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113 S. Ct. 1505
<br />(Cite as: 507 U.S. 410, '411, 113 S.Ct. 1505, *'1507)
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<br />Page 3
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<br />failed to make a showing that would justify its
<br />differential treatment of the two types of
<br />newsracks. Pp. 1511-1516.
<br />
<br />(c) Because the city's regulation of newsracks
<br />is predicated on the differencd in content
<br />between ordinary newspapers and commercial
<br />speech, it is not content neutral and cannot
<br />qualify as a valid time, place, or manner
<br />restriction on protected speech.- See,-e.g.,
<br />Ward v. Rock Against Racism, 491 U.S. 781, 791,
<br />109 S. Ct. 2746, 2753, 105 L.Ed. 2d 661. Pp.
<br />1516-1517.
<br />
<br />946 F. 2d 464 (CA6, 1991), affirmed.
<br />
<br />STEVENS, J., delivered the opinion of the
<br />Court, in which BLACKMUN, O'CONNOR,
<br />SCALIA, KENNEDY, and SOUTER, JJ.,
<br />joined. BLACKMUN, J., filed a concurring
<br />opinion, post, p. 1517. REHNQUIST, C.J.,
<br />filed a dissenting opinion, in which WHITE
<br />and THOMAS, JJ., joined, post, p. 1521.
<br />
<br />Mark S. Yurick, Cincinnati, OH, for
<br />petitioner.
<br />
<br />Marc D. Mezibov, Cincinnati, OH, for
<br />respondents.
<br />
<br />'412 Justice STEVENS delivered the opinion
<br />of the Court.
<br />
<br />Motivated by its interest in the safety and
<br />attractive appearance of its streets and
<br />sidewalks, the city of Cincinnati has refused to
<br />allow respondents to distribute their
<br />commercial publications through freestanding
<br />newsracks located on public property. The
<br />question presented is whether this refusal is
<br />consistent with the First Amendment. [FN1]
<br />In *'1508 agreement with the District Court
<br />and the Court of Appeals, we hold that it is
<br />not.
<br />
<br />FN1. The First Amendment provides, in part:
<br />"Congress shall make no law ... abridging the
<br />freedom of speech, or of the press .... " The Due
<br />Process Clause of the Fourteenth Amendment has
<br />been construed to make this prohibition applicable to
<br />state action. See, e.g., Stromberg v. California,
<br />283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931);
<br />
<br />Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82
<br />L.Ed. 949 (1938).
<br />
<br />Respondent Discovery Network, Inc., is
<br />engaged in the business of providing adult
<br />educational, recreational, and social programs
<br />to individuals in the Cincinnati area. It
<br />advertises those programs in a free magazine
<br />that it publishes nine times a year. Although
<br />these magazines consist primarily of
<br />promotional material pertaining to
<br />Discovery's courses, they also include some
<br />information about current events of general
<br />interest. Approximately one-third of these
<br />magazines are distributed through the 38
<br />newsracks that the city authorized Discovery
<br />to place on public property in 1989.
<br />
<br />Respondent Harmon Publishing Company,
<br />Inc., publishes and distributes a free magazine
<br />that advertises real estate for sale at various
<br />locations throughout the United States. The
<br />magazine contains listings and photographs of
<br />available '413 residential properties in the
<br />greater Cincinnati area, and also includes
<br />some information about interest rates, market
<br />trends, and other real estate matters. In
<br />1989, Harmon received the city's permission
<br />to install 24 newsracks at approved locations.
<br />About 15% of its distribution in the Cincinnati
<br />area is through those devices.
<br />
<br />In March 1990, the city's Director of Public
<br />Works notified each of the respondents that its
<br />permit to use dispensing devices on public
<br />property was revoked, and ordered the
<br />newsracks removed within 30 days. Each
<br />notice explained that respondent's publication
<br />was a "commercial handbill" within the
<br />meaning of § 714-1-C of the Municipal Code
<br />[FN2] and therefore § 714-23 of the code [FN3]
<br />prohibited its distribution on public property.
<br />Respondents were granted administrative
<br />hearings and review by the Sidewalk Appeals
<br />Committee. Although the Committee did not
<br />modify the city's position, '414 it agreed to
<br />allow the dispensing devices to remain in
<br />place pending a judicial determination of the
<br />constitutionality of its prohibition.
<br />Respondents then commenced this litigation
<br />
<br />Copr. © West 2001 No Claim to
<br />
<br />Orig. U.S. Govt. Works
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