4.4. SR 11-13-2001 - Laserfiche WebLink

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113 S. Ct. 1505 (Cite as: 507 U.S. 410, *~.~.~., 113 S.Ct. 1505, *'1524) Page 20 Government's interest in "shield[ing] recipients of mail from materials that they are likely to find offensive" was invalid regardless of the type of speech--commercial or noncommercial--involved. See 463 U.S., at 71-72, 103 S. Ct., at 2883. By contrast, there can be no question here that the city's safety and esthetic interests justify its prohibition against respondents' newsracks. This at least is the teaching of Metromedia. 'Fhere, seven Justices were of the view that San Diego's safety and esthetic interests were sufficient to justify its ban on offsite billboard *'1525 advertising, even though the city's reason for regulating these billboards had nothing to do with the content of the advertisements they displayed. See 453 U.S., at 507-510, 101 S.Ct., at 2892-2894 (opinion of WHITE, J., joined by Stewart, Marshall, and Powell, JJ.); id., at 552-553, 101 S.Ct., at 2915-2916 (STEVENS, J., dissenting in part); id., at 559- 561, 563, 101 S. Ct., at 2919-2920, 2921 (Burger, C.J., dissenting); id., at 569-570, 101 S. Ct., at 2924 (REHNQUIST, J., dissenting). Without even attempting to reconcile Metromedia, the Court now suggests that commercial speech is only subject to lesser protection when it is being regulated because of its content (or adverse effects stemming therefrom). See ante, at 1510, n. 11, 1514- 1515, *445 and n. 21. This holding, I fear, will unduly hamper our cities' efforts to come to grips with the unique problems posed by the dissemination of commercial speech. If (as I am certain) Cincinnati may regulate newsracks that disseminate commercial speech based on the interests it has asserted, I am at a loss as to why its scheme is unconstitutional because it does not also regulate newsracks that disseminate noncommercial speech. One would have thought that the city, perhaps even following the teachings of our commercial speech jurisprudence, could have decided to place the burden of its regulatory scheme on less protected speech (i.e., commercial handbills) without running afoul of the First Amendment. Today's decision, though, places the city in the position of having to decide between restricting more speech--fully protected speech--and allowing the proliferation of newsracks on its street corners to continue unabated. It scarcely seems logical that the First Amendment compels such a result. In my view, the city may order the removal of all newsracks from its public right-of-ways if it so chooses. See Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 780- 781, 108 S. Ct. 2138, 2156-2157, 100 L. Ed. 2d 771 (1988) (WHITE, J., joined by STEVENS and O'CONNOR, JJ., dissenting). But however it decides to address its newsrack problem, it should be allowed to proceed in the manner and scope it sees fit so long as it does not violate established First Amendment principles, such as the rule against discrimination on the basis of content. "[L]ittle can be gained in the area of constitutional law, and much lost in the process of democratic decisionmaking, by allowing individual judges in city after city to second-guess ... legislative ... determinations" on such matters as esthetics. Metromedia, 453 U.S., at 570, 101 S. Ct., at 2924 (REHNQUIST, J., dissenting). Cincinnati has burdened less speech than necessary to fully accomplish its objective of alleviating the problems caused by the proliferation of newsracks on its street corners. Because I believe the city has established a "reasonable *446 fit" between its substantial safety and esthetic interests and its prohibition against respondents' newsracks, I would hold that the city's actions are permissible under Central Hudson. I see no reason to engage in a "time, place, or manner" analysis of the city's prohibition, which in any event strikes me as duplicative of the Central Hudson analysis. Cf. Board of Trustees of State University of N.Y.v. Fox, 492 U.S., at 477, 109 S. Ct., at 3033. Nor do I think it necessary or wise, on the record before us, to reach the question whether the city's regulatory scheme vests too much discretion in city officials to determine whether a particular publication constitutes a "commercial handbill." See ante, at 1513, n. 19. It is undisputed, by the parties at least, that respondents' magazines constitute commercial speech. I dissent. END OF DOCUMENT Copr. © West 2001 No Claim to Orig. U.S. Govt. Works