Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/ussct/cin_1.asc

Text File | 1993-08-01 | 46KB | 805 lines

/* The full text of the US Supreme Court Opinion in City of
Cincinatti vs. Discovery Network follows. This case considers the
legality of the prohibition of free standing newsracks for
"shoppers" (newspapers consisting of ads) on public property. */

SUPREME COURT OF THE UNITED STATES


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

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.

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.  In agreement with the District Court and the
Court of Appeals, we hold that it is not.

I

 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.

/* Note that the Court will go to great lengths to point out the
facts in these cases. The point that the Court is making here is
that fully a third of this publication is distributed on city
property and that since the "relative worth" of news paper or
other literary material (other than that which is judged
pornographic) is not for the state to judge. */

 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
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.

/* Again, although the publication is predominated by "ads" these
publications are entitled to the same protection as more
conventional media. One of the things which the Court does not
state (perhaps it is not part of the record) is that common
experience shows that "free" classified ad newspapers and "free"
real estate listings are extremely popular reading. In fact,
"Shoppers" which have huge classified advertising sections for
which there is a charge are best sellers and serve a vital
service. People are very interested in buying, selling and
swapping. Such publications are clearly as important "news" as
any other publication to an interested reader. The fact that the
New York Times or the Wall Street Journal carry ads is no more
important to determining if they are subject to being part of the
"press" and the protections of the first amendment than these
magazines incidentally carrying news. Even the lonely phampleteer
or someone making newsletters on carbon paper is part of the
"marketplace of ideas" and entitled to First Amendment
protection. */

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 and therefore 714-23 of
the Code 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, 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." 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 interest in promoting safety and esthetics on
or about the public right of way," 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.

/* An outright ban is very rarely going to be accepted as a
reasonable, time, place or manner restriction, if ever. */

 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, 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.  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.  The importance of the Court of Appeals
decision, together with the dramatic growth in the use of
newsracks throughout the country, prompted our grant of
certiorari.  503 U. S.  ___ (1992).

II

 There is no claim in this case that there is anything
unlawful or misleading about the contents of respondents'
publications.