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113 S.Ct. 1505
<br />(Cite as: 507 U.S. 410, '414, 113 S.Ct. 1505, *'1508)
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<br />Page 4
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<br />in the United States District Court for the
<br />Southern District of Ohio.
<br />
<br />FN2. That section provides:
<br />"'Commercial Handbill' shall mean any printed or
<br />written matter, dodger, circular, leaflet, pamphlet,
<br />paper, booklet or any other printed or otherwise
<br />reproduced original or copies of any matter of
<br />literature:
<br />"(a) Which advertises for sale any merchandise,
<br />product, commodity or thing; or
<br />"(b) Which directs attention to any business or
<br />mercantile or commercial establishment, or other
<br />activity, for the purpose of directly promoting the
<br />interest thereof by sales; or
<br />"(c) Which directs attention to or advertises any
<br />meeting, theatrical performance, exhibition or event
<br />of any kind for which an admission fee is charged
<br />for the purpose of private gain or profit."
<br />Cincinnati Municipal Code {} 714-1-C (1992).
<br />
<br />FN3. That section provides:
<br />"No person shall throw or deposit any commercial or
<br />non-commercial handbill in or upon any sidewalk,
<br />street or other public place within the city. Nor shall
<br />any person hand out or distribute or sell any
<br />commercial handbill in any public place. Provided,
<br />however, that it shall not be unlawful on any
<br />sidewalk, street or other public place within the city
<br />for any person to hand out or distribute, without
<br />charge to the receiver thereof, any non- commercial
<br />handbill to any person willing to accept it, except
<br />within or around the city hall building." {} 714-23.
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<br />After an evidentiary hearing the District
<br />Court concluded that "the regulatory scheme
<br />advanced by the City of Cincinnati completely
<br />prohibiting the distribution of commercial
<br />handbills on the public right of way violates
<br />the First Amendment." [FN4] The court
<br />found that both publications were "commercial
<br />speech" entitled to First Amendment
<br />protection because they concerned lawful
<br />activity and were not misleading. While it
<br />recognized that a city "may regulate
<br />publication *'1509 dispensing devices
<br />pursuant to its substantial interest in
<br />promoting safety and esthetics on or about the
<br />public right of way," [FN5] the District Court
<br />held, relying on Board of Trustees of State
<br />University ofN. Y. v. Fox, 492 U.S. 469, 109 S. Ct.
<br />3028, 106 L.Ed. 2d 388 (1989), that the city
<br />
<br />had the burden of establishing "a reasonable
<br />'fit' between the legislature's ends and the
<br />means chosen to accomplish those ends." App.
<br />to Pet. for Cert. 23a. (quoting Fox, 492 U.S., at
<br />480, 109 S. Ct., at 3035). It explained that the
<br />"fit" in this case was unreasonable because
<br />the number of newsracks dispensing
<br />commercial handbills was "minute" compared
<br />with the total number (1,500-2,000) on the
<br />public right of way, and because they affected
<br />public safety in only a minimal way.
<br />Moreover, the practices in other communities
<br />indicated that the city's safety and esthetic
<br />interests could be adequately protected "by
<br />regulating the size, shape, number or
<br />placement of such devices." App. to Pet. for
<br />Cert. 24a. [FN6]
<br />
<br />FN4. App. to Pet. for Cert. 25a.
<br />
<br />FN5. Id., at 23a.
<br />
<br />FN6. "Such regulation," the District Court noted,
<br />"allows Iai city to control the visual effect of the
<br />devices and to keep them from interfering with
<br />public safety without completely prohibiting the
<br />speech in question." Id., at 24a.
<br />
<br /> '415 On appeal, the city argued that since a
<br />number of courts had held that a complete ban
<br />on the use of newsracks dispensing traditional
<br />newspapers would be unconstitutional, [FN7]
<br />and that the "Constitution ... accords a lesser
<br />protection to commercial speech than to other
<br />constitutionally guaranteed expression,"
<br />Central Hudson Gas & Electric Corp. v. Public
<br />Serv. Comm'n of N.Y., 447 U.S. 557, 563, 100
<br />S. Ct. 2343, 2350, 65 L. Ed. 2d 341 (1980), its
<br />preferential treatment of newspapers over
<br />commercial publications was a permissible
<br />method of serving its legitimate interest in
<br />ensuring safe streets and regulating visual
<br />blight. [FN8] The Court of Appeals disagreed,
<br />holding that the lesser status of commercial
<br />speech is relevant only when its regulation
<br />was designed either to prevent false or
<br />misleading advertising, or to alleviate
<br />distinctive adverse effects of the specific
<br />speech at issue. Because Cincinnati sought to
<br />regulate only the "manner" in which
<br />respondents' publications were distributed, as
<br />opposed to their content or any harm caused
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<br />Copr. © West 2001 No Claim to
<br />
<br />Orig. U.S. Govt. Works
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