Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/ussct/cin_2.asc

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 Chief Justice Rehnquist, with whom Justice White and
Justice Thomas join, dissenting.

 Concerned about the safety and esthetics of its streets
and sidewalks, the city of Cincinnati decided to do something
about the proliferation of newsracks on its street corners.
Pursuant to an existing ordinance prohibiting the distribution of
"commercial handbills" on public property, the city ordered
respondents Discovery Network, Inc., and Harmon Publishing
Company, Inc., to remove their newsracks from its sidewalks
within 30 days.  Respondents publish and distribute free of
charge magazines that consist principally of commercial speech.
Together their publications account for 62 of the 1,500-2,000
newsracks that clutter Cincinnati's street corners.  Because the
city chose to address its newsrack problem by banning only those
newsracks that disseminate commercial handbills, rather than
regulating all newsracks (including those that disseminate
traditional newspapers) alike, the Court holds that its actions
violate the First Amendment to the Constitution.  I believe this
result is inconsistent with prior precedent.


 "Our jurisprudence has emphasized that `commercial speech
[enjoys] a limited measure of protection, commensurate with its
subordinate position in the scale of First Amendment values,' and
is subject to `modes of regulation that might be impermissible in
the realm of noncommercial expression.'" Board of Trustees of
State Univ. of New York v. Fox, 492 U. S. 469, 477 (1989)
(quoting Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 456
(1978)); see also Bolger v. Youngs Drug Products Corp., 463 U. S.
60, 64-65 (1983).  We have advanced several reasons for this
treatment, among which is that commercial speech is more durable
than other types of speech, since it is -the off- spring of
economic self-interest.- Central Hudson Gas & Electric Corp. v.
Public Service Comm'n of New York, 447 U.S. 557, 564, n. 6
(1980); Virginia State Bd. of Pharmacy v. Virginia Citizens
Consumer Council, Inc., 425 U.S. 748, 772, n. 24 (1976).
Commercial speech is also "less central to the interests of the
First Amendment" than other types of speech, such as political
expression.  Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,
472 U.S. 749, 758, n. 5 (1985) (opinion of Powell, J.).  Finally,
there is an inherent danger that conferring equal status upon
commercial speech will erode the First Amendment protection
accorded noncommercial speech, "simply by a leveling process of
the force of the Amendment's guarantee with respect to the latter
kind of speech." Ohralik, supra, at 456.

 In Central Hudson, we set forth the test for analyzing
the permissibility of restrictions on commercial speech as
follows:

      At the outset, we must determine whether the expression
      is protected by the First Amendment.  For commercial
      speech to come within that provision, it at least must
      concern lawful activity and not be misleading.  Next,
      we ask whether the asserted governmental interest is
      substantial.  If both inquiries yield positive answers,
      we must determine whether the regulation directly
      advances the governmental interest asserted, and
      whether it is not more extensive than is necessary to
      serve that interest. 447 U.S., at 566.

I agree with the Court that the city's prohibition against
respondents' newsracks is properly analyzed under Central Hudson,
see ante, at 5, but differ as to the result this analysis should
produce.

 As the Court points out, "respondents do not challenge
their characterization as `commercial speech,'" and "[t]here is
no claim in this case that there is anything unlawful or
misleading about the contents of respondents' publications."
Ibid. "Nor do respondents question the substantiality of the
city's interest in safety and esthetics." Ibid.  This case turns,
then, on the application of the last part of the Central Hudson
analysis.  Although the Court does not say so, there can be no
question that Cincinnati's prohibition against respondents'
newsracks "directly advances" its safety and esthetic interests
because, if enforced, the city's policy will decrease the number
of newsracks on its street corners.  This leaves the question
whether the city's prohibition is "more extensive than necessary"
to serve its interests, or, as we elaborated in Fox, whether
there is a "reasonable fit" between the city's desired ends and
the means it has chosen to accomplish those ends.  See 492 U. S.,
at 480. Because the city's -commercial handbill- ordinance was
not enacted specifically to address the problems caused by
newsracks, and, if enforced, the city's prohibition against
respondents' newsracks would result in the removal of only 62
newsracks from its street corners, the Court finds "ample support
in the record for the conclusion that the city did not establish
[a] reasonable fit." Ante, at 6 (internal quotation marks
omitted).  I disagree.

 According to the Court, the city's decision to invoke an
existing ordinance "to address its recently developed concern
about newsracks- indicates that -it has not `carefully
calculated' the costs and benefits associated with the burden on
speech imposed by its prohibition." Ante, at 7.  The implication
being that, if Cincinnati had studied the problem in greater
detail, it would have discovered that it could have accomplished
its desired ends by regulating the "size, shape, appearance, or
number" of all newsracks, rather than categorically banning only
those newsracks that disseminate commercial speech. Ibid.
Despite its protestations to the contrary, see ante, at 7, n. 13,
this argument rests on the discredited notion that the
availability of "less restrictive means" to accomplish the city's
objectives renders its regulation of commercial speech
unconstitutional.  As we observed in Fox, "almost all of the
restrictions disallowed under Central Hudson's fourth prong have
been substantially excessive, disregarding far less restrictive
and more precise means." 492 U. S., at 479 (internal quotation
marks omitted).  That there may be other-less restrictive- means
by which Cincinnati could have gone about addressing its safety
and esthetic concerns, then, does not render its prohibition
against respondents' newsracks unconstitutional.

 Nor does the fact that, if enforced, the city's
prohibition would result in the removal of only 62 newsracks from
its street corners.  The Court attaches significance to the lower
courts' findings that any benefit that would be derived from the
removal of respondents' newsracks would be -`minute'- or
-`paltry.'- Ante, at 7.  The relevant inquiry, though, is not the
degree to which the locality's interests are furthered in a
particular case, but rather the relation that the challenged
regulation of commercial speech bears to the -overall problem-
the locality is seeking to alleviate.  Ward v. Rock Against
Racism, 491 U.S. 781, 801 (1989).  This follows from our test for
reviewing the validity of -time, place, or manner- restrictions
on noncommercial speech, which we have said is -substantially
similar- to the Central Hudson analysis.  Board of Trustees of
State Univ. of New York v. Fox, supra, at 477 (internal quotation
marks omitted).  Properly viewed, then, the city's prohibition
against respondents' newsracks is directly related to its efforts
to alleviate the problems caused by newsracks, since every
newsrack that is removed from the city's sidewalks marginally
enhances the safety of its streets and esthetics of its
cityscape.  This conclusion is not altered by the fact that the
city has chosen to address its problem by banning only those
newsracks that disseminate commercial speech, rather than
regulating all newsracks alike.

 Our commercial speech cases establish that localities may
stop short of fully accomplishing their objectives without
running afoul of the First Amendment.  In Posadas de Puerto Rico
Associates v. Tourism Co. of Puerto Rico, 478 U. S. 328, 342
(1986), where we upheld Puerto Rico's ban on promotional
advertising of casino gambling aimed at Puerto Rico residents, we
rejected the appellant's argument that the ban was invalid under
Central Hudson because other types of gambling (e.g., horse
racing) were permitted to be advertised to local residents.  More
to the point, in Metromedia, Inc. v. San Diego, 453 U. S. 490
(1981) (plurality opinion), where we upheld San Diego's ban of
offsite billboard advertising, we rejected the appellants'
argument that the ban was invalid under Central Hudson because it
did not extend to onsite billboard advertising.  See 453 U. S.,
at 511 ("[W]hether onsite advertising is permitted or not, the
prohibition of offsite advertising is directly related to the
stated objectives of traffic safety and esthetics.  This is not
altered by the fact that the ordinance is underinclusive because
it permits onsite advertising").  See also City Council of Los
Angeles v. Taxpayers for Vincent, 466 U. S. 789, 810-811 (1984)
(rejecting the argument that the city's prohibition against the
posting of signs on public property could not be justified on
esthetic grounds because it did not extend to the posting of
signs on private property).  Thus, the fact that Cincinnati's
regulatory scheme is underinclusive does not render its ban on
respondents' newsracks unconstitutional.

 The Court offers an alternative rationale for
invalidating the city's policy: viz., the distinction Cincinnati
has drawn (between commercial and noncommercial speech) in
deciding which newsracks to regulate -bears no relationship
whatsoever to the particular interests that the city has
asserted.- Ante, at 14 (emphasis in original).  That is, because
newsracks that disseminate noncommercial speech have the same
physical characteristics as newsracks that disseminate commercial
speech, and therefore undermine the city's safety and esthetic
interests to the same degree, the city's decision to ban only
those newsracks that disseminate commercial speech has nothing to
do with its interests in regulating newsracks in the first place.
The city does not contend otherwise; instead, it asserts that its
policy is grounded in the distinction we have drawn between
commercial and noncommercial speech.  "In the absence of some
basis for distinguishing between `newspapers' and `commercial
handbills' that is relevant to an interest asserted by the city,"
however, the Court refuses "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.'" Ante, at 17.

 Thus, despite the fact that we have consistently
distinguished between commercial and noncommercial speech
for the purpose of determining whether the regulation of speech
is permissible, the Court holds that in attempting to alleviate
its newsrack problem Cincinnati may not choose to proceed
incrementally by burdening only commercial speech first.  Based
on the different levels of protection we have accorded commercial
and noncommercial speech, we have previously said that localities
may not favor commercial over noncommercial speech in addressing
similar urban problems, see Metromedia, Inc. v. San Diego, supra,
at 513 (plurality opinion), but before today we have never even
suggested that the converse holds true.  It is not surprising,
then, that the Court offers little in the way of precedent
supporting its new rule.  The cases it does cite involve
challenges to the restriction of noncommercial speech in which we
have refused to accept distinctions drawn between restricted and
nonrestricted speech on the ground that they bore no relationship
to the interests asserted for regulating the speech in the first
place.  See ante, at 14, citing Simon & Schuster, Inc. v. Members
of New York State Crime Victims Bd., 502 U. S. --, -- (1991);
Carey v. Brown, 447 U. S. 455, 465 (1980).  Neither of these
cases involved the regulation of commercial speech; nor did they
involve a challenge to the permissibility of distinctions drawn
between categories of speech that we have accorded different
degrees of First Amendment protection. The Court's reliance on
Bolger v. Youngs Drug Products Corp., see ante, at 16-17, is also
misplaced.  In that case we said that the State's interest in
"shield[ing] recipients of mail from materials that they are
likely to find offensive" was invalid regardless of the type of
speech- commercial or noncommercial-involved.  See 463 U. S.,
at 71-72.  By contrast, there can be no question here that the
city's safety and esthetic interests justify its prohibition
against respondents' newsracks.  This at least is the teaching of
Metromedia.  There, seven Justices were of the view that San
Diego's safety and esthetic interests were sufficient to justify
its ban on offsite billboard advertising, even though the city's
reason for regulating these billboards had nothing to do with the
content of the advertisements they displayed.  See 453 U. S.,
507-510 (opinion of White, J., joined by Stewart, Marshall, and
Powell, JJ.); id., at 552-553 (Stevens, J., dissenting in part);
id., at 559-561, 563 (Burger, C. J., dissenting); id., at 569-570
(Rehnquist, J., dissenting).  Without even attempting to
reconcile Metromedia, the Court now suggests that commercial
speech is only subject to lesser protection when it is being
regulated because of its content (or adverse effects stemming
therefrom).  See ante, at 5, n. 11, 15.  This holding, I fear,
will unduly hamper our cities' efforts to come to grips with the
unique problems posed by the dissemination of commercial speech.

 If (as I am certain) Cincinnati may regulate newsracks
that disseminate commercial speech based on the interests it has
asserted, I am at a loss as to why its scheme is unconstitutional
because it does not also regulate newsracks that disseminate
noncommercial speech.  One would have thought that the city,
perhaps even following the teachings of our commercial speech
jurisprudence, could have decided to place the burden of its
regulatory scheme on less protected speech (i.e., commercial
handbills) without running afoul of the First Amendment.  Today's
decision, though, places the city in the position of having to
decide between restricting more speech -fully protected speech-
and allowing the proliferation of newsracks on its street corners
to continue unabated.  It scarcely seems logical that the First
Amendment compels such a result.  In my view, the city may order
the removal of all newsracks from its public right-of-ways if it
so chooses.  See Lakewood v. Plain Dealer Publishing Co., 486 U.
S. 750, 780-781 (1988) (White, J., joined by Stevens and
O'Connor, JJ., dissenting).  But however it decides to address
its newsrack problem, it should be allowed to proceed in the
manner and scope it sees fit so long as it does not violate
established First Amendment principles, such as the rule against
discrimination on the basis of content. "[L]ittle can be gained
in the area of constitutional law, and much lost in the process
of democratic decisionmaking, by allowing individual judges in
city after city to second-guess . . . legislative . . .
determinations" on such matters as esthetics.  Metromedia, supra,
at 570 (Rehnquist, J., dissenting).

 Cincinnati has burdened less speech than necessary to
fully accomplish its objective of alleviating the problems caused
by the proliferation of newsracks on its street corners.  Because
I believe the city has established a -reasonable fit- between its
substantial safety and esthetic interests and its prohibition
against respondents' newsracks, I would hold that the city's
actions are permissible under Central Hudson.  I see no reason to
engage in a -time, place, or manner- analysis of the city's
prohibition, which in any event strikes me as duplicative of the
Central Hudson analysis.  Cf. Board of Trustees of State Univ. of
New York v. Fox, 492 U. S., at 477.  Nor do I think it necessary
or wise, on the record before us, to reach the question whether
the city's regulatory scheme vests too much discretion in city
officials to determine whether a particular publication
constitutes a "commercial handbill." See ante, at 13, n. 19.  It
is undisputed, by the parties at least, that respondents'
magazines constitute commercial speech.  I dissent.