City of Cincinnati v. Discovery Network, Inc.

The city of Cincinnati, Ohio (plaintiff) had an ordinance (the ordinance) within its municipal code that prohibited commercial publications from being distributed on public property. Discovery Network, Inc. and Harmon Publishing Company, Inc. (collectively, the publishers) (defendants) published and distributed free magazines that contained a large proportion of commercial advertising. The publishers regularly distributed their magazines on news racks located on public property in Cincinnati. In 1990 Cincinnati’s director of public works (the director) notified the publishers that their magazines were prohibited from being placed on the news racks by the ordinance. The director justified the decision to disallow the publishers from distributing magazines via the news racks by arguing that the news racks were disrupting the safety and appearance of Cincinnati’s public streets and sidewalks. Altogether, the publishers occupied 62 of the almost 2,000 news racks that were placed throughout Cincinnati. Noncommercial publications were still allowed to be distributed via news racks because, Cincinnati argued, noncommercial speech was more valuable than commercial speech. The publishers challenged the ordinance in federal district court, arguing that it violated the First Amendment by discriminating against commercial speech. The district court agreed with the publishers and found that the burden the ordinance placed on commercial speech was not justified by the purported benefits to public safety and appearance that disallowing the distribution of the magazines created. The court of appeals upheld the district court, and Cincinnati appealed.