/* 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. 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
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