City of Cincinnati v. Discovery Network, Inc

In City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 412, 123 L. Ed. 2d 99, 113 S. Ct. 1505 (1993), a city was "motivated by its interest in the safety and attractive appearance of its streets and sidewalks" to ban commercial publications on freestanding newsracks located on public property. Other newsracks containing newspapers were permitted. Two distributors of commercial publications challenged the ordinance. One of them, Discovery Network, had 38 newsracks through which about one-third of its magazines were distributed. The magazines promoted adult educational, recreational, and social programs offered by Discovery Network, along with some information about current events of general interest. The other distributor, Harmon Publishing, had 24 newsracks through which about 15% of its magazines were distributed. These magazines contained real estate listings and photographs of residential property and some information about interest rates and other real estate matters. Because the banned publications were commercial speech, the Court held that the City's burden was at least "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." The City failed to meet this burden. The Supreme Court's rationale in Discovery Network is instructive. The City's failure "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." The Court characterized "the removal of 62 newsracks while about 1,500-2,000 remained in place" as "'minute'" and "'paltry,'" indicating the lack of "'fit'" between the City's goal and its method. Id. at 418. The Court declared unconstitutional an ordinance prohibiting newsracks on public property for distributing commercial handbills. The city permitted newsracks that contained ordinary newspapers. The city argued that the ordinance was justified by concern over the secondary effects of such newsracks with regard to safety and aesthetics. But the Court rejected this argument, stating: 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." Id. at 429. The Court explained that "in contrast to the speech at issue in City of Renton, there are no secondary effects attributable to . . . newsracks containing commercial handbills that distinguish them from the newsracks containing newspapers that the city permits to remain on its sidewalks." Id. at 430.