414
Opinion of the Court
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.
5 Id., 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.
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