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

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TABLE OF CONTENTS

Page

INTEREST OF AMICUS ..........00000. l

INTRODUCTION AND SUMMARY

EG 2

esc ian & ek 6 6 ok 04 a ee oO « 7

I. RESPONDENTS’ PUBLICATIONS DESERVE

SUBSTANTIAL CONSTITUTIONAL

PROTECTION UNDER SETTLED FIRST

AMENDMENT PRINCIPLES ........... 7

A. Commercial Speech May Not Be Subject To

Discriminatory Regulation Merely Because

It Is Commercial, But Only If It Uniquely

Se ee eee 7

B. Appropriate Recognition Of Respondents’

First Amendment Rights Will Not Foreclose

Necessary Government Regulation ..... 1]

fl. PETITIONER’S REGULATION MUST FAIL AS

AN ARBITRARY AND IMPERMISSIBLE

CONTENT-BASED DISCRIMINATION .. 14

PE be cbovenecebneeceresors 19

TABLE OF AUTHORITIES

Cases Pree

Barnes v. Glen Theatre, Inc.. 111 S. Ct. 2456

(| PP

Board of Trustees of State University of

New York v. Fox, 492 U.S. 469 (1989) .... 3.6

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

li. aes. Ul UU 3. 8. 16

Buckley v. Valeo, 424 U.S. 1 (1976) ...... aan

Burson v. Freeman, __ US. (i ee 15

Cantwell v. Connecticut, 310 U.S. 296 (1940) .... 9

Carey v. Brown, 447 U.S. 455 (1980) ......... 15

Central Hudson Gas & Elec. Corp. v. Public

Serv. Comm'n of New York, 447 U.S. 557

( Seer 5, 10. 11

City of Cleburne v. Cleburne Living Ctr., Inc.,

473 U.S. GB (ORGD - o.e ko eee 15

City of Lakewood v. Plain Dealer Publishing

Co., GO U.S. Ta 64s ewe 6

Consolidated Edison Co. vy. Public Serv. Comm'n,

467 U.S. SO GGGee ooo 8 ee kae eee 14

Friedman v. Rogers, 440 U.S. 1 (1979) ........ 5

Gertz v. Robert Welch, Inc., 418 U.S. 323

(i. eee eee 11

Greer v. Spock, 424 U.S. 828 (1976) ......... 16

Lehman vy. City of Shaker Heights, 418 U.S. 298

(i. rw 16

Linmark Assocs., Inc. v. Willingboro,

458 U.S. @ (OT) . + 654 + eee 7, 11, 15, 16

Lochner v. New York, 198 U.S. 45 (1905) -.... 8, 11

Metromedia, Inc. v. City of San Diego, 453 U.S.

4 ,.' Pereeeeree weer rr 17, 18

New York Times Co. v. Sullivan, 376 U.S. 254

(BP 9

Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447

(3) 5

Pittsburgh Press Co. v. Pittsburgh Comm'n

on Human Relations, 413 U.S.

Sid « 66 ~ 6.64 © « 4, 11, 12, 13

Posadas de Puerto Rico Assocs. v. Tourism Co.

of Puerto Rico, 478 U.S. 328 (1986) ........ 5

Renton v. Playtime Theatres, Inc., 475 U.S. 41

Thc). 5s 5 6g 6060 0 0 0 0 e 14

San Francisco Arts & Athletics, Inc. v. United

States O. c Comm., 483 U.S. 522 ()987) ... 12

Simon & Schuster v. New York State Crime

Victims Bd., 112 S. Ct. SOL (1991) ......... 8

Speiser v. Randall, 357 U.S. 513 (1958) ....... 5

Virginia State Bd. of Pharmacy vy. Virginia

Citizens Consumer Council, Inc., 425 U.S.

DCCC Cece ae teseeccsec cee >» Do

Ward v. Rock Against Racism, 491 U.S. 781

DTT a geste cc eee e ese ees 6

MISCELLANEOUS

Kozinski & Banner, Who's Afraid of Commercial

Speech?, 76 Va. L. Rev. 627 (1990) ........ 10

Barry Meier, Dubious Theory: Chocolate a

Cavity Fighter, N.Y. Times, Apr. 15, 1992 .... 9

IN THE

SUPREME COURT OF THE UNITED STATES

Ocroser Term, 1991

No. 91-1200

THE CITY OF CINCINNATI,

Petitioner,

Vv.

DISCOVERY NETWORK, INC., er ai.,

Respondents.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF OF THE WASHINGTON LEGAL

FOUNDATION AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS

The Washington Legal Foundation is a non-profit

public interest law and policy center with more than

100,000 members and nationwide. While WLF

engages in litigation the administrative process in a

variety of areas, WLF devotes a substantial portion of its

resources to ing commercial free speech rights. To

that end, has appeared before this Court as well as

other state and federal courts in cases dealing with

commercial free issues, including Peel v. Attorney

Registration and iplinary Comm'n of Illinois, 110 S.

Ct. 2281 (1990); Pacific Gas and Electric Co. v. Public

Utility Comm'n of California, 475 U.S. 1 (1986); and

2

Consolidated Edison Co. v. Public Service Comm'n, 447

U.S. 530 (1980).

WLEF recognizes that state and local governments have

a strong interest in regulating usage of their streets and

sidewalks, in order to protect the public health and safety

and to promote a clean and aesthetically pleasing

environment. WLF further recognizes that such regulation

is not rendered illegitimate simply because it may inhibit

citizens’ efforts to express themselves.

WLF nonetheless is extremely concerned that state and

local governments, in the exercise of their police powers,

not pick and choose among the types of lawful expression

they will encourage and those they will subject to strict

regulation. All truthful, lawful speech -- regardless

whether it can be classified as “commercial” or

“noncommercial” -- is entitled to substantial First

Amendment protection and should not be singled out for

regulation simply because government officials deem its

subject matter to be of lesser importance. WLF is

concemed that Cincinnati is engaged in just such content-

based discrimination against commercial speech in this

case; Cincinnati is attempting to ban Respondents’

newsracks from city sidew while leaving undisturbed

other newsracks that cannot meaningfully be distinguished

from Respondents’.

In the interests of judicial economy, WLF hereby

adopts by reference the Statement of the Case set forth in

Re ’ brief. WLF submits this brief in support of

Respondents with the written consent of all ies. The

written consents are on file with the Clerk of the Court.

INTRODUCTION AND SUMMARY

OF ARGUMENT

publications as commercial speech goes on to argue as

if therefore any regulation of these publications which

3

serves a governmental interest in a reasonable way must

pass constitutional muster. This is wrong.

Ever since Virginia State Bd. of Pharmacy v. Virginia

Citizens Consumer Council, Inc., 425 U.S. 748 ( 1576),

this Court has ized that designating some speech as

“commercial” and allowing untrammeled scope for

its regulation would remove from the protection of the

First Amendment a category of speech whose free flow,

[s]o long as we preserve a predominantly free enterprise

9 . . IS indispensable." Virginia Citizens, 425

_ This Court has identified commercial speech as speech

which "proposes a commercial transaction." Board of

Trustees of State University of New York v. Fox, 492 U.S.

469, 473 (1989) (emphasis added) (citing Virginia Citizens,

425 U.S. at 762). h is not “commercial” merely

because it is “uttered for a profit." Fox, 492 U.S. at 482.

Nor does the degree of First Amendment protection turn

on whether "money is spent to project it, as in a paid

advertisement of one form or another,” or whether speech

“involve(s] a solicitation to purchase or otherwise pay or

contribute money." Virginia Citizens, 425 U.S. at 761

(citations =. ae "communications ‘can

constitute commercial speech notwithstanding the fact that

they contain discussions of important public issues. . . .’”

Fox, 492 U.S. at 475 (quoting Bolger v. Youngs Drug

Prods. Corp., 463 U.S. 60, 67-68 (1983)). Such

communications earn full constitutional protection only if

the commercial and non-commercial speech are

“inextricably intertwined.’" Fox, 492 U.S. at 474.

In elaborating the kind and degree of constitutional

protection for commercial speech this Court

devoted much attention to marking the boundaries of

P is

surprising because analysis will not ily reveal w

f

E

4

itself a commercial entity can supply a principle of

differentiation.

The two publications involved in this case demonstrate

how arbitrary the designation can be. Respondent

Discovery Network's magazine provides information about

its educational programs to Cincinnati residents. Without

doubt, the texts and other materials used in these courses

are entitled to full First Amendment protection. This

being the case, information about these courses ought to

receive the same level of protection. A course catalogue

distributed by the University of Cincinnati would surely

receive full First Amendment protection.

Respondent Harmon Publishing Company's Home

Magazine lists homes and other real estate for sale or rent.

The casual description of this publication as merely

commercial is also problematic. Perhaps an individual

classified ad or real estate listing does “no more than

propose a commercial transaction." Pirtsburgh Press Co.

v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376,

385 (1973). However, the collection of such listings

performs quite a different function. It allows potential

buyers to survey the real estate market and make

comparisons between offerings. When information is

presented in this form, it functions less like a classified ad

and more like a consumer's guide to the real estate market.

In any event, Home Magazine does have some

noncommercial content. It occasionally includes

information about market trends and other real estate

matters. J.A. at 166-67. If Home Magazine is a

commercial publication, it is only because it does not

include enough of such material. But surely the degree of

First Amendment protection afforded a publication should

not vary as a function of its ratio of text to advertising.

This complaint about conventional commercial speech

analysis does not prove too much. Of course advertising,

contract forms, and many of the other items categorized as

commercial speech attract reasonable forms of regulation

peculiar to them. It is neither unreasonable nor surprising

5

that the Court has allowed government to forbid false

advertising (as it does defamatory speech) while it may not

control the propagation of false ideas or information in

political campaigns. The functions, tendencies, and

context of professional advertising, for instance, make it

ae susceptible to regulation for misleading

content as well as downright falsity. See, e.g., Friedman

v. Rogers 440 U.S. 1 (1979). And where advertising

constitutes direct solicitation of conduct that may be

forbidden or bears a particular stigma, there we have

speech “brigaded with action," Speiser v. Randall, 357

U.S. 513, 5 6-37 (1958) (Douglas, J. concurring), and as

such also attracting a special allowance for regulation.

See, e.g., Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447

(1978); Posadas de Puerto Rico Assocs. v. Tourism Co. of

Puerto Rico, 478 U.S. 328 (1986). None of these forms

of regulation is in issue here and none of these

justifications for it are relevant.

To be a valid restriction of commercial speech,

government regulations must cure some evil generated by

a particular kind of commercial h. "The protection

available for particular commercial expression turns on the

nature both of the expression and of the governmental

interest served by its regulation.” Central Hudson Gas &

Elec. Corp. v. lic Serv. Comm'n of New York, 447

U.S. 557, 563 (1980) (emphasis added); see also Virginia

Citizens, 425 U.S. at 761 (“If there is a kind of

commercial speech that lacks all First Amendment

protection, therefore, it must be distinguished by its

content"). Cincinnati's -— limiting the use of

newsracks to newspapers of general circulation does not

seek to restrict a particular kind of commercial speech. It

restricts commercial speech qua commercial speech.

The publications in issue here deal, so far as the

record shows, accurately and po 5 son with lawful

activity -- indeed in the case of Discovery Network the

activity promoted is surely itself fully protected by the

First Amendment. The regulation in question here does

not address any of the recognized or imagined evils that

6

have been invoked to justify greater governmental

impositions on advertising. Whatever harms come about

from Respondents’ newsracks are indistinguishable from

those that would be caused by newsracks used to distribute

The Cincinnati Inquirer (with which Respondent Home

Magazine inevitably ae for advertising revenue), a

diocesan newsletter, or Daily Worker. The regulation

in question here discriminates between publications, all of

which create the same problems of safety and visual blight,

solely on the basis of the contents of the publications. The

degree of hazard or blight has nothing to do with the

commercial natures of Respondents’ publications. None of

the Court’s decisions, accepting them all as sound and

valid, allow this kind of content-based discrimination.

Newspapers require no special dispensation so as to justify

laws discriminating against other media that compete with

them. Cf. City of Lakewood yv. Plain Dealer Publishing

Co., 486 U.S. 750, 780 (1988) (White, J., dissenting)

( “the First Amendment does not create a right of

newspaper publishers to take city streets to erect structures

to sell their papers").

Accordingly, the decision below may be affirmed

without requiring the Court to inquire whether the

discrimination is justified by a compelling, or merely a

substantial, interest or whether the city has chosen the least

restrictive means of addressing the problem of street safety

and amenity. See Board of Trustees of State Univ. of New

York v. Fox, 492 U.S. 469 (1989); Ward v. Rock Against

Racism, 491 U.S. 781 (1989). As far as amicus is

concerned, the city is free to ban all newsracks, or limit

their number, density, design, or location. In so doing,

however, it may not exempt one type of publication from

regulation altogether, while placing the whole regulatory

burden on Respondents, who have not at all been shown to

contribute in some special way to the problem the city

addresses.

7

ARGUMENT

I. RESPONDENTS’ PUBLICATIONS DESERVE

SUBSTANTIAL CONSTITUTIONAL

PROTECTION UNDER SETTLED FIRST

AMENDMENT PRINCIPLES

A. Commercial Speech May Not Be Subject

To Discriminatory Regulation Merely

Because It Is Commercial, But Only If It

Uniquely Generates Harm

First Amendment protection of speech and press are

both implicated in this case. Those pratections apply to

the widest variety of subjects: politics, social

commentary, personal expression (artistic and not so

artistic). Speakers and publishers are protected in their

attempi to persuade, instruct, move, or annoy the audience

they choose. And readers and listeners are protected in

their access to information, instruction, persuasion,

edification, and amusement. These are basic principles.

No rational system of = — =

begrudging speec writing (such as that

sapgd tt by Respendees Themen Peaiiding Ca.) chest

one of the most i decision American households

make: the purchase of a home. Linmark Assocs., Inc. v.

Willingboro, 431 U.S. 85 (1977); cf. Virginia Citizens,

425 U.S. at 761. It would be literally absurd to give ful!

measure of First Amendment protection to dancers

unadorned except for G-strings and , Barnes v. Glen

Theatre, Inc., 111 S. Ct. 2456 (1 1), and yet to stint on

such protection for Respondent Discovery Network’s

publication informing persons of educational opportunities.

There may be controversy about the ability of the

market optimally to order all manner of economic choice.

It is a non-sequitur of major proportions to conclude that

8

therefore government may act to limit or control what

audiences can hear and speakers and publishers may seek

to tell them about their market choices. The lesson Justice

Holmes sought to teach in his Lochner dissent, see

Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes,

J., dissenting), is learned too well if it is extended from

allowing virtually free rein to government regulation of

market behavior to allowing virtually free rein to

regulation of those who speak and publish information

relevant to market behavior.

The notion is untenable that a speaker’s or publisher’s

motives, for instance a motive to make money, should

bear on the measure of First Amendment protection

enjoyed. Most publishers, most media in this country

exist to make money. See Simon & Schuster v. New York

State Crime Victims Bd., 112 S. Ct. 501 (1991). No one

has ever supposed that the claims of high purpose

habitually emitted by publishers of books and newspapers,

producers of films, or manufacturers of records must be

taken at face value, lest their First Amendment protection

be compromised. It is - that — — =

communication itself: movies, books, and records tend to

have this characteristic. Others are profitable if they

succeed in persuading their audience to spend their money

or exercise their franchise, see Buckley v. Valeo, 424 U.S.

1 (1976), in certain ways. There is no reason why the

latter speech and publication should enjoy less protection

than the former.

In any event, these two forms of expression often

come inextricably intertwined. Bolger, 463 U.S. at 69.

Airline and credit card companies distribute magazines

_ replete with restaurant reviews and articles about the

pleasures of far away resorts, all designed to encourage

the reader to spend money in just those establishments.

Skiing magazines evaluate and stimulate the appetite for

ski equipment. The same is true of audio equipment,

computer, firearm, gardening, and numerous other

9

specialized magazines.’ In many of these, the difference

between text and advertisement is impossible to maintain,

and it is inconceivable that it would be constitutionally

permissible to make the extent of regulation turn on an

inquiry into who exactly paid the text writer and why.

See generally New York Times Co. v. Sullivan, 376 U.S.

254 (1964).

The speech at issue in this case illustrates the

difficulty that inheres in drawing a distinction between

commercial and noncommercial speech. Respondent

Discovery Network’s magazine provides information about

its educational programs to Cincinnati residents. Without

doubt, the texts and other materials used in these courses

are entitled to full First Amendment protection. This

being the case, information about these courses ought to

receive the same level of protection. A course catalogue

distributed by the University of Cincinnati would surely

receive full First Amendment protection. Cf. Cantwell v.

Connecticut, 310 U.S. 296 (1940) (holding that statute

forbidding solicitation for religious or philanthropic causes

violates freedom of speech and religion). Why then

should Respondent’s publication, which is analytically

indistinguishable from such a catalogue, be demoted to a

lesser category of communication?

Respondent Harmon Publishing Company's Home

Magazine lists homes and other real estate for sale or rent.

The casual description of this publication as commercial is

also problematic. Perhaps an individual classified ad or

real estate listing does no more than propose a commercial

transaction. However, the collection of such listings

performs quite a different function. It allows potential

buyers to survey the real estate market and make

comparisons between offerings. When information is

The New York Times recently reported that a dental research

institute in Princeton, New Jersey had published its conclusion that

chocolate is good for your teeth. The institute is funded by a candy

company. Barry Meier, Dubious Theory: Chocolate a Cavity Fighter,

N.Y. Times, Apr. 15, 1992.

10

presented in this form, it functions less like a classified ad

and more like a consumer’s guide to the real estate

market. In any event, Home Magazine does have some

noncommercial context. It occasionally includes

information about market trends and other real estate

matters. J.A. at 166-67. If Home Magazine is a

commercial publication, it is only because it does not

include enough of such material. But surely the degree of

First Amendment protection afforded a publication should

not vary as a function of its ratio of text to advertising.

Otherwise, newspapers would receive less protection on

Sundays and during the Christmas season.

Given the difficulties in drawing lines, it may be wise.

as some scholars have suggested, to discard the

distinctions between commercial and non-commercial

speech.’ At the very least, this Court should underscore

its traditional limitation on commerciai speech restrictions.

The regulation must be justified by the nature of the

particular commercial expression and the harms that ensue

to significant governmental interests. Central Hudson, 447

U.S. at 563. The nature of a particular expression may

both its content, such as false advertising, and

its form, such as coercive in-house solicitations.

However, the government may not impose discriminatory

restrictions based on a tenuous measure of commercial

versus non-commercial character.

* Judge Kozinski and Stuart Banner observe that the commercial

doctrine is not supported by constitutional analysis, and has not

provided suitable distinctions in various instances between commercial.

artistic, political, scientific, and religious speech. They suggest

adoption of standard content-neutral analysis for all speech:

"Governmental regulation is constitutional where it furthers an

important governmental interest, the governmental interest is unrelated

to the suppression of free expression, and the restriction on free

¢ ion is no greater than necessary." Kozinski & Banner, Who's

id of Commercial Speech?, 76 Va. L. Rev. 627, 651 (1990)

(footnote omitted).

11

B. Appropriate Recognition of Respondents’

First Amendment Rights Will Not Foreclose

Necessary Government Regulation

Robust protection of commercial speech need not

entail a "return{ ] to the bygone era of Lochner." Central

Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447

U.S. 557, 589 (1980) (Rehnquist, J., dissenting). It is a

canard to claim that full protection of commercial speech

precludes the appropriate regulation of commerce. This

point is well-illustrated by Linmark Assocs., Inc. v.

Willingboro, 431 U.S. 85 (1977), which held that a city

may not prohibit homeowners from posting “For Sale”

signs to stem white flight from @ recently integrated

community. Linmark does not cast doubt upon

government's power to regulate the real estate market or

to combat racial discrimination; the Court merely declared

that the government may not pursue its goals by

suppressing the free flow of commercial information.

It is umnecessary virtually to deprive the entire

advocacy is protected, but incitement is not. Likewise,

ernment may regulate speech, see Gertz v.

Robert Welch, Inc., 418 U.S. 323, 340 (1974) ("there is

no —ae we in false Se > or

speec my illegal activity, see Pittsburgh Press Co.

v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376,

388 (1973) (upholding ban on publication of want ads for

gender segregated jobs), whether or not it is commercial.

Speech that is a step along the way to a criminal act, like

the communication of the floor plan of a bank between

persons planning a robbery or a threat communicated to an

12

extortion victim, is not protected. And speech or

publication that appropriates another's name or likeness or

invention has likewise always been unprotected, even if

the appropriating expression may claim justification by

motives the most elevated. See, e.g., San Francisco Arts

& Athletics, Inc. v. United States Olympic Comm., 483

U.S. 522 (1987).

It is not necessary to determine here whether the

regulation is permitted because the level of constitutional

protection is less or because instead the intensity of the

governmental interest is more. Suffice it to say that the

regulation must at least be appropriate to the relation

between the two. And so the prohibition against false or

misleading advertising is wholly appropriate to this kind of

speech. Similarly, a text that does no more than propose

a particular bargain is no more immune to regulation than

the contractual arrangement it is a step along the way to

concluding. See, e.g., Pittsburgh Press, 413 U.S. at 388

\upholding ban on publication of want ads for gender

segregated jobs). But certainly the publications

discriminated against by the city’s policy here -- like so

much advertising -- exceed the bounds of these

justifications for regulation. The ways in which they do

sO are significant.

Respondent Discovery Network's publication contains

far more than contract forms to be clipped out and mailed

to conclude a bargain. It describes and extols the virtues

of a variety of lectures and courses available at

Respondent's school. It presumably also gives schedules,

tuition, and terms. Nothing could be clearer than that the

contents of these courses attract the full measure of First

Amendment protection -- though here again the conduct of

such schools is subject to a wide variety of regulation.

Similarly there can be no doubt that the texts, outlines,

and other materials given out or-sold in connection with

these courses enjoy full First Amendment protection. And

SO too would course catalogues, such as are distributed by

every college and university. Why then should this

publication, which analytically -- though not in tone and

13

-- is indistinguishable from such a catalogue be

Sound © come ; besner category of communication, such

that the city is allowed to discriminate against it in favor

of the most debased scandal sheet distributed free and

supported by advertising for pornographic literature?

Harmon Publishing Company's Home Magazine offers

a different rationale for disallowing the discrimination

practiced by the city. A classified ad or real estate listing

comes very close to being the kind of text that does no

more than propose a bargain. That is why such ads and

listings may be regulated to comply with fair housing and

equal employment opportunity policies. Pittsburgh Press,

at 385. But an editorial seeking to justify residential

segregation would be beyond the reach of such regulation.

It is a mistake to argue from the premise underlying

Pittsburgh Press to the conclusion that Home Magazine

enjoys no r First Amendment protection than the

individual -bones listings it collects. While each

listing may do no more tha propose a bargain, the

collection performs quite a different function. It allows

potential buyers to survey the scene, make comparisons,

and arrive at conclusions about the — 4 ty ye

magazine carrying articles purporting ju

impart some of the same Eesemation and give addresses

ee es Se, ae een tor cach

articles may even require payment in exchange for each

mention. Rensnsines offering film or restaurant reviews

may operate on this same venal principle. Yet this

venality would hardly remove the publication from the

scope of the speech and press protection of the

Constitution. The listing without comment is, if anything,

more reliable, comprehensive, and objective. In any event

Home Magazine does in fact include some such articles in

addition to the listings. Surely the of First

Amendment protection should not vary as a function of the

ratio of text to advertising.

14

Il. PETITIONER’S REGULATION MUST

FAIL AS AN ARBITRARY AND

IMPERMISSIBLE CONTENT-BASED

DISCRIMINATION

The city does not claim that the contents of

Respondents’ publications threaten any of the harms that

this Court has identified to justify regulation of

commercial speech. The city says it is not concerned with

their content, but only with preserving the amenity and

safety of its streets. Such an argument would have

considerable force if the city banned all newsracks.

restricted them to certain areas, or limited their numbers

on a first-come-first-served or random basis. But that is

not what it has done. It has said that The Cincinnati

Inquirer and other such papers may place newsracks in the

street as they wish, while Home Magazine -- which of

course is a competitor for an important class of advertising

business -- may not use the street at all. Since this is a

distinction based on content it cannot be justified as a

time, place, or manner restriction, for those must be

content-neutral. Consolidated Edison Co. vy. Public Serv.

Comm'n, 447 U.S. 530, 536 (1980). The Court has

asserted that such regulation must be content-neutral to

prevent government agents from making judgments about

7 ae = a h are worthier than others. The risks

of favoritism improper motivation are palpable in this

case. The kinds of publications the city council allows are

exactly those which are in a position to reward or punish

the politicians who make the regulation. And, as we have

pointed out, the disfavored class is in direct competition

with the newspapers the city would prefer.

of a publication. It certainly is not based on the

ifferential effects of the permitted and

forbidden publications . Renton v. Playtime Theatres,

Inc., 475 U.S. 41 (1986) (upholding restrictions on

locations of adult theaters where municipality had acted in

response to secondary effects of such theaters on

15

rrounding community). Whether the analysis is

sadenahen ia equal pooection’ or Plest Amendment terme

directly, the reasoning and conclusion are the same. The

presence of a First Amendment claim means that

discrimination must meet some kind of heightened

scrutiny. But as we have discussed, what the calls the

commercial character of the publication involved here

hardly provides even a rational basis for such a

discrimination. C7. of Cleburne v. Cleburne Living

Ctr., Inc., 473 U.S. 432 (1985) (applying rational basis

standard to invalidate discriminatory ordinance). And we

suppose that considerably more than that is necessary by

way of justification.

Cincinnati is incorrect in asserting that a time, place,

or manner restriction qualifies as content-neutral so long

as it is not intended to restrict the expression of a

particular viewpoint. See Pet. Br. at 30. The Court

recently rejected that contention, stating: “This Court has

held that the First Amendment's hostility to content-based

regulation extends not onl to a restriction on a particular

1992) (slip op. at 5) (plurality opinion); id. at ‘(slip

= ON eens J., dissenting). Even if one concedes

that Cincinnati's prohibition of Respondents’ newsracks

’ See, ¢.g., Carey v. Brown, 447 U.S. 455 (1980) (invoking Equal

Protection Clause to strike down Illinois statute that bited most

residential picketing, but exempted certain types of labor picketing

16

quesuon permitted of virtually lawn si

other than A ny Ty Ra

while yy eye re were free to prohibit

all lawn ns, the Court that the First Amendment

forbids some signs based on their content while

permitting others. Associates, 431 U.S. at 94.

Similarly, Bolger struck down on First Amendment

grounds a Statute that prohibited the unsolicited

mailing of commercial information regarding

contraceptives. Bolger, 463 U.S. at 70. While accepting

the notion that some content-based regulation of

commercial speech may be permissible "[i}n light of -the

greater potential for deception or confusion in the context

of certain advertising messages" (id. at 65), the Court said

that the federal government's content-based discrimination

against the mailings at issue could not stand in the absence

any evidence that the mailings could result in deception

or confusion or were otherwise subject to regulation.

proprietary capacity. a

discrimination “must not be arbi , Capricious, or

invidious.” Lehman, 418 U.S. at 303; see also Greer.

424 U.S. at 838-39. In those cases -- where, as it

, the regulators gave commercial speech

erential treatment over political speech -- the Court

ound that = purposes existed to justify the

Petitioner and its supporting amici argue that the

newsrack ordinance’s unequal treatment of general-

not constitute impermissible content-based discrimination

because the Court has traditionally permitted speech

categorized as “commercial” to be treated less favorably

than categorized as “noncommercial.” By thus

pi ing Respondents’ newsracks into a category

labeled “commercial,” Petitioner attempts to justify its ban

on such newsracks while permitting other newsracks to

remain on the city’s streets.

But just as we have shown that no sufficient basis

exists for discriminating between Respondents’

publications and those the city would allow in terms of the

harm sought to be addressed, so a fortiori no meaningful

distinction can be drawn between the message conveyed by

s’ newsracks as such and the message conveyed

by newsracks containing general-circulation newspapers.

Both types of newsracks attempt to draw attention to and

to promote the distribution of publications contained in the

newsracks. Given the lack of meaningful distinctions

between the contents of the two types of publications,

Petitioners cannot justify their prohibition of one type of

newsrack and their acceptance of the other type of

newsrack by attaching “commercial” and “noncommercial”

labels to the publications.

The Court on occasion has expressed willingness to

permit jurisdictions to discriminate against "commercial"

speech on the content of the . For example,

in Metromedia, Inc. v. City of San Diego, 453 U.S. 490

(1981), a majority of the Court appeared willing to uphold

an ordinance that permitted a owner to post

billboards on his own property advertised the nature

of the business being conducted on the , but not to

elsewhere. Metromedia, 453 U.S. at 511-12 (plurality

opinion); id. at 555-560 (Burger, J., dissenting). But in

each such instance, the jurisdictions had substantial

justifications for distinguishing among the expressive

activities at issue. Thus, in Metromedia, the plurality

opinion determined that the distinction San Diego drew

18

between on-site and off-site commercial billboards was

constitutionally defensible because: (1) the ban on off-site

billboards was directly related to the w 4 stated

objectives of traffic safety and aesthetics; (2) off-site

advertising with its periodically changing content presented

a more acute problem than did on-site advertising; and (3)

a commercial enterprise has a stronger interest in

identifying its place of business and advertising the

products or services available there than it has in using or

leasing its available space for the purpose of advertising

commercial enterprises located elsewhere. /d. at 511-12.

In contrast, Petitioner has advanced no justification for

favoring newspaper newsracks over Respondents’

newsracks -- other than a naked preference for genera!-

circulation newspapers based on the content of those

publications. Petitioner has not argued that Respondents’

newsracks present any more danger to traffic safety or to

aesthetic sensibilities than do newspaper newsracks.*

Indeed, given that Respondents’ newsracks make up such

a small percentage of existing newsracks on the streets of

Cincinnati, Petitioner's selective newsrack ban cannot have

any appreciable effect on the traffic safety and aesthetic

concerns Petitioner raises. Petitioner's decision to favor

one type of publication based on the content of those

publications is precisely the ¢t of content-based

discrimination that is not under the First

Amendment -- particularly when, as here, the First

Amendment interests of Respondents are nearly identical

to the First Amendment interests of those who seek to sell

* Amicus City of New York suggests that newsracks such as those

maintained by are a source of urban blight because they

are often not well-maintained and because (since they can be

without use of a coin) they can be used as trash dispensers. Su it

to say that there is no such evidence in this record. Moreover,

Petitioner's ordinance does not distinguish between newsracks based on

whether they are coin-operated. Any such ordinance would, of course,

prohibit newsrack distribution of the many general-circulation

newspapers that are distributed for free.

19

general-circulation newspapers by placing them in

newsracks.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

Charles Fried’

(Counsel of Record)

1545 Massachusetts Avenue

Cam , MA 02138

(617) 495-4636

Richard K. Willard

David A. Price

STEPTOE & JOHNSON

1330 Connecticut Avenue, N.W.

Washi , D.C. 20036

(202) 429-8073

Daniel J.

Richard A.

WASHINGTON LEGAL

FOUNDATION

1705 N Street, N.W.

WwW , D.C. 20036

(202) 857-0240

Counsel for amicus curiae

June 1, 1992

*H. Christopher Bartolomucci and Viet D. Dinh, students at the

Harvard Law School, and Stephen B. Kinnaird, a student at Yale Law

School, assisted in the preparation of this brief.