Cincinnati v. Discovery Network - 507 U.S. 410, 113 S. Ct. 1505 (1993)

Rule:

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.

Facts:

Discovery Network, a company that provided educational, recreational, and social programs to individuals in the area of Cincinnati, Ohio, published a magazine which consisted primarily of promotional material pertaining to such programs, but which also included some information about current events of general interest. Harmon Publishing also published a magazine which advertised real estate for sale in the Cincinnati area, and which also included some information about interest rates, market trends, and other real estate matters. In 1989, the companies were authorized by the city to place a total of 62 newsracks on public property in the city, from which the magazines were distributed without charge. Pursuant to a provision of Cincinnati's municipal code, permitting the distribution of "newspapers" on the sidewalks of city streets, about 1,500 to 2,000 such newsracks, most of them dispensing conventional newspapers, were present in the city. In 1990, however, the city revoked the companies' permits to use such newsracks, on the ground that the magazines were "commercial handbills" within the meaning of the municipal code, and that a provision of the code prohibited the distribution of such handbills on public property. The companies, seeking declaratory and injunctive relief, brought suit against the city in the United States District Court for the Southern District of Ohio. The District Court, ruling in favor of the companies insofar as their claims were based on the Federal Constitution's First Amendment, expressed the view that (1) the magazines were a form of commercial speech; (2) the city had a burden, under the First Amendment, of establishing a reasonable fit between the city's asserted ends and the means chosen to accomplish those ends; and (3) the safety and esthetic interests asserted by the city did not reasonably fit the city's actions. On appeal, the United States Court of Appeals for the Sixth Circuit affirmed.

Issue:

Does Cincinnati’s regulation of newsracks qualify as a reasonable restriction because the interests it protects are entirely unrelated to the content of the publications?

Answer:

No.

Conclusion:

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." 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 was the Court persuaded that its statements that the test for whether a regulation is content based turns on the "justification" for the regulation compel a different conclusion. The Court agrees 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 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 neutral 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. 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." The Court 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. 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 "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. 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. 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.