City of Cincinnati v. Discovery Network, Inc.
1993 U.S. LEXIS 2401, 123 L. Ed. 2d 99, 507 U.S. 410 (1993)
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Rule of Law:
A government regulation that imposes a burden on commercial speech but not on noncommercial speech is unconstitutional when the distinction between the two forms of speech bears no relationship to the government's asserted interests.
Facts:
- Respondent Discovery Network, Inc., published a free magazine advertising its adult educational and recreational programs.
- Respondent Harmon Publishing Company, Inc., published a free magazine advertising real estate for sale.
- In 1989, the city of Cincinnati granted both companies permits to place a combined total of 62 newsracks on public property to distribute their magazines.
- In March 1990, the city's Director of Public Works revoked the permits, classifying the publications as "commercial handbills" under a municipal ordinance.
- The city's ordinance prohibited the distribution of commercial handbills on public property but permitted the distribution of "newspapers."
- At the time of the ban, approximately 1,500 to 2,000 newsracks dispensing newspapers were allowed to remain on public property in Cincinnati.
Procedural Posture:
- Discovery Network, Inc. and Harmon Publishing Co., Inc. sued the City of Cincinnati in the United States District Court for the Southern District of Ohio.
- The District Court, a court of first instance, granted a permanent injunction in favor of the publishers, finding the city's ban violated the First Amendment.
- The City of Cincinnati, as appellant, appealed the decision to the U.S. Court of Appeals for the Sixth Circuit.
- The Court of Appeals affirmed the District Court's judgment, holding that the burden on speech was not justified by the minimal gains in safety and aesthetics.
- The U.S. Supreme Court granted the City of Cincinnati's petition for a writ of certiorari.
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Issue:
Does a city's refusal to allow the distribution of commercial handbills through freestanding newsracks, while permitting the distribution of newspapers through such devices, violate the First Amendment when the asserted governmental interests in safety and aesthetics are equally implicated by both types of newsracks?
Opinions:
Majority - Justice Stevens
Yes. A city's refusal to allow the distribution of commercial handbills through newsracks, while permitting newspapers, violates the First Amendment where the asserted interests are not served by the distinction. The city's regulation does not meet the 'reasonable fit' test required for restrictions on commercial speech because the distinction between commercial handbills and newspapers bears no relationship to the city's interests in safety and aesthetics. Banning 62 commercial newsracks while leaving 1,500-2,000 newspaper newsracks provides only a 'minute' or 'paltry' benefit, demonstrating a poor fit between the city's goals and its means. Furthermore, the regulation is not a valid time, place, or manner restriction because it is content-based; the applicability of the ban is determined entirely by the content of the publication inside the newsrack. The city cannot justify this selective ban by simply asserting the 'low value' of commercial speech when the prohibited and permitted newsracks are equally responsible for the aesthetic and safety problems the city claims to be addressing.
Dissenting - Chief Justice Rehnquist
No. The city's ordinance does not violate the First Amendment. Commercial speech enjoys lesser First Amendment protection, and the city's ban directly advances its legitimate interests in safety and aesthetics by reducing the total number of newsracks. The 'reasonable fit' test does not require the least restrictive means, and localities may choose to address problems incrementally by placing the initial regulatory burden on less protected forms of speech. The fact that the city's regulation is underinclusive by not targeting newspaper newsracks does not render it unconstitutional. The city should be allowed to proceed as it sees fit, so long as it does not discriminate on the basis of viewpoint, and this decision improperly forces the city into an all-or-nothing choice between regulating all speech or none at all.
Concurring - Justice Blackmun
Yes. The ordinance violates the First Amendment, but the court should go further and abandon the intermediate scrutiny framework of Central Hudson for truthful, noncoercive commercial speech. There is no valid reason to treat truthful commercial speech as a less valuable class than noncommercial speech, as information about lawful activities like housing and education is of great value to consumers. Such speech should be entitled to full First Amendment protection, not judged by a more lenient standard that encourages governments to single it out for regulation. While the majority correctly invalidates the ban under the existing test, the underlying test itself provides insufficient protection for valuable commercial speech.
Analysis:
This decision significantly clarifies the 'reasonable fit' requirement for commercial speech regulations established in Board of Trustees of State University of N. Y. v. Fox. It establishes the important principle that a government cannot justify treating commercial speech differently based on its purported 'lesser value' if the distinction itself is irrelevant to the government's asserted interest. The ruling limits the government's ability to selectively burden commercial speech to address problems, like aesthetics or public safety, that are equally caused by protected noncommercial speech. It forces regulators to demonstrate a logical connection between the distinction they draw and the problem they seek to solve, preventing commercial speech from being an easy first target for broad, content-neutral regulations.
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