Richard Howard, Secretary of the South Dakota Department of Transportation, and Jeff Holden, Director of South Dakota Highway Safety and Motor Vehicles, appeal a district court ruling declaring three South Dakota statutes unconstitutional. These statutes prohibit newspaper vending machines at interstate rest areas and were challenged by Harlan L. Jacobsen, a newspaper publisher, after his vending machine was removed. Jacobsen claimed that the removal violated his First and Fourteenth Amendment rights, constituting an unlawful seizure of property.
The district court ruled in Jacobsen's favor, stating that the statutes were unconstitutional under the First Amendment's overbreadth doctrine, as they effectively created a "First Amendment Free Zone" by banning all commercial activities, including newspaper vending, at interstate rest areas. The court rejected the defendants’ argument that federal law, specifically 23 U.S.C. 111(b), granted states the authority to regulate vending machines at rest areas, interpreting it instead as permitting states to allow vending machines but not to impose prohibitive regulations.
The court further concluded that the statutes were unreasonable as applied in this context, as they imposed an excessive restriction on constitutionally protected activities, particularly newspaper distribution. The appeals court affirmed the district court's judgment without needing to address the broader issue of overbreadth.
The court determined that distributing and reading newspapers aligns with the typical functions of interstate rest areas and does not compromise the state's interests in ensuring safety, rest, and information for travelers. The court noted that other states have less restrictive regulations and criticized the state for not demonstrating effective alternative means of distribution, especially given the sparse population in South Dakota. The statutes were deemed unconstitutional as applied, leading to an injunction against state officers from enforcing them. Summary judgment favored Jacobsen against Howard and Holden on a section 1983 claim, as Jacobsen did not provide sufficient evidence linking them to the actions of an unnamed independent contractor who removed his vending machine. Howard and Holden appealed, arguing that the statutes were not facially overbroad and that Jacobsen needed to prove the statutes' unconstitutionality as applied. The court's First Amendment analysis hinged on the type of forum being regulated. In traditional public forums, restrictions face strict scrutiny, while nonpublic forums are subject to reasonable regulation. Howard and Holden argued that rest areas are nonpublic fora, while Jacobsen contended their sidewalks should be treated as public fora. The district court referenced previous rulings to conclude that interstate rest areas do not qualify as public property traditionally devoted to assembly and debate. Although acknowledging the evolving nature of public assembly and communication, the court ultimately focused on assessing the reasonableness of the South Dakota statutes, assuming without deciding that the district court was correct in classifying the rest areas as nonpublic fora.
Howard and Holden contend that the district court misapplied the analysis of the reasonableness of statutes governing newspaper vending machines at safety rest areas. They argue the court should have focused solely on the statutes' reasonableness rather than their compatibility with the rest area's purpose. They highlight federal disfavor toward vending machines in rest areas, noting that federal law prohibits machines not operated by or contracted with the state (23 U.S.C. 111(b); 23 C.F.R. 752.5(b)). They assert their superior position to assess the statutes' reasonableness compared to the federal court.
The district court's analysis aligns with Supreme Court precedent, which emphasizes assessing the speech being restricted by government regulation. In *City of Lakewood v. Plain Dealer Publishing Co.*, the Supreme Court indicated that any ordinance restricting newsracks should be evaluated based on whether the restriction serves an interest unrelated to speech. A distinction is made regarding public property, which, while not a traditional or designated public forum, can still facilitate First Amendment expression if such expression is appropriate for the property.
The Supreme Court has also maintained that restrictions on speech are reasonable if they align with the state's legitimate interests in preserving property use. The district court referenced *Sentinel Communications* affirming a constitutional right to distribute newspapers via newsracks, supported by various precedents, including *City of Lakewood*. While some courts suggest cities cannot entirely ban newsracks from public property, this issue remains unresolved by the Supreme Court. There exists a division among justices regarding whether a city can prohibit newsracks in public rights-of-way, with dissenting opinions asserting that the right to distribute newspapers does not extend to exclusive use of city property via newsboxes.
In Graff v. City of Chicago, the Seventh Circuit examined a city ordinance regulating sidewalk newsstands. A plurality of five judges determined that newsstands on public property do not receive First Amendment protection. However, a majority disagreed, emphasizing that the operation of newsstands is inherently expressive conduct deserving of First Amendment safeguards. The court found that the city's complete prohibition of commercial newspaper distribution at interstate rest areas was unreasonable and unconstitutional, as it impeded protected speech without a valid justification related to public safety or welfare. The court affirmed the lower court's decision against the state statutes as applied to Jacobsen but did not address the broader question of whether the statutes were facially overbroad. It noted that the overbreadth doctrine is cautiously applied and requires a significant risk of infringing on protected expression for a facial challenge to be warranted. Overall, the court concluded that the statutes unreasonably restricted First Amendment activities and should not prevent newspaper distribution in public spaces.
In Board of Trustees v. Fox, the court determined that allowing a facial challenge to the statutes would improperly enable broader attacks on laws rather than protect individual rights against unconstitutional statutes. The court concluded that since the statutes were found unconstitutional as applied, the overbreadth issue need not be addressed, emphasizing that the district court should have evaluated the statutes' validity as applied before considering overbreadth. Consequently, the portion of the district court's ruling that deemed the statutes overbroad was vacated. The court further examined the argument concerning the incidental speech doctrine, which allows for incidental regulations on speech if certain criteria are met. However, since the statutes in question prohibit the sale of newspapers, the court found that they do not merely incidentally regulate speech and fail to adequately support the state's asserted interests. Thus, while vacating the overbreadth ruling, the court affirmed the remaining aspects of the district court's judgment.
