Knowing the constitutionally protected status of newspapers, government bodies generally know better than to take action against them. So the city of Cincinnati, weary at the profusion of newspaper boxes on its sidewalks, went after those that looked most vulnerable-the ones offering commercial handbills advertising goods and services for sale. Last week, the Supreme Court said that sort of distinction can’t be squared with the 1st Amendment.
The decision is an important one in the evolution of judicial treatment of commercial speech. At one time, the Supreme Court dismissed this sort of communication as beneath 1st Amendment protection. But since 1976, it has recognized that speech made on behalf of commercial transactions is too important to be arbitrarily suppressed, even while allowing it to be regulated more than political speech.
Unhappy with the obstacles and eyesores created by newsboxes on the sidewalks, Cincinnati attacked the problem by simply banning those offering purely commercial publications-one of them being the familiar Discovery Network brochures advertising adult classes and other programs.
But the court found this an odd remedy. Commercial newsracks are only a tiny part of the alleged problem, making up no more than 4 percent of the total, and they are no more unsightly or obtrusive than those carrying The Cincinnati Post or The Wall Street Journal.
The commercial publications are forced to bear the entire burden of the city’s solution not because they create more trouble than others (in terms of numbers, they create less), but because the city has decreed their content to be less valuable.
This content-based discrimination, the court found, runs afoul of the Constitution. “Not only does Cincinnati’s ban on commercial newsracks place too much importance on the distinction between commercial and noncommercial speech,” wrote Justice John Paul Stevens in the majority opinion, “but in this case the distinction bears no relationship whatsoever to the particular interests that the city has asserted.”
Although the court was careful not to label this kind of discrimination inherently invalid, it did say the city had failed to offer a convincing justification for it.
Does that leave the city helpless to deal with its perceived problem? No. As an appeals court said, it could simply restrict the total number of news boxes and give the rights out first-come, first-served or through an auction.
That approach is far more respectful of the rights of publishers and readers than an outright ban on disfavored publications. The court was right to see this ordinance as an affront to freedom of communication.
