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91_1200a
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NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being
done in connection with this case, at the time the opinion is issued. The
syllabus constitutes no part of the opinion of the Court but has been prepared
by the Reporter of Decisions for the convenience of the reader. See United ______
States v. Detroit Lumber Co., 200 U. S. 321, 337.______ ___________________
SUPREME COURT OF THE UNITED STATES
Syllabus
CITY OF CINCINNATI v. DISCOVERY NETWORK, INC., ET AL. ____
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 91-1200. Argued November 9, 1992 - Decided March 24, 1993
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 pre-existing 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.
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. 5-20.
(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ordinance's outdated prohibition of handbill distribution was enacted long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
I II CINCINNATI v. DISCOVERY NETWORK, INC. ____
Syllabus
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. 5-8.
(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 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. 8-18.
(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. 18-20.
946 F. 2d 464, 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. REHNQUIST, C. J., filed a dissenting opinion, in which WHITE and
THOMAS, JJ., joined.