bench, signs, a mail box, and a traffic light. The nearest adjacent building is a medical office building, and on the northeast corner is a business structure formerly used as the place of business of an automobile dealer, with showroom and service facilities. Approximately one block from this intersection there is a large apartment complex, the Wildman Arms Apartments.
39. The newspaper box at the intersection of South Chester Road and Yale Avenue can be seen by motorists travelling on either roadway. South Chester Road is part of Route 320, and is 1.1 miles long within the Borough of Swarthmore. Between the hours of 7:00 A.M. and 9:00 A.M., and 4:00 P.M. and 6:00 P.M., traffic on South Chester Road at the above intersection is heavy. Parking on South Chester Road near this intersection is prohibited, since there is no shoulder on the roadway at this point. Parking on Yale Avenue is permitted, except within 25 feet of the intersection. The Borough police have experienced some traffic problems due to the placement of the newspaper box at this intersection. There has been some illegal parking by motorists who were getting newspapers, and the police have moved several motorists who have stopped on South Chester Road while making a purchase from the box. There is no indication that similar traffic problems have been caused by the location of the mail box at the same intersection. There is no evidence of any actual accidents or mishaps caused by the placement of the newspaper box at this intersection. Plaintiff has agreed to move the newspaper box from its present location to a location farther down Yale Avenue if its present placement creates a traffic hazard.
40. With respect to the existing locations and the proposed additional locations, plaintiff has agreed it would abide by defendants' decision as to placement so as to alleviate any interference with traffic, pedestrian or vehicular, and also has agreed to secure the boxes by means of weights placed within the boxes instead of chaining them to municipal standards, if the Borough so desires.
Within the framework established by the above Findings of Fact, we now turn to a discussion of the legal issues presented by this litigation.
Defendants contend, in essence, that this case does not properly raise questions of freedom of the press under the First and Fourteenth Amendments, but involves instead the efforts of a quiet suburban town to control commercial activity within its boundaries. The principal arguments which defendants put forward are: First, that the ordinance is not directed against newspaper boxes per se, but seeks to prohibit "commercial use" and obstruction of the public streets and sidewalks; second, that plaintiff is a corporation organized for profit; third, that the Philadelphia Inquirer is sold rather than given away to the public, and that a typical daily copy thereof contains approximately 45% advertising; and, fourth, that advertising rates in a newspaper depend upon its circulation, and that an increase in circulation may permit an increase in advertising rates.
While we are sensitive to the commendable goals of the residents of the Borough to control what may be perceived as a pervasive commercialism in our cities that is rapidly encroaching upon pleasant and well-ordered suburban communities such as the Borough of Swarthmore, we cannot agree with the contention that a newspaper loses the protection of the First and Fourteenth Amendments merely because it is operated for profit, or forms part of a profit-making enterprise. Such a contention was considered and rejected by the Court in Wulp v. Corcoran, 454 F.2d 826 (1st Cir. 1972), a decision which invalidated an ordinance of the City of Cambridge, Massachusetts, establishing a licensing requirement for newspaper vendors on the city streets:
"* * * it can no longer be seriously contended that the mere fact that newspapers such as those which plaintiffs wish to distribute are offered for sale rather than distributed free of charge dilutes the protection otherwise afforded by the First Amendment. Whatever room for doubt there may once have been on this score was removed by Smith v. California, 361 U.S. 147, 80 S. Ct. 215, 4 L. Ed. 2d 205 (1959). The Court in that case stated with respect to the First Amendment rights of a bookseller charged with violation of a state obscenity statute that '[it] is of course no matter that the dissemination takes place under commercial auspices. ' Id. at 150, 80 S. Ct. at 217. In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), the Court reaffirmed its allegiance to this view by giving full First Amendment protection to a newspaper which had accepted a paid advertisement alleged to be libelous. Cf. Martin v. Struthers, 319 U.S. 141, 63 S. Ct. 862, 87 L. Ed. 1313 (1943); Grosjean v. American Press Co., [297 U.S. 233, 56 S. Ct. 444, 80 L. Ed. 660 (1936)]. See also Note, Freedom of Expression in a Commercial Context, 78 Harv. L.R. 1191 (1965)." Wulp v. Corcoran, supra, 454 F.2d at 835, n. 13.
Indeed, historically, both before and after the adoption of the Constitution and the Bill of Rights, the norm in this country has been the sale of newspapers containing paid advertisements rather than free distribution; there is nothing to indicate that the words "freedom * * * of the press" in the First Amendment were intended to include only the "non-commercial" or not-for-profit press. As the Supreme Court noted in Murdock v. Pennsylvania, 319 U.S. 105, 111, 63 S. Ct. 870, 87 L. Ed. 1292 (1943): "The right to use the press for expressing one's views is not to be measured by the protection afforded commercial handbills. It should be remembered that the pamphlets of Thomas Paine were not distributed free of charge."
We conclude, therefore, that the protection of the First and Fourteenth Amendments is not to be denied to plaintiff merely because its newspaper operations can be described as "commercial".
Further, we are satisfied that the constitutional protection extends to means of distribution of the newspaper, as well as to its content and the ideas expressed therein. The Supreme Court has long held that the right to circulation is as essential to the freedom of the press as the right to publish; without circulation, freedom of publication is a mockery. Lovell v. Griffin, 303 U.S. 444, 452, 58 S. Ct. 666, 82 L. Ed. 949 (1938); Grosjean v. American Press Co., 297 U.S. 233, 56 S. Ct. 444, 80 L. Ed. 660 (1936); Ex parte Jackson, 96 U.S. 727, 24 L. Ed. 877 (1878).
The precise issue in the instant case -- the extent of constitutional protection afforded to newspaper boxes along public streets -- has been considered in only two decisions known to this Court, each of which has concluded that newspaper boxes are a protected means of distribution. Although those cases dealt with ordinances which differed from the one before us and the factual situations are also distinguishable, nevertheless, the New York and California decisions striking down the restraints on distribution through the means of newspaper vending machines are persuasive even though not controlling.
Gannett Co. v. City of Rochester, 69 Misc. 2d 619, 330 N.Y.S. 2d 648 (S. Ct. Monroe County, 1972), involved an ordinance of the city of Rochester which required a permit in order to maintain or use any table, box, stand, newspaper vending machine or other structure for the sale, display or storage of newspapers, or magazines upon any sidewalk. An applicant for a permit was required to file proof of insurance, or proof of financial responsibility for self-insurance; this requirement could be waived if the applicant was unable to furnish such proof, and if the City Council concurred in the waiver. A permit application was required to be filed 10 days in advance in order to place a structure at a given location. The Commissioner of Public Works was empowered to determine if the proposed structure would interfere with the public's use of the right-of-way, or would block traffic or interfere with visibility at a given location. The Commissioner was also delegated authority to regulate the size, color, and appearance of the structure.
The Court in Gannett concluded that the Rochester ordinance was unconstitutional, on the following grounds: First: the ordinance was too broad, since it had the effect of restricting freedom of circulation of the press under the guise of preserving the right of free passage along the public sidewalks. By failing to directly attack the feared evil, viz., obstruction or unsafe conditions on public sidewalks, and by regulating instead an important means of newspaper distribution, the ordinance was "guilty of overkill similar to shooting down a fly with a cannon", 330 N.Y.S. 2d at 653. Second, the standards set forth in the ordinance were unconstitutionally vague, invited equivocal interpretation, and had the effect of delegating to the Commissioner of Public Works the untrammeled power to grant or deny a permit; and, third, the 10 day waiting period prescribed in the ordinance could in some cases amount to an unconstitutional prior restraint on freedom of expression.
In Remer v. City of El Cajon, No. 344869 (Sup. Ct. San Diego Cty., Calif., filed April 24, 1974), the Court considered an ordinance of the City of El Cajon, California, which made it unlawful "for any person to place or maintain within, in, on, upon, or over any public parkway or sidewalk, any stand, rack, holder, vending machine, self-service stand, coin operated box, storage unit, or other device for the purpose of offering for sale, vending, distributing, or giving away, newspapers, periodicals, or other printed matter, or to authorize, cause or permit any such placement or maintenance." Judge Orfield concluded that the city ordinance was constitutionally defective because of its total prohibition of newsracks along public sidewalks:
"The First Amendment of the United States Constitution, as applied to the states by the Fourteenth Amendment, guarantees to these plaintiffs the right to distribute newspapers by means of newsracks or other vending devices placed upon the public sidewalks, but does not preclude the City of El Cajon from making reasonable regulations relating to the use of vending devices on sidewalks in the exercise of its police power." Remer v. City of El Cajon, supra, at p. 4 (slip opinion)
After careful consideration of the legitimate interests of all parties in the instant litigation, we must agree with the courts in Gannett and Remer, supra, that newspaper vending boxes or machines along public streets and sidewalks are a constitutionally protected means of distribution, and we conclude that the Ordinance of the Borough of Swarthmore is constitutionally defective and therefore void, insofar as it is applied to condition the placement of newspaper boxes on public sidewalk strips within the Borough upon compliance with the totally uncertain and unsatisfactory provisions of the ordinance as modified by the resolution.
The Supreme Court has long recognized the importance of the right of access to the public streets for free dissemination of information.
Many subsequent decisions have quoted the words of Mr. Justice Roberts in Hague v. CIO, 307 U.S. 496, 515-516, 59 S. Ct. 954, 83 L. Ed. 1423 (1939):
Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for the purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been part of the privileges, immunities, rights and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.