Free Speech/1st Amendment

SpeechSpeech

BeggingBegging

Commercial SpeechCommercial Speech

Signs as SpeechSigns as Speech

Ladue v. Gilleo City of Ladue, et al., Petitioners v. Margaret P. GilleoCity of Ladue, et al., Petitioners v. Margaret P. Gilleo

114 S. Ct. 2038 (1994); 512 U.S. 43 (1994)114 S. Ct. 2038 (1994); 512 U.S. 43 (1994)

U.S. Supreme Court Decision -- June 13, 1994

Associated Press Photo from the San Francisco Chronicle

BBC News

BACKGROUND INFO. Ladue = St. Louis suburbLadue = St. Louis suburb St. Louis County, MissouriSt. Louis County, Missouri Y2K Population = 8,625Y2K Population = 8,625 Willow Hill SubdivisionWillow Hill Subdivision

One of highest median household incomes One of highest median household incomes in the U.S. & Missouriin the U.S. & Missouri

Missouri’s best educated cityMissouri’s best educated city, proportionately, proportionately

Possible neighbors include: Possible neighbors include: Former U.S. Senator John Danforth, Former U.S. Senator John Danforth, William Bush and John F. McDonnellWilliam Bush and John F. McDonnell

11stst Persian Gulf War 1990-1991 Persian Gulf War 1990-1991(a.k.a. Operation Desert Storm)(a.k.a. Operation Desert Storm)

Margaret Gilleo, Entomologist,

Active Environmentalist & Former Professor

Photo from University of Maryville website

St. Louis, MO

St. Louis Metro Area

Map from www.city-data.com

The 1st Amendmentto the United States Constitution

Congress shall make Congress shall make nono lawlaw respecting an establishment of religion,respecting an establishment of religion,or prohibiting the free exercise thereof ;or prohibiting the free exercise thereof ;

or abridging or abridging the freedom of speech,the freedom of speech,

or of the press; or the right of the people or of the press; or the right of the people peaceably to assemble, and to petition the peaceably to assemble, and to petition the government for a redress of grievances.government for a redress of grievances.

CaseHistory & Facts

Gilleo stakes 24x36 -Inch Gilleo stakes 24x36 -Inch anti-war sign in front yardanti-war sign in front yard

Vandals steal sign & knock Vandals steal sign & knock down a 2down a 2ndnd sign sign

Gilleo reports to police who Gilleo reports to police who make her remove sign from make her remove sign from yard due to city ordinance yard due to city ordinance that prohibits residential that prohibits residential signage other than for:signage other than for:1) Residence Identification1) Residence Identification2) “For Sale”2) “For Sale”3) Safety Hazards3) Safety Hazards

Gilleo in front of her Ladue home in 1991Copyright J. Aramberri Website 2003, Newspaper photo archives www.cd.sc.ehu.es/FileRoom/documents/Cases/390gulfsigns.html

Gilleo’s petition for variance denied

Gilleo sues City, the Mayor and City Council members for violation of her 1st Amendment rights

Case History & Facts - Part 2

District Court issues injunctionDistrict Court issues injunction

Gilleo posts 8.5x11-Inch sign Gilleo posts 8.5x11-Inch sign

in 2in 2ndnd story window story window

City re-issues ordinance still City re-issues ordinance still

prohibiting signs with all but prohibiting signs with all but

10 exceptions and policy statement limiting number & size of signs in 10 exceptions and policy statement limiting number & size of signs in private, residential, commercial, industrial and public areasprivate, residential, commercial, industrial and public areas b/c it…. b/c it….

“would create ugliness, visual blight and clutter, tarnish the natural beauty of the landscape as well as the residential and commercial architecture, impair property values, substantially impinge upon the privacy and special ambience of the community, and may cause safety and traffic hazards to motorists, pedestrians, and children.”

For

PEACE in the Gulf

So, What Happens In Court?

District Court and Court of Appeals District Court and Court of Appeals find that the ordinance is find that the ordinance is unconstitutional b/c it is unconstitutional b/c it is content-content-basedbased

City of Ladue appeals to the U.S. City of Ladue appeals to the U.S. Supreme CourtSupreme CourtLadue City Hall

Photo from City of Ladue Website

Decision A special respect for individual liberty in the home has long been part of our A special respect for individual liberty in the home has long been part of our

culture and our law,culture and our law,

That principle has special resonance when the government seeks to constrain a That principle has special resonance when the government seeks to constrain a person's ability to person's ability to speak there.speak there.

Most Americans would be understandably dismayed, given that tradition, to Most Americans would be understandably dismayed, given that tradition, to learn that it was illegal to display from their window an 8 by 11 inch sign learn that it was illegal to display from their window an 8 by 11 inch sign expressing their political views. Whereas the government's need toexpressing their political views. Whereas the government's need to

mediate among various competing uses, including expressive ones, for public mediate among various competing uses, including expressive ones, for public streets and facilities is constant and unavoidable, its need to regulate temperate streets and facilities is constant and unavoidable, its need to regulate temperate speech from the home is surely much less pressingspeech from the home is surely much less pressing

Ladue’s list of banned signs is over-inclusiveLadue’s list of banned signs is over-inclusive

Key Concepts

THINK OF SPEECH AS COMMUNICATION OF THINK OF SPEECH AS COMMUNICATION OF IDEASIDEAS

Content neutralityContent neutrality Time, manner and place restrictions – not contentTime, manner and place restrictions – not content Incidental impactIncidental impact Permissible suppression of speechPermissible suppression of speech

Misleading communicationMisleading communication Libelous communicationLibelous communication Obscene communicationObscene communication Copyright or trademarked speechCopyright or trademarked speech Narrowly tailoredNarrowly tailored

Benefit v City of Cambridge

A 1994 Supreme Court Case about “begging” as a A 1994 Supreme Court Case about “begging” as a form of speechform of speech

The Ordinance and Mr. Benefit Persons wandering about from door to door in public Persons wandering about from door to door in public

places or private property for the purposes of begging places or private property for the purposes of begging or receiving alms, who are not licensed, may be or receiving alms, who are not licensed, may be imprisoned for up to six months.imprisoned for up to six months.

Craig benefit sits on the streets holding up signs Craig benefit sits on the streets holding up signs about peace, love, food, or other comments about the about peace, love, food, or other comments about the governmentgovernment

He talks to passers-by about his homelessness and He talks to passers-by about his homelessness and makes suggestions about how government can help makes suggestions about how government can help homeless people. He asks for moneyhomeless people. He asks for money

The Arrests and the Plea

Craig Benefit has been arrested at least three times Craig Benefit has been arrested at least three times for begging. He has been threatened by the police for begging. He has been threatened by the police many times to leave Harvard Square.many times to leave Harvard Square.

Craig claims that his peaceful begging is expressive Craig claims that his peaceful begging is expressive conduct because it is intertwined with his political conduct because it is intertwined with his political discussionsdiscussions

The court rejects the state’s argument that there is a The court rejects the state’s argument that there is a compelling need for this type of statute because compelling need for this type of statute because people who beg are a “pestilence” in public placespeople who beg are a “pestilence” in public places

Conclusions

By prohibiting peaceful By prohibiting peaceful requests by poor people for requests by poor people for personal financial aid, the personal financial aid, the statute directly targets the statute directly targets the content of their content of their communications, punishing communications, punishing requests by an individual for requests by an individual for help with his or her basic help with his or her basic human needs while shielding human needs while shielding from government from government chastisement requests for chastisement requests for help made by better-dressed help made by better-dressed people for other, less critical people for other, less critical needs.needs.

The Redevelopment

People, Planners & Projects

And More People

Enjoying Themselves

Megan Roulette v City of Seattle

U.S. Circuit Court of Appeals – 1996U.S. Circuit Court of Appeals – 1996

What is the controversy? – This Ordinance --------What is the controversy? – This Ordinance -------- Prohibits people from sitting on lying on the public Prohibits people from sitting on lying on the public

sidewalks in certain commercial areas between 7:00 sidewalks in certain commercial areas between 7:00 am and 9:00 pm. There are no restricts about sitting am and 9:00 pm. There are no restricts about sitting of lying public parks, plazas, or sidewalks in non-of lying public parks, plazas, or sidewalks in non-commercial areas. The police must first give fair commercial areas. The police must first give fair warningwarning

Megan’s Argument

The First Amendment protects not only the The First Amendment protects not only the expression of ideas through printed or spoken words, expression of ideas through printed or spoken words, but also symbolic speech -- nonverbal "activity . . . but also symbolic speech -- nonverbal "activity . . . sufficiently imbued with elements of communication." sufficiently imbued with elements of communication." Spence v. Washington, 418 U.S. 405, 409 (1974Spence v. Washington, 418 U.S. 405, 409 (1974

Sitting on the sidewalk might also be expressive, Sitting on the sidewalk might also be expressive, plaintiffs argue, such as when a homeless person plaintiffs argue, such as when a homeless person assumes a sitting posture to convey a message assumes a sitting posture to convey a message of passivity toward solicitees.of passivity toward solicitees.

The Court’s Reasoning

In Answer to the direct, facial attack that the ordinance is an In Answer to the direct, facial attack that the ordinance is an unconstitutional, on its face, violation of the 1unconstitutional, on its face, violation of the 1stst Amendment’s Amendment’s Right To ExpressionRight To Expression

It is possible to find some kernel of expression in almost It is possible to find some kernel of expression in almost every activity a person undertakes -- for example, walking every activity a person undertakes -- for example, walking down the street or meeting one's friends at a shop- ping down the street or meeting one's friends at a shop- ping mall -- but such a kernel is not sufficient to bring the mall -- but such a kernel is not sufficient to bring the activity within the protection of the First Amendment. By its activity within the protection of the First Amendment. By its terms, the ordinance here prohibits only sitting or lying on terms, the ordinance here prohibits only sitting or lying on the sidewalk. As we explained above, these are not forms the sidewalk. As we explained above, these are not forms of conduct integral to, or commonly associated with, of conduct integral to, or commonly associated with, expression. We therefore reject plaintiffs' facial attack on expression. We therefore reject plaintiffs' facial attack on the ordinancethe ordinance

Megan Again

Well then, the ordinance is a gross violation of my Well then, the ordinance is a gross violation of my 1414thth Amendment Right to Due Process Amendment Right to Due Process

THE CITY SAYS: THE CITY SAYS: "[a] downtown area becomes "[a] downtown area becomes dangerous to pedestrian safety and economic dangerous to pedestrian safety and economic vitality when individuals block the public vitality when individuals block the public sidewalks, thereby causing a steady cycle of sidewalks, thereby causing a steady cycle of decline as residents and tourists go elsewhere to decline as residents and tourists go elsewhere to meet, shop and dine."meet, shop and dine."

A Little Analysis Here

What is going to happen?What is going to happen? If you challenge a rule of law as unconstitutional “on If you challenge a rule of law as unconstitutional “on

its face you have to show that "its face you have to show that "no set of no set of circumstances exists under which the statute circumstances exists under which the statute would be valid." Megan concedes that "the city would be valid." Megan concedes that "the city may prevent individuals or groups of people from may prevent individuals or groups of people from sitting or lying across a sidewalk in such a way sitting or lying across a sidewalk in such a way as to prevent others from passing.“as to prevent others from passing.“

Megan’s argument is tankedMegan’s argument is tanked

Class Discussion

Is this a thinly veiled aesthetic disguise to remove Is this a thinly veiled aesthetic disguise to remove undesirables from the streetundesirables from the street

Or is a genuine state interests to promote public Or is a genuine state interests to promote public safety and economic vitality????? safety and economic vitality?????

A Few Examples of Non Commercial Speech that is on the Border Line of the 1st Amendment The General Rule is that government may regulate The General Rule is that government may regulate

the:the: TimeTime MannerManner PlacePlace

BUT NOT THE CONTENT OF THE MESSAGEBUT NOT THE CONTENT OF THE MESSAGE Not All Speech is ProtectedNot All Speech is Protected

Copyright infringementsCopyright infringements Misleading advertisingMisleading advertising Libel – TreasonLibel – Treason Fighting WordsFighting Words

Insert One World – One Family

“An ordinance prohibits the sale of merchandise on city streets. We must determine whether it may be constitutionally applied to bar non-profit organizations from selling message-bearing T-shirts”

HAWAII - 1993

Background

One World One Family Now and Bhaktivedanta One World One Family Now and Bhaktivedanta Mission are non-profit corporations operating in Mission are non-profit corporations operating in Hawaii. Both sell T-shirts imprinted with various Hawaii. Both sell T-shirts imprinted with various philosophical and inspirational messages, such as:philosophical and inspirational messages, such as: "Protect and Preserve the Truth"Protect and Preserve the Truth

“ “ Beauty & Harmony of our Native Cultures" Beauty & Harmony of our Native Cultures" Plaintiffs believe that selling T-shirts is a particularly Plaintiffs believe that selling T-shirts is a particularly

effective way to communicate because those who effective way to communicate because those who buy and wear the T-shirts help spread the message. buy and wear the T-shirts help spread the message.

Controversy

The City and County of Honolulu began to hear from The City and County of Honolulu began to hear from visitors and local residents who complained that the visitors and local residents who complained that the T-shirt tables were an obstruction and an eyesore.T-shirt tables were an obstruction and an eyesore.

Merchants with stores near the T-shirt tables also Merchants with stores near the T-shirt tables also complained, citing a drop in their own sales of tourist-complained, citing a drop in their own sales of tourist-oriented merchandise, which they attributed to unfair oriented merchandise, which they attributed to unfair competition from the sidewalk vendors. competition from the sidewalk vendors.

Response

The city notified the sidewalk vendors that they were The city notified the sidewalk vendors that they were violating Honolulu law which bans the sale of all violating Honolulu law which bans the sale of all "goods, wares, merchandise, foodstuffs, "goods, wares, merchandise, foodstuffs, refreshments or other kinds of property or refreshments or other kinds of property or services . . . upon the public streets, alleys, services . . . upon the public streets, alleys, sidewalks, malls, parks, beaches and other public sidewalks, malls, parks, beaches and other public places in Waikiki places in Waikiki

District Court

The district court held that the city was regulating the The district court held that the city was regulating the time, place and manner of speech pursuant to time, place and manner of speech pursuant to legitimate and significant interests, it refused to enjoin legitimate and significant interests, it refused to enjoin enforcement of the ordinance as to Kalakaua and enforcement of the ordinance as to Kalakaua and Kuhio Avenues – in the heart of the business district.Kuhio Avenues – in the heart of the business district.

The Appeals Court

The Circuit Court of Appeals for Hawaii has already The Circuit Court of Appeals for Hawaii has already rejected San Francisco's contention that selling rejected San Francisco's contention that selling goods was unprotected conduct, we held that, when goods was unprotected conduct, we held that, when the sale of merchandise bearing political, religious, the sale of merchandise bearing political, religious, philosophical or ideological messages is "inextricably philosophical or ideological messages is "inextricably intertwined" with other forms of protected expression intertwined" with other forms of protected expression (like distributing literature and proselytizing), the First (like distributing literature and proselytizing), the First Amendment applies.Amendment applies.

In other words selling T-Shirts that are used for In other words selling T-Shirts that are used for communication is protected by the first amendment communication is protected by the first amendment

Content Neutrality

The district court found that the ordinance furthers The district court found that the ordinance furthers three legitimate governmental interests: (1) three legitimate governmental interests: (1) "maintaining the aesthetic attractiveness of Waikiki," "maintaining the aesthetic attractiveness of Waikiki," (2) "promoting public safety and the orderly (2) "promoting public safety and the orderly movement of pedestrians," and (3)"protecting the movement of pedestrians," and (3)"protecting the local merchant economy.“local merchant economy.“

None of these interests concerns the content of None of these interests concerns the content of speech, and there's no evidence that "the ordinance speech, and there's no evidence that "the ordinance was designed to suppress certain ideas that the City was designed to suppress certain ideas that the City finds distasteful or that it has been applied to the finds distasteful or that it has been applied to the plaintiffs because of the views that they express." plaintiffs because of the views that they express."

Point by Point Examination

AestheticsAesthetics Cities have a substantial interest in protecting Cities have a substantial interest in protecting

the aesthetic appearance of their communities the aesthetic appearance of their communities by "avoiding visual clutter." As the district by "avoiding visual clutter." As the district court found, Honolulu's interest in eliminating court found, Honolulu's interest in eliminating the visual blight caused by unsightly vendor the visual blight caused by unsightly vendor stands easily qualifies under this standard. stands easily qualifies under this standard.

Nexus

Traffic and CirculationTraffic and Circulation Likewise, cities have a substantial interest in Likewise, cities have a substantial interest in

assuring safe and convenient circulation on assuring safe and convenient circulation on their streets. The district court found that their streets. The district court found that Waikiki is the center of the state's tourism Waikiki is the center of the state's tourism industry, receives as many as 60,000 visitors a industry, receives as many as 60,000 visitors a day, and consequently has "a large day, and consequently has "a large concentration of vehicles and pedestrians concentration of vehicles and pedestrians which causes unique traffic problems."which causes unique traffic problems."

Density and Usage

Pedestrian controlPedestrian control Judged in light of "the characteristic nature Judged in light of "the characteristic nature

and function of the particular forum involved," and function of the particular forum involved," the city's interest in maintaining the orderly the city's interest in maintaining the orderly movement of pedestrians on Waikiki's crowded movement of pedestrians on Waikiki's crowded sidewalks is also substantial. sidewalks is also substantial.

Economic Argument Honolulu has demonstrated a substantial interest in protecting local Honolulu has demonstrated a substantial interest in protecting local

merchants from unfair competition.merchants from unfair competition. A legitimate preoccupation of local government is to attract and A legitimate preoccupation of local government is to attract and

preserve business. Cities rely on a prosperous, stable merchant preserve business. Cities rely on a prosperous, stable merchant community for their tax base, as well as for the comfort and welfare of community for their tax base, as well as for the comfort and welfare of their citizens. their citizens.

Here, the district court found that "the tax-free and rent-free activities of Here, the district court found that "the tax-free and rent-free activities of the plaintiffs . . . have had a significant effect on the economy of the the plaintiffs . . . have had a significant effect on the economy of the abutting shop owners on avenues whose taxes and rent contribute to abutting shop owners on avenues whose taxes and rent contribute to the welfare and economy of this state." the welfare and economy of this state."

This kind of unfair competition threatens to erode tax revenues and This kind of unfair competition threatens to erode tax revenues and undermine the strength of its commercial life.* As amici remind us, undermine the strength of its commercial life.* As amici remind us, plaintiffs can offer "remarkably low prices" in part because they pay no plaintiffs can offer "remarkably low prices" in part because they pay no rent and aren't subject to various municipal regulations. Given the rent and aren't subject to various municipal regulations. Given the district court's findings, we must take seriously the concern that "[n]o district court's findings, we must take seriously the concern that "[n]o ordinary merchant, forced to pay rent in Waikiki and comply with other ordinary merchant, forced to pay rent in Waikiki and comply with other applicable laws, possibly could compete applicable laws, possibly could compete

Conclusion

Honolulu's peddling ordinance is narrowly tailored to Honolulu's peddling ordinance is narrowly tailored to serve these interests because they "would be serve these interests because they "would be achieved less effectively absent the regulation." achieved less effectively absent the regulation." Without the ordinance, sidewalk vendors (commercial Without the ordinance, sidewalk vendors (commercial and charitable alike) would be free to peddle their and charitable alike) would be free to peddle their wares on Kalakaua and Kuhio avenues, undermining wares on Kalakaua and Kuhio avenues, undermining the city's efforts to provide a pleasant strolling and the city's efforts to provide a pleasant strolling and shopping area shopping area

Commercial Speech Bridging To Personal Advertising

As Personal Expression

As Individual Expression Within A Commercial Billboard

As Artistic Expression On Posters as Public Art

“Christ In A Beaker of Piss”

Poster Display for Public Arts

Rockefeller Square NYC

Public Art In Public Squares

Renee Cox – Yo Mama’s Last Supper

Sometimes Just Plain Funny

The Message

The following cases deal specifically with commercial The following cases deal specifically with commercial speechspeech

Does commercial speech enjoy the same 1Does commercial speech enjoy the same 1stst Amendment protections as personal communications Amendment protections as personal communications or:or: The Press (Media)The Press (Media) Political speechPolitical speech Religious ExpressionsReligious Expressions Artistic expressionArtistic expression

Many of these questions will be covered in the Many of these questions will be covered in the section of Aesthetics and Signssection of Aesthetics and Signs

Central Hudson Gas & Elec. V Comm. State of New York A 1980 case that arises from an order of the State A 1980 case that arises from an order of the State

Regulatory Commission that bans (temporarily) all Regulatory Commission that bans (temporarily) all advertising that promotes the use of electricityadvertising that promotes the use of electricity

The order was based on the Commission’s finding The order was based on the Commission’s finding that it did not have sufficient energy resources to that it did not have sufficient energy resources to supply electricity through the winters of 1975 – 1976supply electricity through the winters of 1975 – 1976

This is a 3 year ban and the Regulatory Commission This is a 3 year ban and the Regulatory Commission is considering extending itis considering extending it

Central Hudson complains that this violates their 1Central Hudson complains that this violates their 1stst Amendment rights.Amendment rights.

Commercial Speech

Courts have always allowed some degree of Courts have always allowed some degree of regulation in commercial speechregulation in commercial speech

The protection available for particular commercial The protection available for particular commercial expression turns on the nature both of the expression expression turns on the nature both of the expression and of the governmental interests served by its and of the governmental interests served by its regulationregulation

There is no objection to banning commercial speech There is no objection to banning commercial speech (advertising) that is misleading or incomplete but the (advertising) that is misleading or incomplete but the limitation or ban must be tailored to achieve the limitation or ban must be tailored to achieve the state’s goalsstate’s goals

Many Examples

Doctors could not advertiseDoctors could not advertise Lawyers could not advertiseLawyers could not advertise Hard liquors could not be advertisedHard liquors could not be advertised Prescription drugs could not be advertisedPrescription drugs could not be advertised Condoms could not be advertised nor could other Condoms could not be advertised nor could other

birth control productsbirth control products

Central Hudson Test

Court devises a 4 part test for protected Court devises a 4 part test for protected commercial speechcommercial speech It must concern lawful activity and not be It must concern lawful activity and not be

misleadingmisleading The asserted government interest must be The asserted government interest must be

substantialsubstantial The regulation must directly advance the The regulation must directly advance the

government interest assertedgovernment interest asserted Must not be more extensive that necessary to Must not be more extensive that necessary to

achieve the interestachieve the interest

SO?

Lawful?Lawful? Nothing unlawful about advertising to use electricity but Nothing unlawful about advertising to use electricity but

since the whole industry is regulated it does not result since the whole industry is regulated it does not result in any useful informationin any useful information

The court rejects this and says that Central Hudson has The court rejects this and says that Central Hudson has to compete with the home heating fuel industry and the to compete with the home heating fuel industry and the natural gas producersnatural gas producers

State’s Interest is SubstantialState’s Interest is Substantial Fair and equitable utility ratesFair and equitable utility rates Energy conservationEnergy conservation

And! The Court Reverses the Ban Regulation Must Directly Advance the State’s InterestRegulation Must Directly Advance the State’s Interest

Connection between equitable rates, on and off peak Connection between equitable rates, on and off peak usage and other cost basis arguments in tenuoususage and other cost basis arguments in tenuous

Connection between energy conservation is right on Connection between energy conservation is right on target and is a good reason to ban advertisingtarget and is a good reason to ban advertising

Must Not Be More Extensive Than NecessaryMust Not Be More Extensive Than Necessary The total ban also prevents Central Hudson from The total ban also prevents Central Hudson from

advertising and promoting more efficient products for advertising and promoting more efficient products for energy conservation (heat pumps) (well pumps). energy conservation (heat pumps) (well pumps). Therefore the total ban is more extensive than Therefore the total ban is more extensive than necessarynecessary

Commercial Speech - Advertising

Metromedia v City of San Diego

1981 U.S. Supreme Court

A View From San Diego

The Background

San Diego passes a series of zoning amendments San Diego passes a series of zoning amendments targeted a reducing the number of billboard and road targeted a reducing the number of billboard and road signssigns Eliminate excessive signsEliminate excessive signs Unrelated signsUnrelated signs Use signing for identification not advertisingUse signing for identification not advertising Preserve an enhance appearancePreserve an enhance appearance Eliminate hazards to driversEliminate hazards to drivers

The heart of the ordinance permits only on-site The heart of the ordinance permits only on-site advertising – off-site signs cannot display commercial advertising – off-site signs cannot display commercial messagesmessages

Rule #1

You can never have too many signs

But Some Types of Signs Are Exempt ExemptionsExemptions

Government signsGovernment signs Bus stop signsBus stop signs Commemorative signsCommemorative signs Religious signsReligious signs Political SignsPolitical Signs For Sale and leaseFor Sale and lease Public service signsPublic service signs

The Action

Plaintiff’s are the 800 owners of signs that joined in Plaintiff’s are the 800 owners of signs that joined in the class actionthe class action

Does the ordinance violate the freedom of Does the ordinance violate the freedom of expression?expression?

Did the City over reach and go farther than necessary Did the City over reach and go farther than necessary to protect the aesthetic interest?to protect the aesthetic interest?

Is equal protection violated because the signs are Is equal protection violated because the signs are placed in two different class?placed in two different class?

The Decision

The City could simply have banned all billboards – The City could simply have banned all billboards – not just commercial – speechnot just commercial – speech

Why are site bound business banned from using non-Why are site bound business banned from using non-commercial speech?commercial speech?

Where is the City’s study that shows that the banned Where is the City’s study that shows that the banned forms of expression are in fact inferior to the forms of expression are in fact inferior to the permitted forms?permitted forms?

This is a 14This is a 14thth and 1 and 1stst Amendments violation. It is not Amendments violation. It is not rationally related to the ends sought and it prejudges rationally related to the ends sought and it prejudges the CONTENT of signsthe CONTENT of signs

Street Furniture and Design In Public Places

City of Cincinnati v Discover Network Discovery Network, Inc. is engaged in the business of

providing adult educational, recreational, and social programs to individuals in the Cincinnati area.

It advertises those programs in a free magazine that it publishes nine times a year.

Approximately one third of these magazines are distributed through the 38 newsracks that the city authorized Discovery to place on public property in 1989.

The Ordinance

The street furniture The street furniture ordinance passed by the ordinance passed by the City only targets City only targets “commercial” handbills, “commercial” handbills, magazines, and newspapersmagazines, and newspapers

It still allows “traditional” It still allows “traditional” newpapers to be sold from newpapers to be sold from newsrack dispensersnewsrack dispensers

Non-Traditional Press

Basics

Motivated by its interest in the safety and attractive appearance of its streets and sidewalks, the City of Cincinnati notifies Discovery Network that it must remove its newsracks within 30 days.

• The U.S. District Court concluded that -the regulatory scheme advanced by the City of Cincinnati completely prohibiting the distribution of commercial handbills on the public right of way violates the First Amendment.- The court found that both publications were -commercial speech- entitled to First Amendment protection because they concerned lawful activity and were not misleading.

The Harm – Says the District Court It explained that the -fit- in this case was

unreasonable because the number of newsracks dispensing commercial handbills was –minute compared with the total number (1,500-2,000) on the public right of way, and because they

It affected public safety in only a minimal way. The practices in other communities indicated that the

City's safety and esthetic interests could be dequately protected -by regulating the size, shape, number or placement of such devices.-

Cincinnati Goes To The Court Of Appeals The city argues that since a number of courts had

held that a complete ban on the use of newsracks dispensing traditional newspapers would be unconstitutional.

The -Constitution . . . accords a lesser protection to commercial speech than to other constitutionally guaranteed expression,- Central Hudson Doctrine

The City’s preferential treatment of newspapers over commercial publications was a permissible method of serving its legitimate interest in ensuring safe streets and regulating visual blight.

Appeals Court Disagrees

They hold that the lesser status of commercial speech is relevant only when its regulation was designed either to prevent false or misleading advertising, or to alleviate distinctive adverse effects of the specific speech at issue.

Because Cincinnati sought to regulate only the -manner- in which respondents' publications were distributed, as opposed to their content or any harm caused by their content, the court reasoned that the burden placed on speech cannot be justified by the paltry gains in safety and beauty achieved by the ordinance

Cincinnati & the Supreme Court

The fact that the city failed to address its recently developed concern about newsracks by regulating their size, shape, appearance, or number indicates that it has not -carefully calculated- the costs and benefits associated with the burden on speech imposed by its prohibition. The benefit to be derived from the removal of 62 newsracks while about 1,500-2,000 remain in place is minute

Indicates that the essential fit (NEXUS) is not there and that the City did “not go far enough.”

But The City Will Not Quit The city argues that it is wrong to focus attention on the

relatively small number of news- racks affected by its prohibition, because the

city's central concern is with the overall number of newsracks on its sidewalks, rather than with the unattractive appearance of a handful of dispensing devices.

It contends, first, that a categorical prohibition on the use of newsracks to disseminate commercial messages burdens no more speech than is necessary to further its interest in limiting the number of newsracks

Second, that the prohibition is a valid -time, place, and manner- regulation because it is content-neutral and leaves open ample alternative channels of communication.

The Court Retorts

The city's argument attaches more importance to the distinction between commercial and noncommercial speech than our cases warrant and seriously underestimates the value of commercial speech.

This very case illustrates the difficulty of drawing bright lines that will clearly cabin commercial speech in a distinct category. For respondents' publications share important characteristics with the publications that the city classifies as -newspapers.-

Particularly, they are -commercial handbills because they contain advertising, a feature that apparently also places ordinary newspapers within a different category.

Getting There

Publishers' newsracks are no greater an eyesore than the newsracks permitted to remain on Cincinnati's sidewalks.

Each newsrack, whether containing -newspapers- or -commercial handbills,- is equally unattractive.

Also, Under the city's policy, whether any particular newsrack falls within the ban is determined by the content of the publication resting inside that newsrack.

Conclusion

In sum, the city's newsrack policy is neither content- neutral nor, or narrowly tailored.

Thus, regardless of whether or not it leaves open ample alternative channels of communication, it cannot be justified as a legitimate time, place, or manner restriction on protected speech.

Newsrack Design

Some Future Fights Street furniture that advertisesStreet furniture that advertises

Charging impact fees for streetscape Charging impact fees for streetscape and furniture and furniture

Porn delivered by WiFi Porn delivered by WiFi

New Entries Into The Fray