4.4. SR 11-13-2001 - Laserfiche WebLink

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113 S. Ct. 1505 (Cite as: 507 U.S. 410, *438, 113 S.Ct. 1505, *'1521) Page 17 Chief Justice REHNQUIST, with whom Justice WHITE and Justice THOMAS join, dissenting. Concerned about the safety and esthetics of its streets and sidewalks, ~he city of Cincinnati decided to do something about the proliferation of newsracks on its street corners. Pursuant to an existing ordinance prohibiting the distribution of'"commercial handbills" on public property, the city ordered respondents Discovery Network, Inc., and Harmon Publishing Company, Inc,, to remove their newsracks from its sidewalks within 30 days. Respondents publish and distribute free of charge magazines that consist principally of commercial speech. Together their publications account for 62 of the 1,500-2,000 newsracks that clutter Cincinnati's street corners. Because the city chose to address its newsrack problem by banning only those newsracks that disseminate commercial handbills, rather than regulating all newsracks (including those that disseminate traditional newspapers) alike, the Court holds that its actions violate the First Amendment to the Constitution. I believe this result is inconsistent with prior precedent. *439 "Our jurisprudence has emphasized that 'commercial speech [enjoys] a limited measure *'1522 of protection, commensurate with its subordinate position in the scale of First Amendment values,' and is subject to 'modes of regulation that might be impermissible in the realm of noncommercial expression.'" Board of Trustees of State University of N. Y. v. Fox, 492 U.S. 469, 477, 109 S. Ct. 3028, 3033, 106 L. Ed. 2d 388 (1989) (quoting Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 456, 98 S. Ct. 1912, 1918, 56 L.Ed. 2d 444 (1978)); see also Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 64-65, 103 S. Ct. 2875, 2879, 77 L.Ed.2d 469 (1983). We have advanced several reasons for this treatment, among which is that commercial speech is more durable than other types of speech, since it is "the offspring of economic self-interest." Central Hudson Gas & Electric Corp. v. Public Serv. Comm'n of N. Y., 447 U.S. 557, 564, n. 6, 100 S. Ct. 2343, 2350, n. 6, 65 L.Ed. 2d 341 (1980); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 772, n. 24, 96 S. Ct. 1817, 1830-1831, n. 24, 48 L.Ed. 2d 346 (1976). Commercial speech is also "less central to the interests of the First Amendment" than other types of speech, such as political expression. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758, n. 5, 105 S. Ct. 2939, 2944- 2945, n. 5, 86 L. gd.2d 593 (1985) (opinion of Powell, 3.). Finally, thoro is an inherent danger that conferring equal status upon commercial speech will erode the First Amendment protection accorded noncommercial speech, "simply by a leveling process, of the force of the Amendment's guarantee with respect to the latter kind of speech." Ohralik, supra, 436 U.S., at 456, 98 S. Ct., at 1918. In Central Hudson, we set forth the test for analyzing the permissibility of restrictions on commercial speech as follows: "At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at ]east must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation *440 directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest." 447 U.S., at 566, 100 S. Ct., at 2351. I agree with the Court that the city's prohibition against respondents' newsracks is properly analyzed under Central Hudson, see ante, at 1510, but differ as to the result this analysis should produce. As the Court points out, "respondents do not challenge their characterization as 'commercial speech,' "and "It]here is no claim in this case that there is anything unlawful or misleading about the contents of respondents' publications." Ibid. "Nor do respondents question the substantiality of the city's interest in safety and esthetics." Ibid. This case turns, then, on the application of the last part of the Central Hudson analysis. Although the Court does not say so, there can be no Copt. © West 2001 No Claim to Orig. U.S. Govt. Works