Court protects access to news racks Commercial fliers can't be excluded

March 25, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- Street-corner news boxes cannot be se aside only for newspapers but may have to be opened to a wide variety of other circulars, fliers, commercial magazines and promotional items, the Supreme Court ruled 6-3 yesterday.

A publication cannot be banned from sidewalk vending machines simply because it is commercial in nature, when newspapers are allowed to be sold in those boxes, the court made clear.

The new ruling appeared to be one of the most significant in years on the constitutional status of what is called "commercial speech" -- publications, circulars, handbills or fliers that promote a commercial transaction or opportunity.

Although the decision left open the possibility that cities could ban the vending boxes entirely, it stressed that discrimination based on the content of an item generally would no longer be allowed. The ruling struck down a Cincinnati ban on "commercial handbills" in street-corner boxes.

The court also indicated that if a particular publication poses a problem, not related to what it contains, cities might be able to ban it from distribution on the sidewalk, but only if the city could justify singling out that item as a special problem that other publications would not cause.

The court offered no examples, but lawyers who had filed written arguments in the Cincinnati case suggested that cities might be able to justify limits on the use of boxes that open without coins, VTC thus permitting passers-by to discard trash in them. Such a limit, though, would be based on the physical nature of the box, not on the publication offered.

In another facet of the ruling, the court said that cities would be free to put controls on the size, shape, appearance or number of news racks.

Chief Justice William H. Rehnquist, writing for the dissenters, said the ruling "places the city in the position of having to decide between restricting more speech [by banning all news racks] and allowing the proliferation of news racks on its street corners to continue unabated."

News racks have been set up in increasing numbers on city streets across the country. The court noted yesterday that half of all the sales of single copies of newspapers now occur through news racks.

For several years, the court has been reducing constitutional protection under the First Amendment for "commercial speech," and the Cincinnati decision appears to partially reverse that trend.

The city of Cincinnati, noting that the court had said that commercial speech has a "lower value" constitutionally than political and related information, decided to ban only commercial publications from news racks. It said it was concerned about urban "blight" and about safety problems by having so many boxes.

The ban eliminated only 62 boxes, leaving nearly 2,000 used by newspapers. The city said it thought it might have constitutional problems if it went after the newspaper boxes, too.

The court, however, declared that singling out the commercial items for a ban from the boxes was itself a constitutional violation, because it underestimated the social value of commercial information and singled it out for discrimination. Eliminating only the commercial handbill boxes did not get at the problem, since the newspaper news racks contributed more to that problem, the court noted.

The opinion indicated that it had not meant in recent decisions to give the impression that, because commercial expression may sometimes be subject to more regulation than "traditional" political expression, there could be discrimination against the commercial forms in favor of the political.

Richard A. Samp, general counsel of the Washington Legal Foundation, a conservative legal think tank, said the new decision was "a tremendous victory for commercial speech." He said it "put to rest a lot of the fears" in business, advertising and public relations circles stirred by recent Supreme Court rulings allowing more regulation of commercial expression.

Mr. Samp suggested that the majority opinion, written by Justice John Paul Stevens, could be read broadly to mean that official regulation of commercial speech could come only if that kind of expression was deceptive, or proposed unlawful activity.

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