Supreme Court Rejects Broad Ban on Advertising

In a victory for advertisers, the Supreme Court ruled Wednesday that a city may not ban from its sidewalks the distribution of a free magazine loaded with real estate ads simply because the publication is not a traditional newspaper.

On a 6-3 vote, the justices rejected arguments by the city of Cincinnati that the Constitution’s guarantee of free speech always provides a “lesser protection” to advertising as compared to newspapers or political leaflets.

The dispute over news racks on the sidewalks of Cincinnati had become one of this year’s most closely watched cases because of its implications for everything from billboards and food labels to cigarette ads and cable television regulations.

But rather than announce a dramatically new doctrine, the Supreme Court reaffirmed its middle course on advertising and the First Amendment.

Government officials may ban some forms of “commercial speech,” such as billboards, if they can show that they clutter the landscape, the court has said. They may also, of course, regulate advertising of products when it is false or misleading.

But the government may not discriminate against advertisements and commercial announcements, the justices stressed Wednesday, just because they are commercial in nature, rather than news and commentary on public affairs.

Cincinnati officials sought to remove 62 news racks containing the free publications to reduce sidewalk clutter. At the same time, however, they retained nearly 2,000 news racks containing traditional papers.

But the high court rejected the city policy as a violation of the First Amendment.

The city “seriously underestimates the value of commercial speech,” wrote Justice John Paul Stevens for the court. “Cincinnati has enacted a sweeping ban that bars from its sidewalks a whole class of constitutionally protected speech.”

Its reason for the ban makes no sense, he said, because the news racks with the advertisers were “no greater eyesore” than the racks with the regular newspapers.

But the justices stopped short of saying that government can never ban advertisements. Rather, they insisted again that there must be a “reasonable fit” between any regulations and the reason for them. For example, billboards can be regulated because they are large and block the view from the highway, not because of their message.

First Amendment experts and business attorneys said that the ruling will strengthen the hand of advertisers in battles with Congress, federal regulators and city officials.

“We’re very pleased with it because it flatly rejects the notion that commercial speech is of such low importance that you can treat it separately,” said New York University law professor Burt Neuborne, who submitted a court brief on behalf of the Assn. of National Advertisers and other groups.

The Institute for Justice, a pro-business group in Washington, also praised the decision. “Commercial speech impacts directly on the lives of all Americans because we are all consumers,” said Scott Bullock, an institute attorney.

Chief Justice William H. Rehnquist and Justices Byron R. White and Clarence Thomas dissented in the case (Cincinnati vs. Discovery Network, 91-1200), arguing that the government should have broad power to regulate or ban advertising products.