A city bans from its public sidewalks all machines that dispense publications consisting wholly of commercial advertisements, while allowing other types of publications. Only 30 of 300 machines are removed. Is the ordinance constitutional?

A city bans from its public sidewalks all machines that dispense publications consisting wholly of commercial advertisements, while allowing other types of publications. Only 30 of 300 machines are removed. Is the ordinance constitutional?

• A. Yes, because regulations of commercial speech are subject to rational basis review.
• B. Yes, because protecting public aesthetics is a compelling interest and the ban is necessary.
• C. No, because it is a content-based restriction requiring strict scrutiny.
• D. No, because removing a small number of machines does not significantly reduce litter.

Answer: (D)

The key idea is how the government can regulate commercial speech in a public forum and what makes such a regulation constitutional. When a city bans machines that dispense publications consisting wholly of commercial advertisements, it targets speech based on its content, even though the content is commercial. Under the usual test for commercial speech, the regulation must do more than suppress any unwanted expression; it must directly advance a substantial government interest and be narrowly tailored to do so—i.e., not more extensive than necessary. Here, the city’s action removes only 30 of 300 machines. That means the ban eliminates only a tenth of the machines, so it’s unlikely to meaningfully reduce litter or achieve a substantial aesthetic goal. Because the measure is not tightly fitted to the objective—removing such a small fraction of the relevant machinery—the regulation fails the require­ment that the means sufficiently and directly advance the interest. Even though reducing litter is a legitimate objective, the least restrictive, narrowly tailored approach isn’t satisfied by a modest cut in the number of machines. The other options misapply the level of scrutiny or the relationship between the goal and the means. Treating commercial speech as rational-basis reviewed ignores the heightened scrutiny that applies to targeted content restrictions; asserting a compelling interest and necessity would demand a tighter fit than this modest reduction affords and would still require narrow tailoring; claiming strict scrutiny is too strong for commercial speech, which is typically analyzed under Central Hudson’s framework rather than strict scrutiny. The best answer captures that removing a small number of machines does not meaningfully advance the stated interest, so the ordinance is unconstitutional.

The key idea is how the government can regulate commercial speech in a public forum and what makes such a regulation constitutional. When a city bans machines that dispense publications consisting wholly of commercial advertisements, it targets speech based on its content, even though the content is commercial. Under the usual test for commercial speech, the regulation must do more than suppress any unwanted expression; it must directly advance a substantial government interest and be narrowly tailored to do so—i.e., not more extensive than necessary.

Here, the city’s action removes only 30 of 300 machines. That means the ban eliminates only a tenth of the machines, so it’s unlikely to meaningfully reduce litter or achieve a substantial aesthetic goal. Because the measure is not tightly fitted to the objective—removing such a small fraction of the relevant machinery—the regulation fails the require­ment that the means sufficiently and directly advance the interest. Even though reducing litter is a legitimate objective, the least restrictive, narrowly tailored approach isn’t satisfied by a modest cut in the number of machines.

The other options misapply the level of scrutiny or the relationship between the goal and the means. Treating commercial speech as rational-basis reviewed ignores the heightened scrutiny that applies to targeted content restrictions; asserting a compelling interest and necessity would demand a tighter fit than this modest reduction affords and would still require narrow tailoring; claiming strict scrutiny is too strong for commercial speech, which is typically analyzed under Central Hudson’s framework rather than strict scrutiny. The best answer captures that removing a small number of machines does not meaningfully advance the stated interest, so the ordinance is unconstitutional.