Lexington TMC case argued in U.S. 6th Circuit Appeals Court
After winning an injunction in a groundbreaking federal court lawsuit to stop a local ordinance that effectively banned TMC distribution, Publisher Rufus Friday of McClatchy's Herald Leader in Lexington, Ky., returned to court on Dec. 7 to preserve the victory.
This time the Herald Leader and its courtroom counsel John Bussian were in Cincinnati before a three-judge panel of the U.S. Court of Appeals defending the Herald Leader against the City of Lexington's appeal from the May 2017 order granting the Herald Leader a preliminary injunction against enforcement of the city's new anti-TMC ordinance. That order marked the first time a federal court held that legislation making it too costly to distribute newspapers violates the First Amendment.
There was no shortage of questions by the three-judge panel, which includes Circuit Judges Eric Clay, Julia Smith Gibbons and Deborah Cook. The judges asked Herald Leader counsel why the Herald Leader needed to distribute its TMC products from carrier to driveway, whether the government had to consider the Herald Leader's successful "opt out" mechanism that allows readers to be removed from the distribution list before it sought to ban driveway distribution, and whether the government had the latitude to ban TMC driveway distribution despite the additional expense to the paper.
The city's burden on appeal is to show the fact findings by the trial court in Lexington – specifically, that:
- The city should have tried the Herald Leader's opt out mechanism, a tool less intrusive to the Herald Leader's First Amendment right to distribute, before banning TMC distribution, and
- That the cost of mailing or porching TMC products is prohibitively expensive for the Herald Leader – were "clearly" wrong. Ultimately, the city has to prove that the federal trial judge who stopped enforcement of the ordinance (U. S. District Judge Karen Caldwell) "abused" her discretion by issuing the injunction in favor of the Herald Leader.
Herald Leader Publisher Rufus Friday, a member of SNPA's Board of Directors, remained optimistic following last Thursday's argument in Cincinnati. Friday said: "The First Amendment guarantees the right not only to publish, but also to distribute newspapers. That First Amendment right justified the district judge's issuance of the injunction back in May. And we're hopeful the Court of Appeals allows the injunction to stand so our Community News can continue to be circulated."
A decision by the Court of Appeals is anticipated in the next 90 days.