City of Cincinnati v. Discovery Network, Inc.

PETITIONER: City of Cincinnati
RESPONDENT: Discovery Network, Inc., et al.
LOCATION: Center Moriches School District

DOCKET NO.: 91-1200
DECIDED BY: Rehnquist Court (1991-1993)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 507 US 410 (1993)
ARGUED: Nov 09, 1992
DECIDED: Mar 24, 1993

Marc D. Mezibov - on behalf of the Respondent
Mark S. Yurick - on behalf of the Petitioner

Facts of the case


Media for City of Cincinnati v. Discovery Network, Inc.

Audio Transcription for Oral Argument - November 09, 1992 in City of Cincinnati v. Discovery Network, Inc.

Audio Transcription for Opinion Announcement - March 24, 1993 in City of Cincinnati v. Discovery Network, Inc.

William H. Rehnquist:

The opinion of the Court in No. 91-1200, Cincinnati versus Discovery Network will be announced by Justice Stevens.

John Paul Stevens:

Respondent, Discovery Network, provides adult educational, recreational, and social programs in the Cincinnati area.

It distributes a free magazine consisting primarily of promotional materials pertaining to its courses.

Respondent Harmon Publishing Company publishes and distributes a free magazine that advertises real estate for sale in the greater Cincinnati area.

In 1989, the City of Cincinnati granted respondents permission to place 62 free standing newsracks at various locations throughout the city to be used to distribute their magazines.

About a year later, however, the City reversed its course motivated by its interest in the safety and attractive appearance of its streets and sidewalks, the City revoke respondent's permits.

The City relied on a preexisting ordinance that barred the distribution of commercial handbills on a public property.

It made no effort, however, to limit the almost 2000 newsracks on Cincinnati sidewalks that are used to distribute newspapers.

Respondents brought this action in Federal District Court claiming that the City's actions were inconsistent with the First Amendment.

Both the District Court and the Court of Appeals for the Sixth Circuit agreed holding that the City's categorically ban on the distribution of "commercial handbills" by a newsrack violated the reasonable fit standard applicable to regulations of commercial speech that we have recently articulated in Board of Trustees of the State and University of New York against Fox.

For the reasons stated in the opinion filed today with the Clerk of this Court, we affirm the Court of Appeals.

The City's outdated ordinance barring the distribution of commercial handbills, was enacted long before any concern about newsracks developed, where 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 concerned about newsracks by regulating their size, their shape, their appearance or number indicates that the City has not carefully calculated the costs and benefits associated with its regulation as required by our decision in Fox.

We agree with the District Court and the Court of Appeals that the benefit to be derived from the removal of 62 newsracks while almost 2000 remain in placed is miniscule.

We reject the City's argument that because every decrease in the overall number of newsracks necessarily affects an increase in safety and esthetics, the validity of its ban on newsracks distributing commercial handbills is not undermined by its failure to similarly restrict newsracks distributing newspapers.

The City's argument is based on the premise that commercial speech has only a low value and therefore commercial speech can always be subject to discriminatory treatment.

In our view, however, the City attaches more importance to the distinction between commercial and non commercial speech than our cases warrant and seriously underestimates the value of commercial speech.

In the absence of some basis for distinguishing between newspapers and commercial handbills that is relevant to the City's asserted intereset in safety in esthetics we are unwilling to recognize Cincinnati's bare assertion that the low value of commercial speech a sufficient justification for its selective and categorically ban on newsracks dispensing commercial handbills.

Justice Blackmun has filed the concurring opinion; the Chief Justice has filed a dissenting opinion in which Justice White and Justice Thomas have joined.