507 U.S. 410 (1993), 91-1200, City of Cincinnati v. Discovery Network, Inc.

Docket Nº:No. 91-1200
Citation:507 U.S. 410, 113 S.Ct. 1505, 123 L.Ed.2d 99, 61 U.S.L.W. 4272
Party Name:City of Cincinnati v. Discovery Network, Inc.
Case Date:March 24, 1993
Court:United States Supreme Court

Page 410

507 U.S. 410 (1993)

113 S.Ct. 1505, 123 L.Ed.2d 99, 61 U.S.L.W. 4272

City of Cincinnati


Discovery Network, Inc.

No. 91-1200

United States Supreme Court

March 24, 1993

Argued Nov. 9, 1992




In 1989, petitioner city authorized respondent companies to place 62 freestanding newsracks on public property for the purpose of distributing free magazines that consisted primarily of advertisements for respondents' services. In 1990, motivated by its interest in the safety and attractive appearance of its streets and sidewalks, the city revoked respondents' permits on the ground that the magazines were "commercial handbill[s]," whose distribution on public property was prohibited by a preexisting ordinance. In respondents' ensuing lawsuit, the District Court concluded that this categorical ban violated the First Amendment under the "reasonable fit" standard applied to the regulation of commercial speech in Board of Trustees of State Univ. of New York v. Fox, 492 U.S. 469. The Court of Appeals affirmed.

[113 S.Ct. 1507] Held: The city's selective and categorical ban on the distribution, via newsrack, of "commercial handbills" is not consistent with the dictates of the First Amendment. Pp. 416-431.

(a) The record amply supports the conclusion that the city has not met its burden of establishing a "reasonable fit" between its legitimate interests in safety and esthetics and the means it chose to serve those interests. The ordinance's outdated prohibition of handbill distribution was enacted long before any concern about newsracks developed, for the apparent purpose of preventing the kind of visual blight caused by littering, rather than any harm associated with permanent, freestanding dispensing devices. The fact that the city failed to address its recently developed concern about newsracks by regulating their size, shape, appearance, or number indicates that it has not "carefully calculated" the costs and benefits associated with the burden on speech imposed by its prohibition. See Fox, 492 U.S. at 480. The lower courts correctly ruled that the benefit to be derived from the removal of 62 newsracks out of a total of 1,500-2,000 on public property was small. Pp. 416-418.

(b) The Court rejects the city's argument that, because every decrease in the overall number of newsracks on its sidewalks necessarily effects an increase in safety and an improvement in the attractiveness of the cityscape, there is a close fit between its ban on newsracks

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dispensing "commercial handbills" and its interests in safety and esthetics. This argument is premised upon the distinction the city has drawn between commercial speech such as respondents', which is viewed as having only a low value, and the assertedly more valuable noncommercial speech of "newspapers," whose distribution on public land is specifically authorized by separate provisions of the city code. The argument attaches more importance to that distinction than the Court's cases warrant, and seriously underestimates the value of commercial speech. Moreover, because commercial and noncommercial publications are equally responsible for the safety concerns and visual blight that motivated the city, the distinction bears no relationship whatsoever to the admittedly legitimate interests asserted by the city, and is an impermissible means of responding to those interests. Thus, on this record, the city has failed to make a showing that would justify its differential treatment of the two types of newsracks. Pp. 418-428.

(c) Because the city's regulation of newsracks is predicated on the difference in content between ordinary newspapers and commercial speech, it is not content-neutral, and cannot qualify as a valid time, place, or manner restriction on protected speech. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791. Pp. 428-431.

946 F.2d 464 (CA6, 1991), affirmed.

STEVENS, J., delivered the opinion of the Court, in which BLACKMUN, O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined. BLACKMUN, J., filed a concurring opinion, post, p. 431. REHNQUIST, C.J., filed a dissenting opinion, in which WHITE and THOMAS, JJ., joined, post, p. 438.

Page 412

STEVENS, J., lead opinion

JUSTICE STEVENS delivered the opinion of the Court.

Motivated by its interest in the safety and attractive appearance of its streets and sidewalks, the city of Cincinnati has refused to allow respondents to distribute their commercial publications through freestanding newsracks located on public property. The question presented is whether this refusal is consistent with the First Amendment.[1] In agreement with the District Court and [113 S.Ct. 1508] the Court of Appeals, we hold that it is not.


Respondent, Discovery Network, Inc., is engaged in the business of providing adult educational, recreational, and social programs to individuals in the Cincinnati area. It advertises those programs in a free magazine that it publishes nine times a year. Although these magazines consist primarily of promotional material pertaining to Discovery's courses, they also include some information about current events of general interest. Approximately one third of these magazines are distributed through the 38 newsracks that the city authorized Discovery to place on public property in 1989.

Respondent, Harmon Publishing Company, Inc., publishes and distributes a free magazine that advertises real estate for sale at various locations throughout the United States. The magazine contains listings and photographs of available

Page 413

residential properties in the greater Cincinnati area, and also includes some information about interest rates, market trends, and other real estate matters. In 1989 Harmon received the city's permission to install 24 newsracks at approved locations. About 15% of its distribution in the Cincinnati area is through those devices.

In March, 1990, the city's Director of Public Works notified each of the respondents that its permit to use dispensing devices on public property was revoked, and ordered the newsracks removed within 30 days. Each notice explained that respondent's publication was a "commercial handbill" within the meaning of § 714-1-C of the Municipal Code,[2] and therefore § 71423 of the Code[3] prohibited its distribution on public property. Respondents were granted administrative hearings and review by the Sidewalk Appeals Committee. Although the Committee did not modify the city's position,

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it agreed to allow the dispensing devices to remain in place pending a judicial determination of the constitutionality of its prohibition. Respondents then commenced this litigation in the United States District Court for the Southern District of Ohio.

After an evidentiary hearing, the District Court concluded that

the regulatory scheme advanced by the City of Cincinnati completely prohibiting the distribution of commercial handbills on the public right of way violates the First Amendment.[4]

The court found that both publications were "commercial speech" entitled to First Amendment protection because they concerned lawful activity and were not misleading. While it recognized that a city

may regulate publication dispensing devices pursuant to its substantial [113 S.Ct. 1509] interest in promoting safety and esthetics on or about the public right of way,[5]

the District Court held, relying on Board of Trustees of State Univ. of New York v. Fox, 492 U.S. 469 (1989), that the city had the burden of establishing "a reasonable `fit' between the legislature's ends and the means chosen to accomplish those ends." App. to Pet. for Cert. 23a. (quoting Fox, 492 U.S. at 480). It explained that the "fit" in this case was unreasonable because the number of newsracks dispensing commercial handbills was "minute" compared with the total number (1,500-2,000) on the public right of way, and because they affected public safety in only a minimal way. Moreover, the practices in other communities indicated that the City's safety and esthetic interests could be adequately protected "by regulating the size, shape, number or placement of such devices." App. to Pet. for Cert. 24a.[6]

Page 415

On appeal, the city argued that, since a number of courts had held that a complete ban on the use of newsracks dispensing traditional newspapers would be unconstitutional,[7] and that the "Constitution . . . accords a lesser protection to commercial speech than to other constitutionally guaranteed expression," Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 563 (1980), its preferential treatment of newspapers over commercial publications was a permissible method of serving its legitimate interest in ensuring safe streets and regulating visual blight.[8] The Court of Appeals disagreed, holding that the lesser status of commercial speech is relevant only when its regulation was designed either to prevent false or misleading advertising or to alleviate distinctive adverse effects of the specific speech at issue. Because Cincinnati sought to regulate only the "manner" in which respondents' publications were distributed, as opposed to their content or any harm caused by their content, the court reasoned that respondents' publications had "high value" for purposes of the Fox "reasonable fit" test. 946 F.2d at 471 (italics omitted). Applying that test, the Court of Appeals agreed with the District Court that the burden placed on speech "cannot be justified by the paltry gains in safety and beauty achieved by the ordinance." Ibid.[9] The importance of the Court of

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Appeals decision, together with the dramatic growth in the use of newsracks throughout the country,[...

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