Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/ussct/cin_1.asc

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/* The full text of the US Supreme Court Opinion in City of
Cincinatti vs. Discovery Network follows. This case considers the
legality of the prohibition of free standing newsracks for
"shoppers" (newspapers consisting of ads) on public property. */

SUPREME COURT OF THE UNITED STATES


CITY OF CINCINNATI v. DISCOVERY NETWORK,
INC., et al.

certiorari to the united states court of appeals for
the sixth circuit

No. 91-1200.   Argued November 9, 1992
Decided March 24, 1993

Stevens, J., delivered the opinion of the Court, in which
Blackmun, O'Connor, Scalia, Kennedy, and Souter, JJ., joined.
Blackmun, J., filed a concurring opinion.  Rehnquist, C. J.,
filed a dissenting opinion, in which White and Thomas, JJ.,
joined.

Justice Stevens delivered the opinion of the Court.

Motivated by its interest in the safety and attractive appearance
of its streets and sidewalks, the city of Cincinnati has refused
to allow respondents to distribute their commercial publications
through freestanding newsracks located on public property.  The
question presented is whether this refusal is consistent with the
First Amendment.  In agreement with the District Court and the
Court of Appeals, we hold that it is not.

I

 Respondent, Discovery Network, Inc., is engaged in the
business of providing adult educational, recreational, and social
programs to individuals in the Cincinnati area.  It advertises
those programs in a free magazine that it publishes nine times a
year.  Although these magazines consist primarily of promotional
material pertaining to Discovery's courses, they also include
some information about current events of general interest.
Approximately one third of these magazines are distributed
through the 38 newsracks that the city authorized Discovery to
place on public property in 1989.

/* Note that the Court will go to great lengths to point out the
facts in these cases. The point that the Court is making here is
that fully a third of this publication is distributed on city
property and that since the "relative worth" of news paper or
other literary material (other than that which is judged
pornographic) is not for the state to judge. */

 Respondent, Harmon Publishing Company, Inc., publishes
and distributes a free magazine that advertises real estate for

sale at various locations throughout the United States.  The
magazine contains listings and photographs of available
residential properties in the greater Cincinnati area, and also
includes some information about interest rates, market trends,
and other real estate matters.  In 1989 Harmon received the
city's permission to install 24 newsracks at approved locations.
About 15% of its distribution in the Cincinnati area is through
those devices.

/* Again, although the publication is predominated by "ads" these
publications are entitled to the same protection as more
conventional media. One of the things which the Court does not
state (perhaps it is not part of the record) is that common
experience shows that "free" classified ad newspapers and "free"
real estate listings are extremely popular reading. In fact,
"Shoppers" which have huge classified advertising sections for
which there is a charge are best sellers and serve a vital
service. People are very interested in buying, selling and
swapping. Such publications are clearly as important "news" as
any other publication to an interested reader. The fact that the
New York Times or the Wall Street Journal carry ads is no more
important to determining if they are subject to being part of the
"press" and the protections of the first amendment than these
magazines incidentally carrying news. Even the lonely phampleteer
or someone making newsletters on carbon paper is part of the
"marketplace of ideas" and entitled to First Amendment
protection. */

In March 1990, the city's Director of Public Works
notified each of the respondents that its permit to use
dispensing devices on public property was revoked, and ordered
the newsracks removed within 30 days.  Each notice explained that
respondent's publication was a "commercial handbill" within the
meaning of 714-1-C of the Municipal Code and therefore 714-23 of
the Code prohibited its distribution on public property.
Respondents were granted administrative hearings and review by
the Sidewalk Appeals Committee.  Although the Committee did not
modify the city's position, 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." 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," the District Court held,
relying on Board of Trustees of State Univ. of New York 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.

/* An outright ban is very rarely going to be accepted as a
reasonable, time, place or manner restriction, if ever. */

 On appeal, the city argued that since a number of courts
had held that a complete ban on the use of newsracks dispensing
traditional newspapers would be unconstitutional, and that the
"Constitution . . . accords a lesser protection to commercial
speech than to other constitutionally guaranteed expression,"
Central Hudson Gas & Electric Corp. v. Public Service Comm'n of
New York, 447 U. S. 557, 563 (1980), its preferential treatment
of newspapers over commercial publications was a permissible
method of serving its legitimate interest in ensuring safe
streets and regulating visual blight.  The Court of Appeals
disagreed, holding that the lesser status of commercial speech is
relevant only when its regulation was designed either to prevent
false or misleading advertising, or to alleviate distinctive
adverse effects of the specific speech at issue.  Because
Cincinnati sought to regulate only the -manner- in which
respondents' publications were distributed, as opposed to their
content or any harm caused by their content, the court reasoned
that respondents' publications had -high value- for purposes of
the Fox -reasonable fit-test.  946 F. 2d, at 471 (italics
omitted).  Applying that test, the Court of Appeals agreed with
the District Court that the burden placed on speech "cannot be
justified by the paltry gains in safety and beauty achieved by
the ordinance." Ibid.  The importance of the Court of Appeals
decision, together with the dramatic growth in the use of
newsracks throughout the country, prompted our grant of
certiorari.  503 U. S.  ___ (1992).

II

 There is no claim in this case that there is anything
unlawful or misleading about the contents of respondents'
publications.  Moreover, respondents do not challenge their
characterization as -commercial speech.- Nor do respondents
question the substantiality of the city's interest in safety and
esthetics.  It was, therefore, proper for the District Court and
the Court of Appeals to judge the validity of the city's
prohibition under the standard we set forth in Central Hudson and
Fox.  It was the city's burden 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.

 There is ample support in the record for the conclusion
that the city did not -establish the reasonable fit we require.-
Fox, 492 U. S., at 480.  The ordinance on which it relied was an
outdated prohibition against the distribution of any commercial
handbills on public property.  It was enacted long before any
concern about newsracks developed.  Its apparent purpose was to
prevent 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.  The benefit to be derived
from the removal of 62 newsracks while about 1,500-2,000 remain
in place was considered -minute- by the District Court and
-paltry- by the Court of Appeals.  We share their evaluation of
the -fit- between the city's goal and its method of achieving it.

 In seeking reversal, the city argues that it is wrong to
focus attention on the relatively small number of newsracks
affected by its prohibition, because the city's central concern
is with the overall number of newsracks on its sidewalks, rather
than with the unattractive appearance of a handful of dispensing
devices.  It contends, first, that a categorical prohibition on
the use of newsracks to disseminate commercial messages burdens
no more speech than is necessary to further its interest in
limiting the number of newsracks; and, second, that the
prohibition is a valid "time, place, and manner" regulation
because it is content-neutral and leaves open ample alternative
channels of communication.  We consider these arguments in turn.

III

 The city argues that there is a close fit between its ban
on newsracks dispensing -commercial handbills- and its interest
in safety and esthetics because every decrease in the number of
such dispensing devices necessarily effects an increase in safety
and an improvement in the attractiveness of the cityscape.  In
the city's view, the prohibition is thus entirely related to its
legitimate interests in safety and esthetics.

 We accept the validity of the city's proposition, but
consider it an insufficient justification for the discrimination
against respondents' use of newsracks that are no more harmful
than the permitted newsracks, and have only a minimal impact on
the overall number of news- racks on the city's sidewalks.  The
major premise supporting the city's argument is the proposition
that commercial speech has only a low value.  Based on that
premise, the city contends that the fact that assertedly more
valuable publications are allowed to use newsracks does not
undermine its judgment that its esthetic and safety interests are
stronger than the interest in allowing commercial speakers to
have similar access to the reading public.

/* The Court need not have accepted the city's proffer of proof
that a city devoid of newspaper racks is a prettier city than one
that has newsracks. Perhaps since the majority felt that this was
a case in which the city was so far out of line that it did not
matter is not good as a precedent for the future since a future
court may find that cities have a legitimate esthetic interest in
preventing the distribution of printed material. (Ouch.) */

 We cannot agree.  In our view, the city's argument
attaches more importance to the distinction between
commercial and noncommercial speech than our cases warrant and
seriously underestimates the value of commercial speech.

 This very case illustrates the difficulty of drawing
bright lines that will clearly cabin commercial speech in a
distinct category.  For respondents' publications share important
characteristics with the publications that the city classifies as
-newspapers.- Particularly, they are -commercial handbills-
within the meaning of 714-1-C of the city's Code because they
contain advertising, a feature that apparently also places
ordinary newspapers within the same category.  Separate
provisions in the code specifically authorize the distribution of
-newspapers- on the public right of way, but that term is not
defined.  Presumably, respondents' publications do not qualify as
newspapers because an examination of their content discloses a
higher ratio of advertising to other text, such as news and
feature stories, than is found in the exempted publications.
Indeed, Cincinnati's City Manager has determined that
publications that qualify as newspapers and therefore can be
distributed by newsrack are those that are published daily and or
weekly and -primarily presen[t] coverage of, and commentary on,
current events.- App. 230 (emphasis added).

 The absence of a categorical definition of the difference
between -newspapers' and -commercial handbills- in the city's
Code is also a characteristic of our opinions considering the
constitutionality of regulations of commercial speech.  Fifty
years ago, we concluded that the distribution of a commercial
handbill was unprotected by the First Amendment, even though half
of its content consisted of political protest.  Valentine v.
Chrestensen, 316 U. S. 52 (1942).  A few years later, over
Justice Black's dissent, we held that the -commercial feature- of
door-to-door solicitation of magazine subscriptions was a
sufficient reason for denying First Amendment protection to that
activity.  Breard v. Alexandria, 341 U. S. 622 (1951). Subsequent
opinions, however, recognized that important commercial
attributes of various forms of communication do not qualify their
entitlement to constitutional protection.  Thus, in Virginia
Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.
S. 748 (1976), we explained:

     We begin with several propositions that already are settled
     or beyond serious dispute.  It is clear, for example, that
     speech does not lose its First Amendment protection because
     money is spent to project it, as in a paid advertisement of
     one form or another.  Buckley v. Valeo, 424 U. S. 1, 35-59
     (1976); Pittsburgh Press Co. v. Human Relations Comm'n, 413
     U.S., at 384; New York Times Co. v. Sullivan, 376 U.S., at
     266.  Speech likewise is protected even though it is carried
     in a form that is `sold' for profit, Smith v. California,
     361 U. S. 147, 150 (1959) (books); Joseph Burstyn, Inc. v.
     Wilson, 343 U. S. 495, 501 (1952) (motion pictures); Murdock
     v. Pennsylvania, 319 U.S., at 111 (religious literature),
     and even though it may involve a solicitation to purchase or
     otherwise pay or contribute money.  New York Times Co. v.
     Sullivan, supra; NAACP v. Button, 371 U. S. 415, 429 (1963);
     Jamison v. Texas, 318 U. S., at 417; Cantwell v.
     Connecticut, 310 U. S. 296, 306-307 (1940).

 -If there is a kind of commercial speech that lacks all
First Amendment protection, therefore it must be distinguished by
its content.  Yet the speech whose content deprives it of
protection cannot simply be speech on a commercial subject.  No
one would contend that our pharmacist may be prevented from being
heard on the subject of whether, in general, pharmaceutical
prices should be regulated, or their advertisement forbidden.
Nor can it be dispositive that a commercial advertisement is
noneditorial, and merely reports a fact.  Purely factual matter
of public interest may claim protection.  Bigelow v. Virginia,
421 U. S., at 822; Thornhill v. Alabama, 310 U. S.  88, 102
(1940).- Id., at 761-762. We then held that even speech that does
no more than propose a commercial transaction is protected by the
First Amendment.  Id., at 762.

 In later opinions we have stated that speech proposing a
commercial transaction is entitled to lesser protection than
other constitutionally guaranteed expression, see Ohralik v. Ohio
State Bar Assn., 436 U. S. 447, 455-456 (1978).  We have also
suggested that such lesser protection was appropriate for a
somewhat larger category of commercial speech--that is,
expression related solely to the economic interests of the
speaker and its audience.- Central Hudson Gas & Elec. Corp. v.
Public Service Comm'n of New York, 447 U. S., at 561.  We did
not, however, use that definition in either Bolger v. Youngs Drug
Products, 463 U. S. 60 (1983), or in Board of Trustees of State
Univ. of New York v. Fox, 492 U. S. 469 (1989).

 In the Bolger case we held that a federal statute
prohibiting the mailing of unsolicited advertisements for
contraceptives could not be applied to the appellee's promotional
materials.  Most of the appellee's mailings consisted primarily
of price and quantity information, and thus fell "within the core
notion of commercial speech-`speech which does no more than
propose a commercial transaction."' Bolger, 463 U. S., at 66
(quoting Virginia Pharmacy, 425 U. S., at 762, in turn quoting
Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413
U. S. 376, 385 (1973)).  Relying in part on the appellee's
economic motivation, the Court also answered the "closer
question- about the proper label for informational pamphlets that
were concededly advertisements referring to a specific product,
and concluded that they also were -commercial speech." 463 U. S.,
at 66-67.  It is noteworthy that in reaching that conclusion we
did not simply apply the broader definition of commercial speech
advanced in Central Hudson- a definition that obviously would
have encompassed the mailings- but rather "examined [them]
carefully to ensure that speech deserving of greater
constitutional protection is not inadvertently suppressed." 463
U. S., at 66.  In Fox, we described the category even more
narrowly, by characterizing the proposal of a commercial
transaction as "the test for identifying commercial speech." 492
U. S., at 473-474 (emphasis added).

 Under the Fox test it is clear that much of the material
in ordinary newspapers is commercial speech and, conversely, that
the editorial content in respondents' promotional publications is
not what we have described as core commercial speech.  There is
no doubt a -common sense- basis for distinguishing between the
two, but under both the city's Code and our cases the difference
is a matter of degree.

 Nevertheless, for the purpose of deciding this case, we
assume that all of the speech barred from Cincinnati's sidewalks
is what we have labeled "core" commercial speech and that no such
speech is found in publications that are allowed to use
newsracks.  We nonetheless agree with the Court of Appeals that
Cincinnati's actions in this case run afoul of the First
Amendment.  Not only does Cincinnati's categorical ban on
commercial newsracks place too much importance on the distinction
between commercial and noncommercial speech, but in this case,
the distinction bears no relationship whatsoever to the
particular interests that the city has asserted.  It is therefore
an impermissible means of responding to the city's admittedly
legitimate interests.  Cf. Simon & Schuster, Inc., v.  Members of
New York State Crime Victims Bd., 502 U. S.  ___, ___ (1991)
(distinction drawn by Son of Sam law between income derived from
criminal's descriptions of his crime and other sources -has
nothing to do with- State's interest in transferring proceeds of
crime from criminals to victims); Carey v. Brown, 447 U. S. 455,
465 (1980) (State's interest in residential privacy cannot
sustain statute permitting labor picketing, but prohibiting
nonlabor picketing when -nothing in the content-based
labor-nonlabor distinction has any bearing whatsoever on
privacy-).

 The city has asserted an interest in esthetics, but
respondent publishers' newsracks are no greater an eyesore than
the newsracks permitted to remain on Cincinnati's sidewalks.
Each newsrack, whether containing -newspapers- or -commercial
handbills,- is equally unattractive.  While there was some
testimony in the District Court that commercial publications are
distinct from noncommercial publications in their capacity to
proliferate, the evidence of such was exceedingly weak, the Court
of Appeals discounted it, 946 F. 2d, at 466-467, and n. 3, and
Cincinnati does not reassert that particular argument in this
Court.  As we have explained, the city's primary concern, as
argued to us, is with the aggregate number of newsracks on its
streets.  On that score, however, all newsracks, regardless of
whether they contain commercial or noncommercial publications,
are equally at fault.  In fact, the newspapers are arguably the
greater culprit because of their superior number.

 Cincinnati has not asserted an interest in preventing
commercial harms by regulating the information distributed by
respondent publishers' newsracks, which is, of course, the
typical reason why commercial speech can be subject to greater
governmental regulation than noncommercial speech.  See, e.g.,
Bolger, 463 U. S., at 81 (Stevens, J., concurring in judgment)
("[T]he commercial aspects of a message may provide a
justification for regulation that is not present when the
communication has no commercial character"); Ohralik v. Ohio
State Bar Assn., 436 U. S. 447, 455-456 (1978) (commercial
speech, unlike other varieties of speech, "occurs in an area
traditionally subject to government regulation").

 A closer examination of one of the cases we have
mentioned, Bolger v. Youngs Drug Products, demonstrates the
fallacy of the city's argument that a reasonable fit is
established by the mere fact that the entire burden imposed on
commercial speech by its newsrack policy may in some small way
limit the total number of newsracks on Cincinnati's sidewalks.
Here, the city contends that safety concerns and visual blight
may be addressed by a prohibition that distinguishes between
commercial and noncommercial publications that are equally
responsible for those problems.  In Bolger, however, in rejecting
the Government's reliance on its interest in protecting the
public from -offensive- speech, "[we] specifically declined to
recognize a distinction between commercial and noncommercial
speech that would render this interest a sufficient justification
for a prohibition of commercial speech." 436 U. S., at 71-72
(citing Carey v. Population Services International, 431 U. S.
678, 701, n. 28 (1977)).  Moreover, the fact that the regulation
"provide[d] only the most limited incremental support for the
interest asserted," 436 U.S., at 73 that it achieved only a
"marginal degree of protection," ibid., for that interest-
supported our holding that the prohibition was invalid.  Finally,
in Bolger, as in this case, the burden on commercial speech was
imposed by denying the speaker access to one method of
distribution "there the United States mails, and here the
placement of newsracks on public property" without interfering
with alternative means of access to the audience.  As then
Justice Rehnquist explained in his separate opinion, that fact
did not minimize the significance of the burden:


     [T]he Postal Service argues that Youngs can communicate with
     the public otherwise than through the mail.  [This argument
     falls] wide of the mark.  A prohibition on the use of the
     mails is a significant restriction of First Amendment
     rights.  We have noted that `-[t]he United States may give
     up the Post Office when it sees fit, but while it carries it
     on the use of the mails is as much a part of free speech as
     the right to use our tongues.-' Blount v. Rizzi, 400 U. S.,
     at 416, quoting Milwaukee Social Democratic Publishing Co.
     v. Burleson, 255 U. S. 407, 437 (1921) (Holmes, J.,
     dissenting). 463 U. S., at 79-80 (footnote omitted).

In a similar vein, even if we assume, arguendo, that the city
might entirely prohibit the use of newsracks on public property,
as long as this avenue of communication remains open, these
devices continue to play a significant role in the dissemination
of protected speech.

 In the absence of some basis for distinguishing between
-newspapers- and -commercial handbills- that is relevant to an
interest asserted by the city, we are unwilling to recognize
Cincinnati's bare assertion that the -low value- of commercial
speech is a sufficient justification for its selective and
categorical ban on newsracks dispensing -commercial handbills.-
Our holding, however, is narrow.  As should be clear from the
above discussion, we do not reach the question whether, given
certain facts and under certain circumstances, a community might
be able to justify differential treatment of commercial and
noncommercial newsracks.  We simply hold that on this record
Cincinnati has failed to make such a showing.  Because the
distinction Cincinnati has drawn has absolutely no bearing on the
interests it has asserted, we have no difficulty concluding, as
did the two courts below, that the city has not established the
-fit- between its goals and its chosen means that is required by
our opinion in Fox.  It remains to consider the city's argument
that its prohibition is a permissible time, place, and manner
regulation.


IV

 The Court has held that 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.'-
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989), quoting
Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293
(1984).  Thus, a prohibition against the use of sound trucks
emitting -loud and raucous- noise in residential neighborhoods is
permissible if it applies equally to music, political speech, and
advertising.  See generally Kovacs v. Cooper, 336 U.S. 77 (1949).
The city contends that its regulation of newsracks qualifies as
such a restriction because the interests in safety and esthetics
that it serves are entirely unrelated to the content of
respondents' publications.  Thus, the argument goes, the
justification for the regulation is content neutral.

 The argument is unpersuasive because 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." Simon & Schuster v. Members
of New York State Crime Victims Bd., 502 U. S., at ___ (slip op.,
at 10).  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 are we persuaded that our statements that the test
for whether a regulation is content-based turns on the
-justification- for the regulation, see, e.g., Ward, 491 U.S., at
791; Clark, 468 U. S., at 293, compel a different conclusion.  We
agree with the city that its desire to limit the total number of
newsracks is -justified- by its interest 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 we have 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., 475 U. S. 41 (1986), 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.- Id., at 47.  We 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.  Id., at 47-49.  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, as demonstrated in Part III, supra, -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.  As
did the District Court and the Court of Appeals, we conclude that
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.

 The judgment of the Court of Appeals is Affirmed.

Justice Blackmun, concurring.

 I agree that Cincinnati's ban on commercial newsracks
cannot withstand scrutiny under Central Hudson Gas & Electric
Corp. v. Public Service Comm'n of New York, 447 U.S. 557 (1980),
and Board of Trustees of State University of N.Y. v. Fox, 492 U.
S. 469 (1989), and I therefore join the Court's opinion.  I write
separately because I continue to believe that the analysis set
forth in Central Hudson and refined in Fox affords insufficient
protection for truthful, noncoercive commercial speech concerning
lawful activities.  In Central Hudson, I expressed the view that
"intermediate scrutiny is appropriate for a restraint on
commercial speech designed to protect consumers from misleading
or coercive speech, or a regulation related to the time, place,
or manner of commercial speech," but not for a regulation that
suppresses truthful commercial speech to serve some other
government purpose.  447 U.S., at 573 (opinion concurring in
judgment).  The present case demonstrates that there is no reason
to treat truthful commercial speech as a class that is less
-valuable- than noncommercial speech.  Respondents' publications,
which respectively advertise the availability of residential
properties and educational opportunities, are unquestionably
-valuable- to those who choose to read them, and Cincinnati's ban
on commercial newsracks should be subject to the same scrutiny we
would apply to a regulation burdening noncommercial speech. In
Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council,
Inc., 425 U. S. 748 (1976), this Court held that commercial
speech -which does `no more than propose a commercial
transaction'- is protected by the First Amendment, id., at 762,
quoting Pittsburgh Press Co. v. Human Relations Comm'n, 413 U. S.
376, 385 (1973).  In so holding, the Court focused principally on
the First Amendment interests of the listener.  The Court noted
that "the particular consumer's interest in the free flow of
commercial information . . . may be as keen, if not keener by
far, than his interest in the day's most urgent political
debate," 425 U. S., at 763, and that "the free flow of commercial
information is indispensable . . . to the proper allocation of
resources in a free enterprise system . . .  [and] to the
formation of intelligent opinions as to how that system ought to
be regulated or altered." Id., at 765.

/* A stronger argument then the one advanced by the majority. The
price of aspirin may be more important to the actual readers than
the abstruse prose found in some parts of more traditional
"newspapers." For someone who needs new tires on his or her car,
the price of tires is of more immediate moment at times than
Congressional votes on anti-trust laws. */

See also Bates v. State Bar of Arizona, 433 U. S. 350, 364
(1977).

 The Court recognized, however, that government may
regulate commercial speech in ways that it may not regulate
protected noncommercial speech.  See generally Virginia Pharmacy
Bd., 425 U. S., at 770-772.  Government may regulate commercial
speech to ensure that it is not false, deceptive, or misleading,
id., at 771-772, and to ensure that it is not coercive.  Ohralik
v. Ohio State Bar Assn., 436 U. S. 447, 457 (1978).  Government
also may prohibit commercial speech proposing unlawful
activities.  Pittsburgh Press Co. v. Human Relations Comm'n, 413
U. S., at 388.  See Bates v. State Bar of Arizona, 433 U. S., at
384.  To permit government regulation on these grounds is
consistent with this Court's emphasis on the First Amendment
interests of the listener in the commercial speech context.  A
listener has little interest in receiving false, misleading, or
deceptive commercial information.  See id., at 383 ([T]he public
and private benefits from commercial speech derive from
confidence in its accuracy and reliability).  A listener also has
little interest in being coerced into a purchasing decision.  See
Ohralik v. Ohio State Bar Assn., 436 U. S., at 457 ([I]n-person
solicitation may exert pressure and often demands an immediate
response, without providing the opportunity for comparison or
reflection).  Furthermore, to the extent it exists at all, a
listener has only a weak interest in learning about commercial
opportunities that the criminal law forbids.  In sum, the
commercial speech that this Court had permitted government to
regulate or proscribe was commercial speech that did not "serv[e]
individual and societal interests in assuring informed and
reliable decisionmaking." Bates v. State Bar of Arizona, 433 U.
S., at 364.

 So the law stood in 1980 when this Court decided Central
Hudson and held that all commercial speech was entitled only to
an intermediate level of constitutional protection.  The majority
in Central Hudson reviewed the Court's earlier commercial speech
cases and concluded that the Constitution "accords a lesser
protection to commercial speech than to other constitutionally
guaranteed expression." 447 U. S., at 563.  As a descriptive
matter, this statement was correct, since our cases had
recognized that commercial speech could be regulated on grounds
that protected noncommercial speech could not.  See n. 1, supra.
This -lesser protection- did not rest, however, on the fact that
commercial speech -is of less constitutional moment than other
forms of speech,- as the Central Hudson majority asserted.
Ibid., at n. 5.  Rather, it reflected the fact that the
listener's First Amendment interests, from which the protection
of commercial speech largely derives, allow for certain specific
kinds of government regulation that would not be permitted
outside the context of commercial speech.

 The Central Hudson majority went on to develop a four-
part analysis commensurate with the supposed intermediate status
of commercial speech.  Under that test, a court reviewing
restrictions on commercial speech must first determine whether
the speech concerns a lawful activity and is not misleading.  If
the speech does not pass this preliminary threshold, then it is
not protected by the First Amendment at all.  Id., at 566.  If it
does pass the preliminary threshold, then the government is
required to show (1) that the asserted government interest is
-substantial,- (2) that the regulation at issue -directly
advances- that interest, and (3) that the regulation -is not more
extensive than is necessary to serve that interest.- Ibid.  The
Court refined this test in Board of Trustees of State University
of N.Y. v. Fox, 492 U. S., at 480, to clarify that a regulation
limiting commercial speech can, in fact, be more extensive than
is necessary to serve the government's interest as long as it is
not unreasonably so.  This intermediate level of scrutiny is a
far cry from strict scrutiny, under which the government interest
must be -compelling- and the regulation -narrowly tailored- to
serve that interest.  See, e.g., Austin v. Michigan Chamber of
Commerce, 494 U. S. 652, 657 (1990).

 In Central Hudson, I concurred only in the Court's
judgment because I felt the majority's four-part analysis was
-not consistent with our prior cases and [did] not provide
adequate protection for truthful, nonmisleading, noncoercive
commercial speech.- 447 U. S., at 573.  I noted: "Permissible
restraints on commercial speech have been limited to measures
designed to protect consumers from fraudulent, misleading, or
coercive sales techniques." Id., at 574.  Under the analysis
adopted by the Central Hudson majority, misleading and coercive
commercial speech and commercial speech proposing illegal
activities are addressed in the first prong of the four-part
test.  Yet commercial speech that survives the first prong -
i.e., that is not misleading or coercive and that concerns lawful
activities - is entitled only to an intermediate level of
protection.  Furthermore, the -substantial- government interest
that Central Hudson requires to justify restrictions on
commercial speech does not have to be related to protecting
against deception or coercion, for Central Hudson itself left
open the possibility that the government's substantial interest
in energy conservation might justify a more narrowly drawn
restriction on truthful advertising that promotes energy
consumption.  See id., at 569-572.

 Thus, it is little wonder that when the city of
Cincinnati wanted to remove some newsracks from its streets, it
chose to eliminate all the commercial newsracks first although
its reasons had nothing to do with either the deceptiveness of
particular commercial publications or the particular
characteristics of commercial newsracks themselves.  First,
Cincinnati could rely on this Court's broad statements that
commercial speech -is of less constitutional moment than other
forms of speech,- id., at 563, n. 5, and occupies a "subordinate
position in the scale of First Amendment values," Ohralik, 436
U.S., at 456.  Second, it knew that under Central Hudson its
restrictions on commercial speech would be examined with less
enthusiasm and with less exacting scrutiny than any restrictions
it might impose on other speech.  Indeed, it appears that
Cincinnati felt it had no choice under this Court's decisions but
to burden commercial newsracks more heavily.  See Brief for
Petitioner 28 ("Cincinnati . . . could run afoul of First
Amendment protections afforded noncommercial speech by affording
newsrack-type dispensers containing commercial speech like
treatment with newsracks containing noncommercial speech").

 In this case, Central Hudson's chickens have come home to
roost.

 The Court wisely rejects Cincinnati's argument that it
may single out commercial speech simply because it is "low value"
speech, see ante, at 17, and on the facts of this case it is
unnecessary to do more.  The Court expressly reserves the
question whether regulations not directed at the content of
commercial speech or adverse effects stemming from that content
should be evaluated under the standards applicable to regulations
of fully protected speech.  Ante, at 5-6, n. 11.  I believe the
Court should answer that question in the affirmative and hold
that truthful, noncoercive commercial speech concerning lawful
activities is entitled to full First Amendment protection.  As I
wrote in Central Hudson, "intermediate scrutiny is appropriate
for a restraint on commercial speech designed to protect
consumers from misleading or coercive speech, or a regulation
related to the time, place, or manner of commercial speech." 447
U. S., at 573.  But none of the "commonsense differences,"
Virginia Pharmacy Bd., 425 U. S., at 771, n. 24, between
commercial and other speech "justify relaxed scrutiny of
restraints that suppress truthful, nondeceptive, noncoercive
commercial speech." Central Hudson, 447 U. S., at 578 (opinion
concurring in the judgment).

 The commercial publications at issue in this case
illustrate the absurdity of treating all commercial speech as
less valuable than all noncommercial speech.  Respondent Harmon
Publishing Company, Inc., publishes and distributes a free
magazine containing listings and photographs of residential
properties.  Like the -For Sale- signs this Court, in Linmark
Associates, Inc. v. Willingboro, 431 U.S. 85 (1977), held could
not be banned, the information contained in Harmon's publication
"bear[s] on one of the most important decisions [individuals]
have a right to make: where to live and raise their families."
Id., at 96.  Respondent Discovery Network, Inc., advertises the
availability of adult educational, recreational, and social
programs.  Our cases have consistently recognized the importance
of education to the professional and personal development of the
individual.  See, e.g., Brown v. Board of Education, 347 U.S.
483, 493 (1954).  The -value- of respondents' commercial speech,
at least to those who receive it, certainly exceeds the value of
the offensive, though political, slogan displayed on the
petitioner's jacket in Cohen v. California, 403 U. S. 15 (1971).

 I think it highly unlikely that according truthful,
noncoercive commercial speech the full protection of the First
Amendment will erode the level of that protection.  See post, at
2 (dissenting opinion); Ohralik v. Ohio State Bar Assn., 436 U.
S., at 456.  I have predicted that "the Court will never provide
child pornography or cigarette advertising the level of
protection customarily granted political speech." See R.A.V. v.
St. Paul, 505 U. S. ___ (1992) (opinion concurring in the
judgment).  Yet I do not believe that protecting truthful
advertising will test this Nation's commitment to the First
Amendment to any greater extent than protecting offensive
political speech.  See, e.g., Texas v. Johnson, 491 U. S. 397
(1989) (flag burning); National Socialist Party of America v.
Skokie, 432 U. S. 43 (1977) (Nazi march through Jewish neighbor-
hood); Cohen v. California, 403 U. S. 15 (profane antiwar
slogan).  The very fact that government remains free, in my view,
to ensure that commercial speech is not deceptive or coercive, to
prohibit commercial speech proposing illegal activities, and to
impose reasonable time, place, or manner restrictions on
commercial speech greatly reduces the risk that protecting
truthful commercial speech will dilute the level of First
Amendment protection for speech generally.

 I am heartened by the Court's decision today to reject
the extreme extension of Central Hudson's logic, and I hope the
Court ultimately will come to abandon Central Hudson's analysis
entirely in favor of one that affords full protection for
truthful, noncoercive commercial speech about lawful activities.