4.4. SR 11-13-2001 - Laserfiche WebLink

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113 S. Ct. 1505 (Cite as: 507 U.S. 410, *428, 113 S.Ct. 1505, *'1516) Page 12 speech provided that they are adequately justified" 'without reference to the content of the regulated speech.'" Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 2753, 105 L. Ed. 2d §§1 (1989), qu.oting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984). Thus, a prohibition against the use of sound trucks emitting "loud and raucous" noise in residential neighl~orhoods is permissible if it applies equally to music, political speech, and advertising. See generally *429 Kovacs v. Cooper, 336 U.S. 77, 69 S. Ct. 448, 93 L. Ed. 513 (1949). The city contends that its regulation of newsracks qualifies as such a restriction because the interests in safety and esthetics that it serves are entirely unrelated to the content of respondents' publications. Thus, the argument goes, the justification for the regulation is content neutral. The argument is unpersuasive because the very basis for the regulation is the difference in content between ordinary newspapers and commercial speech. True, there is no evidence that the city has acted with animus toward the ideas contained within respondents' publications, but just last Term we expressly rejected the argument that "discriminatory ... treatment is suspect under the First Amendment only when the legislature intends to suppress certain ideas." Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bal., 502 U.S., at 117, 112 S.Ct., at 509. Regardless of the mens rea of the city, it has enacted a sweeping ban on the use of newsracks that distribute "commercial handbills," but not "newspapers." Under the city's newsrack policy, whether any particular newsrack falls within the ban is determined by the content of the publication resting inside that newsrack. Thus, by *'1517 any commonsense understanding of the term, the ban in this case is "content based." Nor are we persuaded that our statements that the test for whether a regulation is content based turns on the "justification" for the regulation, see, e.g., Ward, 491 U.S., at 791, 109 S. Ct., at 2753; Clark, 468 U.S., at 293, 104 S. Ct., at 3069, compel a different conclusion. We agree with the city that its desire to limit the total number of newsracks is "justified" by its interests in safety and esthetics. The city has not, however, limited the number of newsracks; it has limited (to zero) the number of newsracks distributing commercial publications. As we have explained, there is no justification for that particular regulation other than the city's naked assertion that commercial speech has "low value." It is the absence of a neutral *430 justification for its selective ban on newsracks that prevents the city from defending its newsrack policy as content neutral. By the same reasoning, the city's heavy reliance on Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986), is misplaced. In Renton, a city ordinance imposed particular zoning regulations on movie theaters showing adult films. The Court recognized that the ordinance did not fall neatly into the "content-based" or "content-neutral" category in that "the ordinance treats theaters that specialize in adult films differently from other kinds of theaters." Id., at 47, 106 S. Ct., at 929. We upheld the regulation, however, largely because it was justified not by an interest in suppressing adult films, but by the city's concern for the "secondary effects" of such theaters on the surrounding neighborhoods. Id., at 47-49, 106 S. Ct., at 928-930. In contrast to the speech at issue in Renton, there are no secondary effects attributable to respondent publishers' newsracks that distinguish them from the newsracks Cincinnati permits to remain on its sidewalks. In sum, the city's newsrack policy is neither content neutral nor, as demonstrated in Part III, supra, "narrowly tailored." Thus, regardless of whether or not it leaves open ample alternative channels of communication, it cannot be justified as a legitimate time, place, or manner restriction on protected speech. Cincinnati has enacted a sweeping ban that bars from its sidewalks a whole class of constitutionally protected speech. As did the District Court and the Court of Appeals, we Copr. © West 2001 No Claim to Orig. U.S. Govt. Works