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Case Summary for City of Cincinnati v. Discovery Network
Date Decided: March 24, 1993
Issue: Newsracks/Commercial Speech -- Whether a city may constitutionally ban newsracks from which owners disseminate publications that are comprised primarily of advertising material.
Vote: No, 6-3
Facts: Discovery Network, Inc., provides educational and other programs to adults in the Cincinnati area. It advertises these programs in free magazines. Approximately one-third of the magazines were distributed through 38 newsracks that the City of Cincinnati authorized it to place on public property in 1989. Harmon Publishing Company, Inc., similarly distributed magazines advertising real estate through 24 newsracks on public property.

In 1990, the City revoked the permits that allowed Discovery and Harmon to use their newsracks, claiming that a City ordinance prohibited the distribution of "commercial handbills" on public property. Although the application of this ordinance removed only 62 of the more than 1,500 newsracks placed about the City, the City claimed that its action furthered important safety and aesthetic goals. Discovery and Harmon challenged the action in federal court, arguing that the City's action violated the First Amendment. The district court agreed, and the Court of Appeals for the Sixth Circuit affirmed.

Legal Principles at Issue: The First Amendment right of publishers to disseminate their product through newsracks is not absolute. A local governmental entity may regulate the placement and number of newsracks to promote its substantial interest in public safety and aesthetics, but that entity must establish a reasonable "fit" between its regulation and the goals sought to be achieved. Board of Trustees of State Univ. of N. Y. v. Fox, 492 U.S. 469 (1989). The government's right to regulate commercial speech -- speech that concerns only commercial or economic activity -- is greater than its right to regulate non-commercial speech. The government may regulate commercial speech if it is false or misleading or if the restriction directly and narrowly advances a substantial state interest. Central Hudson Gas & Elec. v. Public Serv. Comm. of N.Y., 447 U.S. 557 (1978).
Legal Basis for Decision: While the Court accepted the characterization of the publications at issue as commercial speech, it did not dilute the protections set forth in Fox. In applying the Fox test, the Court found that the City's ordinance did not reasonably fit the City's goals of safety and aesthetics. The Court relied heavily on the fact that the challenged application of the ordinance banned less than 1% of the newsracks in the City.
This Case is Important Because: The Court refused to accept that City's argument that commercial speech is entitled to significantly less protection than non-commercial speech. The Court also subjected the City's proffered justifications for the ordinance -- safety and aesthetics -- to considerable scrutiny and ultimately found that they were insufficient in this case.
Quotable: "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."
Writing for the Majority: Justice Stevens
Voting with the Majority: Justices Blackmun, O'Connor, Scalia, Kennedy, Souter, and Thomas (Justice Blackmun, concurring)
Writing for the Dissent: Chief Justice Rehnquist
Voting with the Dissent: Justices White and Thomas
Not Voting: N/A
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