City of Cincinnati v. Discovery Network, Inc.

507 U.S. 410

Case Year: 1993

Case Ruling: 6-3, Affirmed

Opinion Justice: Stevens

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Blackmun, Kennedy, O'Connor, Scalia, Souter


1st Concurring Opinion

Author: Blackmun


1st Dissenting Opinion

Author: Rehnquist

Joiner(s): White, Thomas

2nd Concurring Opinion



2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


In 1989 two businesses sought permission to install newsracks on Cincinnati city property. Discovery Network, Inc., which provides adult educational, recreational, and social services programs, wished to distribute free magazines that advertised its programs and provided information "about current events of general interest." Harmon Publishing Company, Inc., wanted to circulate its free real estate magazine, which contained "listings and photographs of available residential properties in the greater Cincinnati area." Later that year, the city authorized Discovery Network to install thirty-eight racks, and Harmon Publishing to erect twenty-four.

In March 1990, the city notified the businesses that it was revoking its permission and that the racks would need to be removed within thirty days. Cincinnati officials were acting per a city ordinance prohibiting the distribution of "commercial handbills" on public property. For purposes of the law, a commercial handbill is "any printed or written matter, dodger, circular, leaflet, pamphlet, paper, booklet or any other printed or otherwise reproduced original copies of any matter of literature: [w]hich advertises for sale any merchandise, product, commodity or thing; or [w]hich directs attention to any business or mercantile or commercial establishment, or other activity, for the purpose of directly promoting the interest thereof by sales."

Discovery Network and Harmon Publishing believed that the city's action violated their First Amendment rights, and that lawful commercial speech deserved some degree of First Amendment protection. They brought suit in a federal district court, where the city defended its order on grounds of safety and aesthetics. Although the court agreed that these were "substantial interests," it asserted that the city's action had not met standards promulgated by the Supreme Court in other commercial speech cases. In particular, the district court noted that Supreme Court decisions required the city to establish a "reasonable fit" between the ordinance's ends and "the means chosen to accomplish those ends." Yet, in the district court's opinion, the "fit" here was not reasonable: the city could not justify its order on aesthetic grounds because the number of newsracks erected by Discovery Network and Harmon was "minute" compared to Cincinnati's total number of dispensers (1,500-2,000). Nor did the city demonstrate a substantial safety problem. A reasonable fit could be established, the judge claimed, "by regulating the size, shape, number or placement of such devices," rather than by eliminating them altogether.

In its appeal, the city argued that Central Hudson Gas and Electric v. Public Service Commission of New York (1980) lent support to its position. In this ruling, the Court had said that the Constitution gives less protection to commercial speech than to other constitutionally guaranteed expression. This statement, coupled with the fact that it would be constitutionally impermissible for the city to prohibit traditional newspapers from using newsracks, led the city to argue that it could--in the interest of safety and aesthetics--prefer newspapers to commercial publications. In a dramatic opinion, the court of appeals not only rejected the city's argument but also held, as Justice Stevens explained, that the "lesser status of commercial speech is relevant only when its regulation was designed to either prevent false or misleading advertising, or to alleviate distinctive adverse effects of the specific speech at issue." In other words, the court asserted that commercial speech should receive essentially the same constitutional protection as traditional speech.



... There is no claim in this case that there is anything unlawful or misleading about the contents of respondents' publications. Moreover, respondents do not challenge their characterization as commercial speech. Nor do respondents question the substantiality of the city's interest in safety and esthetics. It was, therefore, proper for the District Court and the Court of Appeals to judge the validity of the city's prohibition under the standard we set forth in Central Hudson [ Gas & Electric Corp. v. Public Service Comm'n of New York, 1980] and [ Board of Trustees of State Univ. of New York v.] Fox[1989]. It was the city's burden to establish a "reasonable fit" between its legitimate interests in safety and esthetics and its choice of a limited and selective prohibition of newsracks as the means chosen to serve those interests. There is ample support in the record for the conclusion that the city did not "establish the reasonable fit we require."... The ordinance on which it relied was an outdated prohibition against the distribution of any commercial handbills on public property. It was enacted long before any concern about newsracks developed. Its apparent purpose was to prevent 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. The benefit to be derived from the removal of 62 newsracks while about 1,500-2,000 remain in place was considered "minute" by the District Court and "paltry" by the Court of Appeals. We share their evaluation of the "fit" between the city's goal and its method of achieving it.

In seeking reversal, the city argues that it is wrong to focus attention on the relatively small number of newsracks affected by its prohibition, because the city's central concern is with the overall number of newsracks on its sidewalks, rather than with the unattractive appearance of a handful of dispensing devices. It contends, first, that a categorical prohibition on the use of newsracks to disseminate commercial messages burdens no more speech than is necessary to further its interest in limiting the number of newsracks; and, second, that the prohibition is a valid "time, place, and manner" regulation because it is content-neutral and leaves open ample alternative channels of communication. We consider these arguments in turn.

The city argues that there is a close fit between its ban on newsracks dispensing "commercial handbills" and its interest in safety and esthetics because every decrease in the number of such dispensing devices necessarily effects an increase in safety and an improvement in the attractiveness of the cityscape. In the city's view, the prohibition is thus entirely related to its legitimate interests in safety and esthetics.

We accept the validity of the city's proposition, but consider it an insufficient justification for the discrimination against respondents' use of newsracks that are no more harmful than the permitted newsracks, and have only a minimal impact on the overall number of newsracks on the city's sidewalks. The major premise supporting the city's argument is the proposition that commercial speech has only a low value. Based on that premise, the city contends that the fact that assertedly more valuable publications are allowed to use newsracks does not undermine its judgment that its esthetic and safety interests are stronger than the interest in allowing commercial speakers to have similar access to the reading public.

We cannot agree. In our view, the city's argument attaches more importance to the distinction between commercial and noncommercial speech than our cases warrant and seriously underestimates the value of commercial speech. This very case illustrates the difficulty of drawing bright lines that will clearly cabin commercial speech in a distinct category. For respondents' publications share important characteristics with the publications that the city classifies as "newspapers." Particularly, they are "commercial handbills" within the meaning of ... the city's Code because they contain advertising, a feature that apparently also places ordinary newspapers within the same category. Separate provisions in the Code specifically authorize the distribution of "newspapers" on the public right of way, but that term is not defined. Presumably, respondents' publications do not qualify as newspapers because an examination of their content discloses a higher ratio of advertising to other text, such as news and feature stories, than is found in the exempted publications. Indeed, Cincinnati's City Manager has determined that publications that qualify as newspapers and therefore can be distributed by newsrack are those that are published daily and/or weekly and " primarily presen[t] coverage of, and commentary on, current events"... (emphasis added).

The absence of a categorical definition of the difference between "newspapers" and "commercial handbills" in the city's Code is also a characteristic of our opinions considering the constitutionality of regulations of commercial speech. Fifty years ago, we concluded that the distribution of a commercial handbill was unprotected by the First Amendment, even though half of its content consisted of political protest. Valentine v. Chrestensen (1942).... Subsequent opinions, however, recognized that important commercial attributes of various forms of communication do not qualify their entitlement to constitutional protection....

In later opinions we have stated that speech proposing a commercial transaction is entitled to lesser protection than other constitutionally guaranteed expression, see Ohralik v. Ohio State Bar Assn. (1978). We have also suggested that such lesser protection was appropriate for a somewhat larger category of commercial speech--"that is, expression related solely to the economic interests of the speaker and its audience." Central Hudson Gas & Elec. Corp. v. Public Service Comm'n of New York. We did not, however, use that definition in either Bolger v. Youngs Drug Products (1983) or in Board of Trustees of State Univ. of New York v. Fox (1989).

In the Bolger case we held that a federal statute prohibiting the mailing of unsolicited advertisements for contraceptives could not be applied to the appellee's promotional materials.... It is noteworthy that in reaching that conclusion we did not simply apply the broader definition of commercial speech advanced in Central Hudson--a definition that obviously would have encompassed the mailings--but rather "examined [them] carefully to ensure that speech deserving of greater constitutional protection is not inadvertently suppressed." In Fox, we described the category even more narrowly, by characterizing the proposal of a commercial transaction as " the test for identifying commercial speech" (emphasis added). Under the Fox test it is clear that much of the material in ordinary newspapers is commercial speech and, conversely, that the editorial content in respondents' promotional publications is not what we have described as "core" commercial speech. There is no doubt a "common sense" basis for distinguishing between the two, but under both the city's Code and our cases the difference is a matter of degree.

... We ... agree with the Court of Appeals that Cincinnati's actions in this case run afoul of the First Amendment. Not only does Cincinnati's categorical ban on commercial newsracks place too much importance on the distinction between commercial and noncommercial speech, but in this case, the distinction bears no relationship whatsoever to the particular interests that the city has asserted. It is therefore an impermissible means of responding to the city's admittedly legitimate interests....

The city has asserted an interest in esthetics, but respondent publishers' newsracks are no greater an eyesore than the newsracks permitted to remain on Cincinnati's sidewalks. Each newsrack, whether containing "newspapers" or "commercial handbills," is equally unattractive.... As we have explained, the city's primary concern, as argued to us, is with the aggregate number of newsracks on its streets. On that score, however, all newsracks, regardless of whether they contain commercial or noncommercial publications, are equally at fault. In fact, the newspapers are arguably the greater culprit because of their superior number....

In the absence of some basis for distinguishing between "newspapers" and "commercial handbills" that is relevant to an interest asserted by the city, we are unwilling to recognize Cincinnati's bare assertion that the "low value" of commercial speech is a sufficient justification for its selective and categorical ban on newsracks dispensing "commercial handbills." Our holding, however, is narrow. As should be clear from the above discussion, we do not reach the question whether, given certain facts and under certain circumstances, a community might be able to justify differential treatment of commercial and noncommercial newsracks. We simply hold that on this record Cincinnati has failed to make such a showing. Because the distinction Cincinnati has drawn has absolutely no bearing on the interests it has asserted, we have no difficulty concluding, as did the two courts below, that the city has not established the "fit" between its goals and its chosen means that is required by our opinion in Fox. It remains to consider the city's argument that its prohibition is a permissible time, place, and manner regulation.

The Court has held that government may impose reasonable restrictions on the time, place or manner of engaging in protected speech provided that they are adequately justified "`without reference to the content of the regulated speech.'"... The city contends that its regulation of newsracks qualifies as such a restriction because the interests in safety and esthetics that it serves are entirely unrelated to the content of respondents' publications. Thus, the argument goes, thejustification for the regulation is content neutral.

The argument is unpersuasive because the very basis for the regulation is the difference in content between ordinary newspapers and commercial speech. True, there is no evidence that the city has acted with animus toward the ideas contained within respondents' publications, but just last Term we expressly rejected the argument that "discriminatory ... treatment is suspect under the First Amendment only when the legislature intends to suppress certain ideas." Simon & Schuster v. Members of New York State Crime Victims Bd. Regardless of the mens rea of the city, it has enacted a sweeping ban on the use of newsracks that distribute "commercial handbills," but not "newspapers." Under the city's newsrack policy, whether any particular newsrack falls within the ban is determined by the content of the publication resting inside that newsrack. Thus, by any commonsense understanding of the term, the ban in this case is "content-based."...

In sum, the city's newsrack policy is neither content-neutral nor ... "narrowly tailored." Thus, regardless of whether or not it leaves open ample alternative channels of communication, it cannot be justified as a legitimate time, place, or manner restriction on protected speech.

Cincinnati has enacted a sweeping ban that bars from its sidewalks a whole class of constitutionally protected speech. As did the District Court and the Court of Appeals, we conclude that Cincinnati has failed to justify that policy. The regulation is not a permissible regulation of commercial speech, for on this record it is clear that the interests that Cincinnati has asserted are unrelated to any distinction between "commercial handbills" and "newspapers." Moreover, because the ban is predicated on the content of the publications distributed by the subject newsracks, it is not a valid time, place, or manner restriction on protected speech. For these reasons, Cincinnati's categorical ban on the distribution, via newsrack, of "commercial handbills" cannot be squared with the dictates of the First Amendment.

The judgment of the Court of Appeals is



... I agree that Cincinnati's ban on commercial newsracks cannot withstand scrutiny under Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York (1980) and Board of Trustees of State University of N.Y. v. Fox (1989), and I therefore join the Court's opinion. I write separately because I continue to believe that the analysis set forth in Central Hudson and refined in Fox affords insufficient protection for truthful, noncoercive commercial speech concerning lawful activities.... The present case demonstrates that there is no reason to treat truthful commercial speech as a class that is less "valuable" than noncommercial speech. Respondents' publications, which respectively advertise the availability of residential properties and educational opportunities, are unquestionably "valuable" to those who choose to read them, and Cincinnati's ban on commercial newsracks should be subject to the same scrutiny we would apply to a regulation burdening noncommercial speech....

The commercial publications at issue in this case illustrate the absurdity of treating all commercial speech as less valuable than all noncommercial speech. Respondent Harmon Publishing Company, Inc., publishes and distributes a free magazine containing listings and photographs of residential properties. Like the "For Sale" signs this Court, in Linmark Associates, Inc. v. Willingboro (1977), held could not be banned, the information contained in Harmon's publication "bear[s] on one of the most important decisions [individuals] have a right to make: where to live and raise their families."... Respondent Discovery Network, Inc., advertises the availability of adult educational, recreational, and social programs. Our cases have consistently recognized the importance of education to the professional and personal development of the individual.... The "value" of respondents' commercial speech, at least to those who receive it, certainly exceeds the value of the offensive, though political, slogan displayed on the petitioner's jacket in Cohen v. California (1971). I think it highly unlikely that according truthful, noncoercive commercial speech the full protection of the First Amendment will erode the level of that protection.... I have predicted that "the Court will never provide child pornography or cigarette advertising the level of protection customarily granted political speech."... Yet I do not believe that protecting truthful advertising will test this Nation's commitment to the First Amendment to any greater extent than protecting offensive political speech.... The very fact that government remains free, in my view, to ensure that commercial speech is not deceptive or coercive, to prohibit commercial speech proposing illegal activities, and to impose reasonable time, place, or manner restrictions on commercial speech greatly reduces the risk that protecting truthful commercial speech will dilute the level of First Amendment protection for speech generally.

I am heartened by the Court's decision today to reject the extreme extension of Central Hudson's logic, and I hope the Court ultimately will come to abandon Central Hudson's analysis entirely in favor of one that affords full protection for truthful, noncoercive commercial speech about lawful activities.


... Because the city chose to address its newsrack problem by banning only those newsracks that disseminate commercial handbills, rather than regulating all newsracks (including those that disseminate traditional newspapers) alike, the Court holds that its actions violate the First Amendment to the Constitution. I believe this result is inconsistent with prior precedent.

"Our jurisprudence has emphasized that `commercial speech [enjoys] a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values,' and is subject to `modes of regulation that might be impermissible in the realm of noncommercial expression.'" Board of Trustees of State Univ. of New York v. Fox (1989).... We have advanced several reasons for this treatment, among which is that commercial speech is more durable than other types of speech, since it is "the offspring of economic self-interest."... Commercial speech is also "less central to the interests of the First Amendment" than other types of speech, such as political expression.... Finally, there is an inherent danger that conferring equal status upon commercial speech will erode the First Amendment protection accorded noncommercial speech, "simply by a leveling process of the force of the Amendment's guarantee with respect to the latter kind of speech."... I agree with the Court that the city's prohibition against respondents' newsracks is properly analyzed under Central Hudson, but differ as to the result this analysis should produce.

As the Court points out, "respondents do not challenge their characterization as 'commercial speech,'" and "[t]here is no claim in this case that there is anything unlawful or misleading about the contents of respondents' publications."... "Nor do respondents question the substantiality of the city's interest in safety and esthetics."... This case turns, then, on the application of the last part of the Central Hudson analysis. Although the Court does not say so, there can be no question that Cincinnati's prohibition against respondents' newsracks "directly advances" its safety and esthetic interests because, if enforced, the city's policy will decrease the number of newsracks on its street corners. This leaves the question whether the city's prohibition is "more extensive than necessary" to serve its interests, or, as we elaborated in Fox, whether there is a "reasonable fit" between the city's desired ends and the means it has chosen to accomplish those ends.... Because the city's "commercial handbill" ordinance was not enacted specifically to address the problems caused by newsracks, and, if enforced, the city's prohibition against respondents' newsracks would result in the removal of only 62 newsracks from its street corners, the Court finds "ample support in the record for the conclusion that the city did not establish [a] reasonable fit."... I disagree.

According to the Court, the city's decision to invoke an existing ordinance "to address its recently developed concern about newsracks" indicates that "it has not `carefully calculated' the costs and benefits associated with the burden on speech imposed by its prohibition."... The implication being that, if Cincinnati had studied the problem in greater detail, it would have discovered that it could have accomplished its desired ends by regulating the "size, shape, appearance, or number" of all newsracks, rather than categorically banning only those newsracks that disseminate commercial speech.... Despite its protestations to the contrary, ... this argument rests on the discredited notion that the availability of "less restrictive means" to accomplish the city's objectives renders its regulation of commercial speech unconstitutional. As we observed inFox, "almost all of the restrictions disallowed under Central Hudson's fourth prong have been substantially excessive, disregarding far less restrictive and more precise means." That there may be other--less restrictive--means by which Cincinnati could have gone about addressing its safety and esthetic concerns, then, does not render its prohibition against respondents' newsracks unconstitutional.

Nor does the fact that, if enforced, the city's prohibition would result in the removal of only 62 newsracks from its street corners. The Court attaches significance to the lower courts' findings that any benefit would be "'minute'" or "'paltry.'"... The relevant inquiry, though, is not the degree to which the locality's interests are furthered in a particular case, but rather the relation that the challenged regulation of commercial speech bears to the "overall problem" the locality is seeking to alleviate.... This follows from our test for reviewing the validity of "time, place, or manner" restrictions on noncommercial speech, which we have said is "substantially similar" to the Central Hudson analysis.... Properly viewed, then, the city's prohibition against respondents' newsracks is directly related to its efforts to alleviate the problems caused by newsracks, since every newsrack that is removed from the city's sidewalks marginally enhances the safety of its streets and esthetics of its cityscape. This conclusion is not altered by the fact that the city has chosen to address its problem by banning only those newsracks that disseminate commercial speech, rather than regulating all newsracks alike....

If (as I am certain) Cincinnati may regulate newsracks that disseminate commercial speech based on the interests it has asserted, I am at a loss as to why its scheme is unconstitutional because it does not also regulate newsracks that disseminate noncommercial speech. One would have thought that the city, perhaps even following the teachings of our commercial speech jurisprudence, could have decided to place the burden of its regulatory scheme on less protected speech (i.e., commercial handbills) without running afoul of the First Amendment. Today's decision, though, places the city in the position of having to decide between restricting more speech--fully protected speech--and allowing the proliferation of newsracks on its street corners to continue unabated. It scarcely seems logical that the First Amendment compels such a result. In my view, the city may order the removal of all newsracks from its public right-of-ways if it so chooses.... But however it decides to address its newsrack problem, it should be allowed to proceed in the manner and scope it sees fit so long as it does not violate established First Amendment principles, such as the rule against discrimination on the basis of content....

... Because I believe the city has established a "reasonable fit" between its substantial safety and esthetic interests and its prohibition against respondents' newsracks, I would hold that the city's actions are permissible under Central Hudson.... I dissent.