Sense and sensibility

The California Department of Transportation does a lot of useful things for us. It builds highways and bridges and removes graffiti from freeway overpasses. It even operates a helpful phone service that informs travelers about local road conditions. Now, you can add censorship to the long list of public services the agency provides.

At the Caltrans building at 1820 Alhambra Boulevard, Sacramento News & Review racks have been removed because at least one employee finds the publication offensive. That worker filed a formal complaint with the agency’s civil-rights department, and the newspaper subsequently was removed from Caltrans property.

“It was because of an offensive image on the cover. There was a girl kissing another girl or something like that,” said Jamie Peart. “I didn’t see it.” Peart owns the Tradewinds Café, which occupies part of the Caltrans building that once hosted the SN&R rack. In fact, SN&R has not featured any cover stories within the last year depicting women kissing each other.

Stacy Watson, the building manager at 1820 Alhambra Boulevard, said she believed the prohibition actually stemmed from the personal ads that run near the back of the paper.

“I think it was one of those ‘women seeking women’ ads,” Watson said, adding that the decision came from agency’s Equal Employment Opportunity department.

So far, it is not entirely clear whether it was a risqué photo, a lesbian’s spicy personal advertisement or some other part of the newspaper that offended this particular employee’s sensibilities.

Even Caltrans spokeswoman Tamie McGowen said she didn’t know what specific part of the paper had prompted the complaint but that the material had raised concerns about sexual harassment. “Mid-level managers reacted in accord with our zero-tolerance sexual-harassment policy,” McGowen explained.

Whatever it was, the offending material is now far removed from the Caltrans campus on Alhambra—along with the local news, political opinion, arts and entertainment coverage, and listings that make up the bulk of the paper. New racks have been set up across the street at the nearby light-rail station.

The ban apparently applies only to SN&R and seems to be based solely on the content of the newspaper. Several other publications are still allowed inside the public building. Stacks of the free Senior Magazine are still available, along with a slew of real-estate publications, the SEIU Union Update newsletter and the new-age Holistic Happenings magazine.

At least one publication that features adult-oriented ads has so far escaped the ban. The Sacramento Bee has its own rack not far from the cafe’s cash register. The Bee frequently runs advertisements for strip clubs and adult bookstores that sell pornographic materials and sex toys. The ads mostly run in the “Ticket” section, which roughly mimics the alternative-weekly format.

The Caltrans building also allows copies of the Valley Yellow Pages, another free publication that features advertisements for escort services. These often accompany photographs of scantily clad women and always are found under the letter “e.”

SN&R’s distribution manager, Michael Billingsley, said that during his years of working for alternative weekly newspapers, he has gotten used to seeing the paper tossed out of stores and other businesses. “We get booted from somewhere just about every week for one reason or another,” he said.

But he said he couldn’t remember the last time the paper was banned from a public building. “I don’t recall anything quite like this happening,” Billingsley said, adding that “somebody there just doesn’t like our content, and they’re using this to try and get rid of us. It’s too bad. That was a good stop for us. A lot of people in that building really liked our paper.” Billingsley also said that he thinks Caltrans “doesn’t have a leg to stand on.”

Jim Ewert, an attorney with the California Newspaper Publishers Association, said that this sort of censorship by a public agency was “pretty rare.” And he said the decision was troubling.

“By law, they cannot discriminate in choosing which publications can be distributed in a public place based solely on content.”

Ewert said public agencies have a lot of latitude to control the number and placement of publications in a public area due to space considerations and concerns about clutter. But he said the courts long ago established that content can’t be used as the basis to keep one publication out while allowing others in a public place.

Of course, there are laws governing the distribution of obscene or harmful material, Ewert said. “We are talking about matter that is patently offensive,” material that lacks any artistic or scientific or other value, he explained. “Really, that applies to your Hustler magazine. And that’s clearly not what we have here.”

But Ewert said just the threat of a lawsuit could be enough to cow the agency.

“In this day and age, when people are so litigious, entities are very sensitive to issues that can get them hailed into court as a defendant,” Ewert explained. “They’d rather curb a newspaper’s First Amendment right to distribute than to risk a lawsuit from an employee.”

But Ewert said that even if the employee did sue Caltrans, the complaint was unlikely to succeed. In a sexual-harassment lawsuit, for example, the worker would have to prove that SN&R somehow tainted the work environment and interfered with his or her job.

“I’m hard-pressed to see any reasonable link, any way for the state to be held liable,” Ewert said.

And it seems Caltrans isn’t entirely confident of the decision. McGowen said the decision to remove SN&R is now being looked at by Caltrans Director Will Kempton.

“Now that the issue has been brought to the director’s attention, he has asked that it be reviewed to make sure in applying our sexual-harassment policy in this instance, that it be balanced against First Amendment provisions,” McGowen said.

Caltrans isn’t the only government agency in town to have recently jumped into the censorship game. According to one employee at the federal Bureau of Reclamation, stacks of SN&R have been removed from the bureau’s building on Cottage Way after an employee complained about the political opinions expressed in the paper. “They didn’t like the left-wise slant I guess.” The employee, who asked not to be named in this article, said that the BOR does have a policy banning all but government publications in federal buildings. But he said that policy had not been enforced until one of his co-workers became incensed about the paper’s perceived political bent. Calls to the building manager at that building were not returned.

Back at the Caltrans building, Jamie Peart said that at first he didn’t understand what the fuss was about. “I just thought, if you don’t like it, don’t look at it,” Peart explained. But now he thinks the removal was for the best. “I have six grandkids, you know. I don’t want them looking at that stuff.”