First Amendment Library:
Mark S. Yurick

Discovery Network, Inc., provides educational and other programs to adults in the Cincinnati area. It advertises these programs in free magazines. Approximately one-third of the magazines were distributed through 38 newsracks that the City of Cincinnati authorized it to place on public property in 1989. Harmon Publishing Company, Inc., similarly distributed magazines advertising real estate through 24 newsracks on public property. In 1990, the City revoked the permits that allowed Discovery and Harmon to use their newsracks, claiming that a City ordinance prohibited the distribution of "commercial handbills" on public property. Although the application of this ordinance removed only 62 of the more than 1,500 newsracks placed about the City, the City claimed that its action furthered important safety and aesthetic goals. Discovery and Harmon challenged the action in federal court, arguing that the City's action violated the First Amendment. The district court agreed, and the Court of Appeals for the Sixth Circuit affirmed. The First Amendment right of publishers to disseminate their product through newsracks is not absolute. A local governmental entity may regulate the placement and number of newsracks to promote its substantial interest in public safety and aesthetics, but that entity must establish a reasonable "fit" between its regulation and the goals sought to be achieved. Board of Trustees of State Univ. of N. Y. v. Fox, 492 U.S. 469 (1989). The government's right to regulate commercial speech speech that concerns only commercial or economic activity is greater than its right to regulate non-commercial speech. The government may regulate commercial speech if it is false or misleading or if the restriction directly and narrowly advances a substantial state interest. Central Hudson Gas & Elec. v. Public Serv. Comm. of N.Y., 447 U.S. 557 (1978).