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                       SUPREME COURT OF THE UNITED STATES

                                    --------
                                   No. 91-1200
                                    --------

                        CITY OF CINCINNATI, PETITIONER v.                                                      ___
                         DISCOVERY NETWORK, INC., ET AL.

                       ON WRIT OF CERTIORARI TO THE UNITED
                      STATES COURT OF APPEALS FOR THE SIXTH
                                     CIRCUIT

                                [March 24, 1993]

  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                                91-1200 - DISSENT

2                     CINCINNATI v. DISCOVERY NETWORK, INC.                                ____

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 offspring 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 Phar-__________________                                   ___________________________
macy 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                                91-1200 - DISSENT

                      CINCINNATI v. DISCOVERY NETWORK, INC.                    3                                ____

   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' publica-
tions."  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                                91-1200 - DISSENT

4                     CINCINNATI v. DISCOVERY NETWORK, INC.                                ____

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 unconstitu-
tional.
  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'                                91-1200 - DISSENT

                      CINCINNATI v. DISCOVERY NETWORK, INC.                    5                                ____

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.                                91-1200 - DISSENT

6                     CINCINNATI v. DISCOVERY NETWORK, INC.                                ____

  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                                91-1200 - DISSENT

                      CINCINNATI v. DISCOVERY NETWORK, INC.                    7                                ____

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. ____                                91-1200 - DISSENT

8                     CINCINNATI v. DISCOVERY NETWORK, INC.                                ____

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 re-moval 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                                91-1200 - DISSENT

                      CINCINNATI v. DISCOVERY NETWORK, INC.                    9                                ____

"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.