestionable  efficiency of a          total  ban  on  all  newsracks  does  not   satisfy  the  "narrow          _____  ___          tailoring" requirement.   Otherwise, there would  be virtually no          role  left  to be  served  by the  requirement  that governmental          entities  "carefully  calculate"  the  burdens  their  regulatory          actions impose on protected expressive  activity, see id. at 1510                                                            ___ ___          n.12,  since an  outright ban will  almost invariably  prove most          efficient in  rooting out  unbecoming  appurtenances.   Moreover,          unlike  public-safety  regulations, for  example, esthetics-based          regulations often  stem from  subjective assessments  not readily          amenable either to objective measurement or empirical refutation,          thereby warranting careful  judicial scrutiny.   See  Metromedia,                                                           ___  __________          453 U.S. at 510; see also Ward, 491 U.S. at 793.                            ___ ____ ____                    The historical basis for the Commission ban against all                                         -48-          newsracks within  the District is incontestable:   newsracks "did          not exist at the  time with which the [C]ommission's  efforts are          concerned."   While the District  is "a tangible  reminder of old          Boston,"   however,   it  nonetheless   remains   a  contemporary          residential  and  commercial  community.    Charles  Street,  for          example,  accommodates  numerous  modern commercial  conveniences          (e.g., gas stations) presumably  alien, if not offensive,  to the           ____          esthetic sensibilities of even the most indurate "old Bostonian."          Thus,  notwithstanding the  Commission  mandate  to preserve  the          District's colonial and post-colonial  characteristics, residents          rely  upon   (or   at  least   tolerate)  many   uncharacteristic          obtrusions,  at  least  one  of which  (cable  television  boxes)          presumably  was  introduced   after  the  Commission   came  into          existence in 1955.  Various other anachronous utilities abound as          well    including paved roads and sidewalks, automobiles, traffic          signals, streetlights,  trash receptacles,  mail boxes,  and fire          hydrants     not  only along  Charles  Street but  throughout the          District.   Even though  many of these  nonconforming modernities          are  regulated by the Commission    often robustly    rather than               _________                                        ___________          banned outright,  the Commission concedes that  newsracks are the          _______________          only "street furniture" it subjects to an outright ban.                      As the district  court correctly noted, there can be no          question that  an outright  ban on all  nonconforming modernities          (e.g., as at Plymouth Plantation or Williamsburg) offers the most           ____          efficient  approach to  restoring  historical  and  architectural          integrity.   Where  the First  Amendment is  implicated, however,                                         -49-          efficient  governmental regulation  must be  "narrowly tailored."          Yet  the  Commission  neither demonstrates  that  "obvious  less-          burdensome alternatives" are unavailable, Cincinnati,  113 S. Ct.                                                    __________          at 1510 n.13, nor  explains why the ad hoc  permitting process it                                              __ ___          uses to  regulate anachronous utilities such  as cable television          boxes  should  not  be enlisted  for  newsrack  regulation.   Cf.                                                                        ___          Vincent, 466 U.S. at 808 (noting Metromedia plurality's view that          _______                          __________          "[i]t  is not speculative  to recognize that  billboards by their                    ___ ___________          very  nature, wherever  located and  however constructed,  can be          perceived as an `esthetic harm'") (emphasis added).                      Furthermore,  the  Commission  has  not  explained  its          rationale  for   concluding      let   alone  demonstrated,   see                                                                        ___          Cincinnati, 113 S. Ct. at 1510    that a permissible basis exists          __________          for  assuming that  newsracks, without  regard to  size, signage,               ________          design,  color,  location  or  number, cannot  comport  with  its          esthetic standards.   See  Chicago Newspaper Publishers  Ass'n v.                                ___  ___________________________________          City of Wheaton, 697 F. Supp. 1464, 1470 (N.D. Ill. 1988) (noting          _______________          that  city  "has  not  explained  .  . .  how  a  newsrack  on  a          residential street  destroys the `character'  of the neighborhood          any more than a  mailbox, utility pole, fire hydrant,  or traffic          sign").26   Nor  has  the  Commission shown  that  any  perceived                                        ____________________          26  In  its Staff Report, the Commission cites  its 1983 and 1990          surveys  of   the  District's  newsracks,  and   identifies  five          alternatives:    (1) an  outright ban  on  all newsracks;  (2) an          outright  ban on  all newsracks,  except those  distributing non-          "commercial"  speech,  whose  design   and  placement  would   be          regulated;  (3)  an outright  ban  on all  newsracks  in District          residential areas, with design and placement regulations for non-          "commercial"  newsracks on Charles Street; (4) no outright ban on          any  newsrack,  but general  regulation  of  their size,  design,                                         -50-          "visual clutter" could not  be addressed by restricting, severely          if  necessary,  the location  (e.g.,  within  the Charles  Street          __  _________                  ___          "commercial"  zone)  and  the  number  of  newsracks  within  the          District.   Plainly, these  obvious alternatives, if efficacious,                                        ____________________          color, location,  and attachment;  and (5) delaying  any District          regulation  pending  the  City's  decision  whether  to  regulate          newsracks city-wide.  The  Staff Report fails to  demonstrate the          required "narrow tailoring," for three reasons.                First,  the  Report was  based  solely  on  surveys of  then-                                                                      _____          existing newsracks, see  Commission Staff Report, at 65 ("None of          ________            ___          the distribution  box designs can  be said to  be architecturally          appropriate"),  and  does  not  consider  the  feasibility  of  a          different  newsrack  design  more  consonant   with  the  desired          esthetics.   Indeed, the analysis of Alternative #4 merely states          that any such design criteria would have  "to be drafted" at some          later time.   See id.  at 68.   This plainly  does not amount  to                        ___ __          "careful calculation."              Second,  the Commission  points to  no other  record evidence          that  it  ever actively  considered  alternative  newsrack design          proposals.  Even though the  Commission now acknowledges that  it          failed to send notice of its November 15, 1990, public hearing to          ______ __ ____ ______          plaintiffs' respective circulation  departments, the Staff Report          touts  the fact  that,  after years  of  public opposition  to  a          newsrack ban, plaintiffs  had lodged  no comments  at the  public          hearing.  In a  letter to the Commission shortly after  the first          guideline  was promulgated,  however, the  Boston Globe  not only          objected to the "notice" provided by the Commission, but reminded          the Commission of the Globe's "historical willingness" throughout          the preceding eight-year period to negotiate a mutually agreeable          newsrack guideline short of a total ban.               Finally, the  Report rejects  Alternatives 2-4 on  the ground          that  they  would   tax  the  Commission's  limited   enforcement          resources.  Administrative burden is an appropriate consideration          in the  "careful calculation"  inquiry.  Yet  even accepting  the          Commission's    uncorroborated    reference   to    its   limited          administrative resources,  it fails because  it simply  presumes,          sub  silentio,  that the  expressive  activity  here involved  is          ___  ________          somehow  due less  protection than the  anachronous appurtenances          the  Commission  has decided  to regulate,  but  not to  ban, and          therefore that  it is less deserving  of individualized treatment          under the Commission's ad  hoc permitting process.  Nor  does the                                 __  ___          Report  attempt a  comprehensive overview  of current  Commission          administrative   enforcement   expenditures   relating   to   its          regulation of these other unhistorical appurtenances.                                           -51-          would be much  less burdensome on  the important First  Amendment          expressive activity the Commission proposes to ban outright.                    As  the court  appropriately  acknowledges, of  course,          considerable deference is due  the Commission.  See supra  p. 31.                                                          ___ _____                    Nevertheless, deference to an outright ban on protected          expressive activity  cannot be predicated on anything less than a          reasoned  showing  that  the  Commission  "carefully  calculated"          alternative means  with a  view to their  suitability to  address          legitimate  regulatory interests  proportionate to  the resulting                                            _____________          burdens on  any protected First Amendment  activity.  Cincinnati,                                                                __________          113 S. Ct.  at 1510 n.12; see also Vincent, 466  U.S. at 803 n.22                                    ________ _______          (warning that  courts "may not  simply assume that  the ordinance          will always advance the  asserted state interests sufficiently to          justify its abridgment of  expressive activity").  The Commission          adopted its  outright District-wide ban on  all newsracks without          either  attempting less  draconian  regulation  or evaluating  by          incremental experimentation alternative approaches to controlling          and reducing any visual  blight caused by contemporary newsracks.          See Cincinnati, 113 S. Ct. at  1510 (noting that newsrack ban was          ___ __________          not  a  "reasonable  fit,"  since city  "failed  to  address  its          recently  developed  concern  about newsracks  by  regulating the          size, shape, appearance, or number").                    I do not suggest that government invariably must engage          in  actual experimentation  before settling  on an  outright ban,          especially if  it can demonstrate that  the particular expressive          activity  creates  a  serious  public nuisance  too  pressing  to                                         -52-          countenance  delay.   Nevertheless,  outright  bans on  protected          modes of  expressive activity such as  newspaper distribution are          not entitled  to judicial  deference absent the  required showing          that  less burdensome  alternatives were  "carefully calculated."          See  Ward, 491  U.S.  at 799  (noting that  there  is no  "narrow          ___  ____          tailoring" if government "regulate[s] expression in such a manner          that a   substantial  portion of  the burden on  speech does  not          serve   to  advance  its  goals");  Lakewood  486  U.S.  at  750;                                              ________          Providence Journal Co. v. City of Newport, 665 F. Supp.  107, 110          ______________________    _______________          (D.R.I.  1987)  (collecting  cases  holding  that  newsracks  are          entitled to "full First  Amendment protection"); cf. Vincent, 466                                                           ___ _______          U.S.  at 813 (noting that specific  locations (utility poles) for          posting signs were not  traditionally recognized public fora like          public streets); Metromedia, 453  U.S. at 490 (upholding outright          ______ _______   __________          ban on off-premises billboards carrying less-protected commercial                                                                 __________          speech).   On the other  hand, "narrow tailoring"  in the present          ______          context  does not  require the  government  to employ  the "least          restrictive  means,"  but  to  demonstrate  that   it  "carefully          calculated"  the suitability of obvious alternatives proportional                           ___________          to its legitimate esthetic objectives.  Each case is to be judged          on its particular  facts, of course, and  a total ban  might pass          muster  were it  made to  appear that  the  Commission "carefully          calculated"  less burdensome  alternatives and  justifiably found          them wanting.                    The  failure  to  make  such a  showing  is  especially          flagrant  in the present context, since the Commission settled on                                         -53-          a  total  ban because  newsracks  were  unknown in  post-colonial          times,  yet  it  continues  to  regulate,  rather  than  prohibit          outright,    numerous   post-colonial    appurtenances,   without          explaining  why a  newsrack  need inevitably  be more  unbecoming          historically  and architecturally  than a  trash receptacle  or a          streetlight  pole.   If  its response  is  merely that  the trash          receptacle or streetlight pole serves a more useful purpose which          must  somehow   be  tolerated,  then  the   Commission  seriously          undervalues  both  the  utility  of  expressive  activity  (i.e.,                                                                      ___          newspaper  distribution)  and the  First Amendment  protection to          which it is entitled.  As the failure to demonstrate the required          "narrow  tailoring" undermines  the  challenged Street  Furniture          Guideline under  the three-part  Perry test,  I would affirm  the                                           _____          district court judgment.                                          -54-
