A Major Victory for Commercial Speech

Article excerpt

The constitutional battle that F.J. Chrestensen started on the streets of New York City a little over a half-century ago is not yet won. But his spiritual heirs have gained a significant victory in a skirmish involving the streets of Cincinnati. As a result, the purveyors of commercial information in America--chiefly advertisers and public relations people--may never have seen as much promise of freedom.

Just as Chrestensen made a place for himself in First Amendment history by losing the first case the U.S. Supreme Court decided on commercial speech, two modern leafleteers-commercial marketing companies--seem to have found their own niche by winning the latest such fight before the court.

In New York City in the early 1940s, Chrestensen wanted to drum up tourist interest in a used Navy submarine he had bought and docked there, so he passed out promotional handbills. His handbills, entirely commercial in nature, ran afoul of a city ordinance banning such expression in public places. Upholding that ordinance in a 1942 decision (Valentine vs. Chrestensen), the Supreme Court ruled that the Constitution does not shield "purely commercial advertising" from government regulation.

For commercial speech, that was a flat declaration of its second class status as expression. For decades afterward, advertising and other promotion were exposed to sometimes stifling government controls that would never have been tolerated for noncommercial expression. Even in recent years, officials have hardly hesitated to take new steps to restrict commercial expression.

But they may now have to pause and consider the constitutional implications of imposing new restraints in the aftermath of the court's ruling in the case of Cincinnati vs. Discovery Network.

In a modern ordinance closely resembling the anti-handbill law that the court upheld in 1942, Cincinnati's City Council had forbidden anyone to "hand out or distribute or sell any commercial handbill in any public place." Local officials said they were worried about the blight and safety hazards caused by the proliferating newsracks on city sidewalks, and decided to enforce the handbill ordinance through a new regulation that specifically banned commercial leaflets, flyers, circulars and publications from newsracks in Cincinnati. Newspapers, however, were left free to use their newsracks.

Discovery Network, Inc., which publishes a free magazine to promote lectures, adult education and recreation courses it offers in the Ohio city, and Harmon Publishing Co. …