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aHINGTcJI~T L FOUNDATION FOR IIVIlVEDIATE RELEASE FORMER SOLICITOR GENERAL, IN BRIEF FILED ON BEHALF OF WLF, URGES COURT TO EXPAND COMMERCIAL SPEECH RIGHTS (Cincinnati v. Discovery Network, Inc., No. 91-1200) June 1, 1992 i .:r -It/ ~ Former U.S. Solicitor General Charles Fried, in a brief filed with the Court today on behalf of the Washington Legal Foundation (WLF), urged the Court to expand the First Amendment rights of businesses to engage in commercial speech. Fried, who returned to teaching at Harvard Law School after stepping down as Solicitor General in 1989, argued that "commercial" speech cannot meaningfully be distinguished from "noncommercial" speech and therefore ought to be provided the broad First Amendment protections already afforded to noncommercial speech. WLF filed its brief in CYty of Cincinnati v. Discovery Network, Inc., a suit that challenges a city ordinance that bans certain types of newspaper vending machines from city sidewalks. The lower courts overturned the ordinance, and the Supreme Court agreed in March to review the case. The Court will hear oral arguments in the case this fall. "We are deeply honored to have Prof. Fried writing for us on a pro bono basis, particularly in such a landmark First Amendment case," said WLF Chief Counsel Richard Samp after filing the brief. "The business community's right to speak freely in a truthful manner has come under increasing attack in recent years; it is important that the Supreme Court step in and reaffirm that the First Amendment's protections apply to everyone, including the business community," Samp said. The Cincinnati ordinance being challenged in this case grants general-circulation newspapers virtually unlimited rights to place vending machines (also known as "newsracks") on city streets but bans newsracks for advertising flyers and other publications that do not contain a significant percentage of news stories. The plaintiffs challenging the ordinance are Harmon Publishing Co., which publishes a free listing of real estate available for sale; and Discovery Network, Inc., which publishes a magazine that describes academic courses and social events being offered by Discovery Network. At the time that Cincinnati began enforcing its ordinance against Harmon and Discovery Network in 1990, those two companies maintained only 62 of the 2,000 newsracks being maintained on Cincinnati's sidewalks; the others belonged to general-circulation newspapers. A federal district court struck down the ordinance in 1990 as a violation of First Amendment rights, and the United States Court of Appeals for the Sixth Circuit in Cincinnati affirmed that decision last year. The Supreme Court granted review in the case in March 1992. WLF's brief argued that while a city ought to be granted broad powers to control the use of its sidewalks in order to promote traffic safety and aesthetic values, it ought not be permitted to pick and choose among those seeking to exercise their First Amendment rights based upon the content of the speech involved. WLF's brief asserted that a ban on all sidewalk newsracks would be constitutionally permissible, but that the Cincinnati Inquirer should have no more right to sell its product on the public sidewalk than the plaintiffs in this case.

WLF's brief noted that the text of the First Amendment does not distinguish between commercial speech (loosely defined by the Court in past cases as speech that "proposes a commercial transaction") and noncommercial speech. WLF argued that governrnents have a strong interest in ensuring that commercial speech does not mislead consumers, but that governments may not place special restrictions on commercial speech when that interest is not at stake. Here, WLF noted, Cincinnati was not attempting to prevent misleading speech by the plaintiffs, but rather was attempting to deal with traffic-safety and aesthetic concerns by prohibiting the plaintiffs from engaging in precisely the same activities that general-circulation newspapers are free to engage in. Richard K. Willard and David A. Price of the Washington, D.C. law firm of Steptoe & Johnson assisted Prof. Fried, on a pro bono basis, in drafting WLF's brief. "While the Supreme Court has significantly expanded commercial speech rights in the past 15 years, we are concerned that recent changes on the Court -- including the retirement of two supporters of commercial speech rights, Justices Brennan and Marshall -- may lead to the erosion of those rights," WLF's Samp said. Samp noted that the Court's most recent commercial speech case, Peel v. Attorney Registration and Disciplinary Comm'n of Illinois, was decided in 1990 prior to the Brennan and Marshall retirements and, even so, the side favoring expansive commercial speech rights prevailed by only a 5-4 margin. "The Discovery Network case is critical because Justices Souter and Thomas have never before had an opportunity to express their views on commercial speech issues; we our hopeful that Prof. Fried's brief on behalf of WLF will help persuade those new justices that the free-speech rights of the business community should not take a back seat to other First Amendment rights," Samp said. The Washington Legal Foundation is a nonprofit pro-free enterprise public interest law and policy center with more than 100,000 members and supporters nationwide. It devotes a substantial portion of its resources to defending the rights of businesspersons who have become the targets of unwarranted government regulation. *** For further information, contact WLF Chief Counsel Richard A. Samp, (202) 857-0240.