4.4. SR 11-13-2001 - Laserfiche WebLink

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113 S.Ct. 1505 (Cite as: 507 U.S. 410, *426, 113 S.Ct. 1505, *'1515) Page 11 publications. On the other hand, the interest in protecting the free flow of information and ideas is still present when such expression is found in a commercial context. A closer examination of one of i;he cases we have mentioned, Bolger v. Youngs Drug Products, demonstrates the fallacy of the city's argument that a reasonable fit is established by the mere fact that the entire burden imposed on commercial speech by its newsrack policy may in some small way limit the total number of newsracks on Cincinnati's sidewalks. Here, the city contends that safety concerns and visual blight may be addressed by a prohibition that distinguishes *427 between commercial and noncommercial publications that are equally responsible for those problems. In Bolger, however, in rejecting the Government's reliance on its interest in protecting the public from "offensive" speech, "[we] specifically declined to recognize a distinction between commercial and noncommercial speech that would render this interest a sufficient justification for a prohibition of commercial speech." 463 U.S., at 71-72, 103 S.Ct., at 2883 (citing Carey v. Population Services International, 431 U.S. 678, 701, n. 28, 97 S. Ct. 2010, 2025, n. 28, 52 L. Ed. 2d 675 (1977)). Moreover, the fact that the regulation "provide[d] only the most limited incremental support for the interest asserted," 463 U.S., at 73, 103 S. Ct., at 2884-- that it achieved only a "marginal degree of protection," ibid., for that interest--supported our holding that the prohibition was invalid. Finally, in Bolger, as in this case, the burden on commercial speech was imposed by denying the speaker access to one method of distribution--there the United States mails, and here the placement of newsracks on public property--without interfering with alternative means of access to the audience. As then- Justice REHNQUIST explained in his separate opinion, that fact did not minimize the significance of the burden: "[T]he Postal Service argues that Youngs can communicate with the public otherwise than through the mail. [This argument falls] wide of the mark. A prohibition on the use of the mails is a significant restriction of First Amendment rights. We have *'1516 noted that ' "[t]he United States may give up the Post Office when it sees fit, but while it carries it on the use of the mails is as much a part of free speech as the right to use our tongues." ' Blount v. Rizzi, 400 U.S. [410], at 416 [91 S. Ct. 423, 428, 27 L.Ed. 2d 498 (1971) ], quoting Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 437 [41 S. Ct. 352, 363, 65 L.Ed. 704] (1921) (Holmes, J., dissenting)." Id., at 79-80, 103 S. Ct., at 2887 (footnote omitted). In a similar vein, even if we assume, arguendo, that the city might entirely prohibit the use of newsracks on public *428 property, as long as this avenue of communication remains open, these devices continue to play a significant role in the dissemination of protected speech. In the absence of some basis for distinguishing between "newspapers" and "commercial handbills" that is relevant to an interest asserted by the city, we are unwilling 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." Our holding, however, is narrow. As should be clear from the above discussion, we do not reach the question whether, given certain facts and under certain circumstances, a community might be able to justify differential treatment of commercial and noncommercial newsracks. We simply hold that on this record Cincinnati has failed to make such a showing. Because the distinction Cincinnati has drawn has absolutely no bearing on the interests it has asserted, we have no difficulty concluding, as did the two courts below, that the city has not established the "fit" between its goals and its chosen means that is required by our opinion in Fox. It remains to consider the city's argument that its prohibition is a permissible time, place, and manner regulation. IV [5] The Court has held that government may impose reasonable restrictions on the time, place, or manner of engaging in protected Copr. © West 2001 No Claim to Orig. U.S. Govt. Works