4.4. SR 11-13-2001 - Laserfiche WebLink

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113 S. Ct. 1505 (Cite as: 507 U.S. 410, *423, 113 S.Ct. 1505, *'1513) Page 9 advertisements referring to a specific product, and concluded that they also were "commercial speech." 463 U.S., at 66-67, 103 $.Ct., at 2880. It is noteworthy that in reaching that conclusion we did not simply apply the broader definition oi~ commercial speech advanced in Central Hudson-~a definition that obviously would have encompassed the mailings--but rather "examined [them] carefully to ensure that speech-deserving of greater constitutional protection is not inadvertently suppressed." 463 U.S., at 66, 103 S. Ct., at 2880. [FN18] In Fox, we described the category even more narrowly, by characterizing the proposal of a commercial transaction as "the test for identifying commercial speech." 492 U.S., at 473-474, 109 S. Ct., at 3031 (emphasis added). FN18. When the Court first advanced the broader definition of commercial speech, a similar concern had been expressed. See Central Hudson, 447 U.S., at 579, 100 S.Ct., at 2358 (STEVENS, J., concurring in judgment). Under the Fox test it is clear that much of the material in ordinary newspapers is commercial speech and, conversely, that the editorial content in respondents' promotional publications is not what we have described as "core" commercial speech. There is no doubt a "commonsense" basis for distinguishing between the two, but under both the city's code and our cases the difference is a matter of degree. [FN19] FN19. We note that because Cincinnati's regulatory scheme depends on a governmental determination as to whether a particular publication is a "commercial handbill" or a "newspaper," it raises some of the same concerns as the newsrack ordinance struck down in Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). The ordinance at issue in Lakewood vested in the mayor authority to grant or deny a newspaper's application for a newsrack permit, but contained no explicit limit on the scope of the mayor's discretion. The Court struck down the ordinance, reasoning that a licensing scheme that vests such unbridled discretion in a government official may result in either content or viewpoint censorship. Id., at 757, 769-770, 108 S.Ct., at 2144, 2151. Similarly, because the distinction between a "newspaper" and a "commercial handbill" is by no means clear--as noted above, the city deems a "newspaper" as a publication "primarily presenting coverage of, and commentary on, current events," App. 230 (emphasis added)--the responsibility for distinguishing between the two carries with it the potential for invidious discrimination of disfavored subjects. See also Metromedia, Inc. v. San Diego, 453 U.S. 490, 536-537, 101 S.Ct. 2882, 2907, 69 L.Ed.2d 800 (1981) (Brennan, J., concurring in judgment) (ordinance which permits governmental unit to determine, in the first instance, whether speech is commercial or noncommercial "entail[s] a substantial exercise of discretion by a city's official" and therefore "presents a real danger of curtailing noncommercial speech in the guise of regulating commercial speech"). Cf. Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 230, 107 S.Ct. 1722, 1728, 95 L.Ed.2d 209 (1987) ( "In order to determine whether a magazine is subject to sales tax, Arkansas' enforcement authorities must necessarily examine the content of the message that is conveyed .... Such official scrutiny of the content of publications as the basis for imposing a tax is entirely incompatible with the First Amendment's guarantee of freedom of the press") (internal quotation marks and citation omitted). *'1514 *424 Nevertheless, for the purpose of deciding this case, we assume that all of the speech barred from Cincinnati's sidewalks is what we have labeled "core" commercial speech and that no such speech is found in publications that are allowed to use newsracks. We nonetheless agree with the Court of Appeals that Cincinnati's actions in this case run afoul of the First Amendment. Not only does Cincinnati's categorical ban on commercial newsracks place too much importance on the distinction between commercial and noncommercial speech, but in this case, the distinction bears no relationship whatsoever to the particular interests that the city has asserted. It is therefore an impermissible means of responding to the city's admittedly legitimate interests. Cf. Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 120, 112 S. Ct. 501, 510, 116 L.Ed. 2d 476 (1991) (distinction drawn by Son of Sam law between income derived from criminal's descriptions of his Copr. © West 2001 No Claim to Orig. U.S. Govt. Works