Amicus Curiae Brief — Cincinnati v. Discovery Network, Inc.

No. 91-1200

In The

Supreme Court of the United States

October Term, 1991

S

THE CITY OF CINCINNATI,

Petitioner,

V.

DISCOVERY NETWORK, INC., et al.,

*

Respondents.

SJ

On Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

e

BRIEF AMICUS CURIAE OF

LEARNING RESOURCES NETWORK

IN SUPPORT OF RESPONDENTS

o

Bruce R. STEWART

Counsel of Record

CHaries H. CARPENTER

Pepper, HAMILTON & SCHEETZ

1300 Nineteenth Street, N.W.

Washington, D.C. 20036

(202) 828-1200

Attorneys for Learning

Resources Network

Dated: May 29, 1992

SeV0eeeNewe?otyloraoelele_oaae———————————————————————————————————

COCKLE LAW BRIEP PRINTING CO. 225-6964

OR CALL COLLECT (402) 342-

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES......................55. ii

INTEREST OF AMICUS CURIAE................... 1

SUMMARY OF ARGUMENT....................... 3

RT Pee PN Pe RE hes F.: 4

PEE standecdsaccdabesuteucuanccuacel 12

TABLE OF AUTHORITIES

Page

Cases:

Board of Trustees v. Fox, 492 U.S. 469 (1989).......... 11

Bolger v. Youngs Drug Products Corp., 463 U.S. 60

SPUR TMUE WES ORUUSNENUGRDE S000 oc cccrecevccceccee 10

Central Hudson Gas & Electric v. Public Service

Comm'n, 447 U.S. 557 (1980) ..............00 ccc eee 11

Consolidated Edison Co. v. Public Service Comm'n,

Ere 11

Virginia Pharmacy Bd. v. Virginia Citizens Consumer

ouncil, 425 U.S. 748 (1976).... 0.0... c eee. 9

STATUTES:

90 Stat. 2081, Education Amendments of 1976........ 5

MISCELLANEOUS:

Durkin, Struggling to Teach: Growing Success Puts

Free College in Red, Wash. Post, July 12, 1990....... 6

R.M. Hutchins, Preface to 1 Great Books of the West-

le cceucecceces 4

Sanchez, Johns Hopkins to Broaden Its D.C. Opera-

Soom, Woaem. Post, Jam. 14, 1992 ......... 0. ccc c cece 7

U.S. Department of Education, Digest of Education

entree eur neéceesseecoeses 5, 6, 10

C. Van Doren, Benjamin Franklin (1938)............... 4

Waterman, How to Succeed in Two Easy Lessons,

ee ee nd ccccccecccccccces 6

No. 91-1200

¢

In The

Supreme Court of the United States

October Term, 1991

+

THE CITY OF CINCINNATI

Petitioner,

V.

DISCOVERY NETWORK, INC., et al.,

Respondents.

S

On Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

+

BRIEF AMICUS CURIAE OF

LEARNING RESOURCES NETWORK

IN SUPPORT OF RESPONDENTS

s

INTEREST OF AMICUS CURIAE

Learning Resources Network (“LERN”) is an associa-

tion of providers of adult and continuing education.’

Founded in 1974, LERN is comprised of approximately

5,000 public and private educational organizations,

approximately 1,200 of which are non-profit educational

institutions with organizational memberships. LERN’s

members include state universities, private colleges,

' This brief is filed pursuant to Rule 37.3 of the Rules of

this Court, accompanied by the written consent of all parties.

1

community colleges, public elementary and secondary

schools, hospitals, museums, city and county recreation

departments, and churches, as well as private for-profit

education program providers.2

? The breadth and geographic diversity of LERN members

is reflected by LERN’s board of directors:

President-Elect President

Dr. Richard T. Walsh Greg Marsello

R.T. Walsh & Associates Imperial Pearl Co.

Wallingford, Pennsylvania Providence, Rhode Island

Greg Spears, Dean D. Searcy, Director

Community Education Covington Campus

Camosun College Northern Kentucky University

Victoria, British Columbia Covington, Kentucky

Dr. Grace Smith, President Sandra Geisinger

Smith Associates, Inc. Schenectady, New York

Troy, Michigan LaNeta L. Carlock, Director

Francis Chiaramonte, Dean Westside School

Continuing Education Community Education Center

Hartford Community College Omaha, Nebraska

Hartford, Connecticut Willie J. Richardson, Jr.

Ken Cicora Delta College

Ft. Lauderdale Parks University Center, Michigan

and Recreation Hugh B. Hammett

Ft. Lauderdale, Florida Empire State College

Mary Lou Harris Continuing Education

Assistant Director Saratoga Springs, New York

Continuing Education Rebecca Strong,

Athens, Ohio Community Services

Mary Anne Varacalli McHenry County College

Delaware County Crystal Lake, Illinois

Community College

Media, Pennsylvania

Among LERN’s most important functions is its role

as a research organization, information clearinghouse,

and forum in which members exchange information

regarding successful practices in educational program-

ming, including practices relating to the marketing and

promoting of course selections to the public. Through this

exchange of ideas and techniques, LERN and its members

have developed substantial expertise in marketing and

promoting adult and continuing education programs.

Many of the members of LERN distribute informa-

tion about their course offerings and programs in a man-

ner similar or identical to the manner chosen by

respondents — that is, by the use of newspaper boxes for

the distribution of free pamphlets, newspapers or fliers

on municipal sidewalks. As a result, LERN and its mem-

bers are concerned that, should the Court reverse the

decision below, other municipalities may follow Cincin-

nati’s example and attempt to regulate communication

with prospective students. Such a result would cause

educational providers, prospective students, other infor-

mation providers and their recipients great hardship in

continuing to carry on their dialogue with each other.

.

SUMMARY OF ARGUMENT

Adult and continuing education has played a long

and distinguished role in the intellectual life of the

Nation. Education providers such as the members of

LERN depend to a great extent on the continued avail-

ability of streetcorner newspaper boxes as a cost-effective

means to distribute information about their offerings.

4

There are no adequate alternatives for providing afford-

able dissemination of course catalogs to the segments of

the student population reached by streetcorner news-

paper boxes. In addition, LERN and its members are

concerned that petitioner and its amici may attempt to use

the designation “commercial speech” as a vehicle to

accomplish content-based time, manner, place restric-

tions. Even if such an attempt was permissible, it would

not be warranted given the information contained in the

course catalogs.

S

ARGUMENT

A.

Western intellectual history has been likened to a

great conversation across the ages.? Adult and continuing

education is an important vehicle for allowing ordinary

citizens to take part in the conversation. Since Benjamin

Franklin started his Junto discussion group in 1727,4

adult and continuing education has played an important

role in ‘American intellectual life. Indeed, the importance

of adult and continuing education has been explicitly

recognized by Congress, which has found, inter alia, that

“lifelong learning . . . enable[s citizens] to adjust to social,

technological, political and economic changes” and “to

participate in the civic, cultural or political life of the

3 R.M. Hutchins, Preface to 1 Great Books of the Western

World at xi (1955).

* C. Van Doren, Benjamin Franklin 74-80 (1938). Franklin

seems to have borrowed the idea from Cotton Mather. /d. at 75.

Nation.” By all accounts, interest in adult and continuing

education has been increasing.®

> Specifically, in addressing adult and continuing educa-

tion Congress has found that:

“(1) accelerating social and technological change have had

an impact on the duration and quality of life;

(2) the American people need lifelong learning to enable

them to adjust to social, technological, political and economic

changes;

(3) lifelong Jearning has a role in developing the potential

of all persons, including improvement of their personal well-

being, upgrading their workplace skills, and preparing them to

Participate in the civic, cultural, and political life of the Nation:

(4) lifelong learning is important in meeting the needs of

the growing number of older and retired persons;

(7) more effective use should be made of the Nation’s

educational institutions in order to assist the people of the

United States in the solution of community problems such as

housing, poverty, government, recreation, employment, youth

opportunities, transportation, health, and land use: and

(8) American society should have as a goal the availability

of appropriate opportunities for lifelong learning for all its

citizens without regard to restrictions of previous education or

training, sex, age, handicapping condition, social or ethnic

background, or economic circumstance.”

Education Amendments of 1976, Pub. L. 94-482, § 101, 90

Stat. 2081, 2086 (now codified at 20 US.C. § 1002 (1988)).

* The United States Department of Education estimates

that in 1984 some 23 million people took adult education

classes, of which only about 5 percent were enrolled as full-

time students in a degree program. U.S. Department of Education,

(Continued on following page)

Contemporary course offerings are not restricted to

the great ideas. in virtually every major city in the United

States —- and in many smaller cities as well — an adult may

enroll in courses concerning virtually any subject;-from

French literature to computer programming.” These

courses enrich the lives of their students by providing

citizens access to cultural and vocational opportunities

that would not otherwise be available. They also add to

the common heritage of American society. Other courses,

which teach survival skills such as literacy or self-health

and wellness, offer a more fundamental value to students

and to society. Perhaps as important as the content of any

particular course, students taking adult and continuing

courses benefit from their continued interest in self-

improvement. As a society we are improved by the efforts

(Continued from previous page)

Digest of Education Statistics 319 (1989) (“Digest of Education

Statistics”). The Department also estimates that in 1982 more

than 5 million adults were enrolled in adult and continuing

education programs. Id. at 318. LERN estimates that the

number participating may now approach 15 million people. In

1989, courses offered by the Fairfax County, Virginia, public

school system alone attracted 55,000 adult students. Waterman,

How to Succeed in Two Easy Lessons, Wash. Post, Jan. 4, 1990, at

J9. Programs around the country are experiencing increasing

enrollments. See, e.g., Durkin, Struggling to Teach: Growing Suc-

cess Puts Free College in Red, Wash. Post, July 12, 1990, at J1.

7 Among the more notable educational offerings in adult

and continuing education was a course in constitutional law

taught at Washington Saturday College by Chief Justice Warren

in 1968. Durkin, Struggling to Teach: Growing Success Puts Free

College in Red, Wash. Post, July 12, 1990, at J1.

of individual members to improve themselves, partic-

ularly those who may be outside the scope and reach of

traditional, formal post-secondary education.

From its beginning, adult and continuing education

has been a decentralized, student-driven endeavor. In

each locale, the educational offerings are tailored, often

by the discipline of the marketplace, to the needs and

wishes of the student population. Unlike more formal

post-secondary education, adult and continuing educa-

tion is designed to reach the broadest possible student

population.® Inclusiveness and ready access are guiding

principles.

These principles and the diversity of program offer-

ings compel educational providers to use methods of

disseminating information about programs that reach

into every segment of society. Streetcorner newspaper

boxes are an important part of this dissemination process,

as they provide one of the most cost effective ways to

provide detailed information concerning the course offer-

ings to the widest range of potential students. Although

adult and continuing educators use a variety of means to,

communicate with the communities they serve, there are

no adequate alternative methods which replicate all the

advantages of streetcorner newspaper boxes.

8 In recognition of the fact that these programs serve a

distinct student population, approximately 2,500 of the

nation’s 3,600 colleges and universities also offer adult and

continuing education programs. Indeed, part-time college

study, which includes adult and continuing education, is the

fastest-growing segment of higher education nationwide,

accounting for some 6 million students. Sanchez, Johns Hopkins

to Broaden Its D.C. Operation, Wash. Post, Jan. 14, 1992, at B2.

For example, many educators distribute information

through public libraries, typically using either a pamph-

let rack or bulletin board. While library distribution is an

important method of reaching some of the potential stu-

dents of adult and continuing educational offerings, only

library patrons may be contacted in this manner. But

many pctential students, including perhaps those most in

need of literacy programs, are not likely to be reached

through library distribution.

Another method for disseminating information is

mass mailings of course catalogs. This alternative to

streetcorner newspaper boxes, however, is also unsat-

isfactory. First, bulk mailing is prohibitively expensive.’

Second, unlike streetcorner newspaper boxes from which

only truly interested potential students take course cata-

logs, mass mailings by definition mean providing cata-

logs to persons who have no interest in taking courses.

Coupled with the inefficiency in targeting mass mailings,

mailing costs many times more per enrolled student than

newspaper box distribution.

A third distribution alternative to streetcorner news-

paper boxes is newspaper inserts, which involves insert-

ing a course catalog inside a newspaper, which is then

sold at the newspaper’s regular outlets, including

* The cost of mass mailing has been increasing. The stan-

dard nonprofit postal bulk rate has doubled in the last three

years. LERN estimates that it costs around $150.00 per thou-

sand brochures for distribution by mail as opposed to $25.00

per thousand for distribution by streetcorner newspaper box.

streetcorner newspaper boxes. Inserts, however, have the

same negative cost and targeting attributes of mass mail-

ings.1°

The issue of whether adult and continuing education

course catalogs were properly characterized by the dis-

trict court as “commercial speech” is not now directly

before the Court.!! However, LERN and its members are

concerned about this categorization.

Among LERN’s members are public entities such as

public school systems, municipal recreation departments,

and state universities. The continuing education course

catalogs of such institutions do not “propose a commer-

cial transaction.” Virginia Pharmacy Bd. v. Virginia Citizens

Consumer Council, 425 U.S. 748, 762 (1976). This is true

even when a nominal enrollment fee is charged, because,

as a matter of common sense, education is not a

10 By permitting streetcorner newspaper box distribution

of for-profit newspapers but not educational materials stand-

ing alone, petitioner appears to argue that newspaper box

distribution of adult and continuing education materials is

permissible, but only if the education provider pays the news-

paper to allow the materials to be inserted. As newspaper

boxes containing newspapers with inserts present the same

aesthetic and safety features as newspaper boxes containing

only the inserts, it is difficult to discern the community interest

served by compelling education providers to use inserts.

1! Respondents did not appeal the district court’s deter-

mination that their publications are commercial speech.

10

“commercial” activity when carried out by a public

body.!2 Yet such catalogs are virtually identical in both

form and content to those prepared by privately operated

adult and continuing education providers.

The membership of LERN includes both for-profit

and non-profit educators.1* LERN’s experience quite

plainly suggests that there is no significant difference in

either the substance of the educational offerings,’* the

catalogs, or in the methods of distributing course cata-

logs’ between education providers that may happen to

have different corporate structures. For this reason, any

attempt on the part of Cincinnati — or any other munici-

pality — to distinguish between the course catalogs of one

kind of provider and those of another bears little relation-

ship to the interests advanced by petitioner. Streetcorner

newspaper boxes containing the course catalogs of non-

profit educational offerings present the same aesthetic

and safety features as those containing for-profit catalogs,

12 Even if a course catalog may be characterized as com-

mercial speech, it may not be regulated as such if the actual

content of the course offerings is protected speech. See Bolger v.

Youngs Drug Products Corp., 463 U.S. 60, 67 n.14 (1983).

13 The United States Department of Education found 8,469

noncollegiate institutions offering post-secondary education in

1987-88. Digest of Education Statistics at 324. Of these, 659 were

publicly owned, 1581 were private non-profit, and 6,229 were

private for-profit. Id. This survey did not include public

schools and municipal recreation departments.

14 Typically, for-profit educators will pioneer new types of

courses, which, if successful, will be subsequently offered by

non-profits as well.

15 Non-profits are charged lower postal rates for mailing

course materials and catalogs.

11

or, for that matter, those containing for-profit news-

papers. By arguing that it may regulate for-profit course

catalogs because they are commercial speech, petitioner

and its amici apparently seek to assert that a distinction

can be made between identical speech acts based solely

on the identity of the speaker.'¢

Categorizing speech as non-commercial or commer-

cial may be helpful in analyzing certain cases. This is not

such a case, however. The category of commercial speech

serves mainly to allow states to protect against effects

related to the content of speech. See, e.g., Board of Trustees

v. Fox, 492 U.S. 469, 475 (1989) (protecting educational

atmosphere while preventing commercial exploitation of

students at a state university). In this case, however,

petitioner has expressed no interest whatever in the con-

tent of respondents’ speech, but is merely using the low-

ered standard of review applicable to the regulation of

commercial speech as a vehicle to justify the otherwise

impermissible: a content-based time, manner, place

restriction. See Consolidated Edison Co. v. Public Service

Comm’n, 447 U.S. 530, 536 (1980) (time, manner, place

restrictions must be content neutral).

16 One might try to distinguish the speech of private enti-

ties from those of public ones on the ground of motive, an

approach not without difficulties. See Central Hudson Gas &

Electric v. Public Service Comm'n, 447 U.S. 557, 579-80 & n. 2

(1980) (Stevens, J. concurring). In any event, at the speech act

level, the motive is the same: The education provider prints

and distributes catalogs hoping to attract students to the

courses. Facile distinctions based on ownership or corporate

structure do not meet the regulator’s burden of “distinguishing

the harmless from the harmful.” Board of Trustees v. Fox, 492

U.S. 469, 480 (1989).

12

* * *

Adult and continuing education providers, whether

public or private, profit or non-profit, depend to varying

degrees upon streetcorner newspaper box distribution.

All types of continuing educators, not merely private, for-

profit educators such as respondent Discovery Network,

Inc., share an indivisible interest in the continued avail-

ability of this method of distribution of course materials.

+

CONCLUSION

For the foregoing reasons, the judgment of the court

of appeals should be affirmed.

Respectfully submitted,

Bruce R. STEWART

Counsel of Record

CuHar.es H. CARPENTER

Peprer, HAMILTON & SCHEETZ

1300 Nineteenth Street N.W.

Washington, D.C. 20036

(202) 828-1200

Dated: May 29, 1992 Attorneys for Learning

Resources Network