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A major victory for commercial speech.

The constitutional battle that F.J. Chrestensen started on the streets of New York City a little over a half-century ago is not yet won. But his spiritual heirs have gained a significant victory in a skirmish involving the streets of Cincinnati. As a result, the purveyors of commercial information in America--chiefly advertisers and public relations people--may never have seen as much promise of freedom.

Just as Chrestensen made a place for himself in First Amendment history by losing the first case the U.S. Supreme Court decided on commercial speech, two modern leafleteers-commercial marketing companies--seem to have found their own niche by winning the latest such fight before the court.

In New York City in the early 1940s, Chrestensen wanted to drum up tourist interest in a used Navy submarine he had bought and docked there, so he passed out promotional handbills. His handbills, entirely commercial in nature, ran afoul of a city ordinance banning such expression in public places. Upholding that ordinance in a 1942 decision (Valentine vs. Chrestensen), the Supreme Court ruled that the Constitution does not shield "purely commercial advertising" from government regulation.

For commercial speech, that was a flat declaration of its second class status as expression. For decades afterward, advertising and other promotion were exposed to sometimes stifling government controls that would never have been tolerated for noncommercial expression. Even in recent years, officials have hardly hesitated to take new steps to restrict commercial expression.

But they may now have to pause and consider the constitutional implications of imposing new restraints in the aftermath of the court's ruling in the case of Cincinnati vs. Discovery Network.

In a modern ordinance closely resembling the anti-handbill law that the court upheld in 1942, Cincinnati's City Council had forbidden anyone to "hand out or distribute or sell any commercial handbill in any public place." Local officials said they were worried about the blight and safety hazards caused by the proliferating newsracks on city sidewalks, and decided to enforce the handbill ordinance through a new regulation that specifically banned commercial leaflets, flyers, circulars and publications from newsracks in Cincinnati. Newspapers, however, were left free to use their newsracks.

Discovery Network, Inc., which publishes a free magazine to promote lectures, adult education and recreation courses it offers in the Ohio city, and Harmon Publishing Co., Inc., which publishes the free Home Magazine offering real estate for sale, went to court to battle the newsrack ban as well as the broader ordinance against all handbills. When the fight reached the Supreme Court, the titans of the news business trooped to the court to join--not altogether comfortably--the leading advertising groups and other partisans of commercial expression in their fight against the ban.

The press was concerned about the city having significant control of newsracks, since those devices have become a major factor in circulation of newspapers, too: Some 7.7 million copies of newspapers are sold daily from newsracks; that is about 46 percent of the daily 16 million single-copy sales of newspapers. But the press also mounted a defense of access to newsracks for purely commercial items (as long as there were enough newsracks to go around).

The advertisers and PR people were deeply fretful as they awaited the outcome of the Supreme Court review, because the court in recent years seemed to be retreating from the modest gains it had granted commercial speech since the 1970s.

When the final 6-3 ruling emerged, the court again refused to put commercial expression on an equal constitutional footing with traditional, noncommercial speech and writing.

But the language and reasoning the court used to justify its ruling were dear hints of liberation for commercial expression--partial liberation, to be sure, but greater freedom nonetheless. Cities may not put restrictions on commercial speech when they have no reason for doing so beyond an assumption that it has a "low value" compared to noncommercial speech, the court said.

"The interest in protecting the free flow of information and ideas is still present when such expression is found in a commercial context," said the main opinion, written by Justice John Paul Stevens. The city of Cincinnati, Stevens wrote, "seriously underestimates the value of commercial speech."

Although the court struck down specifically only the ban on commercial newsracks, the language of the opinion left almost no room for Cincinnati to enforce its handbill ordinance or to discriminate against any form of commercial speech.

The portents of the decision, it appears, might reach far beyond the humble newsrack on city sidewalks. Those in America who do their speaking and writing through advertising and promotional expression of all kinds seem a good deal further along toward grasping what F.J. Chrestensen was reaching for five decades ago.
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Title Annotation:Cincinnati v. Discovery Network
Author:Denniston, Lyle
Publication:American Journalism Review
Article Type:Column
Date:May 1, 1993
Words:787
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