Discovery Network, Inc. v. City of Cincinnati

• Decision Date: 11 October 1991
• Docket Number: No. 90-3817,90-3817
• Citation: 946 F.2d 464
• Parties: , 19 Media L. Rep. 1449 DISCOVERY NETWORK, INC. and Harmon Publishing Co., Plaintiffs-Appellees, v. CITY OF CINCINNATI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 464

946 F.2d 464

60 USLW 2272, 19 Media L. Rep. 1449

DISCOVERY NETWORK, INC. and Harmon Publishing Co., Plaintiffs-Appellees, v. CITY OF CINCINNATI, Defendant-Appellant.

No. 90-3817.

United States Court of Appeals,

Sixth Circuit.

Argued April 30, 1991.

Decided Oct. 11, 1991.

Marc D. Mezibov (briefed), Martha K. Landesberg (argued), Sirkin, Pinales, Mezibov & Schwartz, Cincinnati, Ohio, for plaintiffs-appellees.

Richard H. Castellini, City Solicitor's Office for the City of Cincinnati, Mark S. Yurick (argued and briefed), Office of the City Sol., Cincinnati, Ohio, for defendant-appellant.

Before KRUPANSKY and BOGGS, Circuit Judges, and DUGGAN, District Judge. ^*

BOGGS, Circuit Judge.

The case involves the constitutionality of Cincinnati's ordinance prohibiting the distribution of commercial handbills on public property. This ordinance effectively grants distributors of "newspapers," such as the Cincinnati Post, USA Today, and the Wall Street Journal, access to the public sidewalks through newsracks, while denying that same access to distributors of "commercial handbills." The district court rendered a judgment preventing enforcement of this ordinance because it violates the first amendment. The city appealed, arguing that the ordinance was constitutionally permissible as a regulation of "commercial speech" because of the "lesser protection" such speech is afforded under the first amendment. Because we believe that "commercial speech" only receives lesser first amendment protection when the governmental interest asserted is either related to regulating the commerce the "commercial speech" is promoting, or related to any distinctive effects such commercial activity would produce, and neither governmental interest is asserted here, we affirm the district court.

I

Plaintiffs are publishers of publications distributed throughout the Cincinnati metropolitan area. Discovery Network publishes a magazine that advertises learning programs, recreational opportunities, and social events for adults. Harmon Publishing publishes and distributes Home Magazine, which lists houses and other residential real estate for sale or rent. Both plaintiffs use newspaper dispensing devices ("newsracks") placed on public right-of-ways to distribute their publications.

Both plaintiffs had been given permission by the city to place newsracks along public right-of-ways to distribute their publications according to Amended Regulation 38. ¹ Their status changed, however, in February 1990 when the City Council passed a motion requiring the Department of Public Works to enforce the existing ordinance prohibiting the distribution of "commercial handbills" on public property. Cincinnati Municipal Code § 714-23. ² Plaintiffs brought suit under 42 U.S.C. § 1983, requesting declaratory and injunctive relief. This case ultimately came before the district court for an evidentiary hearing on two issues: whether the regulation violated plaintiffs' first amendment rights, and whether the city's mechanism for appealing the administrative decision to enforce the ordinance violated plaintiffs' right to due process.

The court held that hearing on July 9, 1990. In that hearing, the city contended that the newsracks pose aesthetic and safety problems for the city. The aesthetic problems arise because of the non-uniform design and color schemes of the different types of newsracks. The safety problems arise because the racks are placed near busy streets, especially near crosswalks and bus stops. They are also attached by chains to city fixtures, such as lightpoles, causing the fixtures to rust. However, there are currently no city regulations establishing any safety or aesthetic standards for newsracks.

Neither the City Architect nor the City Engineer could distinguish the commercial from the non-commercial newsracks. In fact, the Architect testified that the city's aesthetic concerns would be alleviated by an ordinance regulating the color and size of all newsracks. Both witnesses seemed primarily concerned about the potential proliferation of the total number of newsracks as a result of newsracks distributing commercial speech. The Engineer testified that the only areas in which commercial newsracks differed from non-commercial newsracks was in the potential for proliferation, and in the enhanced first amendment protection accorded to devices dispensing non-commercial publications. He believed such proliferation was likely because he had received four requests for permits from commercial publishers for newsrack permits in the prior two years the first such requests he had ever received. ³ The Architect's testimony followed the Engineer's, as he believed that permitting plaintiffs' newsracks to remain would send a signal to other commercial publishers that newsracks were a permissible way to distribute the publications, thereby increasing the number of racks.

The court ruled in favor of the city on the due process claim, but in favor of the plaintiffs on the first amendment claim. The court reached many conclusions of law: that the publications were commercial speech within the meaning of the first amendment because they proposed commercial transactions in the form of advertisements; ⁴ that commercial speech was entitled to first amendment protection where, as here, the activities promoted were lawful and the speech itself not inherently misleading; and that the ordinance would be measured against the four-part test announced by the Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 566, 100 S.Ct. 2343, 2351, 65 L.Ed.2d 341 (1980). That test provides that a government regulation will be upheld if it (1) regulates commercial speech; (2) promotes a substantial governmental interest; (3) directly advances that interest; and, (4) is not more extensive in its regulation of speech than is necessary to serve that interest. Id.

The court focused its analysis on the last part of that test. The court applied the Supreme Court's interpretation of the fourth part of the Central Hudson test in Board of Trustees of State University of New York v. Fox, 492 U.S. 469, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989). The Fox Court stated that a regulation is not more extensive than necessary when it is a reasonable fit between the ends directly advanced by the statute and the means chosen as embodied in the regulation. Fox, 492 U.S. at 480, 109 S.Ct. at 3034. The Court held that the government has the burden of proving the reasonableness of that fit. Id.

The district court's analysis led it to conclude that the city's ordinance did not constitute a reasonable fit between its asserted ends and the means chosen. The court held that a complete ban on newsracks distributing commercial speech violated the Fox test. Only 62 of the between 1,500 and 2,000 newsracks present on the city's streets belonged to the plaintiffs. Based on the city's concession that newsracks dispensing "non-commercial" papers caused the same problems as those distributing commercial papers, the court held that the regulation was an excessive means to accomplish the stated ends.

Cincinnati timely appealed the court's determination. ⁵

II

A

Both parties agree on the legal contours within which this case must be decided. Both parties agree that this case requires the application of the four-part Central Hudson test, and the interpretation given by the Supreme Court to the fourth part of that test in Fox. Both parties agree that this ordinance satisfies the first two parts of the test: in this case it regulates purely commercial speech, ⁶ and Cincinnati's interests in street safety and city aesthetics are substantial. As it is clear that the ordinance directly advances the purposes asserted, we have only one issue before us: Does Cincinnati's ordinance banning the distribution of commercial handbills along city streets and sidewalks prescribe a "reasonable fit" between the ends asserted and the means chosen to advance them? We hold that it does not.

B

In establishing the "reasonable fit" requirement, the Court in Fox attempted to draw a middle ground between greater and lesser review of a regulation of commercial speech. The Court expressly rejected imposing either a "least restrictive means" or a "rational basis" standard of review on regulations of commercial speech. Fox, 492 U.S. at 479-81, 109 S.Ct. at 3034-35. The Court rejected the least restrictive means approach as inconsistent with its prior commercial speech jurisprudence, and rejected the rational basis approach because "[t]here it suffices if the law could be thought to further a legitimate governmental goal, without reference to whether it does so at inordinate cost." Fox, 492 U.S. at 480, 109 S.Ct. at 3035. The Court described its "reasonable fit" approach as one "that represents not necessarily the single best disposition but one whose scope is 'in proportion to the interest served'.... Here we require the government goal to be substantial, and the cost to be carefully calculated." Id. We presume that the cost referred to by the Fox Court is that which would accrue because of the burden placed on the commercial speech, and that the Fox test requires that such costs must be outweighed by the benefits of the asserted regulation. We can only make that calculation if we know what value the Court has placed on commercial speech, and it is to that consideration that we now turn.

C

Commercial speech has unquestionably been protected by the first amendment since the Supreme Court in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), held that the Court's prior offhand statement in Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942), that "purely commercial advertising" was not protected did not establish an exception to first amendment protection. The Court recognized in Virginia...