4.4. SR 11-13-2001 - Laserfiche WebLink

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113 S. Ct. 1505 (Cite as: 507 U.S. 410, '415, 113 S.Ct. 1505, *'1509) Page 5 by their content, the court reasoned that respondents' publications had "high value" for purposes of the Fox "reasonable fit" test. 946 F. 2d 464, 471 (CA6 1991) (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. [FNg] The importance of the Court of '416 Appeals decision, together with the dramatic growth in the use of newsracks throughout the country, [FN10] prompted our grant of certiorari. 503 U.S. 918, 112 S. Ct. 1290, 117 L.Ed. 2d 514 (1992). FN7. See Sentinel Communications Co. v. Watts, 936 F.2d 1189, 1196-1197 (CAll 1991), and cases cited therein. FN8. In the words of the Court of Appeals: "This 'lesser protection' afforded commercial speech is crucial to Cincinnati's argument on appeal. Cincinnati argues that placing the entire burden of achieving its goal of safer streets and a more harmonious landscape on commercial speech is justified by this lesser protection." 946 F.2d 464, 469 (CA6 1991). See also M., at 471 ("The [city's] defense of that ordinance rests solely on the low value allegedly accorded to commercial speech in general"). FN9. The Court of Appeals also noted that the general ban on the distribution of handbills had been on the books long before the newsrack problem arose. M., at 473. FN10. We are advised that almost half of the single copy sales of newspapers are now distributed through newsracks. See Brief for American Newspaper Publishers Association et al. as Amici Curiae 2. II [1] 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 *'1510 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 standards we set forth in Central Hudson and Fox. [FNll] 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. [FN12] FN11. While the Court of Appeals ultimately applied the standards set forth in Central Hudson and Fox, its analysis at least suggested that those standards might not apply to the type of regulation at issue in this case. For if commercial speech is entitled to "lesser protection" only when the regulation is aimed at either the content of the speech or the particular adverse effects stemming from that content, it would seem to follow that a regulation that is not so directed should be evaluated under the standards applicable to regulations on fully protected speech, not the more lenient standards by which we judge regulations on commercial speech. Because we conclude that Cincinnati's ban on commercial newsracks cannot withstand scrutiny under Central Hudson and Fox, we need not decide whether that policy should be subjected to more exacting review. FNI2. As we stated in Fox: "[W]hile we have insisted that the free flow of commercial information is valuable enough to justify imposing on would-be regulators the costs of distinguishing ... the harmless from the harmful, we have not gone so far as to impose upon them the burden of demonstrating that the distinguishment is 100% complete, or that the manner of restriction is absolutely the least severe that will achieve the desired end. What our decisions require is a 'fit' between the legislature's ends and the means chosen to accomplish those ends--a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served; that employs not necessarily the least restrictive means but, as we have put it in the other contexts discussed above, a means narrowly tailored to achieve the desired objective. Within those bounds we leave it to governmental decisionmakers to judge what manner of regulation may best be employed .... "Here we require the government goal to be substantial, and the cost to be carefully calculated. Moreover, since the State bears the burden of Copr. © West 2001 No Claim to Orig. U.S. Govt. Works