|
113 S.Ct. 1505
<br />(Cite as: 507 U.S. 410, *440, 113 S.Ct. 1505, *'1522)
<br />
<br />Page 18
<br />
<br />question that Cincinnati's prohibition against
<br />respondents' newsracks "directly advances" its
<br />safety and esthetic interests because, if
<br />enforced, the city's policy will decrease the
<br />number of newsracks on its street corners.
<br />This leaves the question whether the city's
<br />prohibition is "more extensive than necessary"
<br />to serve its interests, or, as we elaborated in
<br />Fox, whether there is a "reasonable fit"
<br />between the city's desired ends and the means
<br />it has chosen to accomplish those ends. See
<br />492 U.S., at 480, 109 S. Ct., at 3035. Because
<br />the city's "commercial handbill" ordinance
<br />was not enacted specifically to address the
<br />problems caused by newsracks, and, if
<br />enforced, the city's prohibition against
<br />respondents' newsracks would result in the
<br />removal of only 62 newsracks from its street
<br />corners, the Court finds "ample support in the
<br />record for the conclusion that the city did not
<br />establish Iai reasonable fit." Ante, at 1510
<br />(internal quotation marks omitted). I
<br />disagree.
<br />
<br />*'1523 According to the Court, the city's
<br />decision to invoke an existing ordinance "to
<br />address its recently developed concern about
<br />newsracks" indicates that "it has not
<br />'carefully calculated' the costs and benefits
<br />associated with the burden '441 on speech
<br />imposed by its prohibition." Ibid. The
<br />implication being that, if Cincinnati had
<br />studied the problem in greater detail, it would
<br />have discovered that it could have
<br />accomplished its desired ends by regulating
<br />the "size, shape, appearance, or number" of all
<br />newsracks, rather than categorically banning
<br />only those newsracks that disseminate
<br />commercial speech. Ibid. Despite its
<br />protestations to the contrary, see ante, at 1510,
<br />n. 13, this argument rests on the discredited
<br />notion that the availability of "less restrictive
<br />means" to accomplish the city's objectives
<br />renders its regulation of commercial speech
<br />unconstitutional. As we observed in Fox,
<br />"almost all of the restrictions disallowed
<br />under Central Hudson's fourth prong have been
<br />substantially excessive, disregarding far less
<br />restrictive and more precise means." 492
<br />U.S., at 479, 109 S. Ct., at 3034 (internal
<br />quotation marks omitted). That there may be
<br />other--less restrictive--means by which
<br />
<br />Cincinnati could have gone about addressing
<br />its safety and esthetic concerns, then, does not
<br />render its prohibition against respondents'
<br />newsracks unconstitutional.
<br />
<br />Nor does the fact that, if enforced, the city's
<br />prohibition would result in the removal of
<br />only 62 newsracks from its street corners.
<br />The Court attaches significance to the lower
<br />courts' findings that any benefit that would be
<br />derived from the removal of respondents'
<br />newsracks would be" 'minute' "or" 'paltry.'"
<br />Ante, at 1510. The relevant inquiry, though,
<br />is not the degree to which the locality's
<br />interests are furthered in a particular case,
<br />but rather the relation that the challenged
<br />regulation of commercial speech bears to the
<br />"overall problem" the locality is seeking to
<br />alleviate. Ward v. Rock Against Racism, 491
<br />U.S. 781, 801, 109 S. Ct. 2746, 2759, 105
<br />L. Ed.2d 661 (1989). This follows from our test
<br />for reviewing the validity of "time, place, or
<br />manner" restrictions on noncommercial
<br />speech, which we have said is "substantially
<br />similar" to the Central Hudson analysis. Board
<br />of Trustees of State University of N.Y. v. Fox,
<br />supra, 492 U.S., at 477, 109 S. Ct., at 3033
<br />(internal quotation *442 marks omitted).
<br />Properly viewed, then, the city's prohibition
<br />against respondents' newsracks is directly
<br />related to its efforts to alleviate the problems
<br />caused by newsracks, since every newsrack
<br />that is removed from the city's sidewalks
<br />marginally enhances the safety of its streets
<br />and esthetics of its cityscape. This conclusion
<br />is not altered by the fact that the city has
<br />chosen to address its problem by banning only
<br />those newsracks that disseminate commercial
<br />speech, rather than regulating all newsracks
<br />alike.
<br />
<br />Our commercial speech cases establish that
<br />localities may stop short of fully
<br />accomplishing their objectives without
<br />running afoul of the First Amendment. In
<br />Posadas de Puerto Rico Associates v. Tourism Co.
<br />of Puerto Rico, 478 U.S. 328, 342, 106 S. Ct.
<br />2968, 2977, 92 L. Ed.2d 266 (1986), where we
<br />upheld Puerto Rice's ban on promotional
<br />advertising of casino gambling aimed at
<br />Puerto Rico residents, we rejected the
<br />appellant's argument that the ban was invalid
<br />
<br />Copr. © West 2001 No Claim to
<br />
<br />Orig. U.S. Govt. Works
<br />
<br />
<br />
|