•City refused to allow an additional 62 (out of 2,000) news racks that contained 2 commercial speech publications.
•City put too much reliance on the Court’s alleged distinction between commercial and non-commercial speech. The essential problem with these distinctions in Metromedia and Railway Express, as opposed to Cincinnati is that the distinctions made in the type of advertising is not really relevant to the goal attempting to be accomplished.
• In all these cases, both commercial and non-commercial messages cause the same problems.
• That’s why you studied Railway Express in Con Law I to illustrate overinclusive and underinclusiveness.
• If the goal is to prevent distractions then allowing some, while preventing others is underinclusive.
• Now, Railway Express was decided before commercial expression was protected, and the Court upheld the statute, but it’s used as an example of underinclusive irrationality.
• Metromedia suffers from the same irrationality that Stevens found in Cincinnati.25
In City of Cincinnati v. Discovery Network, 507 U.S. 410 (1993), the Supreme Court held that Cincinnati’s restrictions on the distribution of commercial flyers in news racks violated the First Amendment.
Despite the undisputed fact that flyers were commercial advertisements, the Court refused to diminish their free speech protections.
The case arose when Cincinnati decided to revoke permits allowing the Discovery Network to distribute advertisements from 38 news racks on city property because of an ordinance prohibiting the distribution of commercial handbills on public property.
The enforcement of the ordinance removed only 62 of the approximately 1,500 news racks in the city, but Cincinnati claimed that it served the significant public interests of safety and aesthetics. The far more numerous newspaper racks were not affected.
Discovery Networks and Harmon Publishing challenged the legality of the ordinance under the First Amendment. The district court and the Sixth Circuit Court of Appeals ruled against Cincinnati. The Supreme Court voted 6-3 in affirming the lower courts’ decisions.
Courts have historically applied a lower standard to commercial speech, as in Ohralik v. Ohio State Bar Association (1978), limiting direct lawyer solicitations of clients. The Court has justified this by asserting that commercial speech is more durable or that it is less central to the First Amendment than political speech. How much lower has often been far less clear.
<aside> 💡 The Court had established a test for protections granted commercial speech in Central Hudson Gas and Electric Corp. v. Public Service Commission (1980).
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<aside> 💡 It determined that in order for lawful commercial speech to be restricted, the government must have a substantial interest advanced by the restriction, and it must not be a more extensive restriction than necessary to meet that interest.
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<aside> 💡 In Board of Trustees of State University of New York v. Fox(1989), the Court also asserted that there must be a reasonable fit between the desired ends and the means chosen.
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