Lexington Herald-Leader's 'TMC' win reversed by U.S. Sixth Circuit

The Lexington Herald-Leader's 2017 First Amendment "right to distribute" win before a Kentucky federal trial court was reversed in January by the U. S. Court of Appeals in Cincinnati. 

In the first ever ruling by a federal court halting enforcement of a local government ordinance banning driveway delivery of TMC products, the federal trial court for the Eastern District of Kentucky decided that an ordinance making newspaper distribution too costly likely violates the First Amendment. On that reasoning, the federal trial court ruled in favor of the Herald-Leader's motion to enjoin enforcement of the ordinance pending trial on the merits of the Herald Leader's lawsuit against the city-county government.

Critical to the trial court's ruling was testimony by Herald Leader Publisher Rufus Friday that complying with the ordinance's driveway distribution ban would double the cost of TMC circulation.

The city-county government appealed the trial court's decision. And one year later, the federal appeals court for the Sixth Circuit – including Kentucky, Michigan, Ohio and Tennessee – reversed the trial court decision, allowing enforcement of the ordinance. 

Herald Leader Publisher Rufus Friday has taken the steps necessary to appeal the ruling by the Sixth Circuit. In briefs filed with the U. S. Court of Appeals, the Herald Leader argues that the Sixth Circuit's opinion conflicts with decisions by the United States Supreme Court, the Court of Appeals for the Fourth Circuit (N.C., W.Va., S.C., Md., and Va.), as well as decisions by the Georgia and Montana state supreme courts.

Most important, the publisher argues that the Sixth Circuit ruling imperils the long-standing First Amendment right to circulate news products without government regulation that makes distribution cost-prohibitive.

While the appeal unfolds, the Herald Leader has moved to stay the Sixth Circuit's decision, to allow the Herald-Leader to continue circulating its TMC products without interruption.

John Bussian chairs SNPA's First Amendment / Government Relations Committee and is lead counsel to the Herald Leader in the pending TMC litigation.