City Council will discuss rescinding the policy decision approved at the April 1st council meeting regarding removal of non-government publications (including local newspapers) from city property – except a rack located at the back of the Fullerton Public Library near the Community corkboard. Mayor Pro Tem Charles made the motion to adgendize the issue for the May 6 council meeting which starts at 5:30pm at Fullerton City Hall.

“The bottom line is that I recognized my error from the previous meeting in voting for the ban on non-governmental materials even with the library exception,” Mayor Pro Tem Charles wrote in her newsletter. “Based on my own concerns with the new information I had learned, I moved to agendize rescinding the policy at our next meeting on May 6th.”

According to Dr. Charles, the information as originally presented was incomplete. After visiting Irvine City Hall, one of two cities cited in the presentation on April 1, she discovered that Irvine currently allows publication distribution on their premises. After a strong reaction from local publications and citizens, councilmembers Dr. Charles and Ahmad Zahra both expressed interest in reopening the issue in the May 6 meeting.

Councilman Ahmad Zahra, the only vote against the ban at the April 1st meeting, argued its potential legal risks. “I believe this is an encroachment on our First Amendment right of free speech and opens our city to liability. I’m also very concerned … especially for seniors and others with mobility challenges  and people without internet, that they may now be essentially cut off from accessing any news on what’s happening locally,” said Zahra. “So I think it puts people at a disadvantage at a time where I believe we need to be facilitating democracy.”

The issue was instigated by a local blog which sent a letter to the City of Fullerton threatening legal action if space for a (currently non-existent) newspaper it said it was planning to publish was not made available for public display.

Fullerton city attorney Richard Jones gave his opinion during the April 1 meeting, “If the council’s actions this evening are retaliatory or focused in nature on a given publication, that would violate the First Amendment.  If the Council’s focus is on the […] broader policy, what’s the appropriate use of our city facilities and what limitations should or should not be imposed; that is more reflective of the state of the federal law with respect to time, place, and manner restrictions. Could somebody sue the city? The answer is yes.”

Jones asserted that the focus of this council is the broader public policy issue. Which is to determine the appropriate use of public facilities. Baron Bettenhausen, assistant city attorney, stated that there are two cities in Orange County with similar policies: Irvine and Newport Beach. He also mentioned, after being questioned, that San Juan Capistrano had a policy but abandoned it due to litigation.

However, Irvine was sued for its attempt to ban a publication and in 2017 paid out a $350,000 settlement,  rescinded its policy, and reinstated access to newspapers. Newport Beach also accepts newspapers delivered to its public library and council chambers. Though at present only one newspaper takes advantage of the opportunity in each city.

According to Dr. Charles, Irvine City Hall continues to allow publication distribution on its grounds and this was one of the pieces of new information that made her move to reopen this issue at the city’s upcoming meeting. The other being that the Newport Beach city policy was not a ban on non-government publications at all, but the library materials acquisition policy.

In a later interview, Mayor Fred Jung stated that due to there being no new evidence and no change in circumstances, there is no reason for him to reexamine his decision from April 1. “We did what we found was best,” said Mayor Jung. “Which is create a policy, one that did not exist […] that was completely neutral.”

David Loy, legal director of the First Amendment Coalition said, “I have a hard time understanding why, or what reason there would be to ban all newsracks whatsoever from say the lobby, as long as they’re not obstructing access, not a safety hazard.  When in doubt the government ought to err on the side of protecting more speech rather than less.”

Many Fullertonians have spoken out against the Publication Ban. This includes: Emily Wilson, editor and Chief of the Daily Titan, Frank Russell, CSUF professor and Daily Titan Staff Editorial Advisor, and Saskia Kennedy, editor of the Fullerton Observer. Since the meeting on April 1, multiple publications have published articles about the ban  including the Orange County Register, L.A. Times, Voice of OC, and LAist, to name a few. CSUF’s student newspaper, the Daily Titan, has also spoken out against the move.

“The ball is now in the council’s court. Should they continue forward, the council would be impeding upon one of the most fundamental values of democracy: the freedom of the press,” wrote the Daily Titan Executive Board, in an opinion published on April 7. “For that reason, we urge the Fullerton City Council to reconsider their position, but not just for our sake. Consider those who would be paying the highest price: the taxpaying residents of Fullerton.”