UPDATED: Council Will Allow News Racks to Return to City Hall

Originally posted at 7:13 p.m. Dec. 17, 2013. Edited to include additional comments from representatives of Common Sense.

News racks will return to San Juan Capistrano City Hall and the Community Center, the council decided tonight, issuing a statement that the city respects the First Amendment rights of the media.

Three councilmen met in closed session to discuss a lawsuit filed by Community Common Sense, an advocacy newspaper often critical of the council majority. The paper sued when the council decided in August it would no longer allow news racks at City Hall and the Community Center after Common Sense placed its racks next to other local media.

Councilman Derek Reeve recused himself because, as a lawyer, he has represented the newspaper in the past.

And Councilman Roy Byrnes declined to participate in protest, saying in a letter to fellow councilmen that constitutional freedoms were too important to discuss behind closed doors despite a lawsuit prompting the discussion.

The council’s decision amounts to a proposal that must still win approval from Common Sense representatives. It would allow all news racks, including those of the Capistrano Dispatch and the Capo Valley News,  to return to San Juan Capistrano City Hall and the Community Center, albeit a few feet away from their original positions.

However, Kim Lefner, editor of Common Sense, said the city's proposal falls short because she also wants the council to agree to refrain from using an anti-littering ordinance as a way to prevent distribution of the paper on city property. 

Mayor Sam Allevato said the lawsuit was never about preventing newspapers from placing racks on public sidewalks.

“Any allegations to the contrary are untrue,” he said.

His remarks seem contrary to a letter City Attorney Hans Van Ligten sent to Common Sense in September, which says, “[P]lease be advised that placement of newspapers in or about City Hall or any other city property is not permitted.”

Lefner said she can't accept the city's proposal until council agrees to rescind that letter, which also threatened criminal prosecution.

"It would be foolish for us to trust that they will behave in an honorable manner without an enforceable agreement in place," she said.

Allevato said after the meeting that he can't say anything more than what Assistant City Attorney Patrick Munoz recommended. 

"I look forward to a resolution," he said.

Allevato did say during the meeting said the council will continue to discuss regulating news racks in the future.

The city has the ability “to control the proposed use of the property it owns through reasonable time, place and manner regulations ... that balance the interests of all,” Allevato said.

The proposal helps the council to avoid spending scarce city funds and wasting the court’s time, he added.