507 U.S. 410 (1993)
In 1989 the city of Cincinnati authorized Discovery Network, Inc., to place 38 newsracks on public property to distribute its free magazine published nine times a year that advertises adult educational, recreational, and social programs while also containing some information about current events.1 That same year Harmon Publishing Company, Inc., received permission to install 24 newsracks for its free magazine that advertises residential properties for sale throughout the United States and includes listings, photographs, interest rates, market trends, and other real estate matters for the greater Cincinnati area.2 Approximately one-third of Discovery's magazines and about 15 percent of Harmon's Cincinnati-area distribution occurred through these authorized devices.3
In March 1990, the city's Director of Public Works notified each respondent that its permit was revoked. The city ordered the newsracks removed within 30 days.4 This action was taken on the ground that the publications constituted commercial handbills under Municipal Code § 714-1—C. Distribution on public property was barred by § 714-23.5 Respondents received administrative hearings and review by the Sidewalk Appeals Committee, which maintained the city's position but permitted the devices to remain pending judicial determination.6
Respondents commenced litigation in the United States District Court for the Southern District of Ohio.7 After an evidentiary hearing the District Court addressed the regulatory scheme.8 On appeal the Court of Appeals for the Sixth Circuit reviewed the District Court's decision.9 The Supreme Court granted certiorari in 1992.10
The city's prohibition on commercial handbills predated any concern about newsracks and had been enacted to address litter rather than permanent dispensing devices.11 Between 1,500 and 2,000 newsracks stood on Cincinnati's public rights of way at the time of the litigation, of which the 62 operated by respondents formed a small portion.12
Whether the city of Cincinnati's refusal to allow respondents to distribute their commercial publications through freestanding newsracks on public property is consistent with the First Amendment?13
Under the Central Hudson test as refined in Fox, a regulation of commercial speech that concerns lawful activity and is not misleading survives First Amendment scrutiny only if the government asserts a substantial interest, shows that the regulation directly advances that interest, and establishes a reasonable fit between the interest and the means chosen so that the burden on speech is not disproportionate.14
No. The established facts show that respondents' publications concern lawful activity and are not misleading, satisfying the threshold for protection.15 Cincinnati possesses a substantial interest in safety and esthetics on public rights of way.16 Yet the selective revocation of permits for the 62 newsracks operated by Discovery and Harmon while 1,500 to 2,000 other newsracks remain demonstrates that the distinction between commercial handbills and newspapers bears no relationship to those interests because all racks produce identical visual and safety effects.17 The prohibition originated in an ordinance aimed at litter rather than permanent dispensing devices, confirming that the city failed to calculate carefully the costs imposed on protected speech.18
The city's refusal is not consistent with the First Amendment.19
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Justice Blackmun concurs in the judgment but writes separately to argue that truthful noncoercive commercial speech deserves full First Amendment protection rather than intermediate scrutiny under Central Hudson.20 He explains that the listener's interest in receiving accurate commercial information about housing and educational opportunities is at least as strong as the interest in political debate.21 Cincinnati's choice to target only commercial newsracks illustrates how the lesser-protection framework invites underinclusive regulations that suppress valuable speech without advancing the asserted interests in safety or esthetics.22
Whether the city's selective prohibition on newsracks distributing commercial handbills satisfies the reasonable fit requirement between its interests in safety and esthetics and the means chosen to serve those interests?23
A reasonable fit exists when the government shows that its regulation advances the substantial interest in a manner whose scope is in proportion to the interest served, employing means narrowly tailored without being the least restrictive alternative, so that the burden on speech remains proportionate to the benefit achieved.24
No. The facts establish that removal of the 62 commercial newsracks would produce only minute or paltry gains in safety and beauty while leaving the vast majority of the 1,500 to 2,000 total racks untouched.25 The city's code draws the line solely on the ratio of advertising to other content.26 There is no evidence that commercial racks cause distinctive proliferation or harm.27 Therefore, the selective ban fails to establish the required reasonable fit between the ends of safety and esthetics and the means of categorical prohibition.28
The selective prohibition does not satisfy the reasonable fit requirement.29
Whether the city's newsrack policy qualifies as a valid time, place, and manner restriction on protected speech?30
A restriction qualifies as a valid time, place, and manner regulation only if it is justified without reference to the content of the regulated speech, is narrowly tailored to serve a significant governmental interest, and leaves open ample alternative channels of communication.31
No. The established facts demonstrate that the policy distinguishes between publications based on whether they qualify as newspapers or commercial handbills under the municipal code. This determination turns on the ratio of advertising to editorial content. It therefore constitutes content-based discrimination.32 Because the justification for banning only commercial newsracks rests on the asserted lower value of commercial speech rather than any neutral concern such as secondary effects, the policy cannot be defended as content neutral.33
Therefore, it fails the time, place, and manner test regardless of alternative channels.34
The city's newsrack policy does not qualify as a valid time, place, and manner restriction.35
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Joined by White And Thomas, Jj.
Chief Justice Rehnquist dissents and would uphold the prohibition.36 He maintains that commercial speech occupies a subordinate position in the scale of First Amendment values and that localities may address the newsrack problem incrementally by first regulating the less protected category of commercial handbills.37 In his view the underinclusive character of the ordinance does not render it unconstitutional.
Every removed rack marginally advances safety and esthetics.38 The city should be permitted to proceed in the manner and scope it chooses. It should not be forced to restrict fully protected speech or abandon regulation altogether.39