Transcript

IN THE SUPREME COURT OF THE UNITED STATES

CITY OF CINCINNATI, Petitioner v. DISCOVERY NETWORK, INC., ET AL.

No. 91-1200

November 9, 1992

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:46 a.m.

APPEARANCES:

MARK S. YURICK, ESQ., Assistant City Solicitor, Cincinnati, Ohio; on behalf of the Petitioner.

MARC D. MEZIBOV, ESQ., Cincinnati, Ohio; on behalf of the Respondent.

PROCEEDINGS

10:46 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument next in Number 91-1200, City of Cincinnati v. Discovery Network, Inc.

Mr. Yurick, you may proceed whenever you're ready.

ORAL ARGUMENT OF MARK S. YURICK ON BEHALF OF THE PETITIONER

MR. YURICK: Mr. Chief Justice, and may it please the Court:

The issue presented by this case is whether the Respondents and other commercial speakers have a First Amendment right to place newsrack-type dispensing devices upon the public sidewalks of the City of Cincinnati.

The critical inquiry here is the interpretation of the fourth prong of the Central Hudson test, which requires a governmental regulation that burdens commercial speech to burden no more speech than is necessary to further the Government's substantial governmental interest.

It does not require a least restrictive means test, nor does the test require the regulation to completely accomplish the goal. In other words, the regulation is permitted to be underinclusive.

The fourth prong does require a balancing test. However, the Sixth Circuit in the city's opinion balanced the wrong things. The Sixth Circuit held that since a First Amendment right was implicated, that was to be balanced, the First Amendment, against the degree to which the interest was served.

The correct balancing test, according to the city, is the State interest taken as a whole versus the incidental burden on speech. Like the billboards in the Metromedia case, newsracks are large, immobile, and semipermanent structures, although they do have a communicative function.

By prohibiting Respondent's newsrack dispensing devices, Cincinnati has done no more than attempt to eliminate the problems posed by the noncommunicative presence of the newsracks.

QUESTION: Well, Mr. Yurick, you suggest an analogy to the Metromedia case, but isn't the city's position here perhaps stronger, because Metromedia was a regulation of billboards on private property? Here, the newspapers or the distributors are simply taking over public property, are they not?

MR. YURICK: I think that since public property is involved the city's interest in preserving that public property for all of the citizens of Cincinnati is perhaps stronger, and I believe that in the Metromedia case the prohibition was on offsite advertising, both public and private.

I believe that the exception in Metromedia was for onsite advertising. In other words, the owner of a commercial establishment could have a billboard on his own property advertising whatever goods were for sale there.

QUESTION: But no one was claiming a right to put a billboard on property owned by the State there, were they?

MR. YURICK: No, Your Honor, but that is precisely what Discovery Network --

QUESTION: Well, that's why I suggest --

MR. YURICK: And Harmon Homes are doing here.

QUESTION: Your case may be stronger than those of the billboard people, Metromedia.

MR. YURICK: Mr. Chief Justice, I would agree with you there, and I think that the point is -- well, it's a very good point.

(Laughter.)

QUESTION: Mr. Yurick, the city here is trying to draw a distinction, or does draw a distinction, between ordinary newspapers and the papers that were desired to be put out on the street by these Respondents, and yet I suppose ordinary newspapers contain a lot of advertisements as well, don't they?

MR. YURICK: Yes, Your Honor.

QUESTION: Now, we take this case on some kind of concession that this is commercial speech at issue and that ordinary newspapers are not.

MR. YURICK: Yes, Your Honor, I think that the parties agreed that the speech in question, the Respondent's publications, do constitute commercial speech.

There was testimony, in fact, at the hearing at the district court level that they were purely advertising, with the exception of Harmon Homes occasionally including an article about interest rates or something of that nature that might conceivably be considered noncommercial speech, but the district court made a finding there that the speech that was in -- even the speech that was in Harmon Homes' publication was not inextricably intertwined with the commercial speech.

QUESTION: But in point of fact, you're not making a commercial -- or your ordinance doesn't make a commercial-noncommercial speech distinction, does it? That's not what it turns on.

MR. YURICK: Your Honor, my witness said that the same problems are posed by boxes that contain commercial speech and boxes that contain noncommercial speech.

QUESTION: Well, that may be, but that is not the way you have drafted your ordinance.

MR. YURICK: I'm sorry.

QUESTION: Well, your -- as I understand it, your ordinance turns on the predominant dedication of the so-called newspapers to the dissemination of what, news of current events, I guess is the way it's described, isn't it, and yet everything which is excluded by that is not necessarily commercial speech, isn't that true?

MR. YURICK: I'm sorry, I think the distinctions made by the ordinances themselves are merely commercial versus noncommercial, and I think that the language used in the ordinances, which distinguish between commercial and noncommercial, use language that's been approved by the court. There was a memorandum --

QUESTION: In any case, you take the position that the definition of what we are for shorthand purposes calling newspapers is in fact a definition which divides the world into two categories, newspapers and noncommercial speech, is that correct?

MR. YURICK: I think that there are newspapers which are specifically allowed to be distributed from newsracks on the public streets of Cincinnati. I think that there are possibly other noncommercial types of speech which could be, I guess, mixed with commercial speech, although I'm not aware of any that have applied to the city for a newsrack permit.

QUESTION: But you are taking the -- if I understand you, you are taking the position that if it does not qualify as a newspaper, and hence does not qualify for the right to be displayed and sold from these boxes, it is -- the publication is noncommercial speech within the meaning of our cases, is that correct? Is that the way you are reading your ordinance?

MR. YURICK: I'm not sure that it is. I think that there are possibly some mixed commercial and noncommercial publications that don't qualify as newspapers, although I'm not aware of any. I concede that there may be publications like that. I think, though, that to the --

QUESTION: And there would be some nonmixed publications which are not newspapers but which are just as clearly not commercial speech, too.

MR. YURICK: That's correct, and I think that the ordinance also allows for the distribution in the public way of noncommercial handbills as defined in the code.

QUESTION: How does it do that? Maybe I'm just forgetting what I should have read better. How does the ordinance provide for those noncommercial but nonnewspaper distributions?

MR. YURICK: Noncommercial handbills are specifically in the exact section of the code. It's cited again in the briefs, but they are specifically permitted to be distributed.

QUESTION: They are expressly exempted from the --

MR. YURICK: Yes.

QUESTION: From the ban. Okay.

QUESTION: May I ask, while you're being interrupted, commercial hand -- do these newspapers here come within the definition of commercial handbills within the ordinance?

MR. YURICK: Newspapers --

QUESTION: No, I'm not talking about newspapers, I'm talking about the other sides to the publications.

MR. YURICK: Yes, they do, and --

QUESTION: Does that mean that they may not only not use these stationary devices, but they can't be distributed at all on the streets?

MR. YURICK: That would be correct, not on the public streets in the city.

QUESTION: They can't be handed out either.

MR. YURICK: According to the code, no, they wouldn't. However, Your Honor, I believe that Your Honor has asked me an overbreadth question, and --

QUESTION: I just asked you a factual question, whether, under the ordinance, as I understand it, your opponent's publications could not be either distributed through the stationary boxes or by having people hand them out to passers-by.

MR. YURICK: That's correct, Your Honor. However, I would point out that there is no indication in the record that either of the Respondents want to do that, and there's -- there are also various alternative means for the Respondents to communicate their commercial message.

QUESTION: Mr. Yurick, I understand that the real estate brochure involved here sometimes contained matter other than the mere listing of homes. I mean, it might comment on whether the market is soft or hard or what interest rates are, things of that sort.

MR. YURICK: That's correct.

QUESTION: Why -- but that isn't enough to make it qualify as a newspaper?

MR. YURICK: I think that under this --

QUESTION: How many ads do you have to have to be not a newspaper anymore?

MR. YURICK: Well, I don't think that the code makes any sort of percentage, or has any sort of percentage requirement, and I'm not certain that there is -- there should be any percentage requirement, because to the extent that even a small proportion of noncommercial speech is inextricably intertwined with commercial speech, that would render the enter publication noncommercial and the City of Cincinnati would permit that publication to occupy sidewalk space.

However, in this case, as I said, the district court made a finding, and it was not contested, that these articles that were in the Harmon Homes publication were not inextricably intertwined with the commercial message.

QUESTION: I don't under -- they were not inextricably intertwined. You mean, they could have been separated from the --

MR. YURICK: That's correct, Your Honor.

QUESTION: As opposed to the advertising in newspapers, which is inextricably intertwined?

MR. YURICK: Your Honor, the district court didn't make a finding on that and it wasn't really an issue in this case because neither of the Respondents claimed that they published newspapers. I don't know whether an argument could be made --

QUESTION: Never mind the argument, does the city apply that test to newspapers --

MR. YURICK: No, they don't.

QUESTION: That only advertising -- if the advertising can be separated -- no, it doesn't.

MR. YURICK: No. No, it doesn't. Newspapers of general circulation are --

QUESTION: Even if they put all their advertising in one section at the end, you know, advertising section, and all the rest is news, it would still qualify, right?

MR. YURICK: That's correct.

QUESTION: But this real estate brochure was not allowed to qualify on that basis.

MR. YURICK: The district court made a finding that they didn't qualify --

QUESTION: And you support -- and the city supports that finding, correct? I mean, the city says that it will exclude this magazine because although it contains nonadvertising matter, that advertising matter is -- could be separated, and that's the reason the city will exclude it.

MR. YURICK: That's correct.

QUESTION: But it won't exclude newspapers on that basis.

MR. YURICK: No, it won't, Your Honor, and Your Honor, might I say the ordinance is, or it could be considered underinclusive on that point.

I don't think that the distinction is nonsensical merely because the City of Cincinnati is only trying to address a very limited portion of its safety and aesthetic problem. I don't think that the city should be forced to address or incidentally burden even a larger group of speech.

QUESTION: Well, assuming that to be true, isn't your real problem here as you're describing it not that the audience is perhaps underinclusive but that the ordinance is inarticulate, and we have no way of knowing what the city might decide to do next either in drawing the kind of distinction that Justice -- or applying the kind of distinction that Justice Scalia was discussing to what we would call regular newspapers, or in deciding what the percentage mix between advertising and news ought to be. In point of fact, the city is left under the ordinance with a standardless discretion, isn't it?

MR. YURICK: No, Your Honor, I don't think it is left with a standardless discretion. Again, I think that commercial, noncommercial, and newspaper standards are sufficient. It's not a case like --

QUESTION: Well, let's just get down to the definition of what we're calling newspapers. I don't have the text of the ordinance in front of me. Doesn't it refer to what we're calling newspapers as something which is predominantly or primarily devoted to the dissemination of news of current events? Is that the scheme?

MR. YURICK: There was a memorandum sent from the city manager, who is the chief executive officer --

QUESTION: Well, first, how about just the text? Help me out on the text.

MR. YURICK: The text of the ordinance doesn't say anything about --

QUESTION: It says nothing whatsoever. So the language that I was thinking of was in this memorandum.

MR. YURICK: It was in a memorandum from the city manager, who is the chief executive officer of the city, to the city engineer.

And what that memo stated, paraphrasing, is that from this point forward, in terms of applying regulation -- administrative regulation number 38, which is an administrative -- an internal administrative direction from the city manager to the departments about how to apply the ordinances and how to interpret them, that in interpreting the term, or in interpreting the term, newspapers of general regulation, for purposes just of allowing a box on the sidewalk, which is what administrative regulation 38 deals with, that newspaper of general circulation should be interpreted as relating to publications which predominantly cover current events or political affairs, things of that nature.

QUESTION: Did he later testify that, roughly speaking, he would suppose that predominantly applied -- predominantly implied that there would be something better than 50 percent of the space devoted to the current events?

MR. YURICK: I think what the city engineer, Tom Young, testified to was that that would present a very close case.

QUESTION: Okay, but in -- and in point of fact I gather it's in the record that most newspapers are 70 percent advertising.

MR. YURICK: I don't think that there -- that is in the record.

QUESTION: There was no testimony to that effect?

MR. YURICK: I don't think there is any testimony.

QUESTION: They just put that in the brief.

MR. YURICK: I don't think --

QUESTION: Okay.

MR. YURICK: I don't -- I don't think there's any testimony to that in the record, Your Honor.

QUESTION: All right, well --

MR. YURICK: I think the testimony related to, again, Respondent's particular publications which were admittedly not newspapers.

QUESTION: Okay, so in any case, you stand on the fact that the city's construction of its ordinance involves the word predominantly, and predominantly would call for a publication with 50 percent news as opposed to 50 percent advertising, and that's the way the ordinance is going to be interpreted and applied, is that the position that you rest on?

MR. YURICK: Yes.

QUESTION: Aren't there other ordinances that expressly permit the distribution of newspapers on a public right-of-way?

MR. YURICK: Yes, there are. I'm sorry --

QUESTION: 911-17 and 862-1.

MR. YURICK: Yes, Your Honor, newspapers of general circulation are expressly permitted, and again, I guess I would have to say whether they --

QUESTION: Do they have definitions of what is a newspaper of general circulation?

MR. YURICK: No. No, and again I would have to say that the 50-50 distinction was said by the city engineer to present a closed case. I don't mean to suggest that if a particular newspaper only had 30 percent noncommercial speech in it and 70 percent commercial speech that they would not be permitted to occupy space on the city sidewalks.

QUESTION: Do you measure this by words or by area, the 30 percent/50 percent?

MR. YURICK: I'm sorry, Your Honor, I think that Your Honor's question points out that perhaps there should be no exact percentage.

QUESTION: Yes.

MR. YURICK: A newspaper I think is not such a vague term that it can't be understood, or that the use of the word newspaper of general circulation in the statutory scheme can't be understood by a reasonable person.

As a matter of fact, at the hearing in the case at the district court, the Respondents were both asked, did the publications constitute newspapers, and they were both able to answer the question rather quickly. I don't think it's such a vague term that it gives the city unbridled discretion.

QUESTION: May I ask just one other basic question? As I read the ordinances in the district court's opinion, or the findings, they don't say anything about these devices. They talk about distribution of handbills and newspapers. Is there any mention of the vending devices in any city ordinance?

MR. YURICK: There is no specific mention of the devices in the city ordinances.

QUESTION: So however --

MR. YURICK: However, in the administration regulation --

QUESTION: So all the law out of this is an administration regulation by the city engineer or city manager, something like that.

MR. YURICK: The city manager --

QUESTION: Yes.

MR. YURICK: Who is the chief executive officer.

QUESTION: But the ordinances themselves don't even tell us anything about these devices or the number that might be appropriate, or anything like that.

MR. YURICK: No, just the administrative regulation.

QUESTION: Well, doesn't the newspaper or anybody else that wants to put one of these have to get a permit?

MR. YURICK: Yes, they do have to apply for a permit.

QUESTION: But that's just by regulation.

MR. YURICK: That's pursuant to the administrative regulation. There's no ordinance that grants them the right to a permit. That's all in the administrative regulation.

QUESTION: But I take it it would be inconsistent with the ordinances, or would it, for the city to deny the right to newspapers to distribute the newspapers through these boxes.

MR. YURICK: It's newspapers of general circulation in the ordinances, specifically or excepted from the prohibition.

QUESTION: Well, I know, but it doesn't say that the ordinances doesn't protect the right of a newspaper to put -- to distribute through these boxes by occupying public property.

MR. YURICK: No, Your Honor, the administrative -- through the administrative regulation they have been afforded the privilege of placing these boxes on the city sidewalks. I'm -- the only case that I'm aware of on this subject, this Court's prior, left the question specifically open. That was the Lakewood v. Plain Dealer case.

QUESTION: But is it not true that it would be consistent with the ordinances for the city manager to say we're just not going to have these boxes at all.

MR. YURICK: If the administrative regulation were to be repealed and --

QUESTION: Who promulgates --

MR. YURICK: There's no reason whether the ordinance --

QUESTION: Who promulgates the administrative regulations?

MR. YURICK: The city manager.

QUESTION: So the city manager could change his regulation and say we're not going to use any boxes, or he could also say we're going to allow 500 boxes, and that's going to be enough, and he could also say they'll all be painted red, or they'll all be painted green.

MR. YURICK: That would be correct.

QUESTION: You've said several times newspapers of general circulation. I don't find the phrase, of general circulation, in -- maybe I don't know where it is, but I don't find it in the --

MR. YURICK: I'm sorry.

QUESTION: In the code. It may be --

MR. YURICK: It may just say newspaper.

QUESTION: I think that's what it says.

MR. YURICK: In this case, the regulatory scheme as applied, and by prohibiting Respondent's newsrack devices, does no more than attempt to eliminate the problems posed by the noncommunicative presence of the boxes.

The entire burden, again, is limited to the elimination of newsracks, and no portion of the incidental burden on the speech fails to serve the city's substantial governmental interest in eliminating the safety and aesthetics problems posed by the newsracks.

QUESTION: Mr. Yurick, why do you pick on commercial speech? I'm thinking back -- of the important decisions I've made in my life, certainly buying a house is enormously important. I mean, much more important to me than the latest state of the war in Bosnia, and your city manager makes the decision that people must be allowed to find out the latest news from Bosnia but cannot be given from these same boxes information on the choices they have in buying a house.

Why is that speech so unimportant that it can be suppressed this way?

MR. YURICK: Well, it's certainly not unimportant, Your Honor. That's not the city's contention.

QUESTION: Well then, what else is the matter with it? Is it obscene?

MR. YURICK: The city's contention is --

(Laughter.)

MR. YURICK: Certainly not, Your Honor -- that noncommercial speech throughout the precedence of this Court's prior cases has been afforded a lesser degree of First Amendment protection.

QUESTION: For purposes that had something to do with the distinctive nature of commercial speech, but commercial speech doesn't clutter up your sidewalks anymore than noncommercial speech does, does it?

MR. YURICK: That would be correct, Your Honor.

But again, I think that to the extent that we didn't make a distinction between commercial versus noncommercial speech -- in other words, do what the Sixth Circuit said and just provide for a limit to the number of total boxes and apply the scheme on a first-come-first-served basis -- that to the extent that there was one slot, one box space open and both -- we had an application from both a commercial speaker and a noncommercial speaker, to the extent that we were to allocate that public space to a commercial publication to the exclusion of a noncommercial publication, we would probably be in violation of the Metromedia case which says that a regulatory scheme which makes a distinction between commercial versus noncommercial speech cannot give a preference to commercial speech over noncommercial speech.

QUESTION: Well, we're not talking about giving a preference, we're just talking about equal treatment.

MR. YURICK: Well, Your Honor, I think that whether it's a specific preference in the ordinance or a preference that simply occurs as a result of an inadequate scheme, I'm not certain that that makes a difference.

QUESTION: I don't -- what are you going to do when you have too many noncommercial publications to fill up your news boxes?

MR. YURICK: I don't think that making -- again --

QUESTION: You think you have to allow as many noncommercial --

MR. YURICK: No, Your Honor.

QUESTION: Can you have a first-come-first served?

MR. YURICK: Yes, we can. Among noncommercial speakers --

QUESTION: Well --

MR. YURICK: I think that we could.

QUESTION: Just among noncommercial, but not among commercial.

MR. YURICK: I believe that's correct. Again, Metromedia --

QUESTION: Bosnia wins again.

MR. YURICK: Yes, Your Honor. I believe that to the extent that, again, the ordinance or statutory scheme that the city would promulgate would allow a commercial speaker to have a space while forbidding a noncommercial speaker to have that access, that it would be a violation of Metromedia.

QUESTION: Well, what -- you -- the city seems to say that commercial speech does not enjoy the same protection as noncommercial speech does under the First Amendment --

MR. YURICK: That's correct, Your Honor.

QUESTION: And therefore you should be able to ban these boxes.

MR. YURICK: We should be able to regulate these structures in the public way.

QUESTION: But I thought you -- I thought the lesser protection given to commercial speech was based on its content, don't you agree?

MR. YURICK: I would say the difference in the degree of deference due a local government in regulating commercial versus noncommercial --

QUESTION: Well, my question is, what do you think justifies giving commercial speech less protection than noncommercial speech? Isn't it its content?

MR. YURICK: The distinction has to be made on content, but I don't --

QUESTION: Well then, what has that distinction got to do with cluttering up the streets, whether commercial distributors should have less opportunity to distribute on the streets?

MR. YURICK: Well, again, I guess to the extent that the legislature has a greater degree of latitude in regulating commercial speech as opposed to regulating noncommercial speech, my answer to the question would be that it's not necessarily that that ought to be the decision that the legislature makes, but it is one that it can make under this Court's prior precedents.

QUESTION: Does that latitude --

QUESTION: Do the Respondents charge for their brochures or flyers?

MR. YURICK: No, they don't, Your Honor, they are distributed free.

QUESTION: Well, I suppose the city might conclude that something that you get for free you're more likely to throw away on your way home than something you paid for like a newspaper.

MR. YURICK: I think that the city could conclude that, Your Honor.

I think there might be danger in the city regulating on that basis, because the third prong of the Central Hudson test which has been satisfied here -- and I think both courts have found that this ordinance directly affects the city's substantial governmental interest -- an argument could be made that as in Schneider v. the State, this Court has said that banning hand-billing because the handbills might be used as litter wasn't a -- there wasn't a direct enough nexus.

I don't think there's that problem here.

QUESTION: Does the city's latitude that you contend for, it's latitude in regulating commercial speech, permit it to regulate substantially more commercial speech than is necessary to accomplish its interest?

MR. YURICK: No, Your Honor, and again, in this case I think that the interests posed were the interests in the safety and aesthetics of the sidewalks, and I think there was testimony that these boxes detracted from the safety and aesthetic interest of the sidewalks, and that is exactly what is being banned.

Again, both Discovery Network and Harmon Homes have alternative means of distributing their communications. In Harmon Homes' case, 85 percent of their publications are distributed through other means, and in Discovery Network's case, 66 percent are distributed through other means.

QUESTION: What about the local newspaper? What percentage of theirs are distributed by home delivery?

MR. YURICK: I'm not really certainly, Your Honor.

QUESTION: Probably very high, isn't it? I mean, in that respect there's no reason to think that the newspapers are any different from the commercial publications.

MR. YURICK: That might be so, Your Honor. I don't know that it's in the record. Again, this was treated more as an as-applied challenge than a facial or an overbreadth challenge, so --

QUESTION: May I ask, your section 701(c), the ordinance that prohibits handbilling on the public streets entirely, has that been in effect since a long, long time ago. It seems to be almost unconstitutional on its face.

MR. YURICK: I don't think that it's unconstitutional on its face, I think that it was drafted probably closely after the Christensen -- Valentine v. Christensen case --

QUESTION: Yes.

MR. YURICK: Because the language in that statute closely resembles that in the Christensen case.

QUESTION: Long before the Court had held that commercial speech had any protection under the First Amendment this ordinance was drafted.

MR. YURICK: That's correct --

QUESTION: Yes.

MR. YURICK: But I don't necessarily think that that makes the ordinance unconstitutional on its face.

QUESTION: No, of course that wouldn't but --

QUESTION: Thank you, Mr. Yurick.

Mr. Mezibov, we'll hear from you.

ORAL ARGUMENT OF MARC D. MEZIBOV ON BEHALF OF THE RESPONDENTS

MR. MEZIBOV: Mr. Chief Justice, and may it please the Court:

In this case the City of Cincinnati seeks to enforce against Harmon and Discovery's publications an outright ban on the distribution in public areas of important and valuable information concerning economic and educational opportunities as part of a regulatory scheme which on its face allows city officials to make unprincipled and standardless decisions about what kinds of speech and what speakers can be on the public areas.

QUESTION: Now, Mr. Mezibov, you want us to consider the case on the assumption that your clients engage only in commercial speech, is that right?

MR. MEZIBOV: Justice O'Connor, we did not take up the matter of whether we are or are not commercial speakers.

QUESTION: So you want us to decide it on the basis that your clients engage only in commercial speech.

MR. MEZIBOV: Your Honor, we feel that this case can be decided --

QUESTION: Yes, or no?

MR. MEZIBOV: As if we are commercial speakers --

QUESTION: Okay.

MR. MEZIBOV: Just as the lower courts have determined --

QUESTION: All right.

MR. MEZIBOV: In accordance with the Central Hudson criteria.

QUESTION: And you want us to assume, do you, that the newspapers that the city allows to be placed in newsracks are entitled to greater protection than that of commercial speech.

MR. MEZIBOV: Certainly not in these circumstances.

Your Honor, we did not concede that we are commercial speakers, and although we have not appealed that issue, we have never conceded that newspapers are not also commercial speakers within the city's own dictionary. They are, by definition, as much commercial speakers as we are. The city's scheme is quite confused on that point.

QUESTION: But that kind of withdraws your answer to Justice O'Connor in a way, doesn't it, because we have held that in -- I think in the New York Times v. Sullivan case, didn't we, that the fact that there was -- the libel might arise out of an advertisement did not make it just commercial speech. At least it was entitled to full First Amendment protection.

MR. MEZIBOV: Well, the city has drafted a scheme of ordinances which includes in it definitions of commercial speech -- commercial handbills, that is -- and a definition of noncommercial handbills. There is no definition whatsoever of what constitutes a newspaper.

On the one hand, newspapers are expressly permitted on the city streets by reason of 911-17. On the other hand, the city expressly prohibits the distribution of commercial handbills in all public areas.

According to the city's own scheme of regulating commercial handbills, a commercial handbill is any printed matter which advertises for sale any merchandise, product, commodity or thing, or which directs attention to any business or mercantile or commercial establishment or other activity for the purpose of directly promoting the interest thereof by sales, or which directs attention to or advertises any meeting, theatrical performance, exhibition, or event of any kind for which an admission fee is charged for the purpose of private gain and profit.

I submit, Mr. Chief Justice, that there is no newspaper on the streets of Cincinnati which does not constitute a commercial handbill under the city's own scheme of definitions.

QUESTION: No, but they have a separate ordinance -- 911-17 -- that expressly allows the distribution of newspapers, and it was enacted later, so it's in the nature of -- notwithstanding the definition of handbill, a newspaper can be distributed.

MR. MEZIBOV: A newspaper can, but a newspaper is not defined. A newspaper could as easily fall within this definition --

QUESTION: Well, it does fall within that definition --

MR. MEZIBOV: As any other definition.

QUESTION: Without any doubt --

MR. MEZIBOV: Exactly.

QUESTION: I mean, that's true. Wouldn't you read the later ordinance as saying, but we are not applying this handbill prohibition to newspapers?

MR. MEZIBOV: If I knew what a newspaper was under the city's scheme.

QUESTION: Well, there is some merit to the notion that we have some idea that what are on these boxes are probably newspapers.

MR. MEZIBOV: Well, the city itself has --

QUESTION: Maybe your paper could also qualify as a newspaper, but you don't make that contention.

MR. MEZIBOV: No, we do not.

QUESTION: Yeah.

MR. MEZIBOV: But it is our contention that we are no more commercial within the city's scheme than is a newspaper.

QUESTION: Now, does the city ordinance only allow the sale of newspapers, not the distribution if there's no sale?

MR. MEZIBOV: I believe it's the distribution.

QUESTION: I thought the language was sale.

MR. MEZIBOV: They may be sold from racks, that's correct.

QUESTION: You can't give them away.

MR. MEZIBOV: 911-17 says they must be sold.

QUESTION: And apparently only in the morning or afternoon, not in the evening. You don't have an evening newspaper in Cincinnati.

MR. MEZIBOV: No longer.

QUESTION: It's a very beautifully drafted ordinance.

(Laughter.)

QUESTION: Either in the morning or afternoon where permission has been obtained.

MR. MEZIBOV: Since at least 1971, the city has had on its books this ordinance which prohibits the public distribution of all printed matter which satisfies the city's definition of a commercial handbill, and it was this ordinance which the city invoked when they directed our clients to remove their newsracks only from the city right-of-way.

There's no question, therefore, that this scheme is subject to a facial challenge, as it affects not only the use of newsracks on the city streets, but the distribution of all printed matter on the city streets.

QUESTION: When you say this ordinance, Mr. Mezibov, you're referring to, what, section 714-23 --

MR. MEZIBOV: That's correct, Mr. Chief Justice.

QUESTION: And any other parts -- the definitional section 714-1-C --

MR. MEZIBOV: And 714-1-N, which defines as a noncommercial handbill anything not contained in the definition of a commercial handbill.

This scheme obliterates any meaningful or discernible distinction among publications. If our publication is commercial, so, too, is a daily newspaper, and while a city argues that there should be or is a bright line distinction, the First Amendment purpose as between commercial and noncommercial speech, its inability to make such a distinction is demonstrated by this legislative scheme as well as by the letter regulation by the city manager, who advanced --

QUESTION: This wasn't really the basis for the court of appeals opinion, was it?

MR. MEZIBOV: No, it was not. The court of appeals looked at this case from the Central Hudson --

QUESTION: Well, are you defending the court of appeals rationale?

MR. MEZIBOV: Oh, I think the court of appeals correctly decided this case --

QUESTION: That isn't what I asked you.

MR. MEZIBOV: -- Central Hudson.

(Laughter.)

QUESTION: Do you defend the way they arrived at the result?

MR. MEZIBOV: Yes. The court of appeals did not reach the facial argument, they decided the case on an applied basis, but certainly this is a fair approach to this regulatory scheme, because it continues to be problematic.

QUESTION: So you think they were quite right in identifying the kind of a balance that they thought they should apply.

MR. MEZIBOV: I think Judge Boggs who wrote the opinion was quite correct --

QUESTION: Yes or no.

MR. MEZIBOV: Yes.

Shortly after our publications were directed to be removed from the public right-of-way the city manager passed a regulation which attempted to put some definition into the city scheme.

That letter regulation defined as noncommercial that which is a daily or weekly publication primarily presenting coverage of or commentary on current events, and as we know from the record below, the city engineer is unable and remains unable to give a clear definition of what constitutes a noncommercial publication, notwithstanding the city manager's letter.

While the city's inability to establish clear standards with regard to a distinction between noncommercial and commercial speech is not necessary in resolving this matter, the facial infirmities of the scheme are such that it warrants further consideration insofar as it points out the difficulties in dealing with speech and with the possibilities of favoritism and bias when a city is unable to define with any certainty what constitutes commercial and what constitutes noncommercial.

In this situation, that threat is not merely potential or hypothetical. We believe the record demonstrates that the threat is palpable.

In this case, the record reveals that the City of Cincinnati works on an ongoing basis with certain publishers, namely the city's daily newspapers, in coming up with regulations governing newsracks. That's significant, because it indicates that there is a threat of favoritism or bias on the part of a city in dealing with different speakers, when the speakers are essentially publishing the same types of materials.

QUESTION: Do you think the city could distinguish between newspapers of general circulation, or whatever you want to call it, on the one hand, and commercial handbills on the other as to distribution if it precisely defined each category so that the city manager would not be chargeable with any unbridled discretion?

MR. MEZIBOV: It may be possible to draw such a distinction, but there would be no need for a distinction insofar as newsracks are concerned. If the city's problem here is newsracks, then it ought to be newsracks which it regulates. There's no reason here, certainly none developed by the record, which would demonstrate a need to regulate newsracks based on the content of the publications contained in it.

QUESTION: So you say, then, the city could not, even with proper and careful definitions, distinguish between newspapers and commercial flyers with respect to distribution by newsracks.

MR. MEZIBOV: There certainly would be no reason to, based on the ostensible reasons for the city's passing the codes.

QUESTION: Well, supposing it passed an ordinance that did that, do you think it should be upheld?

MR. MEZIBOV: No, it may not be attacked necessarily on facial grounds, but it certainly would be on an applied basis if, as in this instance, the city's reasons, which ostensibly are safety and aesthetics, have nothing to do with the content of the publications.

QUESTION: Well, suppose the ordinance forbade newsracks that dispensed the material for free and permitted only those that are coin-operated. Would that be permissible?

MR. MEZIBOV: No, I don't believe that would be permissible. That would place a burden on speech and speakers which would be unnecessary and not related to the city's --

QUESTION: Well, suppose it were shown that in the case of coin-operated racks they did not have many of the evils that free ones do -- they were not receptacles for garbage, they were better maintained.

If the city had that factual background, could it then enact the ordinance that I suppose?

MR. MEZIBOV: I think under those circumstances it may be possible for the city to do that, so long as the reason for that ordinance is not based on the notion that to be commercial or noncommercial is determined by whether or not you charge a fee, and so long as the amount of money that's required to operate that machine is not of such an amount that it would place a burden on one speaker or another.

QUESTION: Well, suppose the minimum were a quarter -- 25 cents?

MR. MEZIBOV: That may be reasonable, if it advances a legitimate governmental interest. If that would curb the problem, perhaps --

QUESTION: I thought the ordinance here just allowed the selling of newspapers in newsracks, not giving them away.

MR. MEZIBOV: 911-17, Justice O'Connor, does say that cities are permitted to sell news --

QUESTION: Just sell.

MR. MEZIBOV: Newspapers by newsracks.

QUESTION: Nothing else.

MR. MEZIBOV: That's correct.

QUESTION: You can't give them away.

MR. MEZIBOV: Not according to 911-17, but our publications cannot be distributed on city streets by any means, newsracks or otherwise.

QUESTION: Couldn't you distribute them by adding them as inserts to the newspapers?

MR. MEZIBOV: If our publishers were to buy space in the city newspapers, that potentially could happen, but that would change our entire means of operation, and also, of course, there's never any guarantee that newspapers will accept advertising from all advertisers.

So it may well be that if we are banned from newsracks and banned from distributing by hand or otherwise in public areas, we may be totally banned from distributing our publications throughout the city by any means.

QUESTION: What if the city were to provide in an ordinance that the only way you can put a newsrack -- anybody, newspaper, flyer, or anything else, on a city street is to lease the space from the city, since it owns the space?

MR. MEZIBOV: Well, I think that would present a large problem for publishers such as ours who do not have the financial wherewithal --

QUESTION: Yes, lots of laws do present financial problems to people in business. Would this law be unconstitutional?

MR. MEZIBOV: I believe that there is underlying the right to distribute speech in public areas the right to erect newspapers, unless --

QUESTION: The right to just take over public property?

MR. MEZIBOV: Mr. Chief Justice, I don't believe that if a city has a scheme of regulation by which publishers are licensed to use space in accordance with terms established by the city that they are appropriating public property for private purposes.

QUESTION: But supposing the city just repeals all its present ordinances and says, you know, they've got us into a lot of litigation, one case went all the way to the Supreme Court, we're just going to have a flat regulation that first-come, first-served, anybody who wants to put a newsrack on public property can do so, so long as they pay the fair value of the lease for the period of time they're occupying it.

MR. MEZIBOV: Depending on the amount of money needed to get that leasehold, Your Honor, I suppose the city might be able to do that, so long as that scheme is not contrary to public forum considerations. After all, newsracks --

QUESTION: Does the public forum doctrine require the city to let private people appropriate public property indefinitely?

MR. MEZIBOV: Public forum doctrine speaks to a tradition in this country, which is that people expect to see and be seen and hear and be heard on public streets.

Newsracks meet the expectations and needs of citizens. They're found in virtually every city. They're found on many street corners. That's because people expect to find them there. People use them.

The use of newsracks I don't believe, Mr. Chief Justice, is contrary to the purposes of cities regulating streets. It seems to be a consistent application.

QUESTION: Well, very likely because the cities know that people want to buy, have newsracks available, but I don't think that answers the question of whether the cities might charge the fair value of a year-to-year lease for that small bit of property.

MR. MEZIBOV: Again, I think perhaps that problem may be addressed by whether or not the amount of money charged is placing too large a burden on speech.

If the amount of money would not be such as to prohibit or prevent all speakers from using that leasehold, then perhaps in those circumstances that might be a constitutional ordinance.

QUESTION: What if the city has a large auditorium that it makes available to private groups and you have to lease the auditorium. You have to pay for the janitorial service, the lights, and so forth, and one group says, well, we want to use this auditorium, but we just can't afford that price, even though we concede it's fair value.

Do you think they have a constitutional right to use that auditorium?

MR. MEZIBOV: Your Honor, I have not considered that issue in the context of this case because our case is in part a public forum case. I'm not sure that the Chief Justice's --

QUESTION: Well, Mr. Mezibov, downstairs in the public areas of this building there's a little section set aside where there are three or four newsracks. Now, is it your position that it would be unconstitutional for this Court to refuse to provide additional newsracks for commercial speech such as your clients have here, or can we limit that space somehow and say, we have a very small space, and we have to allocate it somehow so we're going to allocate it only to fully protected speech?

MR. MEZIBOV: Justice O'Connor, your question poses a hypothetical which is not present in our case, that being limited resources. It's important to note that in this --

QUESTION: Well, what is your answer?

MR. MEZIBOV: The answer is, in the absence of limited resources --

QUESTION: Well, if there are limited resources, what is your answer -- limited space?

MR. MEZIBOV: That it may be necessary for the Court or for the governing body to make some distinctions.

QUESTION: Can you draw the line on the basis of commercial versus noncommercial speech --

MR. MEZIBOV: I think that --

QUESTION: In that circumstance?

MR. MEZIBOV: The answer is, I'm not sure. It may be of such a limited space that --

QUESTION: Assuming it's viewpoint neutral, just all commercial speech, no.

MR. MEZIBOV: The Court has placed a higher priority on noncommercial speech, that we know, but only when it is necessary to regulate.

QUESTION: Well, in a sense, aren't city streets a finite resource? At some point they're too cluttered, or they interfere with traffic, or what-have-you. Can the city make that kind of a distinction out on the streets?

MR. MEZIBOV: That situation has not presented itself in Cincinnati, but it could be that we get down to a last street corner, and I would suggest that in those circumstances what the city with a governing body must do is develop objective, content-neutral criteria to determine who that final speaker will be on that street corner.

QUESTION: Well, the content-neutral criteria is all commercial speech. We're not going to allow it.

MR. MEZIBOV: I don't believe that would be a content-neutral distinction.

If here, for example, the problem with our publications is that it's commercial speech, then the city ought to -- and I'm not suggesting this is what they ought to do, but to be fair they should ban all commercial speech, that contained in our publications and that which falls out of the daily newspapers on a daily basis.

They've not chosen to do that, nor have they chosen -- what they have chosen to do is make a distinction based on content, which does not meet the city's real needs.

QUESTION: Mr. Mezibov, I guess I don't understand your position, then. I had thought from your briefs that your answer to Justice O'Connor's question would have been that you do not acknowledge -- you do not acknowledge that commercial speech is not fully protected speech in the same sense that all speech is -- I mean, in one sense no speech is fully protected speech, because it can't be given everywhere.

There are restrictions that can be placed as to time, place, and manner. I thought that's what your brief said, that commercial speech is speech, and it's entitled to constitutional protections.

MR. MEZIBOV: It is our position that --

QUESTION: It can be limited more than other speech only because of particular dangers that commercial speech may have and with respect to those particular dangers, but when those particular dangers are not present, it has to be treated like other speech.

I thought that's what your brief said, but it's certainly not what your answer says. Your answer says now that in our building here we can say no commercial speech, just noncommercial speech. We can do that.

MR. MEZIBOV: No, it is our position --

QUESTION: It depends on how much space we have for racks, you now tell us.

MR. MEZIBOV: What I said in response to Justice O'Connor, Justice Scalia, is that there may be such a limited resource situation not present in the case we have here --

QUESTION: I thought your whole case was that limitation of resources has nothing to do with the distinction between commercial and noncommercial. Fraud does, prior permission perhaps does, but certainly not space. Commercial and noncommercial take up just as much space. Isn't your answer totally inconsistent with what you said in your brief?

MR. MEZIBOV: Mr. Justice Scalia, I believe -- I did not make myself as clear as I should have. I believe that in a limited resource situation the governing body should develop objective, content neutral basis to make that decision about what speaker is there, and perhaps I did misspeak or did not speak as clearly as I should have.

QUESTION: And content neutral means no distinction between commercial and noncommercial.

MR. MEZIBOV: Unless there is a reason to grant --

QUESTION: yes.

MR. MEZIBOV: To make that distinction, which is not present here.

QUESTION: With respect to space or aesthetics, there is no such reason, isn't that your point?

MR. MEZIBOV: That's correct.

QUESTION: Okay.

QUESTION: What about the reason the Chief Justice suggested, that if it's given away free it's more apt to be tossed on the sidewalk than if you have to pay for it.

MR. MEZIBOV: There's absolutely --

QUESTION: Maybe it isn't a sufficient reason, but at least it would be a reason, wouldn't it?

MR. MEZIBOV: There's absolutely nothing here in the record to establish --

QUESTION: Oh, I understand that. We're off in the realm of hypotheticals here today.

(Laughter.)

MR. MEZIBOV: Thank you.

QUESTION: None of this has anything to do with this case, really.

(Laughter.)

QUESTION: It's just fun.

QUESTION: Yes. Do you understand my question?

MR. MEZIBOV: I do.

QUESTION: And you would agree that at least is a reason. If you said 25 cents or more, it's less apt to be litter than if it's free stuff.

MR. MEZIBOV: I could, but Mr. Justice Stevens, I think I could also say that maybe the best things in life are free, in response to your question, and that is there's no record here to establish that that happens --

QUESTION: I understand that, and there's no record here to show there's a --

MR. MEZIBOV: And there's no reason to believe that that necessarily happens.

QUESTION: They never approach the scarcity limit that they seem to me would have to have to justify what they're doing.

MR. MEZIBOV: Justice Stevens, if someone goes to the newsrack to take out one of our publications, I think we can draw the inference that-they want that publication because it affords them information about educational and economic opportunities which are valuable to them and they will take that with them just as they would a daily newspaper.

QUESTION: Nobody will pick it up just out of curiosity and say I wonder what this is. People do that with free things in all sorts of places. They pick it up, look at it, and see if they're not interested.

MR. MEZIBOV: Well, in this situation they have to go to the box and remove it. It's not being foisted upon them.

QUESTION: No, I understand.

QUESTION: Mr. Mezibov, I would have thought your answer to that question would have been that whether you charge for it or not has nothing to do with whether or not it's commercial speech. Newspapers are not commercial speech and they are generally charged for.

MR. MEZIBOV: That's correct.

QUESTION: Some types of purely advertising brochures, I think there are real estate things or automobile things that you pay money for even though it's all advertising.

MR. MEZIBOV: Yes, whether or not you charge or do not charge does not make something commercial or noncommercial.

QUESTION: You have no problem with charging -- with a law that says you have to charge for it, do you? No boxes unless you pay for them.

MR. MEZIBOV: If that price, as I indicated before, does not place too large a burden on one speaker or another, if it's an inordinate price, or if it's used to discriminate against one speaker than another, if it serves a legitimate purpose, if 25 cents per box was --

QUESTION: Yes, but 25 cents a box you'll let all the newspapers on the stand, they won't let your publications on. You wouldn't want this if you had to -- if people had to pay 25 cents for your publication.

MR. MEZIBOV: No, we would not.

QUESTION: So a 25 percent charge would have the exact same effect as this ordinance has --

MR. MEZIBOV: If the 25 --

QUESTION: In this case.

MR. MEZIBOV: That's correct, it could, although in this situation the regulatory scheme doesn't just place a burden with respect to newsracks, the city would have us off the city streets entirely, by any means.

I should also point out that in this situation there were 62 newsracks utilized by Harmon and Discovery's publishers, whereas 2,000 newsracks approximately would be permitted to remain on the city streets, according to the city's enforcement of this regulatory scheme.

In effect, as the lower courts have found, this scheme is an ineffective means of regulation. It never directly advances any legitimate governmental interest, because when our 62 are removed, we can anticipate that they will be replaced by 62 supposed noncommercial speakers, the daily newspapers.

QUESTION: Did you dispute in the courts below that your publication was commercial speech?

MR. MEZIBOV: We disputed it in the district court level. We did not appeal the district court's decision that we are commercial speakers. The reason --

QUESTION: So that issue in this case is just not open. You didn't carry it up to the court of appeals.

MR. MEZIBOV: No, we did not. We feel that this case can be properly decided on Central Hudson bases, that both the district court and the court of appeals properly applied Central Hudson --

QUESTION: Well, did your publication contain an offer of sale?

MR. MEZIBOV: There are two publications here, Justice White, the Harmon Homes contains real estate listings, a picture of a real estate offering, price information about that, as well as, from time to time, additional information. Discovery's publication has information concerning its course listings.

QUESTION: So I suppose at least the first publication you describe really fits the definition of commercial speech.

MR. MEZIBOV: To the extent the definition of commercial speech means proposes a commercial transaction, then indeed it does.

QUESTION: While you acknowledge that you do not have presented before us whether you are commercial speech, you also claim, however, that you are free to argue here that newspapers are as much commercial speech as you are.

MR. MEZIBOV: That's correct. That's one of the problems with this scheme, is that it is devoid of any meaningful standards.

Finally, the city has argued that the regulations in this case are content-neutral. That contention is unsupported by the record.

First, the regulation is directed expressly and explicitly at commercial speech. Second, only publications with commercial speech has been banned from newsracks.

QUESTION: Well, isn't your strongest argument on the lack of content neutrality that when you make a distinction between commercial and noncommercial which is not for the purposes for which the commercial speech regulation has been accepted by this Court, that that is by definition a content-based distinction? I mean, you don't have to go any further than that, do you?

MR. MEZIBOV: That's correct, Justice Souter. The city by invoking this ordinance has made a content-based --

QUESTION: Whereas if the city were regulating fraud in commercial speech, it would not be invalid simply because -- as content-based.

MR. MEZIBOV: That's correct.

QUESTION: Yes.

MR. MEZIBOV: That's correct.

QUESTION: May I ask one last question? Your opponents have given us amended regulation 38 at the end of their brief, which I guess is something that came later, signed by Sylvester Murray. Is he the city manager?

MR. MEZIBOV: He was a previous city manager.

QUESTION: Is there something in the record that defines the scope of the authority of a city manager? Do we know what -- is he kind of like a czar who can do anything he wants to --

(Laughter.)

QUESTION: Or is there some limitation on his power?

MR. MEZIBOV: I'm not sure that that is clear in the record.

QUESTION: Well, doesn't one of the ordinances give the city manager some -- and provided further that newspapers of general circulation in the City of Cincinnati be sold from racks, containers and bags, attached to poles, a-da-da, in accordance with rules and regulations promulgated by the city manager.

MR. MEZIBOV: There's no question that the city manager can promulgate the rules and regulations. I misunderstood the earlier question. I understood it had to do with interpretation.

The city manager does promulgate the rules and regulations, and it appears to be left to other city officials to interpret and apply those rules and regulations. In this case, it would have been the city engineer, primarily, who had responsibility to interpret and then apply the regulations.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Mezibov. The case is submitted.

(Whereupon, at 11:46 a.m., the case in the above-entitled matter was submitted.)