High Court: City Can't Selectively Ban Commercial Racks; U.S. Supreme Court Rules in City of Cincinnati vs. Discovery Network

By Gersh, Debra | Editor & Publisher, April 3, 1993 | Go to article overview

High Court: City Can't Selectively Ban Commercial Racks; U.S. Supreme Court Rules in City of Cincinnati vs. Discovery Network


Gersh, Debra, Editor & Publisher


IT IS UNCONSTITUTIONAL for the city of Cincinnati to selectively ban commercial newsracks from city streets, the U.S. Supreme Court has ruled.

The High Court, ruling in City of Cincinnati vs. Discovery Network Inc., et al., found that the city violated the First Amendment rights of Discovery Network and Harmon Publishing by banning their newsracks while allowing racks for non-commercial publications, such as newspapers, to remain.

"We agree with the city that its desire to limit the total number of newsracks is |justified' by its interest in safety and esthetics," Justice John Paul Stevens wrote for the 6-3 majority.

"The city has not, however, limited the number of newsracks; it has limited (to zero) the number of newsracks distributing commercial publications."

Discovery and Harmon, who publish free magazines listing educational/social programs and real estate offerings, respectively, previously had been allowed to distribute their publications through the newsracks on city streets.

In February 1990, however, the city decided that those newsracks created esthetic and safety problems and ordered them removed. No such prohibition was issued against non-commercial newsracks.

Both the district and appeals courts ruled in favor of the publishers, finding that the selective ban violated their constitutional rights.

"Not only does Cincinnati's categorical ban on commercial newsracks place too much importance on the distinction between commercial and non-commercial speech, but in this case, the distinction bears no relationship whatsoever to the particular interests the city has asserted," Stevens wrote.

The decision also noted that the commercial newsracks accounted for only 62 of the total 1,500 to 2,000 throughout the Cincinnati area.

The Court found that "the city's primary concern, as argued to us, is with the aggregate number of newsracks on its streets."

"On that score, however, all newsracks, regardless of whether they contain commercial or non-commercial publications, are equally at fault. In fact, the newspapers are arguably the greater culprit because of their superior number."

The city of Cincinnati, Stevens wrote, failed to justify its "sweeping ban that bars from its sidewalks a whole class of constitutionally protected speech. …

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