Cincinnati v. Discovery Network, Inc., 507 U.S. 14 (1993)

The question before the U.S. Supreme Court in Cincinnati v. Discovery Network was whether Commercial Speech should be entitled to the same First Amendment protections as private speech. The defendant was a publishing company that provided educational services to adults in the Cincinnati area and advertised these services in free magazines distributed from newspaper racks on city sidewalks. The city of Cincinnati had granted Discovery Network, Inc. permission to place its distribution racks on public property in 1989, but the following year the city Commissioner of Public Works revoked their permit and a similar permit granted to real estate advertiser Harmon Publishing, claiming that the racks were eyesores and that their placement posed a threat to public safety. The free magazines, the city argued, were ‘‘commercial handbills’’ to which the free press protections of the First Amendment did not apply. The decision affected only sixty-two of the more than 1,500 news racks placed on city property and did not place restrictions on the similar distribution of conventional newspapers.

Discovery Network and Harmon Publishing unsuccessfully challenged the decision in federal court on the grounds that it violated the First Amendment rights of the two companies. The case was appealed to the U.S. Supreme Court, which reversed the federal court’s decision by a 6–3 majority on March 24, 1993. The Court held that Commercial Speech, while enjoying less constitutional protections than nonCommercial Speech, cannot be restricted without adequate, demonstrable cause. Writing for the majority, Justice John Paul Stevens stated that disseminators of Commercial Speech are not entitled to unlimited rights to distribute materials on public property, but that a public entity must be able to justify restricting their activities by demonstrating a ‘‘reasonable fit’’ between the restriction and the stated goals of the restrictions, especially if the restrictions are based in part on the content of the speech. The Court held that the city’s decision to ban free magazine racks did not reasonably fit its stated goals of ensuring public safety and aesthetics, as evidenced by the fact that the ban only applied to less that one percent of the city’s news racks. These goals, the Court opined, could just as easily be achieved by less restrictive means, such as regulating the size, shape, and appearance of the boxes. Justices William Rhenquist, Byron White, and Clarence Thomas dissented, arguing that Commercial Speech is subordinate to private speech and thus subject to a greater degree of government regulation.

In reaffirming previous decisions in cases such as Central Hudson Gas and Electric v. Public Service Commission, which prohibited government interference in Commercial Speech without demonstrable cause, the Supreme Court in Cincinnati v. Discovery Network clarified, if only partially, the place of Commercial Speech in American public discourse. The Court’s decision validated what at the time was a growing medium for the distribution of free information for commercial purposes by implication extending greater constitutional protections to other media for Commercial Speech such as telemarketing and infomercials.

MICHAEL H. BURCHETT

References and Further Reading

• Belsky, Martin H. The Rhenquist Court: A Retrospective. New York: Oxford University Press, 2002.
• Cain, Rita Marie, Call Someone Up and Just Say ‘Buy’ – Telemarketing and the Regulatory Environment, American Business Law Journal 31 (February 1994): 4:641–698.
• Denniston, Lyle. ‘‘A Major Victory for Commercial Speech.’’ American Journalism Review 15 (May 1993): 46.
• Stewart, David O. ‘‘Commercial Break: Supreme Court Bolsters Constitutional Protections for Commercial Speech.’’ ABA Journal 79 (June 1993): 42.

Cases and Statutes Cited

• Central Hudson Gas and Electric v. Public Service Commission, 447 U.S. 557 (1980)

See also Bill of Rights: Structure; Content-Based Regulation of Speech; 44 Liquormart v. Rhode Island, 517 U.S. 484 (1977); Freedom of Speech and Press: Nineteenth Century; Free Speech in Private Corporations; Freedom of Speech Extended to Corporations; Prior Restraints; Public/Nonpublic Forums Distinction