All Commentary
Wednesday, November 1, 1995

Steal These Free Papers?

Taking Free Newspapers Should Be a Crime

Mr. Longley is a freelance writer living in Durham, North Carolina.

“Due to its racist nature, the Diamondback will not be available today—read a book!” Such was the advice on flyers left at campus distribution centers for the student newspaper at the University of Maryland at College Park. Someone had taken 10,000 copies of the paper. Two students were later disciplined by the college, but the local prosecutor did not bring charges. It was November of 1993. In the same month, 2,500-3,000 copies of the student paper were confiscated at The University of Maryland-Baltimore County. The University charged one of those responsible, but the campus police did not take action—“you can’t steal free newspapers,” they said.[1]

Should taking free papers, in bulk, be a crime? It should. Dealing with such theft as a crime is consistent with limited-government philosophy.

The media has focused on high-profile cases such as that of the University of Pennsylvania, where minority students seized copies of the Daily Pennsylvanian that contained allegedly racist material. But race is not the only motivating factor in the seizure of free papers.[2]

I did an informal tally, based on campus incident reports supplied by the Washington-based Student Press Law Center, which aims at protecting the interests of high school and college newspapers. From fall 1993 to the end of April 1995, there were 63 confiscation cases reported to the SPLC. Of these, there were 11 to 18 incidents in which the people who confiscated copies of a student newspaper were offended by the paper’s attitude, real or perceived, toward ethnic minorities. In contrast, there were between 12 and 25 cases (with some overlap with the racial cases) where the motive was to suppress embarrassing news or comment about an individual or group, such as the arrest of a student or the disciplining of a professor or fraternity.[3]

Mike Hiestand, an attorney at the SPLC, says that high rates of newspaper confiscations began in 1992, and persist to this day.[4] Off campus as well as on, newspaper confiscation is an issue, an issue that “many consider to be an ongoing problem,” according to Helene Siesel, Administrative Director of the Association of Alternative Newsweeklies.[5]

There are differences among the states as to how they deal with the confiscation of free newspapers.

A prosecutor in Mercer County, New Jersey, which includes Trenton, refused to consider incidents of student newspaper seizures at Trenton State College to be a crime. Prosecutor Edward Bertucio said that “[t]he newspapers were free. The public had [a] right to them. Once they are left there, people can pick them up and do anything they want to with them.”[6]

A judge in Louisiana dismissed charges against a Southeastern Louisiana University student accused of taking papers, calling the affair a “college prank.”[7]

Police did not respond to a confiscation incident in Marshall University in Huntington, West Virginia. City police sent editors of the Statesman to the campus police, who in turn did not make an investigation.[8]

The District Attorney responsible for the University of Northern Colorado in Greeley refused to make charges in a confiscation incident on the grounds that no one can steal a free paper.[9]

In a California case, campus police refused to act when 1,000 copies of a student paper were taken at San Jose City College. Since it was a free paper, the police felt unable to do anything.[10]

In 1992, San Francisco Police Chief Richard Hongisto had over 2,000 copies of the San Francisco Bay Times, a gay paper which had run a critical article and cartoon about him, seized by officers. No criminal charges were filed—the District Attorney said that the Bay Times had no “fair market value,” hence the seizure did not constitute theft. However, Hongisto was fired and a jury later awarded damages to the paper, finding that Hongisto had violated the First Amendment.[11]

In Berkeley, California, Gene McKinney was charged with taking massive amounts of free papers and selling them to a recycling company. The publisher of one of the papers victimized by McKinney sent prosecutors a brief filed by the Bay Times in the Hongisto case, making arguments for protecting free papers. This may have helped persuade authorities to bring charges against McKinney.[12]

There are states where authorities have successfully treated the confiscation of free papers as theft. Four students at the University of Florida at Gainesville were convicted of theft in 1988 for taking copies of the free Florida Review.[13]

There are more recent examples. In the summer of 1993, two former journalism students at Pennsylvania State University pleaded guilty to criminal charges in connection with their confiscation of copies of a conservative student paper, The Lionhearted.[14] Two fraternity brothers at Mansfield University, also in Pennsylvania, were convicted of disorderly conduct for carrying off 1,200 copies of a student paper in March, 1995.[15]

In May 1994 it became a misdemeanor in Maryland for anyone to take copies of a newspaper, free or not, with the intent of stopping other people from reading them. A New York law imposes fines on “unauthorized person[s]” who “maliciously remove or destroy” newspapers from someone else’s property, provided the newspapers come out at least once a week.[16]

So much for what the law is. The question is what the law should be.

Of the arguments against criminalizing the seizure of free papers, the most obvious is that “you can’t steal a free paper.” If a person has a right to take one copy of a free publication, he must necessarily have the right to take one hundred copies. This is not the only argument that people have voiced.

There are those who think that seizing free papers is itself a form of free expression. In an editorial, the Washington Post said that “[i]t can be argued” that this is true.[17] Less equivocal, the official student paper at Penn State, the Daily Collegian, said it definitely was an exercise of free expression to seize and burn copies of The Lionhearted.[18]

I consider the argument that people have a First Amendment right to confiscate papers “quite weak.” The free expression interests involved are those of the vandalized papers. If would-be vandals don’t like what a free newspaper says, they can express their disagreement by writing or speaking against the message they don’t like, or even by pursuing legal or administrative action against the paper, which would at least give the paper a chance to defend itself in some form of hearing.

Free expression rights are not the only liberties at stake here. Private property rights, in their purest form, are involved as well. A newspaper publisher, no less than a distributor of other goods, has the right to be free of interference in getting a paper into the hands of willing customers. Those who advertise in a free newspaper have an interest in having the ads they paid for reach their intended audience.[19]

Moreover, some newspapers which I have classified as free in this article are not, in fact, free at all. Many college newspapers are paid for in part by fees assessed from all students. If a student has already paid for a paper through her fees, she has in effect taken out a subscription to that paper. Vandals who seize so many copies that students are denied access to the paper are stealing directly from the students, and can and should be prosecuted as thieves without benefit of additional legislation.

One final case where the authorities need not wait for further legislation before acting is a case where the newspaper publisher puts up a notice reading “first copy free: additional copies $1.00,” or whatever other price is deemed appropriate (by saying “only one copy per person,” the publisher would in effect be setting an infinite price). In such a case, a person who takes more than one copy of the paper without paying is obviously a thief under pre-existing criminal statutes in all states. []

1.   Michael Koster, “The New Campus Censors,” Columbia Journalism Review, October 1994; Retha Hill, “2 Students at U-Md. Disciplined,” Washington Post, February 25, 1994; Kate Kulver, “Thefts Plague Campus Press,” Quill, October 1994; Student Press Law Center, “1993-94, 1994-95 School Years Newspaper Theft Incidents,” (release dated April 18, 1995).

2.   I tried to reach an NAACP spokesperson to discuss the question of minority students who seize university papers perceived as racist or insensitive. Each official I contacted referred me to another official, until finally an NAACP official told me that the matter was too touchy an issue for him to discuss with the media (telephone conversation, May 3, 1995).

3.   These figures are based on information in a document sent me by the Student Press Law Center: “1993-94, 1994-95 School Years, Newspaper Theft Incidents (September 1993 through April 1995),” April 28, 1995, hereafter “Newspaper Theft Incidents.”

4.   Interview with Hiestand, April 28, 1995.

5.   Interview with Siesel, May 5, 1995. The association represents free U.S. and Canadian weeklies.

6.   Allan Wolper, “Students Steal Newspapers But Are Not Prosecuted,” Editor and Publisher, April 24, 1993.

7.   M. L. Stein, “Stealing and Trashing Student Newspapers Is Current Campus Craze,” Editor and Publisher, September 3, 1994; Kate Culver, “Campus Fires,” Quill, October 1993; “Newspaper Theft Incidents,” p. 6, item #27.

8.   Ibid., p. 5, item #22.

9.   Ibid., p. 8, item #38.

10.   “Newspaper Theft Incidents,” op. cit., p. 9, item #1.

11.   M. L. Stein, “Police Chief Fired for Alleged Seizure of Gay Papers,” Editor and Publisher, May 23, 1992; M. L. Stein, “Gay Newspaper Sues Over Confiscation of Papers,” Editor and Publisher, October 3, 1992; “Ex-Police Chief Found Liable in Removal of S. F. Newspaper,” Los Angeles Daily Journal, September 19, 1994, p. A3.

12.   M. L. Stein “Man Arrested for Pilfering Newsracks,” Editor and Publisher, April 22, 1995.

13.   Allan Wolper, “Students Steal Newspapers But Are Not Prosecuted,” Editor and Publisher, April 24, 1995; Kate Culver, “Campus Fires,” Quill, October 1993.

14.   Christopher Shea, “2 Women at Penn State Charged with Theft of Right-Wing Newspaper,” The Chronicle of Higher Education, July 28, 1993; Michael Koster, “The New Campus Censors,” Columbia Journalism Review, October 1994.

15.   “Newspaper Theft Incidents,” p. 12, item #22.

16.   “There for the Taking?” Student Press Law Center Report, Fall 1993; NY General Business Law, 1994 Supplement, Section 396-x.

17.   “Can You `Steal’ a Free Paper?” Washington Post, January 22, 1994, A16. I sent a fax to Meg Greenfield, of the Post’s staff, asking her to elaborate on some of the points in this editorial. One of my questions asked her if she thought taking copies of free publications was protected by the First Amendment. I have not yet received a response to this question or any of the other questions I asked. Longley to Greenfield, May 3, 1995.

18.   Quoted in Kate Culver, “Campus Fires,” Quill, October 1993.

19.   Mike Hiestand made a similar argument about advertisers in his interview. Interview with Hiestand, April 28, 1995.