Advertising and the First Amendment

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

prohibition. (City of Cincinnati v. Discovery Network, 1993).

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

(Moore & Murray, p. 240).

 Future cases would also lean on this ruling. Taking the case of Greater Baltimore Center

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

evidence of the scope of its advertisements.

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

right to advertise and promote their own agendas.

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

ruminating funds from those that they are deceiving as well.

On top of that, we also see that the government must show that the advertising is being

done in an “economic motivation.” Commercial speech cannot be “commercial” if the people

advertising take no money. In Greater Baltimore Center, we saw that their motivation was

“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

would not be considered reasonable.

 Bibliography
Cahill, R. T. (1994). City of Cincinnati v. Discovery Network, Inc.: Towards Heightened

Scrutiny for Truthful Commercial Speech? Retrieved March 6, 2018, from

https://scholarship.richmond.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=207

7&context=lawreview

City of Cincinnati v. Discovery Network (91-1200), 507 U.S. 410 (1993).

Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor & City Council of Baltimore,

No. 11-1111 (4th Cir. 2012)

Moore, R. L., & Murphy, M. D. (2012). Media Law and Ethics (4th ed.). New York City, NY:

Routledge.