OCTOBER TERM, 1992
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 University of N. Y. 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.
416-431.
(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 The ordinance's outdated prohibition of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 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. 416-418.
(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
411
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.
418-428.
(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.
428-431.
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,
post, p. 431.
REHNQUIST, C. J., filed a dissenting opinion, in which WHITE and
THOMAS, JJ., joined,
post, p. 438.
Mark S.
Yurick argued the cause for petitioner.
With him on the briefs was
Fay D. Dupuis.
Marc D. Mezibov argued the cause for respondents. With
him on the brief was
Martha K. Landesberg. *
*
Richard Ruda, Michael G.
Dzialo, and
Peter
Buscemi filed a brief for the U. S. Conference of Mayors et al.
as
amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the
American Advertising Federation et al. by Richard E. Wiley,
Lawrence W Secrest III, Howard H. Bell, John F. Kamp, David S.
Versfelt, Robert J. Levering, and Valerie Schulte; for the
Association of National Advertisers, Inc., et al. by Burt Neuborne,
Gilbert H. Weil, Randolph Z. Volkell, John F. Kamp, David Versfelt,
Jan S. Amundson, Quentin Riegel, and Edward Dunkelberger; for the
Institute for Justice by William H. Mellor III and Clint Bolick;
for the Learning Resources Network by Bruce R.
412
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.1 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.
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
Stewart; and for the Washington Legal Foundation by Charles
Fried, Richard Willard, Daniel J. Popeo, and Richard A. Samp.
Briefs of amici curiae were filed for the City of New York by O.
Peter Sherwood, Leonard Koerner, and Paul T. Rephen; and for the
American Newspaper Publishers Association et al. by P. Cameron
DeVore, Marshall J. Nelson, John F. Sturm, Rene Milam, Harold W
Fuson, Jr., David M. Olive, Richard J. Tofel, Barbara W Wall, and
Peter Stone.
1 The First Amendment provides, in part: "Congress shall make no
law ... abridging the freedom of speech, or of the press .... " The
Due Process Clause of the Fourteenth Amendment has been construed
to make this prohibition applicable to state action. See,
e. g.,
Stromberg v.
California, 283 U. S. 359 (1931);
Lovell v.
Griffin, 303 U. S. 444 (1938).
413
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.
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 2 and therefore § 714-23 of the code 3 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,
2 That section provides:
" 'Commercial Handbill' shall mean any printed or written
matter, dodger, circular, leaflet, pamphlet, paper, booklet or any
other printed or otherwise reproduced original or copies of any
matter of literature:
"(a) Which advertises for sale any merchandise, product,
commodity or thing; or
"(b) Which directs attention to any business or mercantile or
commercial establishment, or other activity, for the purpose of
directly promoting the interest thereof by sales; or
"(c) Which directs attention to or advertises any meeting,
theatrical performance, exhibition or event of any kind for which
an admission fee is charged for the purpose of private gain or
profit." Cincinnati Municipal Code § 714-1-C (1992).
3 That section provides:
"No person shall throw or deposit any commercial or
non-commercial handbill in or upon any sidewalk, street or other
public place within the city. Nor shall any person hand out or
distribute or sell any commercial handbill in any public place.
Provided, however, that it shall not be unlawful on any sidewalk,
street or other public place within the city for any person to hand
out or distribute, without charge to the receiver thereof, any
non-commercial handbill to any person willing to accept it, except
within or around the city hall building." § 714-23.
414
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." 4 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," 5 the District Court held, relying on
Board of
Trustees of State University of N.
Y. 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.6
4 App. to Pet. for Cert. 25a.
5Id., at 23a.
6 "Such regulation," the District Court noted, "allows [a] city
to control the visual effect of the devices and to keep them from
interfering with public safety without completely prohibiting the
speech in question."
Id., at 24a.
415
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,7 and that the
"Constitution ... accords a lesser protection to commercial speech
than to other constitutionally guaranteed expression,"
Central
Hudson Gas &
Electric Corp. v.
Public Servo
Comm'n of N.
Y., 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.8
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
464, 471 (CA6 1991) (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.9 The importance
of the Court of
7See Sentinel Communications CO. V. Watts,
936
F.2d 1189, 1196-1197 (CA111991), and cases cited therein.
8 In the words of the Court of Appeals:
"This 'lesser protection' afforded commercial speech is crucial
to Cincinnati's argument on appeal. Cincinnati argues that placing
the entire burden of achieving its goal of safer streets and a more
harmonious landscape on commercial speech is justified by this
lesser protection."
946 F.2d
464, 469 (CA6 1991). See also id., at 471 ("The [city's]
defense of that ordinance rests solely on the low value allegedly
accorded to commercial speech in general").
9The Court of Appeals also noted that the general ban on the
distribution of handbills had been on the books long before the
newsrack problem arose.
Id., at 473.
416
Appeals decision, together with the dramatic growth in the use
of newsracks throughout the country,10 prompted our grant of
certiorari. 503 U. S. 918 (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 judge the
validity of the city's prohibition under the standards we set forth
in Central Hud
son and
FoxY It was the city's burden
to establish a "reasonable fit" between its legitimate interests in
safety and esthetics and its choice of a limited and selective
prohibition of newsracks as the means chosen to serve those
interests.12
10 We are advised that almost half of the single copy sales of
newspapers are now distributed through newsracks. See Brief for
American Newspaper Publishers Association et al. as
Amici Curiae
2.
11 While the Court of Appeals ultimately applied the standards
set forth in
Central Hudson and
Fox, its analysis at
least suggested that those standards might not apply to the type of
regulation at issue in this case. For if commercial speech is
entitled to "lesser protection" only when the regulation is aimed
at either the content of the speech or the particular adverse
effects stemming from that content, it would seem to follow that a
regulation that is not so directed should be evaluated under the
standards applicable to regulations on fully protected speech, not
the more lenient standards by which we judge regulations on
commercial speech. Because we conclude that Cincinnati's ban on
commercial newsracks cannot withstand scrutiny under
Central
Hudson and
Fox, we need not decide whether that policy
should be subjected to more exacting review.
12 As we stated in
Fox:
"[W]hile we have insisted that the free flow of commercial
information is valuable enough to justify imposing on would-be
regulators the costs of distinguishing ... the harmless from the
harmful, we have not gone so far as to impose upon them the burden
of demonstrating that the distinguishment is 100% complete, or that
the manner of restriction is absolutely the least severe that will
achieve the desired end. What our
417
There is ample support in the record for the conclusion that the
city did not "establish the reasonable fit we require."
Fox,
492 U. S., at 480. The ordinance on which it relied was an outdated
prohibition against the distribution of any commercial handbills on
public property. It was enacted long before any concern about
newsracks developed. Its apparent purpose was to prevent 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 benefits associated with the burden on speech imposed by its
prohibition.13 The benefit to be de-
decisions require is a 'fit' between the legislature's ends and
the means chosen to accomplish those ends-a fit that is not
necessarily perfect, but reasonable; that represents not
necessarily the single best disposition but one whose scope is in
proportion to the interest served; that employs not necessarily the
least restrictive means but, as we have put it in the other
contexts discussed above, a means narrowly tailored to achieve the
desired objective. Within those bounds we leave it to governmental
decisionmakers to judge what manner of regulation may best be
employed .... "Here we require the government goal to be
substantial, and the cost to be carefully calculated. Moreover,
since the State bears the burden of justifying its restrictions, it
must affirmatively establish the reasonable fit we require." 492 U.
S., at 480 (internal quotation marks and citations omitted).
13 We reject the city's argument that the lower courts' and our
consideration of alternative, less drastic measures by which the
city could effectuate its interests in safety and esthetics somehow
violates
Fox's holding that regulations on commercial speech
are not subject to "leastrestrictive-means" analysis. To repeat,
see n. 12, supra, while we have rejected the
"least-restrictive-means" test for judging restrictions on
commercial speech, so too have we rejected mere rational-basis
review. A regulation need not be "absolutely the least severe that
will achieve the desired end,"
Fox, 492 U. S., at 480, but
if there are numerous and obvious less-burdensome alternatives to
the restriction on commercial speech, that is certainly a relevant
consideration in determining whether the "fit" between ends and
means is reasonable.
418
rived from the removal of 62 newsracks while about 1,5002,000
remain in place was considered "minute" by the District Court and
"paltry" by the Court of Appeals. We share their evaluation of the
"fit" between the city's goal and its method of achieving it.
In seeking reversal, the city argues that it is wrong to focus
attention on the relatively small number of newsracks affected by
its prohibition, because the city's central concern is with the
overall number of newsracks on its sidewalks, rather than with the
unattractive appearance of a handful of dispensing devices. It
contends, first, that a categorical prohibition on the use of
newsracks to disseminate commercial messages burdens no more speech
than is necessary to further its interest in limiting the number of
newsracks; and, second, that the prohibition is a valid "time,
place, and manner" regulation because it is content neutral and
leaves open ample alternative channels of communication. We
consider these arguments in turn.
III
The city argues that there is a close fit between its ban on
newsracks dispensing "commercial handbills" and its interests in
safety and esthetics because every decrease in the number of such
dispensing devices necessarily effects an increase in safety and an
improvement in the attractiveness of the cityscape. In the city's
view, the prohibition is thus
entirely related to its
legitimate interests in safety and esthetics.
We accept the validity of the city's proposition, but consider
it an insufficient justification for the discrimination against
respondents' use of newsracks that are no more harmful than the
permitted newsracks, and have only a minimal impact on the overall
number of newsracks on the city's sidewalks. The major premise
supporting the city's argument is the proposition that commercial
speech has only a
419
low value. Based on that premise, the city contends that the
fact that assertedly more valuable publications are allowed to use
newsracks does not undermine its judgment that its esthetic and
safety interests are stronger than the interest in allowing
commercial speakers to have similar access to the reading
public.
We cannot agree. In our view, the city's argument attaches more
importance to the distinction between commercial and noncommercial
speech than our cases warrant and seriously underestimates the
value of commercial speech.
This very case illustrates the difficulty of drawing bright
lines that will clearly cabin commercial speech in a distinct
category. For respondents' publications share important
characteristics with the publications that the city classifies as
"newspapers." Particularly, they are "commercial handbills" within
the meaning of § 714-1-C of the city's code because they contain
advertising, a feature that apparently also places ordinary
newspapers within the same category.14 Separate provisions in the
code specifically authorize the distribution of "newspapers" on the
public right of way, but that term is not defined.15 Presumably,
respondents' publications do not qualify as newspapers because an
examination of their content discloses a higher ratio of
advertising to other text, such as news and feature stories, than
is found in the exempted publications.16 Indeed, Cincinnati's
City
14 See n. 2, supra.
15 Cincinnati Municipal Code § 862-1 (1992) provides:
"Permission is hereby granted to any person or persons lawfully
authorized to engage in the business of selling newspapers to
occupy space on the sidewalks of city streets for selling
newspapers, either in the morning or afternoon, where permission
has been obtained from the owner or tenant of the adjoining
building."
16 Some ordinary newspapers try to maintain a ratio of 70%
advertising to 30% editorial content. See generally C. Fink,
Strategic Newspaper Management 43 (1988).
420
Manager has determined that publications that qualify as
newspapers and therefore
can be distributed by newsrack are
those that are published daily and/or weekly and
"primarily
presen[t] coverage of, and commentary on, current events." App. 230
(emphasis added).
The absence of a categorical definition of the difference
between "newspapers" and "commercial handbills" in the city's code
is also a characteristic of our opinions considering the
constitutionality of regulations of commercial speech. Fifty years
ago, we concluded that the distribution of a commercial handbill
was unprotected by the First Amendment, even though half of its
content consisted of political protest.
Valentine v.
Chrestensen, 316 U. S. 52 (1942). A few
years later, over Justice Black's dissent, we held that the
"commercial feature" of door-to-door solicitation of magazine
subscriptions was a sufficient reason for denying First Amendment
protection to that activity.
Breard v.
Alexandria,
341 U. S. 622 (1951). Subsequent opinions, however, recognized
that important commercial attributes of various forms of
communication do not qualify their entitlement to constitutional
protection. Thus, in
Virginia State Bd. of Pharmacy v.
Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976), we
explained:
"We begin with several propositions that already are settled or
beyond serious dispute. It is clear, for example, that speech does
not lose its First Amendment protection because money is spent to
project it, as in a paid advertisement of one form or another.
Buckley v. Valeo, 424 U. S. 1, 35-59 (1976);
Pittsburgh Press Co. v. Human Relations Comm'n, 413
U. S., at 384; New York Times Co. v. Sullivan, 376 U.
S., at 266. Speech likewise is protected even though it is carried
in a form that is 'sold' for profit, Smith v.
California, 361 U. S. 147, 150 (1959)
(books); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 501 (1952)
(motion pictures); Murdock v.
421
Pennsylvania, 319 U. S., at 111 (religious literature),
and even though it may involve a solicitation to purchase or
otherwise payor contribute money. New York Times Co. v.
Sullivan, supra; NAACP v. Button, 371 U. S. 415, 429
(1963); Jamison v. Texas, 318 U. S., at 417;
Cantwell v. Connecticut, 310 U. S. 296, 306-307
(1940).
"If there is a kind of commercial speech that lacks all First
Amendment protection, therefore it must be distinguished by its
content. Yet the speech whose content deprives it of protection
cannot simply be speech on a commercial subject. No one would
contend that our pharmacist may be prevented from being heard on
the subject of whether, in general, pharmaceutical prices should be
regulated, or their advertisement forbidden. Nor can it be
dispositive that a commercial advertisement is noneditorial, and
merely reports a fact. Purely factual matter of public interest may
claim protection. Bigelow v. Virginia, 421 U. S., at
822; Thornhill v. Alabama, 310 U. S. 88, 102 (1940)."
Id., at 761-762.
We then held that even speech that does no more than propose a
commercial transaction is protected by the First Amendment.
Id., at 762.17
17 JUSTICE BLACKMUN, writing for the Court in
Bates v.
State Bar of Arizona, 433 U. S. 350 (1977),
summarized the reasons for extending First Amendment protection to
"core" commercial speech:
"The listener's interest [in commercial speech] is substantial:
the consumer's concern for the free flow of commercial speech often
may be far keener than his concern for urgent political dialogue.
Moreover, significant societal interests are served by such speech.
Advertising, though entirely commercial, may often carry
information of import to significant issues of the day. See
Bigelow v.
Virginia, 421 U. S. 809 (1975). And
commercial speech serves to inform the public of the availability,
nature, and prices of products and services, and thus performs an
indispensable role in the allocation of resources in a free
enterprise system. See
FTC
422
In later opinions we have stated that speech proposing a
commercial transaction is entitled to lesser protection than other
constitutionally guaranteed expression. See
Ohralik v.
Ohio State Bar Assn., 436 U. S. 447, 455-456
(1978). We have also suggested that such lesser protection was
appropriate for a somewhat larger category of commercial
speech-"that is, expression related solely to the economic
interests of the speaker and its audience."
Central Hudson
Gas &
Electric Corp. v.
Public Service Comm'n of
New York, 447 U. S., at 561. We did not, however, use that
definition in either
Bolger v.
Youngs Drug Products
Corp., 463 U. S.
60 (1983), or in
Board of Trustees of State University
of N.
Y.
In the
Bolger case we held that a federal statute
prohibiting the mailing of unsolicited advertisements for
contraceptives could not be applied to the appellee's promotional
materials. Most of the appellee's mailings consisted primarily of
price and quantity information, and thus fell "within the core
notion of commercial speech-'speech which does "no more than
propose a commercial transaction."'"
Bolger, 463 U. S., at
66 (quoting
Virginia Pharmacy, 425 U. S., at 762, in turn
quoting
Pittsburgh Press Co. v.
Pittsburgh Comm'n on
Human Relations, 413 U. S. 376, 385
(1973)). Relying in part on the appellee's economic motivation, the
Court also answered the "closer question" about the proper
v.
Procter &
Gamble Co., 386 U. S. 568, 603-604
(1967) (Harlan, J., concurring). In short, such speech serves
individual and societal interests in assuring informed and reliable
decisionmaking."
Id., at 364.
Of course, we were not the first to recognize the value of
commercial speech:
"'[Advertisements] are well calculated to enlarge and enlighten
the public mind, and are worthy of being enumerated among the many
methods of awakening and maintaining the popular attention, with
which more modern times, beyond all preceding example, abound.'''
D. Boorstin, The Americans: The Colonial Experience 328, 415
(1958), quoting 1. Thomas, History of Printing in America with a
Biography of Printers, and an Account of Newspapers (2d ed.
1810).
423
label for informational pamphlets that were concededly
advertisements referring to a specific product, and concluded that
they also were "commercial speech." 463 U. S., at 66-67. It is
noteworthy that in reaching that conclusion we did not simply apply
the broader definition of commercial speech advanced in
Central
Hudson-a definition that obviously would have encompassed the
mailings-but rather "examined [them] carefully to ensure that
speech deserving of greater constitutional protection is not
inadvertently suppressed." 463 U. S., at 66.18 In
Fox, we
described the category even more narrowly, by characterizing the
proposal of a commercial transaction as
"the test for
identifying commercial speech." 492 U. S., at 473-474 (emphasis
added).
Under the
Fox test it is clear that much of the material
in ordinary newspapers is commercial speech and, conversely, that
the editorial content in respondents' promotional publications is
not what we have described as "core" commercial speech. There is no
doubt a "commonsense" basis for distinguishing between the two, but
under both the city's code and our cases the difference is a matter
of degree.19
18When the Court first advanced the broader definition of
commercial speech, a similar concern had been expressed. See
Central Hudson, 447
19We note that because Cincinnati's regulatory scheme depends on
a governmental determination as to whether a particular publication
is a "commercial handbill" or a "newspaper," it raises some of the
same concerns as the newsrack ordinance struck down in
Lakewood v.
Plain Dealer Publishing Co., 486 U. S. 750 (1988). The
ordinance at issue in
Lakewood vested in the mayor authority
to grant or deny a newspaper's application for a newsrack permit,
but contained no explicit limit on the scope of the mayor's
discretion. The Court struck down the ordinance, reasoning that a
licensing scheme that vests such unbridled discretion in a
government official may result in either content or viewpoint
censorship.
Id., at 757, 769-770. Similarly, because the
distinction between a "newspaper" and a "commercial handbill" is by
no means clear-as noted above, the city deems a "newspaper" as a
publication
"primarily presenting coverage of, and
commentary on, current events," App. 230 (emphasis added)-the
responsibility for distinguishing between the two carries with
424
Nevertheless, for the purpose of deciding this case, we assume
that all of the speech barred from Cincinnati's sidewalks is what
we have labeled "core" commercial speech and that no such speech is
found in publications that are allowed to use newsracks. We
nonetheless agree with the Court of Appeals that Cincinnati's
actions in this case run afoul of the First Amendment. 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. Cf.
Simon &
Schuster, Inc. v.
Members of N.
Y. State Crime Victims Bd.,
502 U. S. 105, 120 (1991)
(distinction drawn by Son of Sam law between income derived from
criminal's descriptions of his crime and other sources "has nothing
to do with" State's interest in transferring proceeds of crime from
criminals to victims);
Carey v.
Brown, 447 U. S. 455, 465 (1980)
(State's interest in residential privacy cannot sustain statute
permitting labor picketing, but prohibiting nonlabor picket-
it the potential for invidious discrimination of disfavored
subjects. See also
Metromedia, Inc. v.
San Diego,
453 U. S. 490,
536-537 (1981) (Brennan, J., concurring in judgment) (ordinance
which permits governmental unit to determine, in the first
instance, whether speech is commercial or noncommercial "entail[s]
a substantial exercise of discretion by a city's official" and
therefore "presents a real danger of curtailing noncommercial
speech in the guise of regulating commercial speech"). Cf.
Arkansas Writers' Project, Inc. v.
Ragland, 481 U. S. 221, 230 (1987)
("In order to determine whether a magazine is subject to sales tax,
Arkansas' enforcement authorities must necessarily examine the
content of the message that is conveyed .... Such official scrutiny
of the content of publications as the basis for imposing a tax is
entirely incompatible with the First Amendment's guarantee of
freedom of the press") (internal quotation marks and citation
omitted).
425
ing when "nothing in the content-based labor-nonlabor
distinction has any bearing whatsoever on privacy").2o
The city has asserted an interest in esthetics, but respondent
publishers' newsracks are no greater an eyesore than the newsracks
permitted to remain on Cincinnati's sidewalks. Each newsrack,
whether containing "newspapers" or "commercial handbills," is
equally unattractive. While there was some testimony in the
District Court that commercial publications are distinct from
noncommercial publications in their capacity to proliferate, the
evidence of such was exceedingly weak, the Court of Appeals
discounted it, 946 F. 2d, at 466-467, and n. 3, and Cincinnati does
not reassert that particular argument in this Court. As we
20 Metromedia, Inc. v.
San Diego, 453 U. S. 490 (1981),
upon which the city heavily relies, is not to the contrary. In that
case, a plurality of the Court found as a permissible restriction
on commercial speech a city ordinance that, for the most part,
banned outdoor "offsite" advertising billboards, but permitted
"onsite" advertising signs identifying the owner of the premises
and the goods sold or manufactured on the site.
Id., at 494,
503. Unlike this case, which involves discrimination between
commercial and noncommercial speech, the "offsite-onsite"
distinction involved disparate treatment of two types of commercial
speech. Only the onsite signs served both the commercial and public
interest in guiding potential visitors to their intended
destinations; moreover, the plurality concluded that a "city may
believe that offsite advertising, with its periodically changing
content, presents a more acute problem than does onsite
advertising," id., at 511-512. Neither of these bases has any
application to the disparate treatment of newsracks in this
case.
THE CHIEF JUSTICE is correct that seven Justices in the
Metromedia case were of the view that San Diego could
completely ban offsite commercial billboards for reasons unrelated
to the content of those billboards.
Post, at 444. Those
seven Justices did not say, however, that San Diego could
distinguish between commercial and noncommercial offsite
billboards that cause the same esthetic and safety concerns. That
question was not presented in
Metromedia, for the regulation
at issue in that case did not draw a distinction between commercial
and noncommercial offsite billboards; with a few exceptions, it
essentially banned all offsite billboards.
426
have explained, the city's primary concern, as argued to us, is
with the aggregate number of newsracks on its streets. On that
score, however, all newsracks, regardless of whether they contain
commercial or noncommercial publications, are equally at fault. In
fact, the newspapers are arguably the greater culprit because of
their superior number.
Cincinnati has not asserted an interest in preventing commercial
harms by regulating the information distributed by respondent
publishers' newsracks, which is, of course, the typical reason why
commercial speech can be subject to greater governmental regulation
than noncommercial speech. See,
e. g., Bolger, 463 U. S., at
81 (STEVENS, J., concurring in judgment) ("[T]he commercial aspects
of a message may provide a justification for regulation that is not
present when the communication has no commercial character");
Ohralik v.
Ohio State Bar Assn., 436 U. S., at
455-456 (commercial speech, unlike other varieties of speech,
"occurs in an area traditionally subject to government
regulation").21
A closer examination of one of the cases we have mentioned,
Bolger v.
Youngs Drug Products, demonstrates the
fallacy of the city's argument that a reasonable fit is established
by the mere fact that the entire burden imposed on commercial
speech by its newsrack policy may in some small way limit the total
number of newsracks on Cincinnati's sidewalks. Here, the city
contends that safety concerns and visual blight may be addressed by
a prohibition that distin-
21 Moreover, the principal reason for drawing a distinction
between commercial and noncommercial speech has little, if any,
application to a regulation of their distribution practices. As we
explained in
Bolger: "Advertisers should not be permitted to
immunize false or misleading product information from government
regulation simply by including references to public issues." 463 U.
S., at 68. The interest in preventing commercial harms justifies
more intensive regulation of commercial speech than noncommercial
speech even when they are intermingled in the same publications. On
the other hand, the interest in protecting the free flow of
information and ideas is still present when such expression is
found in a commercial context.
427
guishes between commercial and noncommercial publications that
are equally responsible for those problems. In
Bolger,
however, in rejecting the Government's reliance on its interest in
protecting the public from "offensive" speech, "[we] specifically
declined to recognize a distinction between commercial and
noncommercial speech that would render this interest a sufficient
justification for a prohibition of commercial speech." 463 U. S.,
at 71-72 (citing
Carey v.
Population Services
International, 431 U. S. 678, 701, n. 28
(1977)). Moreover, the fact that the regulation "provide[d] only
the most limited incremental support for the interest asserted,"
463 U. S., at 73-that it achieved only a "marginal degree of
protection,"
ibid., for that interest-supported our holding
that the prohibition was invalid. Finally, in
Bolger, as in
this case, the burden on commercial speech was imposed by denying
the speaker access to one method of distributionthere the United
States mails, and here the placement of newsracks on public
property-without interfering with alternative means of access to
the audience. As then-JusTIcE REHNQUIST explained in his separate
opinion, that fact did not minimize the significance of the
burden:
"[T]he Postal Service argues that Youngs can communicate with
the public otherwise than through the mail. [This argument falls]
wide of the mark. A prohibition on the use of the mails is a
significant restriction of First Amendment rights. We have noted
that '''[t]he United States may give up the Post Office when it
sees fit, but while it carries it on the use of the mails is as
much a part of free speech as the right to use our tongues.'"
Blount v. Rizzi, 400 U. S., at 416, quoting
Milwaukee Social Democratic Publishing Co. v.
Burleson, 255
U. S. 407, 437 (1921) (Holmes, J., dissenting)." Id., at
79-80 (footnote omitted).
In a similar vein, even if we assume,
arguendo, that the
city might entirely prohibit the use of newsracks on public
428
property, as long as this avenue of communication remains open,
these devices continue to playa significant role in the
dissemination of protected speech.
In the absence of some basis for distinguishing between
"newspapers" and "commercial handbills" that is relevant to an
interest asserted by the city, we are unwilling to recognize
Cincinnati's bare assertion that the "low value" of commercial
speech is a sufficient justification for its selective and
categorical ban on newsracks dispensing "commercial handbills." Our
holding, however, is narrow. As should be clear from the above
discussion, we do not reach the question whether, given certain
facts and under certain circumstances, a community might be able to
justify differential treatment of commercial and noncommercial
newsracks. We simply hold that on this record Cincinnati has failed
to make such a showing. Because the distinction Cincinnati has
drawn has absolutely no bearing on the interests it has asserted,
we have no difficulty concluding, as did the two courts below, that
the city has not established the "fit" between its goals and its
chosen means that is required by our opinion in
Fox. It
remains to consider the city's argument that its prohibition is a
permissible time, place, and manner regulation.
IV
The Court has held that government may impose reasonable
restrictions on the time, place, or manner of engaging in protected
speech provided that they are adequately justified "'without
reference to the content of the regulated speech.'"
Ward v.
Rock Against Racism, 491 U. S. 781, 791
(1989), quoting
Clark v.
Community for Creative
NonViolence, 468
U. S. 288, 293 (1984). Thus, a prohibition against the use of
sound trucks emitting "loud and raucous" noise in residential
neighborhoods is permissible if it applies equally to music,
political speech, and advertising. See gen-
429
erally
Kovacs v.
Cooper, 336 U. S. 77 (1949). The
city contends that its regulation of newsracks qualifies as such a
restriction because the interests in safety and esthetics that it
serves are entirely unrelated to the content of respondents'
publications. Thus, the argument goes, the
justification for
the regulation is content neutral.
The argument is unpersuasive because the very basis for the
regulation is the difference in content between ordinary newspapers
and commercial speech. True, there is no evidence that the city has
acted with animus toward the ideas contained within respondents'
publications, but just last Term we expressly rejected the argument
that "discriminatory ... treatment is suspect under the First
Amendment only when the legislature intends to suppress certain
ideas."
Simon &
Schuster, Inc. v.
Members
of N.
Y. State Crime Victims Bd., 502 U. S., at 117.
Regardless of the
mens rea of the city, it has enacted a
sweeping ban on the use of newsracks that distribute "commercial
handbills," but not "newspapers." Under the city's newsrack policy,
whether any particular newsrack falls within the ban is determined
by the content of the publication resting inside that newsrack.
Thus, by any commonsense understanding of the term, the ban in this
case is "content based."
Nor are we persuaded that our statements that the test for
whether a regulation is content based turns on the "justification"
for the regulation, see,
e. g., Ward, 491 U. S., at
791;
Clark, 468 U. S., at 293, compel a different conclusion. We
agree with the city that its desire to limit the total number of
newsracks is "justified" by its interests in safety and esthetics.
The city has not, however, limited the number of newsracks; it has
limited (to zero) the number of newsracks
distributing
commercial publications. As we have explained, there is no
justification for that particular regulation other than the city's
naked assertion that commercial speech has "low value." It is the
absence of a neu-
430
tral justification for its selective ban on newsracks that
prevents the city from defending its newsrack policy as content
neutral.
By the same reasoning, the city's heavy reliance on
Renton v.
Playtime Theatres, Inc., 475 U. S. 41 (1986), is
misplaced. In
Renton, a city ordinance imposed particular
zoning regulations on movie theaters showing adult films. The Court
recognized that the ordinance did not fall neatly into the
"content-based" or "content-neutral" category in that "the
ordinance treats theaters that specialize in adult films
differently from other kinds of theaters."
Id., at 47. We
upheld the regulation, however, largely because it was justified
not by an interest in suppressing adult films, but by the city's
concern for the "secondary effects" of such theaters on the
surrounding neighborhoods.
Id., at 47-49. In contrast to the
speech at issue in
Renton, there are no secondary effects
attributable to respondent publishers' newsracks that distinguish
them from the newsracks Cincinnati permits to remain on its
sidewalks.
In sum, the city's newsrack policy is neither content neutral
nor, as demonstrated in Part III,
supra, "narrowly
tailored." Thus, regardless of whether or not it leaves open ample
alternative channels of communication, it cannot be justified as a
legitimate time, place, or manner restriction on protected
speech.
Cincinnati has enacted a sweeping ban that bars from its
sidewalks a whole class of constitutionally protected speech. As
did the District Court and the Court of Appeals, we conclude that
Cincinnati has failed to justify that policy. The regulation is not
a permissible regulation of commercial speech, for on this record
it is clear that the interests that Cincinnati has asserted are
unrelated to any distinction between "commercial handbills" and
"newspapers." Moreover, because the ban is predicated on the
content of the publications distributed by the subject newsracks,
it is not a valid time, place, or manner restriction on protected
speech.
431
For these reasons, Cincinnati's categorical ban on the
distribution, via newsrack, of "commercial handbills" cannot be
squared with the dictates of the First Amendment.
The judgment of the Court of Appeals is
Affirmed.
JUSTICE BLACKMUN, concurring.
I agree that Cincinnati's ban on commercial newsracks cannot
withstand scrutiny under
Central Hudson Gas &
Electric Corp. v.
Public Servo Comm'n of N.
Y., 447 U. S.
557 (1980), and
Board of Trustees of State University of
N.
Y. v.
Fox, 492 U. S. 469 (1989), and
I therefore join the Court's opinion. I write separately because I
continue to believe that the analysis set forth in
Central
Hudson and refined in
Fox affords insufficient
protection for truthful, noncoercive commercial speech concerning
lawful activities. In
Central Hudson, I expressed the view
that "intermediate scrutiny is appropriate for a restraint on
commercial speech designed to protect consumers from misleading or
coercive speech, or a regulation related to the time, place, or
manner of commercial speech," but not for a regulation that
suppresses truthful commercial speech to serve some other
government purpose. 447 U. S., at 573 (opinion concurring in
judgment). The present case demonstrates that there is no reason to
treat truthful commercial speech as a class that is less "valuable"
than noncommercial speech. Respondents' publications, which
respectively advertise the availability of residential properties
and educational opportunities, are unquestionably "valuable" to
those who choose to read them, and Cincinnati's ban on commercial
newsracks should be subject to the same scrutiny we would apply to
a regulation burdening noncommercial speech.
In
Virginia State Bd. of Pharmacy v.
Virginia Citizens
Consumer Council, Inc., 425 U. S. 748 (1976),
this Court held that commercial speech "which does 'no more than
propose a commercial transaction'" is protected by the First
Amendment,
id., at 762, quoting
Pittsburgh Press Co.
v.
Pittsburgh
432
Comm'n on Human Relations, 413 U. S. 376, 385
(1973). In so holding, the Court focused principally on the First
Amendment interests of the listener. The Court noted that "the
particular consumer's interest in the free flow of commercial
information ... may be as keen, if not keener by far, than his
interest in the day's most urgent political debate," 425 U. S., at
763, and that "the free flow of commercial information is
indispensable ... to the proper allocation of resources in a free
enterprise system ... [and] to the formation of intelligent
opinions as to how that system ought to be regulated or altered,"
id., at 765. See also
Bates v.
State Bar of
Arizona, 433 U.
S. 350, 364 (1977).
The Court recognized, however, that government may regulate
commercial speech in ways that it may not regulate protected
noncommercial speech. See generally
Virginia State Bd. of
Pharmacy, 425 U. S., at 770-772. Government may regulate
commercial speech to ensure that it is not false, deceptive, or
misleading, id., at 771-772, and to ensure that it is not coercive,
Ohralik v.
Ohio State Bar Assn., 436 U. S. 447, 457
(1978). Government also may prohibit commercial speech proposing
unlawful activities.
Pittsburgh Press Co. v.
Pittsburgh
Comm'n on Human Relations, 413 U. S., at 388. See
Bates
v.
State Bar of Arizona, 433 U. S., at 384.1 To permit
government regulation on these grounds is consistent with this
Court's emphasis on the First Amendment interests of the listener
in the commercial speech context. A listener has little interest in
receiving false, misleading, or deceptive commercial information.
See id., at
1 In the context of noncommercial speech, by contrast, this
Court has adopted rules that protect certain false statements of
fact and speech advocating illegal activities. See,
e. g., New
York Times Co. v.
Sullivan, 376 U. S. 254, 279-280
(1964) (liability for false statements regarding public officials
may not be imposed without a showing of "actual malice");
Brandenburg v.
Ohio, 395 U. S. 444, 447 (1969)
(government may not proscribe advocacy of illegal action "except
where such advocacy is directed to inciting or producing imminent
lawless action and is likely to incite or produce such
action").
433
383 ("[T]he public and private benefits from commercial speech
derive from confidence in its accuracy and reliability"). A
listener also has little interest in being coerced into a
purchasing decision. See
Ohralik v.
Ohio State Bar
Assn., 436 U. S., at 457 ("[I]n-person solicitation may exert
pressure and often demands an immediate response, without providing
an opportunity for comparison or reflection"). Furthermore, to the
extent it exists at all, a listener has only a weak interest in
learning about commercial opportunities that the criminal law
forbids. In sum, the commercial speech that this Court had
permitted government to regulate or proscribe was commercial speech
that did not "serv[e] individual and societal interests in assuring
informed and reliable decisionmaking."
Bates v.
State Bar
of Arizona, 433 U. S., at 364.
So the law stood in 1980 when this Court decided
Central
Hudson and held that
all commercial speech was entitled
only to an intermediate level of constitutional protection. The
majority in
Central Hudson reviewed the Court's earlier
commercial speech cases and concluded that the Constitution
"accords a lesser protection to commercial speech than to other
constitutionally guaranteed expression." 447 U. S., at 563. As a
descriptive matter, this statement was correct, since our cases had
recognized that commercial speech could be regulated on grounds
that protected noncommercial speech could not. See n. 1,
supra. This "lesser protection" did not rest, however, on
the fact that commercial speech "is of less constitutional moment
than other forms of speech," as the
Central Hudson majority
asserted. 447 U. S., at 563, n. 5.2 Rather, it reflected the fact
that the lis-
2 Central Hudson's conclusion that commercial speech is
less valuable than noncommercial speech seems to have its roots in
an often-quoted passage from
Ohralik: "[W]e ... have
afforded commercial speech a limited measure of protection,
commensurate with its subordinate position in the scale of First
Amendment values, while allowing modes of regulation that might be
impermissible in the realm of noncommercial expres-
434
tener's First Amendment interests, from which the protection of
commercial speech largely derives, allow for certain
specific kinds of government regulation that would not be
permitted outside the context of commercial speech.
The
Central Hudson majority went on to develop a fourpart
analysis commensurate with the supposed intermediate status of
commercial speech. Under that test, a court reviewing restrictions
on commercial speech must first determine whether the speech
concerns a lawful activity and is not misleading.3 If the speech
does not pass this preliminary threshold, then it is not protected
by the First Amendment at all.
Id., at 566. If it does pass
the preliminary threshold, then the government is required to show
(1) that the asserted government interest is "substantial," (2)
that the regulation at issue "directly advances" that interest, and
(3) that the regulation "is not more extensive than is necessary to
serve that interest."
Ibid. The Court refined this test in
Board of Trustees of State University of N.
Y. v.
Fox, 492 U. S., at 480, to clarify that a regulation
limiting commercial speech can, in fact, be more extensive than is
necessary to serve the government's interest as long as it is not
unreasonably so. This intermediate level of scrutiny is a far cry
from strict scrutiny, under which the government interest must be
"compelling" and the regulation "narrowly tailored" to serve that
interest. See,
e. g., Austin v.
Michigan Chamber of
Commerce, 494 U.
S. 652, 657 (1990).
In
Central Hudson, I concurred only in the Court's
judgment because I felt the majority's four-part analysis was
sion."
Ohralik v.
Ohio State Bar Assn., 436 U. S. 447, 456
(1978). As I explain in the text, however, the "limited measure of
protection" our cases had afforded commercial speech reflected the
fact that we had allowed "modes of regulation that might be
impermissible in the realm of noncommercial expression" and not
that we had relegated commercial speech to a "subordinate position
in the scale of First Amendment values."
3
Central Hudson's reference to "misleading" speech
appears to include speech that is inherently coercive, such as
in-person solicitation. See 447 U. S., at 563, citing
Ohralik, 436 U. S., at 464-465.
435
"not consistent with our prior cases and [did] not provide
adequate protection for truthful, nonmisleading, noncoercive
commercial speech." 447 U. S., at 573. I noted: "Permissible
restraints on commercial speech have been limited to measures
designed to protect consumers from fraudulent, misleading, or
coercive sales techniques."
Id., at 574. Under the analysis
adopted by the
Central Hudson majority, misleading and
coercive commercial speech and commercial speech proposing illegal
activities are addressed in the first prong of the four-part test.
Yet commercial speech that survives the first prong-i.
e.,
that is not misleading or coercive and that concerns lawful
activities-is entitled only to an intermediate level of protection.
Furthermore, the "substantial" government interest that
Central
Hudson requires to justify restrictions on commercial speech
does not have to be related to protecting against deception or
coercion, for
Central Hudson itself left open the
possibility that the government's substantial interest in energy
conservation might justify a more narrowly drawn restriction on
truthful advertising that promotes energy consumption. See id., at
569-572.
Thus, it is little wonder that when the city of Cincinnati
wanted to remove some newsracks from its streets, it chose to
eliminate all the
commercial newsracks first although its
reasons had nothing to do with either the deceptiveness of
particular commercial publications or the particular
characteristics of commercial newsracks themselves. First,
Cincinnati could rely on this Court's broad statements that
commercial speech "is of less constitutional moment than other
forms of speech," id., at 563, n. 5, and occupies a "subordinate
position in the scale of First Amendment values,"
Ohralik,
436 U. S., at 456. Second, it knew that under
Central Hudson
its restrictions on commercial speech would be examined with less
enthusiasm and with less exacting scrutiny than any restrictions it
might impose on other speech. Indeed, it appears that Cincinnati
felt it had
no choice under
436
this Court's decisions but to burden commercial newsracks more
heavily. See Brief for Petitioner 28 ("Cincinnati ... could run
afoul of First Amendment protections afforded noncommercial speech
by affording newsrack-type dispensers containing commercial speech
like treatment with newsracks containing noncommercial
speech").
In this case,
Central Hudson's chickens have come home to
roost.
The Court wisely rejects Cincinnati's argument that it may
single out commercial speech simply because it is "low value"
speech, see
ante, at 428, and on the facts of this case it
is unnecessary to do more. The Court expressly reserves the
question whether regulations not directed at the content of
commercial speech or adverse effects stemming from that content
should be evaluated under the standards applicable to regulations
of fully protected speech.
Ante, at 416, n. 11. I believe
the Court should answer that question in the affirmative and hold
that truthful, noncoercive commercial speech concerning lawful
activities is entitled to full First Amendment protection. As I
wrote in
Central Hudson, "intermediate scrutiny is
appropriate for a restraint on commercial speech designed to
protect consumers from misleading or coercive speech, or a
regulation related to the time, place, or manner of commercial
speech." 447 U. S., at 573.4 But none of the "commonsense
differences,"
Virginia State Bd. of Pharmacy, 425 U. S., at
771, n. 24, between commercial and other speech "justify relaxed
scrutiny of restraints that suppress truthful, nondeceptive,
noncoercive commercial speech."
Central Hudson, 447 U. S.,
at 578 (opinion concurring in judgment).
4 I made no mention in
Central Hudson of commercial
speech proposing illegal activities, but I do not quarrel with the
proposition that government may suppress such speech altogether.
See
Pittsburgh Press Co. v.
Pittsburgh Comm'n on Human
Relations, 413 U.
S. 376, 388 (1973). See also
Bates v.
State Bar of
Arizona, 433 U.
S. 350, 384 (1977).
437
The commercial publications at issue in this case illustrate the
absurdity of treating all commercial speech as less valuable than
all noncommercial speech. Respondent Harmon Publishing Company,
Inc., publishes and distributes a free magazine containing listings
and photographs of residential properties. Like the "For Sale"
signs this Court, in Lin
mark Associates, Inc. v.
Willingboro, 431 U. S. 85 (1977), held
could not be banned, the information contained in Harmon's
publication "bear[s] on one of the most important decisions
[individuals] have a right to make: where to live and raise their
families."
Id., at 96. Respondent Discovery Network, Inc.,
advertises the availability of adult educational, recreational, and
social programs. Our cases have consistently recognized the
importance of education to the professional and personal
development of the individual. See,
e. g., Brown v.
Board
of Education, 347
U. S. 483, 493 (1954). The "value" of respondents' commercial
speech, at least to those who receive it, certainly exceeds the
value of the offensive, though political, slogan displayed on the
petitioner's jacket in
Cohen v.
California, 403 U. S. 15 (1971).
I think it highly unlikely that according truthful, noncoercive
commercial speech the full protection of the First Amendment will
erode the level of that protection. See
post, at 439
(dissenting opinion);
Ohralik v.
Ohio State Bar
Assn., 436 U. S., at 456. I have predicted that "the Court will
never provide child pornography or cigarette advertising the level
of protection customarily granted political speech." See
R.
A. v: v.
St. Paul, 505 U. S. 377, 415 (1992)
(opinion concurring in judgment). Yet I do not believe that
protecting truthful advertising will test this Nation's commitment
to the First Amendment to any greater extent than protecting
offensive political speech. See,
e. g., Texas v.
Johnson, 491
U. S. 397 (1989) (flag burning);
National Socialist Party of
America v.
Skokie, 432 U. S. 43 (1977)
(Nazi
438
march through Jewish neighborhood);
Cohen v.
California, 403
U. S. 15 (1971) (profane antiwar slogan). The very fact that
government remains free, in my view, to ensure that commercial
speech is not deceptive or coercive, to prohibit commercial speech
proposing illegal activities, and to impose reasonable time, place,
or manner restrictions on commercial speech greatly reduces the
risk that protecting truthful commercial speech will dilute the
level of First Amendment protection for speech generally.
I am heartened by the Court's decision today to reject the
extreme extension of
Central Hudson's logic, and I hope the
Court ultimately will come to abandon
Central Hudson's
analysis entirely in favor of one that affords full protection for
truthful, noncoercive commercial speech about lawful
activities.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE WHITE and JUSTICE
THOMAS join, dissenting.
Concerned about the safety and esthetics of its streets and
sidewalks, the city of Cincinnati decided to do something about the
proliferation of newsracks on its street corners. Pursuant to an
existing ordinance prohibiting the distribution of "commercial
handbills" on public property, the city ordered respondents
Discovery Network, Inc., and Harmon Publishing Company, Inc., to
remove their newsracks from its sidewalks within 30 days.
Respondents publish and distribute free of charge magazines that
consist principally of commercial speech. Together their
publications account for 62 of the 1,500-2,000 newsracks that
clutter Cincinnati's street corners. Because the city chose to
address its newsrack problem by banning only those newsracks that
disseminate commercial handbills, rather than regulating all
newsracks (including those that disseminate traditional newspapers)
alike, the Court holds that its actions violate the First Amendment
to the Constitution. I believe this result is inconsistent with
prior precedent.
439
"Our jurisprudence has emphasized that 'commercial speech
[enjoys] a limited measure of protection, commensurate with its
subordinate position in the scale of First Amendment values,' and
is subject to 'modes of regulation that might be impermissible in
the realm of noncommercial expression.'"
Board of Trustees of
State University of N.
Y. v.
Fox, 492 U. S. 469, 477 (1989)
(quoting
Ohralik v.
Ohio State Bar Assn., 436 U. S. 447, 456
(1978)); see also
Bolger v.
Youngs Drug Products
Corp., 463 U. S.
60, 64-65 (1983). We have advanced several reasons for this
treatment, among which is that commercial speech is more durable
than other types of speech, since it is "the offspring of economic
self-interest."
Central Hudson Gas &
Electric
Corp. v.
Public Servo Comm'n of N.
Y., 447 U. S. 557, 564, n. 6
(1980);
Virginia State Bd. of Pharmacy v.
Virginia
Citizens Consumer Council, Inc., 425 U. S. 748, 772, n. 24
(1976). Commercial speech is also "less central to the interests of
the First Amendment" than other types of speech, such as political
expression.
Dun &
Bradstreet, Inc. v.
Greenmoss Builders, Inc., 472 U. S. 749, 758, n. 5
(1985) (opinion of Powell, J.). Finally, there is an inherent
danger that conferring equal status upon commercial speech will
erode the First Amendment protection accorded noncommercial speech,
"simply by a leveling process, of the force of the Amendment's
guarantee with respect to the latter kind of speech."
Ohralik,
supra, at 456.
In
Central Hudson, we set forth the test for analyzing
the permissibility of restrictions on commercial speech as
follows:
"At the outset, we must determine whether the expression is
protected by the First Amendment. For commercial speech to come
within that provision, it at least must concern lawful activity and
not be misleading. Next, we ask whether the asserted governmental
interest is substantial. If both inquiries yield positive answers,
we must determine whether the regulation
440
directly advances the governmental interest asserted, and
whether it is not more extensive than is necessary to serve that
interest." 447 U. S., at 566.
I agree with the Court that the city's prohibition against
respondents' newsracks is properly analyzed under
Central
Hudson, see
ante, at 416, but differ as to the result
this analysis should produce.
As the Court points out, "respondents do not challenge their
characterization as 'commercial speech,'" and "[t]here is no claim
in this case that there is anything unlawful or misleading about
the contents of respondents' publications."
Ibid. "Nor do
respondents question the substantiality of the city's interest in
safety and esthetics."
Ibid. This case turns, then, on the
application of the last part of the
Central Hudson analysis.
Although the Court does not say so, there can be no question that
Cincinnati's prohibition against respondents' newsracks "directly
advances" its safety and esthetic interests because, if enforced,
the city's policy will decrease the number of newsracks on its
street corners. This leaves the question whether the city's
prohibition is "more extensive than necessary" to serve its
interests, or, as we elaborated in
Fox, whether there is a
"reasonable fit" between the city's desired ends and the means it
has chosen to accomplish those ends. See 492 U. S., at 480. Because
the city's "commercial handbill" ordinance was not enacted
specifically to address the problems caused by newsracks, and, if
enforced, the city's prohibition against respondents' newsracks
would result in the removal of only 62 newsracks from its street
corners, the Court finds "ample support in the record for the
conclusion that the city did not establish [a] reasonable fit."
Ante, at 417 (internal quotation marks omitted). I
disagree.
According to the Court, the city's decision to invoke an
existing ordinance "to address its recently developed concern about
newsracks" indicates that "it has not 'carefully calculated' the
costs and benefits associated with the burden
441
on speech imposed by its prohibition."
Ibid. The
implication being that, if Cincinnati had studied the problem in
greater detail, it would have discovered that it could have
accomplished its desired ends by regulating the "size, shape,
appearance, or number" of all newsracks, rather than categorically
banning only those newsracks that disseminate commercial speech.
Ibid. Despite its protestations to the contrary, see
ante, at 417, n. 13, this argument rests on the discredited
notion that the availability of "less restrictive means" to
accomplish the city's objectives renders its regulation of
commercial speech unconstitutional. As we observed in
Fox,
"almost all of the restrictions disallowed under
Central
Hudson's fourth prong have been substantially excessive,
disregarding far less restrictive and more precise means." 492 U.
S., at 479 (internal quotation marks omitted). That there may be
other-less restrictive-means by which Cincinnati could have gone
about addressing its safety and esthetic concerns, then, does not
render its prohibition against respondents' newsracks
unconstitutional.
Nor does the fact that, if enforced, the city's prohibition
would result in the removal of only 62 newsracks from its street
corners. The Court attaches significance to the lower courts'
findings that any benefit that would be derived from the removal of
respondents' newsracks would be " 'minute'" or "'paltry.'"
Ante, at 418. The relevant inquiry, though, is not the
degree to which the locality's interests are furthered in a
particular case, but rather the relation that the challenged
regulation of commercial speech bears to the "overall problem" the
locality is seeking to alleviate.
Ward v.
Rock Against
Racism, 491 U. S.
781, 801 (1989). This follows from our test for reviewing the
validity of "time, place, or manner" restrictions on noncommercial
speech, which we have said is "substantially similar" to the
Central Hudson analysis.
Board of Trustees of State
University of N.
Y. v.
Fox, supra, at 477
(internal quotation
442
marks omitted). Properly viewed, then, the city's prohibition
against respondents' newsracks is directly related to its efforts
to alleviate the problems caused by newsracks, since every newsrack
that is removed from the city's sidewalks marginally enhances the
safety of its streets and esthetics of its cityscape. This
conclusion is not altered by the fact that the city has chosen to
address its problem by banning only those newsracks that
disseminate commercial speech, rather than regulating all newsracks
alike.
Our commercial speech cases establish that localities may stop
short of fully accomplishing their objectives without running afoul
of the First Amendment. In
Posadas de Puerto Rico Associates
v.
Tourism Co. of Puerto Rico, 478 U. S. 328, 342
(1986), where we upheld Puerto Rico's ban on promotional
advertising of casino gambling aimed at Puerto Rico residents, we
rejected the appellant's argument that the ban was invalid under
Central Hudson because other types of gambling (e. g., horse
racing) were permitted to be advertised to local residents. More to
the point, in
Metromedia, Inc. v.
San Diego, 453 U. S. 490 (1981)
(plurality opinion), where we upheld San Diego's ban of offsite
billboard advertising, we rejected the appellants' argument that
the ban was invalid under
Central Hudson because it did not
extend to onsite billboard advertising. See 453 U. S., at 511
("[W]hether onsite advertising is permitted or not, the prohibition
of offsite advertising is directly related to the stated objectives
of traffic safety and esthetics. This is not altered by the fact
that the ordinance is underinclusive because it permits onsite
advertising"). See also
City Council of Los Angeles v.
Taxpayers for Vincent, 466 U. S. 789, 810-811
(1984) (rejecting the argument that the city's prohibition against
the posting of signs on public property could not be justified on
esthetic grounds because it did not extend to the posting of signs
on private property). Thus, the fact that Cincinnati's regulatory
scheme is underin-
443
elusive does not render its ban on respondents' newsracks
unconstitutional.
The Court offers an alternative rationale for invalidating the
city's policy: viz., the distinction Cincinnati has drawn (between
commercial and noncommercial speech) in deciding which newsracks to
regulate "bears no relationship
whatsoever to the particular
interests that the city has asserted."
Ante, at 424
(emphasis in original). That is, because newsracks that disseminate
noncommercial speech have the same physical characteristics as
newsracks that disseminate commercial speech, and therefore
undermine the city's safety and esthetic interests to the same
degree, the city's decision to ban only those newsracks that
disseminate commercial speech has nothing to do with its interests
in regulating newsracks in the first place. The city does not
contend otherwise; instead, it asserts that its policy is grounded
in the distinction we have drawn between commercial and
noncommercial speech. "In the absence of some basis for
distinguishing between 'newspapers' and 'commercial handbills' that
is relevant to an interest asserted by the city," however, the
Court refuses "to recognize Cincinnati's bare assertion that the
'low value' of commercial speech is a sufficient justification for
its selective and categorical ban on newsracks dispensing
'commercial handbills.'"
Ante, at 428.
Thus, despite the fact that we have consistently distinguished
between commercial and noncommercial speech for the purpose of
determining whether the regulation of speech is permissible, the
Court holds that in attempting to alleviate its newsrack problem
Cincinnati may not choose to proceed incrementally by burdening
only commercial speech first. Based on the different levels of
protection we have accorded commercial and noncommercial speech, we
have previously said that localities may not favor commercial over
noncommercial speech in addressing similar urban problems, see
Metromedia, Inc. v.
San Diego, supra, at 513
(plurality opinion), but before today we have never even suggested
that
444
the converse holds true. It is not surprising, then, that the
Court offers little in the way of precedent supporting its new
rule. The cases it does cite involve challenges to the restriction
of noncommercial speech in which we have refused to accept
distinctions drawn between restricted and nonrestricted speech on
the ground that they bore no relationship to the interests asserted
for regulating the speech in the first place. See
ante, at
424-425, citing
Simon &
Schuster, Inc. v.
Members of N.
Y. State Crime Victims Bd., 502 U. S. 105, 120
(1991); Carey v.
Brown, 447 U. S. 455, 465
(1980). Neither of these cases involved the regulation of
commercial speech; nor did they involve a challenge to the
permissibility of distinctions drawn between categories of speech
that we have accorded different degrees of First Amendment
protection.
The Court's reliance on
Bolger v.
Youngs Drug Products
Corp., see
ante, at 426-428, is also misplaced. In that
case we said that the Government's interest in "shield[ing]
recipients of mail from materials that they are likely to find
offensive" was invalid regardless of the type of speech-commercial
or noncommercial-involved. See 463 U. S., at 71-72. By contrast,
there can be no question here that the city's safety and esthetic
interests justify its prohibition against respondents' newsracks.
This at least is the teaching of
Metromedia. There, seven
Justices were of the view that San Diego's safety and esthetic
interests were sufficient to justify its ban on offsite billboard
advertising, even though the city's reason for regulating these
billboards had nothing to do with the content of the advertisements
they displayed. See 453 U. S., 507-510 (opinion of WHITE, J.,
joined by Stewart, Marshall, and Powell, JJ.); id., at 552-553
(STEVENS, J., dissenting in part);
id., at 559-561, 563
(Burger, C. J., dissenting);
id., at 569-570 (REHNQUIST, J.,
dissenting). Without even attempting to reconcile
Metromedia, the Court now suggests that commercial speech is
only subject to lesser protection when it is being regulated
because of its content (or adverse effects stemming therefrom). See
ante, at 416, n. 11, 425-426,
445
and n. 21. This holding, I fear, will unduly hamper our cities'
efforts to come to grips with the unique problems posed by the
dissemination of commercial speech.
If (as I am certain) Cincinnati may regulate newsracks that
disseminate commercial speech based on the interests it has
asserted, I am at a loss as to why its scheme is unconstitutional
because it does not also regulate newsracks that disseminate
noncommercial speech. One would have thought that the city, perhaps
even following the teachings of our commercial speech
jurisprudence, could have decided to place the burden of its
regulatory scheme on less protected speech (i.
e.,
commercial handbills) without running afoul of the First Amendment.
Today's decision, though, places the city in the position of having
to decide between restricting more speech-fully protected
speech-and allowing the proliferation of newsracks on its street
corners to continue unabated. It scarcely seems logical that the
First Amendment compels such a result. In my view, the city may
order the removal of
all newsracks from its public
rightof-ways if it so chooses. See
Lakewood v.
Plain
Dealer Publishing Co., 486 U. S. 750, 780-781
(1988) (WHITE, J., joined by STEVENS and O'CONNOR, JJ.,
dissenting). But however it decides to address its newsrack
problem, it should be allowed to proceed in the manner and scope it
sees fit so long as it does not violate established First Amendment
principles, such as the rule against discrimination on the basis of
content. "[L]ittle can be gained in the area of constitutional law,
and much lost in the process of democratic decisionmaking, by
allowing individual judges in city after city to second-guess ...
legislative ... determinations" on such matters as esthetics.
Metromedia, 453 U. S., at 570 (REHNQUIST, J.,
dissenting).
Cincinnati has burdened less speech than necessary to fully
accomplish its objective of alleviating the problems caused by the
proliferation of newsracks on its street corners. Because I believe
the city has established a "reason-
446
able fit" between its substantial safety and esthetic interests
and its prohibition against respondents' newsracks, I would hold
that the city's actions are permissible under
Central
Hudson. I see no reason to engage in a "time, place, or manner"
analysis of the city's prohibition, which in any event strikes me
as duplicative of the
Central Hudson analysis. Cf.
Board
of Trustees of State University of N.
Y. v.
Fox,
492 U. S., at 477. Nor do I think it necessary or wise, on the
record before us, to reach the question whether the city's
regulatory scheme vests too much discretion in city officials to
determine whether a particular publication constitutes a
"commercial handbill." See
ante, at 423, n. 13. It is
undisputed, by the parties at least, that respondents' magazines
constitute commercial speech. I dissent.
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