Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993)

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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 free-standing 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 The ordinance's outdated prohibition of handbill distribution was enacted long before any concern about newsracks developed, for the apparent purpose of preventing the kind of visual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

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