Professional Documents
Culture Documents
Lincoln Hood
COM 530
6 March 2018
In City of Cincinnati v. Discovery Network, the US Supreme Court ruled that you could
not distinguish between commercial and non-commercial speech if the ordinance in question did
not “reasonably fit” the ends and means chosen to advance a governmental interest. According to
the ruling:
“The fact that the city failed to address its recently developed concern about newsracks
by regulating their size, shape, appearance, or number indicates that it has not "carefully
calculated" the costs and benefits associated with the burden on speech imposed by its
This case arose out of an ordinance that Cincinnati had passed to limit hand bills, news
racks, and litter (mostly concentrated around the news racks). Originally, 62 companies had been
authorized to place these racks around the city. They were to give out free magazines that
advertised their services. In 1990, the city decided to revoke these authorizations due to the fact
that these advertisements were “commercial hand bills” whose distribution was banned by
another ordinance (City of Cincinnati v. Discovery Network, 1993). This was ruled a violation of
the First Amendment under the prongs of the Board of Trustees of the State Univ. of New York v.
Fox.
According to Robert T. Cahill, Jr (1994), the Court hinted during this case that
“heightened scrutiny may be proper for truthful, non-coercive speech…” This would replace the
two-tiered approach of Central Hudson with a three-tiered approach. This case also seems to be
the start of the case-by-case view of commercial speech law. The case brings up the fact that the
Government focused more on the content of the hand bills rather than the goal of reducing litter
for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore we can see how it is
applied to commercial speech in the modern day. In that case, the question was if a Government
could force a pregnancy center to promote abortion. “Because of the ‘difficulty of drawing bright
lines that will clearly cabin commercial speech,’ the inquiry is fact-intensive.” (Greater
Baltimore Center for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, 2012).
Because of the bright line test established in Discovery, the court remanded this case back for
additional discovery. During this time they wanted to know about economic motivations and the
After the discovery, the 4th Circuit ruled that the Government had failed to show that
there was any commercial speech going on. They never took money for services, not even asking
for repayment for the cost of the doctors. This is in holding with Discovery. The means that the
city was attempting to use was not reasonable. They were attempting to control non-commercial
speech. Because they never engaged in commerce, the pregnancy centers had a First Amendment
Simply put, this case made it possible for people to publish advertising that they found
appropriate. The Government must have a compelling interest that is both narrowly tailored and
reasonably tied to the means that they are using to censor. No longer could they use smoke-
screens to cover their rights violations. As seen in Greater Baltimore Center, the Government
must show that the speech is both non-commercial as well as deceptive. They must be
On top of that, we also see that the government must show that the advertising is being
“moral, philosophical, and religious.” (Greater Baltimore Center for Pregnancy Concerns, Inc.
v. Mayor and City Council of Baltimore, 2012). They were attempting to apply a commercial
speech provision to a non-commercial speech case. Under Discovery, we saw that the means
https://scholarship.richmond.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=207
7&context=lawreview
Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor & City Council of Baltimore,
Moore, R. L., & Murphy, M. D. (2012). Media Law and Ethics (4th ed.). New York City, NY:
Routledge.