The City of Cincinnati has said it had nothing to do with the Cincinnati Center City Development Corporation’s removal of newspaper boxes belonging to weekly newspaper CityBeat and other publications and has told 3CDC to stop taking them.
The directive first came June 19, the day after at least nine boxes owned by CityBeat near City Hall and other locations downtown were removed from public rights-of-way by the private nonprofit. CityBeat had previously negotiated with 3CDC about the placement and condition of some of the boxes, publisher Tony Frank says, and was unaware they were being removed.
After emails and calls from CityBeat, 3CDC acknowledged the nonprofit took the boxes and initially indicated it would eventually take all of them in Downtown and Over-the-Rhine.
In a statement published the day after the boxes were removed, Frank indicated CityBeat was considering legal action over the removals on First Amendment grounds.
Following an email inquiry from CityBeat to the city that day, Department of Transportation and Engineering’s Don Gindling wrote to representatives with 3CDC.
“If your staff is removing these please stop,” Gindling wrote. “Please let us know if you have removed any of these, if so you may want to reach out to CityBeat and return them. If you have issues with any existing locations, let DOTE know and we can start the process for getting them relocated or removed.”
The city did not respond to CityBeat‘s email or a subsequent call to its law department. However, Cincinnati City Solicitor Paula Boggs-Muething on June 24 responded to questions from Cincinnati City Council member David Mann, who was critical of the removals.
“…We will be called to task for removing boxes containing a publication with editorial content,” Mann wrote. “These moves will be particularly suspect because some in our community find some CityBeat articles to be controversial.”
Muething says the city had nothing to do with 3CDC’s actions.
“3CDC did not and does not have the authority to remove news racks from the right of way,” Muething wrote. “Further, it is my understanding based on emails and other information we have gathered from the City Administration that the city did not approve 3CDC’s actions or otherwise delegate authority to 3CDC that would have permitted it to engage in these actions. The emails instead demonstrate that the city refused to sanction 3CDC’s actions upon learning of the CityBeat news racks’ removal, and it directed 3CDC to stop removing them.”
In her memo, Muething said it was unclear whether the issue had First Amendment dimensions.
“The First Amendment implications of the news rack removal would turn on whether 3CDC is deemed a state actor, because the First Amendment only applies to entities acting in that capacity,” she wrote, noting that 3CDC is a private nonprofit. “This is likely a question that will require interpretation by the federal courts.”
3CDC merged with Downtown Cincinnati, Inc. earlier this year, giving it some authority to do beautification projects in the Downtown Cincinnati Improvement District. Such districts are governed by some, but not all, of the rules covering local political bodies.
In emails to CityBeat, 3CDC indicated it believed it has the authority to remove the boxes.
“It is conceivable, however, that 3CDC’s status as the manager of the Downtown Cincinnati Improvement District (“DCID”) is sufficient to demonstrate state action,” Muething wrote in her memo.
As of publication of this story, the boxes have not been replaced, though 3CDC has made a verbal commitment to do so.
This article appears in Jun 19-26, 2019.