Appellee city of San Diego enacted an ordinance which imposes
substantial prohibitions on the erection of outdoor advertising
displays within the city. The stated purpose of the ordinance is
"to eliminate hazards to pedestrians and motorists brought about by
distracting sign displays" and "to preserve and improve the
appearance of the City." The ordinance permits on-site commercial
advertising (a sign advertising goods or services available on the
property where the sign is located), but forbids other commercial
advertising and noncommercial advertising using fixed-structure
signs, unless permitted by 1 of the ordinance's 12 specified
exceptions, such as temporary political campaign signs. Appellants,
companies that were engaged in the outdoor advertising business in
the city when the ordinance was passed, brought suit in state court
to enjoin enforcement of the ordinance. The trial court held that
the ordinance was an unconstitutional exercise of the city's police
power and an abridgment of appellants' First Amendment rights. The
California Court of Appeal affirmed on the first ground alone, but
the California Supreme Court reversed, holding,
inter
alia, that the ordinance was not facially invalid under the
First Amendment.
Held: The judgment is reversed, and the case is
remanded. Pp.
453 U. S.
498-521;
453 U. S.
527-540.
26 Cal. 3d
848, 610 P.2d 407, reversed and remanded.
JUSTICE WHITE, joined by JUSTICE STEWART, JUSTICE MARSHALL, and
JUSTICE POWELL, concluded that the ordinance is unconstitutional on
its face. Pp.
453 U. S.
498-521.
(a) As with other media of communication, the government has
legitimate interests in controlling the noncommunicative aspects of
billboards, but the First and Fourteenth Amendments foreclose
similar interests in controlling the communicative aspects of
billboards. Because regulation of the noncommunicative aspects of a
medium often impinges to some degree on the communicative aspects,
the courts must reconcile the government's regulatory interests
with the individual's right to expression. Pp.
453 U. S.
500-503.
(b) Insofar as it regulates commercial speech, the ordinance
meets the constitutional requirements of
Central
Hudson Gas & Electric Corp. v.
Page 453 U. S. 491
Public Service Comm'n, 447 U.
S. 557. Improving traffic safety and the appearance of
the city are substantial governmental goals. The ordinance directly
serves these goals, and is no broader than necessary to accomplish
such ends. Pp.
453 U.S.
503-512.
(c) However, the city's general ban on signs carrying
noncommercial advertising is invalid under the First and Fourteenth
Amendments. The fact that the city may value commercial messages
relating to on-site goods and services more than it values
commercial communications relating to off-site goods and services
does not justify prohibiting an occupant from displaying his own
ideas or those of others. Furthermore, because, under the
ordinance's specified exceptions, some noncommercial messages may
be conveyed on billboards throughout the commercial and industrial
zones, the city must allow billboards conveying other noncommercial
messages throughout those zones. The ordinance cannot be
characterized as a reasonable "time, place, and manner"
restriction. Pp.
453 U. S.
512-517.
(d) Government restrictions on protected speech are not
permissible merely because the government does not favor one side
over another on a subject of public controversy. Nor can a
prohibition of all messages carried by a particular mode of
communication be upheld merely because the prohibition is
rationally related to a nonspeech interest. Courts must protect
First Amendment interests against legislative intrusion, rather
than defer to merely rational legislative judgments in this area.
Since the city has concluded that its official interests are not as
strong as private interests in on-site commercial advertising, it
may not claim that those same official interests outweigh private
interests in noncommercial communications. Pp.
453 U. S.
517-521.
JUSTICE BRENNAN, joined by JUSTICE BLACKMUN, concluded that, in
practical effect, the city's ordinance constitutes a total ban on
the use of billboards to communicate to the public messages of
general applicability, whether commercial or noncommercial, and
that, under the appropriate First Amendment analysis, a city may
totally ban billboards only if it can show that a sufficiently
substantial governmental interest is directly furthered thereby,
and that any more narrowly drawn restriction would promote less
well the achievement of that goal. Under this test, San Diego's
ordinance is invalid, since (1) the city failed to produce evidence
demonstrating that billboards actually impair traffic safety in San
Diego, (2) the ordinance is not narrowly drawn to accomplish the
traffic safety goal, and (3) the city failed to show that its
asserted interest in esthetics was sufficiently substantial in its
commercial and industrial areas. Nor would an ordinance totally
banning commercial billboards but allowing noncommercial billboards
be constitutional, since
Page 453 U. S. 492
it would give city officials the discretion to determine in the
first instance whether a proposed message is "commercial" or
"noncommercial." Pp.
453 U. S.
527-540.
WHITE, J., announced the judgment of the Court and delivered an
opinion, in which STEWART, MARSHALL, and POWELL, JJ., joined.
BRENNAN, J., filed an opinion concurring in the judgment, in which
BLACKMUN, J., joined,
post, p.
453 U. S. 521.
STEVENS, J., while concurring in Parts I-IV of the plurality
opinion, filed an opinion dissenting from Parts V-VII of the
plurality opinion and from the judgment,
post, p.
453 U. S. 540.
BURGER, C.J.,
post, p.
453 U. S. 555,
and REHNQUIST, J.,
post, p.
453 U. S. 569,
filed dissenting opinions.
Page 453 U. S. 493
JUSTICE WHITE announced the judgment of the Court and delivered
an opinion, in which JUSTICE STEWART, JUSTICE MARSHALL, and JUSTICE
POWELL joined.
This case involves the validity of an ordinance of the city of
San Diego, Cal., imposing substantial prohibitions on the erection
of outdoor advertising displays within the city.
I
Stating that its purpose was "to eliminate hazards to
pedestrians and motorists brought about by distracting sign
displays" and "to preserve and improve the appearance of the City,"
San Diego enacted an ordinance to prohibit "outdoor advertising
display signs." [
Footnote 1]
The California Supreme Court subsequently defined the term
"advertising display sign" as
"a rigidly assembled sign, display, or device permanently
affixed to the ground or permanently attached to a building or
other inherently permanent structure constituting, or used for the
display of, a commercial or other advertisement to the public."
26 Cal. 3d
848, 856, n. 2, 610 P.2d
Page 453 U. S. 494
407, 410, n. 2 (1980). "Advertising displays signs" include any
sign that "directs attention to a product, service or activity,
event, person, institution or business." [
Footnote 2]
The ordinance provides two kinds of exceptions to the general
prohibition: on-site signs and signs falling within 12 specified
categories. On-site signs are defined as those
"designating the name of the owner or occupant of the premises
upon which such signs are placed, or identifying such premises; or
signs advertising goods manufactured or produced or services
rendered on the premises upon which such signs are placed."
The specific categories exempted from the prohibition include:
government signs; signs located at public bus stops; signs
manufactured, transported, or stored within the city, if not used
for advertising purposes; commemorative historical plaques;
religious symbols; signs within shopping malls; for sale and for
lease signs; signs on public and commercial
Page 453 U. S. 495
vehicles; signs depicting time, temperature, and news; approved
temporary, off-premises, subdivision directional signs; and
"[t]emporary political campaign signs." [
Footnote 3] Under this scheme, on-site commercial
advertising is permitted,
Page 453 U. S. 496
but other commercial advertising and noncommercial
communications using fixed-structure signs are everywhere forbidden
unless permitted by one of the specified exceptions.
Appellants are companies that were engaged in the outdoor
advertising business in San Diego at the time the ordinance was
passed. Each owns a substantial number of outdoor advertising
displays (approximately 500 to 800) within the city. These signs
are all located in areas zoned for commercial and industrial
purposes, most of them on property leased by the owners to
appellants for the purpose of maintaining billboards. Each sign has
a remaining useful income-producing life of over 25 years, and each
sign has a fair market value of between $2,500 and $25,000. Space
on the signs was made available to "all comers," and the copy on
each sign changed regularly, usually monthly. [
Footnote 4] The nature of the outdoor advertising
business was described by the parties as follows:
"Outdoor advertising is customarily purchased on the basis of a
presentation or campaign requiring multiple exposure. Usually a
large number of signs in a variety of locations are utilized to
communicate a particular advertiser's message. An advertiser will
generally purchase a 'showing' which would involve the utilization
of a specific number of signs advertising the same message in a
variety of locations throughout a metropolitan area. [
Footnote 5]"
Although the purchasers of advertising space on appellants'
signs usually seek to convey a commercial message, their billboards
have also been used to convey a broad range of noncommercial
political and social messages.
Page 453 U. S. 497
Appellants brought suit in state court to enjoin enforcement of
the ordinance. After extensive discovery, the parties filed a
stipulation of facts, including:
"2. If enforced as written, Ordinance No. 10795 will eliminate
the outdoor advertising business in the City of San Diego."
"
* * * *"
"28. Outdoor advertising increases the sales of products and
produces numerous direct and indirect benefits to the public.
Valuable commercial, political and social information is
communicated to the public through the use of outdoor advertising.
Many businesses and politicians and other persons rely upon outdoor
advertising because other forms of advertising are insufficient,
inappropriate, and prohibitively expensive."
Joint Stipulation of Facts Nos. 2, 28, App. 42a, 48a. On
cross-motions for summary judgment, the trial court held that the
ordinance was an unconstitutional exercise of the city's police
power and an abridgment of appellants' First Amendment rights. The
California Court of Appeal affirmed on the first ground alone, and
did not reach the First Amendment argument. Without questioning any
of the stipulated facts, including the fact that enforcement of the
ordinance would "eliminate the outdoor advertising business in the
City of San Diego," the California Supreme Court reversed. It held
that the two purposes of the ordinance were within the city's
legitimate interests, and that the ordinance was "a proper
application of municipal authority over zoning and land use for the
purpose of promoting the public safety and welfare." 26 Cal. 3d at
858, 610 P.2d at 411 (footnote omitted). The court rejected
appellants' argument that the ordinance was facially invalid under
the First Amendment. It relied on certain summary actions of this
Court, dismissing for want of a substantial federal question
appeals from several state court decisions sustaining governmental
restrictions
Page 453 U. S. 498
on outdoor sign displays. [
Footnote 6] Appellants sought review in this Court,
arguing that the ordinance was facially invalid on First Amendment
grounds and that the city's threatened destruction of the outdoor
advertising business was prohibited by the Due Process Clause of
the Fourteenth Amendment. We noted probable jurisdiction. 449 U.S.
897.
II
Early cases in this Court sustaining regulation of and
prohibitions aimed at billboards did not involve First Amendment
considerations.
See Packer Corp. v. Utah, 285 U.
S. 105 (1932);
St. Louis Poster Advertising Co. v.
St. Louis, 249 U. S. 269
(1919);
Thomas Cusack Co. v. City of Chicago, 242 U.
S. 526 (1917). [
Footnote
7] Since those decisions, we have not given plenary
consideration to cases involving First Amendment challenges to
statutes or ordinances limiting the use of billboards, preferring
on several occasions summarily to affirm decisions sustaining state
or local legislation directed at billboards.
Suffolk Outdoor Advertising Co. v. Hulse, 439 U.S. 808
(1978), involved a municipal ordinance that distinguished between
off-site and on-site billboard advertising, prohibiting the former
and permitting the latter. We summarily dismissed as not presenting
a substantial federal question an appeal from a judgment sustaining
the ordinance, thereby rejecting the submission, repeated in this
case, that prohibiting
Page 453 U. S. 499
off-site commercial advertising violates the First Amendment.
The definition of "billboard," however, was considerably narrower
in
Suffolk than it is here:
"A sign which directs attention to a business, commodity,
service, entertainment, or attraction sold, offered or existing
elsewhere than upon the same lot where such sign is displayed."
This definition did not sweep within its scope the broad range
of noncommercial speech admittedly prohibited by the San Diego
ordinance. Furthermore, the Southampton, N.Y., ordinance, unlike
that in San Diego, contained a provision permitting the
establishment of public information centers in which approved
directional signs for businesses could be located. This Court has
repeatedly stated that, although summary dispositions are decisions
on the merits, the decisions extend only to "the precise issues
presented and necessarily decided by those actions."
Mandel v.
Bradley, 432 U. S. 173,
432 U. S. 176
(1977);
see also Hicks v. Miranda, 422 U.
S. 332,
422 U. S. 345,
n. 14 (1975);
Edelman v. Jordan, 415 U.
S. 651,
415 U. S. 671
(1974). Insofar as the San Diego ordinance is challenged on the
ground that it prohibits noncommercial speech, the
Suffolk
case does not directly support the decision below.
The Court has summarily disposed of appeals from state court
decisions upholding state restrictions on billboards on several
other occasions.
Markham Advertising Co. v. Washington,
393 U. S. 316
(1969), and
Newman Signs, Inc. v. Hjelle, 440 U.S. 901
(1979), both involved the facial validity of state billboard
prohibitions that extended only to certain designated roadways or
to areas zoned for certain uses. The statutes in both instances
distinguished between on-site commercial billboards and off-site
billboards within the protected areas. Our most recent summary
action was
Lotze v. Washington, 444 U.S. 921 (1979), which
involved an "as applied" challenge to a Washington prohibition on
off-site signs. In that case, appellants erected, on their own
property, billboards expressing their political and social views.
Although billboards conveying information relating to the
commercial
Page 453 U. S. 500
use of the property would have been permitted, appellants'
billboards were prohibited, and the state courts ordered their
removal. We dismissed as not raising a substantial federal question
an appeal from a judgment rejecting the First Amendment challenge
to the statute.
Insofar as our holdings were pertinent, the California Supreme
Court was quite right in relying on our summary decisions as
authority for sustaining the San Diego ordinance against First
Amendment attack.
Hicks v. Miranda, supra. As we have
pointed out, however summary actions do not have the same authority
in this Court as do decisions rendered after plenary consideration,
Illinois State Board of Elections v. Socialist Workers
Party, 440 U. S. 173,
440 U. S.
180-181 (1979);
Edelman v. Jordan, supra, at
415 U. S. 671;
see also Fusari v. Steinberg, 419 U.
S. 379,
419 U. S. 392
(1975) (BURGER, C.J.. concurring). They do not present the same
justification for declining to reconsider a prior decision as do
decisions rendered after argument and with full opinion.
"It is not at all unusual for the Court to find it appropriate
to give full consideration to a question that has been the subject
of previous summary action."
Washington v. Yakima Indian Nation, 439 U.
S. 463,
439 U. S. 477,
n. 20 (1979);
see also Tull v. Griffin, Inc., 429 U. S.
68,
429 U. S. 74-75
(1976);
Usery v. Turner Elkhorn Mining Co., 428 U. S.
1,
428 U. S. 14
(1976). Probable jurisdiction having been noted to consider the
constitutionality of the San Diego ordinance, we proceed to do
so.
III
This Court has often faced the problem of applying the broad
principles of the First Amendment to unique forums of expression.
See, e.g., Consolidated Edison Co. v. Public Service
Comm'n, 447 U. S. 530
(1980) (billing envelope inserts);
Carey v. Brown,
447 U. S. 455
(1980) (picketing in residential areas);
Schaumburg v. Citizens
for a Better Environment, 444 U. S. 620
(1980) (door-to-door and on-street
Page 453 U. S. 501
solicitation);
Greer v. Spock, 424 U.
S. 828 (1976) (Army bases);
Ernoznick v. City of
Jacksonville, 422 U. S. 205
(1975) (outdoor movie theaters);
Lehman v. City of Shaker
Heights, 418 U. S. 298
(1974) (advertising space within city-owned transit system). Even a
cursory reading of these opinions reveals that, at times, First
Amendment values must yield to other societal interests. These
cases support the cogency of Justice Jackson's remark in
Kovacs
v. Cooper, 336 U. S. 77,
336 U. S. 97
(1949): each method of communicating idea is "a law unto itself,"
and that law must reflect the "differing natures, values, abuses
and dangers" of each method. [
Footnote 8] We deal here with the law of billboards.
Billboards are a well established medium of communication, used
to convey a broad range of different kinds of messages. [
Footnote 9] As Justice Clark noted in
his dissent below:
"The outdoor sign or symbol is a venerable medium for expressing
political, social and commercial ideas. From the poster or
'broadside' to the billboard, outdoor signs have played a prominent
role throughout American history, rallying support for political
and social causes."
26 Cal. 3d at 888, 610 P.2d at 430-431.
Page 453 U. S. 502
The record in this case indicates that, besides the typical
commercial uses, San Diego billboards have been used
"to publicize the 'City in motion' campaign of the City of San
Diego, to communicate messages from candidates for municipal, state
and national offices, including candidates for judicial office, to
propose marriage, to seek employment, to encourage the use of seat
belts, to denounce the United Nations, to seek support for
Prisoners of War and Missing in Action, to promote the United
Crusade and a variety of other charitable and socially related
endeavors, and to provide directions to the traveling public.
[
Footnote 10]"
But whatever its communicative function, the billboard remains a
"large, immobile, and permanent structure which, like other
structures, is subject to . . . regulation."
Id. at 870,
610 P.2d at 419. Moreover, because it is designed to stand out and
apart from its surroundings, the billboard creates a unique set of
problems for land use planning and development.
Billboards, then, like other media of communication, combine
communicative and noncommunicative aspects. As with other media,
the government has legitimate interests in controlling the
noncommunicative aspects of the medium,
Kovacs v. Cooper,
supra, but the First and Fourteenth Amendments foreclose a
similar interest in controlling the communicative aspects. Because
regulation of the noncommunicative aspects of a medium often
impinges to some degree on the communicative aspects, it has been
necessary for the courts to reconcile the government's regulatory
interests with the individual's right to expression.
"'[A] court may not escape the task of assessing the First
Amendment interest at stake and weighing it against the public
interest allegedly served by the regulation.'"
Linmark Associates, Inc. v. Willingboro, 431 U. S.
85,
431 U. S. 91
(1977), quoting
Bigelow
v.
Page 453 U. S. 503
Virginia, 421 U. S. 809,
421 U. S. 826
(1975). Performance of this task requires a particularized inquiry
into the nature of the conflicting interests at stake here,
beginning with a precise appraisal of the character of the
ordinance as it affects communication.
As construed by the California Supreme Court, the ordinance
restricts the use of certain kinds of outdoor signs. That
restriction is defined in two ways: first, by reference to the
structural characteristics of the sign; second, by reference to the
content, or message, of the sign. Thus, the regulation only applies
to a "permanent structure constituting, or used for the display of,
a commercial or other advertisement to the public." 26 Cal. 3d at
856, n. 2, 610 P.2d at 410, n. 2. Within that class, the only
permitted signs are those (1) identifying the premises on which the
sign is located, or its owner or occupant, or advertising the goods
produced or services rendered on such property, and (2) those
within one of the specified exemptions to the general prohibition,
such as temporary political campaign signs. To determine if any
billboard is prohibited by the ordinance, one must determine how it
is constructed, where it is located, and what message it
carries.
Thus, under the ordinance, (1) a sign advertising goods or
services available on the property where the sign is located is
allowed; (2) a sign on a building or other property advertising
goods or services produced or offered elsewhere is barred; (3)
noncommercial advertising, unless within one of the specific
exceptions, is everywhere prohibited. The occupant of property may
advertise his own goods or services; he may not advertise the goods
or services of others, nor may he display most noncommercial
messages.
IV
Appellants' principal submission is that enforcement of the
ordinance will eliminate the outdoor advertising business in San
Diego, and that the First and Fourteenth Amendments
Page 453 U. S. 504
prohibit the elimination of this medium of communication.
Appellants contend that the city may bar neither all off-site
commercial signs nor all noncommercial advertisements, and that,
even if it may bar the former, it may not bar the latter.
Appellants may raise both arguments in their own right because,
although the bulk of their business consists of off-site signs
carrying commercial advertisements, their billboards also convey a
substantial amount of noncommercial advertising. [
Footnote 11] Because our cases have
consistently distinguished between the constitutional protection
afforded commercial, as
Page 453 U. S. 505
opposed to noncommercial speech, in evaluating appellants'
contention, we consider separately the effect of the ordinance on
commercial and noncommercial speech.
The extension of First Amendment protections to purely
commercial speech is a relatively recent development in First
Amendment jurisprudence. Prior to 1975, purely commercial
advertisements of services or goods for sale were considered to be
outside the protection of the First Amendment.
Valentine v.
Chrestensen, 316 U. S. 52
(1942). That construction of the First Amendment was severely cut
back in
Bigelow v. Virginia, supra. In
Virginia
Pharmacy Board v. Virginia Citizens Consumer Council,
425 U. S. 748
(1976), we plainly held that speech proposing no more than a
commercial transaction enjoys a substantial degree of First
Amendment protection: a State may not completely suppress the
dissemination of truthful information about an entirely lawful
activity merely because it is fearful of that information's effect
upon its disseminators and its recipients. That decision, however,
did not equate commercial and noncommercial speech for First
Amendment purposes; indeed, it expressly indicated the contrary.
See id. at
425 U. S.
770-773, and n. 24.
See also id. at
425 U. S.
779-781 (STEWART, J., Concurring). [
Footnote 12]
Page 453 U. S. 506
Although the protection extended to commercial speech has
continued to develop, commercial and noncommercial communications,
in the context of the First Amendment, have been treated
differently.
Bates v. State Bar of Arizona, 433 U.
S. 350 (1977), held that advertising by attorneys may
not be subjected to blanket suppression, and that the specific
advertisement at issue there was constitutionally protected.
However, we continued to observe the distinction between commercial
and noncommercial speech, indicating that the former could be
forbidden and regulated in situations where the latter could not
be.
Id. at
433 U. S.
379-381,
433 U. S.
383-384. In
Ohralik v. Ohio State Bar Assn.,
436 U. S. 447
(1978), the Court refused to invalidate on First Amendment grounds
a lawyer's suspension from practice for face-to-face solicitation
of business for pecuniary gain. In the course of doing so, we again
recognized the common sense and legal distinction between speech
proposing a commercial transaction and other varieties of
speech:
"To require a parity of constitutional protection for commercial
and noncommercial speech alike could invite dilution, simply by a
leveling process, of the force of the Amendment's guarantee with
respect to the latter kind of speech. Rather than subject the First
Amendment to such a devitalization, we instead have afforded
commercial speech a limited measure of protection, commensurate
with its subordinate position in the scale of First Amendment
values, while allowing modes of regulation that might be
impermissible in the realm of noncommercial expression."
Id. at
436 U. S. 456.
In
Young v. American Mini Theatres, Inc., 427 U. S.
50,
427 U. S.
69,
Page 453 U. S. 507
n. 32 (1976), JUSTICE STEVENS stated that the difference between
commercial price and product advertising and ideological
communication permits regulation of the former "that the First
Amendment would not tolerate with respect to the latter."
See
also Linmark Associates, Inc. v. Willingboro, 431 U.S. at
431 U. S. 91-92,
and
Friedman v. Rogers, 440 U. S. 1,
440 U. S. 8-10
(1979).
Finally, in
Central Hudson Gas & Electric Corp. v.
Public Service Comm'n, 447 U. S. 557
(1980), we held:
"The Constitution . . . accords a lesser protection to
commercial speech than to other constitutionally guaranteed
expression. The protection available for a particular commercial
expression turns on the nature both of the expression and of the
governmental interests served by its regulation."
Id. at
447 U. S.
562-563 (citation omitted). We then adopted a four-part
test for determining the validity of government restrictions on
commercial speech, as distinguished from more fully protected
speech. (1) The First Amendment protects commercial speech only if
that speech concerns lawful activity and is not misleading. A
restriction on otherwise protected commercial speech is valid only
if it (2) seeks to implement a substantial governmental interest,
(3) directly advances that interest, and (4) reaches no further
than necessary to accomplish the given objective.
Id. at
447 U. S.
563-566.
Appellants agree that the proper approach to be taken in
determining the validity of the restrictions on commercial speech
is that which was articulated in
Central Hudson, but
assert that the San Diego ordinance fails that test. We do not
agree.
There can be little controversy over the application of the
first, second, and fourth criteria. There is no suggestion that the
commercial advertising at issue here involves unlawful activity or
is misleading. Nor can there be substantial doubt that the twin
goals that the ordinance seeks to further -- traffic safety and the
appearance of the city -- are substantial
Page 453 U. S. 508
governmental goals. [
Footnote
13] It is far too late to contend otherwise with respect to
either traffic safety,
Railway Express Agency, Inc. v. New
York, 336 U. S. 106
(1949), or esthetics,
see Penn Central Transportation Co. v.
New York City, 438 U. S. 104
(1978);
Village of Belle Terre v. Boraas, 416 U. S.
1 (1974);
Berman v. Parker, 348 U. S.
26,
348 U. S. 33
(1954). Similarly, we reject appellants' claim that the ordinance
is broader than necessary and, therefore, fails the fourth part of
the
Central Hudson test. If the city has a sufficient
basis for believing that billboards are traffic hazards and are
unattractive, then obviously the most direct, and perhaps the only,
effective approach to solving the problems they create is to
prohibit them. The city has gone no further than necessary in
seeking to meet its ends. Indeed, it has stopped short of fully
accomplishing its ends: it has not prohibited all billboards, but
allows on-site advertising and some other specifically exempted
signs.
The more serious question, then, concerns the third of the
Central Hudson criteria: does the ordinance "directly
advance" governmental interests in traffic safety and in the
appearance of the city? It is asserted that the record is
inadequate to show any connection between billboards and traffic
safety. The California Supreme Court noted the meager record on
this point, but held "as a matter of law that an ordinance which
eliminates billboards designed to be viewed from streets and
highways reasonably relates to traffic safety." 26 Cal. 3d at 859,
610 P.2d at 412. Noting that "[b]illboards are intended to, and
undoubtedly do, divert a driver's attention from the roadway,"
id. and that
Page 453 U. S. 509
whether the "distracting effect contributes to traffic accidents
invokes an issue of continuing controversy,"
ibid., the
California Supreme Court agreed with many other courts that a
legislative judgment that billboards are traffic hazards is not
manifestly unreasonable, and should not be set aside. We likewise
hesitate to disagree with the accumulated, common sense judgments
of local lawmakers and of the many reviewing courts that billboards
are real and substantial hazards to traffic safety. [
Footnote 14] There is nothing here to
suggest that these judgments are unreasonable. As we said in a
different context,
Railway Express Agency, Inc. v. New York,
supra, at
336 U. S.
109:
"We would be trespassing on one of the most intensely local and
specialized of all municipal problems if we held that this
regulation had no relation to the traffic problem of New York City.
It is the judgment of the local authorities that it does have such
a relation. And nothing has been advanced which shows that to be
palpably false. "
Page 453 U. S. 510
We reach a similar result with respect to the second asserted
justification for the ordinance -- advancement of the city's
esthetic interests. It is not speculative to recognize that
billboards, by their very nature, wherever located and however
constructed, can be perceived as an "esthetic harm." [
Footnote 15] San Diego, like many
States and other municipalities, has chosen to minimize the
presence of such structures. [
Footnote 16] Such esthetic judgments are necessarily
subjective, defying objective evaluation, and for that reason must
be carefully scrutinized to determine if they are only a public
rationalization of an impermissible purpose. But there is no claim
in this case that San Diego has a an ulterior motive the
suppression of speech, and the judgment involved here is not so
unusual as to raise suspicions in itself.
It is nevertheless argued that the city denigrates its
interest
Page 453 U. S. 511
in traffic safety and beauty and defeats its own case by
permitting on-site advertising and other specified signs.
Appellants question whether the distinction between on-site and
off-site advertising on the same property is justifiable in terms
of either esthetics or traffic safety. The ordinance permits the
occupant of property to use billboards located on that property to
advertise goods and services offered at that location; identical
billboards, equally distracting and unattractive, that advertise
goods or services available elsewhere are prohibited even if
permitting the latter would not multiply the number of billboards.
Despite the apparent incongruity, this argument has been rejected,
at least implicitly, in all of the cases sustaining the distinction
between off-site and on-site commercial advertising. [
Footnote 17] We agree with those
cases and with our own decisions in
Suffolk Outdoor Advertising
Co. v. Hulse, 439 U.S. 808 (1978);
Markham Advertising Co.
v. Washington, 393 U. S. 316
(1969); and
Newman Signs, Inc. v. Hjelle, 440 U.S. 901
(1979).
In the first place, whether on-site advertising is permitted or
not, the prohibition of off-site advertising is directly related to
the stated objectives of traffic safety and esthetics. This is not
altered by the fact that the ordinance is underinclusive because it
permits on-site advertising. Second, the city may believe that
off-site advertising, with its periodically changing content,
presents a more acute problem than does on-site advertising.
See Railway Express, 336 U.S. at
336 U. S.
110.
Page 453 U. S. 512
Third, San Diego has obviously chosen to value one kind of
commercial speech -- on-site advertising -- more than another kind
of commercial speech -- off-site advertising. The ordinance
reflects a decision by the city that the former interest, but not
the latter, is stronger than the city's interests in traffic safety
and esthetics. The city has decided that, in a limited instance --
on-site commercial advertising -- its interests should yield. We do
not reject that judgment. As we see it, the city could reasonably
conclude that a commercial enterprise -- as well as the interested
public -- has a stronger interest in identifying its place of
business and advertising the products or services available there
than it has in using or leasing its available space for the purpose
of advertising commercial enterprises located elsewhere.
See
Railway Express, supra, at
336 U. S. 116
(Jackson, J., concurring);
Bradley v. Public Utilities
Comm'n, 289 U. S. 92,
289 U. S. 97
(1933). It does not follow from the fact that the city has
concluded that some commercial interests outweigh its municipal
interests in this context that it must give similar weight to all
other commercial advertising. Thus, off-site commercial billboards
may be prohibited while on-site commercial billboards are
permitted.
The constitutional problem in this area requires resolution of
the conflict between the city's land use interests and the
commercial interests of those seeking to purvey goods and services
within the city. In light of the above analysis, we cannot conclude
that the city has drawn an ordinance broader than is necessary to
meet its interests, or that it fails directly to advance
substantial government interests. In sum, insofar as it regulates
commercial speech, the San Diego ordinance meets the constitutional
requirements of
Central Hudson, supra.
V
It does not follow, however, that San Diego's general ban on
signs carrying noncommercial advertising is also valid
Page 453 U. S. 513
under the First and Fourteenth Amendments. The fact that the
city may value commercial messages relating to on-site goods and
services more than it values commercial communications relating to
off-site goods and services does not justify prohibiting an
occupant from displaying its own ideas or those of others.
As indicated above, our recent commercial speech cases have
consistently accorded noncommercial speech a greater degree of
protection than commercial speech. San Diego effectively inverts
this judgment by affording a greater degree of protection to
commercial than to noncommercial speech. There is a broad exception
for on-site commercial advertisements, but there is no similar
exception for noncommercial speech. The use of on-site billboards
to carry commercial messages related to the commercial use of the
premises is freely permitted, but the use of otherwise identical
billboards to carry noncommercial messages is generally prohibited.
The city does not explain how or why noncommercial billboards
located in places where commercial billboards are permitted would
be more threatening to safe driving or would detract more from the
beauty of the city. Insofar as the city tolerates billboards at
all, it cannot choose to limit their content to commercial
messages; the city may not conclude that the communication of
commercial information concerning goods and services connected with
a particular site is of greater value than the communication of
noncommercial messages. [
Footnote 18]
Page 453 U. S. 514
Furthermore, the ordinance contains exceptions that permit
various kinds of noncommercial signs, whether on property where
goods and services are offered or not, that would otherwise be
within the general ban. A fixed sign may be used to identify any
piece of property and its owner. Any piece of property may carry or
display religious symbols, commemorative plaques of recognized
historical societies and organizations, signs carrying news items
or telling the time or temperature, signs erected in discharge of
any governmental function, or temporary political campaign signs.
[
Footnote 19] No other
noncommercial or ideological signs meeting the structural
definition are permitted, regardless of their effect on traffic
safety or esthetics.
Although the city may distinguish between the relative value of
different categories of commercial speech, the city does not have
the same range of choice in the area of noncommercial speech to
evaluate the strength of, or distinguish between, various
communicative interests.
See Carey v. Brown, 447 U.S. at
447 U. S. 462;
Police Dept. of Chicago v.
Mosley,
Page 453 U. S. 515
408 U. S. 92,
408 U. S. 96
(1972). With respect to noncommercial speech, the city may not
choose the appropriate subjects for public discourse:
"To allow a government the choice of permissible subjects for
public debate would be to allow that government control over the
search for political truth."
Consolidated Edison Co., 447 U.S. at
447 U. S. 538.
Because some noncommercial messages may be conveyed on billboards
throughout the commercial and industrial zones, San Diego must
similarly allow billboards conveying other noncommercial messages
throughout those zones. [
Footnote 20]
Finally, we reject appellees' suggestion that the ordinance may
be appropriately characterized as a reasonable "time, place, and
manner" restriction. The ordinance does not generally
Page 453 U. S. 516
ban billboard advertising as an unacceptable "manner" of
communicating information or ideas; rather, it permits various
kinds of signs. Signs that are banned are banned everywhere and at
all times. We have observed that time, place, and manner
restrictions are permissible if
"they are justified without reference to the content of the
regulated speech, . . . serve a significant governmental interest,
and . . . leave open ample alternative channels for communication
of the information."
Virginia Pharmacy Board v. Virginia Citizens Consumer
Council, 425 U.S. at
425 U. S. 771.
Here, it cannot be assumed that "alternative channels" are
available, for the parties stipulated to just the opposite:
"Many businesses and politicians and other persons rely upon
outdoor advertising because other forms of advertising are
insufficient, inappropriate and prohibitively expensive. [
Footnote 21]"
A similar argument was made with respect to a prohibition on
real estate "For Sale" signs in
Linmark Associates, Inc. v.
Willingboro, 431 U. S. 85
(1977), and what we said there is equally applicable here:
"Although, in theory, sellers remain free to employ a number of
different alternatives, in practice [certain products are] not
marketed through leaflets, sound trucks, demonstrations, or the
like. The options to which sellers realistically are relegated . .
. involve more cost and less autonomy than . . . signs[,] . . . are
less likely to reach persons not deliberately seeking sales
information[,] . . . and may be less effective media for
communicating the message that is conveyed by a . . . sign. . . .
The alternatives, then, are far from satisfactory."
Id. at
431 U. S. 93. It
is apparent as well that the ordinance distinguishes in several
ways between permissible and impermissible signs at a particular
location by reference to their content.
Page 453 U. S. 517
Whether or not these distinctions are themselves constitutional,
they take the regulation out of the domain of time, place, and
manner restrictions.
See Consolidated Edison Co. v. Public
Service Comm'n, supra.
VI
Despite the rhetorical hyperbole of THE CHIEF JUSTICE's dissent,
there is a considerable amount of common ground between the
approach taken in this opinion and that suggested by his dissent.
Both recognize that each medium of communication creates a unique
set of First Amendment problems, both recognize that the city has a
legitimate interest in regulating the noncommunicative aspects of a
medium of expression, and both recognize that the proper judicial
role is to conduct "
a careful inquiry into the competing
concerns of the State and the interests protected by the guarantee
of free expression.'" Post at 453 U. S. 556.
Our principal difference with his dissent is that it gives so
little weight to the latter half of this inquiry. [Footnote 22]
THE CHIEF JUSTICE writes that,
"[a]lthough we must ensure that any regulation of speech
'further[s] a sufficiently substantial government interest' . . .
given a reasonable approach to a perceived problem, this Court's
duty . . . is to determine whether the legislative approach is
essentially neutral to the messages conveyed and leaves open other
adequate means of conveying those messages."
Post at
453 U. S. 561.
[
Footnote 23]
Page 453 U. S. 518
Despite his belief that this is "the essence of . . .
democracy," this has never been the approach of this Court when a
legislative judgment is challenged as an unconstitutional
infringement of First Amendment rights. [
Footnote 24]
By "essentially neutral," THE CHIEF JUSTICE may mean either or
both of two things. He may mean that government restrictions on
protected speech are permissible so long as the government does not
favor one side over another on a subject of public controversy.
This concept of neutrality was specifically rejected by the Court
last Term in
Consolidated Edison Co. v. Public Service
Comm'n, 447 U.S. at
447 U. S. 537.
There, the Court dismissed the Commission's contention that a
prohibition of all discussion, regardless of the viewpoint
expressed, on controversial issues of public policy does not
Page 453 U. S. 519
unconstitutionally suppress freedom of speech.
"The First Amendment's hostility to content-based regulation
extends not only to restrictions on particular viewpoints, but also
to prohibition of public discussion of an entire topic."
Ibid. On the other hand, THE CHIEF JUSTICE may mean by
neutrality that government restrictions on speech cannot favor
certain communicative contents over others. As a general rule,
this, of course, is correct,
see, e.g., Police Dept. of Chicago
v. Mosley, 408 U. S. 92
(1972);
Carey v. Brown, 447 U. S. 455
(1980). The general rule, in fact, is applicable to the facts of
this case: San Diego has chosen to favor certain kinds of messages
-- such as on-site commercial advertising and temporary political
campaign advertisements -- over others. Except to imply that the
favored categories are for some reason
de minimis in a
constitutional sense, his dissent fails to explain why San Diego
should not be held to have violated this concept of First Amendment
neutrality.
Taken literally, THE CHIEF JUSTICE's approach would require
reversal of the many cases striking down antisolicitation statutes
on First Amendment grounds: in each of them, the city would argue
that preventing distribution of leaflets rationally furthered the
city's interest in limiting litter, applied to all kinds of
leaflets, and hence did not violate the principle of government
neutrality, and left open alternative means of communication.
See, e.g, Martin v. Struthers, 319 U.
S. 141 (1943);
Schneider v. State, 308 U.
S. 147 (1939). Despite the dissent's assertion to the
contrary, however, it has been this Court's consistent position
that democracy stands on a stronger footing when courts protect
First Amendment interests against legislative intrusion, rather
than deferring to merely rational legislative judgments in this
area:
"Mere legislative preferences or beliefs respecting matters of
public convenience may well support regulation directed at other
personal activities, but be insufficient to justify such as
diminishes the exercise of rights so
Page 453 U. S. 520
vital to the maintenance of democratic institutions. And so, as
cases arise, the delicate and difficult task falls upon the courts
to weigh the circumstances and to appraise the substantiality of
the reasons advanced in support of the regulation of the free
enjoyment of the rights."
Id. at
308 U. S.
161.
Because THE CHIEF JUSTICE misconceives the nature of the
judicial function in this situation, he misunderstands the
significance of the city's extensive exceptions to its billboard
prohibition. He characterizes these exceptions as "essentially
negligible,"
post at
453 U. S. 562,
and then opines that it borders on the frivolous to suggest that,
in "allowing such signs but forbidding noncommercial billboards,
the city has infringed freedom of speech."
Post at
453 U. S. 565.
That, of course, is not the nature of this argument.
There can be no question that a prohibition on the erection of
billboards infringes freedom of speech: the exceptions do not
create the infringement; rather, the general prohibition does. But
the exceptions to the general prohibition are of great significance
in assessing the strength of the city's interest in prohibiting
billboards. We conclude that, by allowing commercial establishments
to use billboards to advertise the products and services they
offer, the city necessarily has conceded that some communicative
interests,
e.g., on-site commercial advertising, are
stronger than its competing interests in esthetics and traffic
safety. It has nevertheless banned all noncommercial signs except
those specifically excepted.
THE CHIEF JUSTICE agrees that, in allowing the exceptions to the
rule, the city has balanced the competing interests, but he argues
that we transgress the judicial role by independently reviewing the
relative values the city has assigned to various communicative
interests. He seems to argue that, although the Constitution
affords a greater degree of protection to noncommercial than to
commercial speech, a legislature
Page 453 U. S. 521
need not make the same choices.
Post at
453 U. S. 567.
This position makes little sense even abstractly, and it surely is
not consistent with our cases or with THE CHIEF JUSTICE's own
argument that statutes challenged on First Amendment grounds must
be evaluated in light of the unique facts and circumstances of the
case. Governmental interests are only revealed and given concrete
force by the steps taken to meet those interests. If the city has
concluded that its official interests are not as strong as private
interests in commercial communications, may it nevertheless claim
that those same official interests outweigh private interests in
noncommercial communications? Our answer, which is consistent with
our cases, is in the negative.
VII
Because the San Diego ordinance reaches too far into the realm
of protected speech, we conclude that it is unconstitutional on its
face. [
Footnote 25] The
judgment of the California Supreme Court is reversed, and the case
is remanded to that court. [
Footnote 26]
It is so ordered.
[
Footnote 1]
San Diego Ordinance No. 10795 (New Series), enacted March 14,
1972. The general prohibition of the ordinance reads as
follows:
"B. OFF-PREMISE OUTDOOR ADVERTISING DISPLAY SIGNS
PROHIBITED"
"Only those outdoor advertising display signs, hereinafter
referred to as signs in this Division, which are either signs
designating the name of the owner or occupant of the premises upon
which such signs are placed, or identifying such premises; or signs
advertising goods manufactured or produced or services rendered on
the premises upon which such signs are placed shall be permitted.
The following signs shall be prohibited:"
"1. Any sign identifying a use, facility or service which is not
located on the premises."
"2. Any sign identifying a product which is not produced, sold
or manufactured on the premises."
"3. Any sign which advertises or otherwise directs attention to
a product, service or activity, event, person, institution or
business which may or may not be identified by a brand name and
which occurs or is generally conducted, sold, manufactured,
produced or offered elsewhere than on the premises where such sign
is located."
[
Footnote 2]
The California Supreme Court noted that the ordinance, as
written, might be interpreted
"to apply to signs of a character very different from commercial
billboards -- for example, to a picket sign announcing a labor
dispute or a small sign placed in one's front yard proclaiming a
political or religious message."
26 Cal. 3d at 856, n. 2, 610 P.2d at 410, n. 2. For this reason,
the court adopted the narrowing definition (quoted in the text).
That definition, however, focused on the structure, not the
content, of the billboard: it excluded "picket signs," but not
billboards used to convey a noncommercial message.
Cf. State ex
rel. Dept. of Transportation v. Pile, 603 P.2d 337
(1979) (Oklahoma Supreme Court construed a state statute
prohibiting outdoor advertising signs as not covering noncommercial
speech in order to avoid constitutional problems). The court
explicitly recognized this continuing burden on noncommercial
speech:
"The relatively few noncommercial advertisers who would be
restricted by the an Diego ordinance . . . possess a great variety
of alternative means of communication."
26 Cal. 3d at 869, 610 P.2d at 418-419. Furthermore, the city
continues to contend that the ordinance prohibits the use of
billboards to convey a noncommercial message, unless that message
falls within one of the specified exemptions contained in the
ordinance. Brief for Appellees 6.
[
Footnote 3]
Section 101.0700(F) provides as follows:
"The following types of signs shall be exempt from the
provisions of these regulations:"
"1. Any sign erected and maintained pursuant to and in discharge
of any governmental function or required by any law, ordinance or
governmental regulation."
"2. Bench signs located at designated public transit bus stops;
provided, however, that such signs shall have any necessary permits
required by Sections 62.0501 and 62.0502 of this Code."
"3. Signs being manufactured, transported and/or stored within
the City limits of the City of San Diego shall be exempt; provided,
however, that such signs are not used, in any manner or form, for
purposes of advertising at the place or places of manufacture or
storage."
"4. Commemorative plaques of recognized historical societies and
organizations."
"5. Religious symbols, legal holiday decorations and
identification emblems of religious orders or historical
societies."
"6. Signs located within malls, courts, arcades, porches, patios
and similar areas where such signs are not visible from any point
on the boundary of the premises."
"7. Signs designating the premises for sale, rent or lease;
provided, however, that any such sign shall conform to all
regulations of the particular zone in which it is located."
"8. Public service signs limited to the depiction of time,
temperature or news; provided, however, that any such sign shall
conform to all regulations of the particular zone in which it is
located."
"9. Signs on vehicles regulated by the City that provide public
transportation including, but not limited to, buses and
taxicabs."
"10. Signs on licensed commercial vehicles, including trailers;
provided, however, that such vehicles shall not be utilized as
parked or stationary outdoor display signs."
"11. Temporary off-premise subdivision directional signs if
permitted by a conditional use permit granted by the Zoning
Administrator."
"12. Temporary political campaign signs, including their
supporting structures, which are erected or maintained for no
longer than 90 days and which are removed within 10 days after
election to which they pertain."
[
Footnote 4]
This account of appellants' businesses is taken from the joint
stipulation of facts entered into by the parties and filed with
their cross-motions for summary judgment in the California Superior
Court.
See Joint Stipulation of Facts Nos. 12-20, App.
44a-45a.
[
Footnote 5]
Joint Stipulation of Facts No. 24, App. 47a.
[
Footnote 6]
Suffolk Outdoor Advertising Co. v. Hulse, 439 U.S. 808
(1978);
Newman Signs, Inc. v. Hjelle, 440 U.S. 901 (1979);
Lotze v. Washington, 444 U.S. 921 (1979).
[
Footnote 7]
These cases primarily involved due process and equal protection
challenges to municipal regulations directed at billboards. The
plaintiffs claimed that their method of advertising was improperly
distinguished from other methods that were not similarly regulated,
and that the ordinances resulted in takings of property without due
process. The Court rejected these claims, holding that the
regulation of billboards fell within the legitimate police powers
of local government.
[
Footnote 8]
The uniqueness of each medium of expression has been a frequent
refrain:
see, e.g., Southeastern Promotions, Ltd. v.
Conrad, 420 U. S. 546,
420 U. S. 557
(1975) ("Each medium of expression . . . must be assessed for First
Amendment purposes by standards suited to it, for each may present
its own problems");
FCC v. Pacifica Foundation,
438 U. S. 726,
438 U. S. 748
(1978) ("We have long recognized that each medium of expression
presents special First Amendment problems");
Joseph Burstyn,
Inc. v. Wilson, 343 U. S. 495,
343 U. S. 503
(1952) ("Each method tends to present its own peculiar
problems").
[
Footnote 9]
For a description of the history of the use of outdoor
advertising in this country and the use of billboards within that
history,
see F. Presbrey, The History and Development of
Advertising 497-511 (1929); Tocker, Standardized Outdoor
Advertising: History, Economics and Self-Regulation, in Outdoor
Advertising: History and Regulation 11, 29 (J. Houck ed.1969).
[
Footnote 10]
Joint Stipulation of Facts No. 23, App. 46a-47a.
[
Footnote 11]
The California Supreme Court suggested that appellants, owners
of billboard businesses, did not have standing to raise the
argument that billboards may, for some individuals or groups, be
the only affordable method of communicating to a large audience. 26
Cal. 3d at 869, n. 14, 610 P.2d at 419, n. 14. In so holding, the
California court seems to have confused the category of "commercial
speech" with the category of individuals who have a "commercial
interest" in protected speech. We have held that the overbreadth
doctrine, under which a party whose own activities are unprotected
may challenge a statute by showing that it substantially abridges
the First Amendment rights of parties not before the court, will
not be applied in cases involving "commercial speech."
Bates v.
State Bar of Arizona, 433 U. S. 350,
433 U. S. 381
(1977). However, we have never held that one with a "commercial
interest" in speech also cannot challenge the facial validity of a
statute on the grounds of its substantial infringement of the First
Amendment interests of others. Were it otherwise, newspapers, radio
stations, movie theaters and producers -- often those with the
highest interest and the largest stake in a First Amendment
controversy -- would not be able to challenge government
limitations on speech as substantially overbroad. As the opinion in
Bates observed,
id. at
433 U. S.
363:
"[O]ur cases long have protected speech even though it is in the
form of a paid advertisement,
Buckley v. Valeo,
424 U. S.
1 (1976);
New York Times Co. v. Sullivan,
376 U. S.
254 (1964); in a form that is sold for profit,
Smith
v. California, 361 U. S. 147 (1959);
Murdock v. Pennsylvania, 319 U. S. 105 (1943); or in the
form of a solicitation to pay or contribute money,
New York
Times Co. v. Sullivan, supra; Cantwell v. Connecticut,
310 U. S.
296 (1940). If commercial speech is to be distinguished,
it 'must be distinguished by its content.' 425 U.S. at
425 U. S.
761."
See also Virginia Pharmacy Board v. Virginia Citizens
Consumer Council, 425 U. S. 748,
425 U. S. 761
(197).
[
Footnote 12]
JUSTICE STEWART's comments in
Virginia Pharmacy Board
are worth quoting here:
"The Court's determination that commercial advertising of the
kind at issue here is not 'wholly outside the protection of' the
First Amendment indicates, by its very phrasing, that there are
important differences between commercial price and product
advertising, on the one hand, and ideological communication, on the
other. Ideological expression, be it oral, literary, pictorial, or
theatrical, is integrally related to the exposition of thought --
thought that may shape our concepts of the whole universe of man.
Although such expression may convey factual information relevant to
social and individual decisionmaking, it is protected by the
Constitution, whether or not it contains factual representations
and even if it includes inaccurate assertions of fact. . . ."
"Commercial price and product advertising differs markedly from
ideological expression, because it is confined to the promotion of
specific goods or services. The First Amendment protects the
advertisement because of the 'information of potential interest and
value' conveyed, rather than because of any direct contribution to
the interchange of ideas."
Id. at
425 U. S.
779-780 (references and footnotes omitted).
[
Footnote 13]
The California Supreme Court had held in
Varney Green v.
Williams, 155 Cal. 318, 100 P. 867 (1909), that a municipal
ordinance prohibiting all advertising billboards purely for
esthetic reasons was an unconstitutional exercise of municipal
police power. The court specifically overruled
Varney in
upholding the San Diego ordinance at issue here. California's
current position is in accord with that of most other
jurisdictions.
See n 15,
infra.
[
Footnote 14]
See E. B. Elliott Advertising Co . v. Metropolitan Dade
County, 425 F.2d 1141, 1152 (CA5 1970);
Markham
Advertising Co. v. Washington, 73 Wash. 2d
405, 420-421,
439 P.2d
248, 258 (1968);
New York State Thruway Authority v. Ashley
Motor Court, Inc., 10 N.Y.2d 151, 155-156, 176 N.E.2d 566, 568
(1961);
Ghaster Properties, Inc. v. Preston, 176 Ohio St.
425, 438, 200 N.E.2d 328, 337 (1964);
Newman Signs, Inc. v.
Hjelle, 268 N.W.2d
741, 757 (N.D.1978);
Lubbock Poster Co. v. City of
Lubbock, 569 S.W.2d 935, 939 (Tex.Civ.App.1978);
State v.
Lotze, 92 Wash. 2d
52, 59,
593 P.2d
811, 814 (1979);
Inhabitants, Town of Boothbay v. National
Advertising Co., 347 A.2d
419, 422 (Me.1975);
Stuckey's Stores, Inc. v.
O'Cheskey, 93 N.M. 312, 321,
600 P.2d
258, 267 (1979);
In re Opinion of the Justices, 103
N.H. 268, 270, 169 A.2d 762, 764 (1961);
General Outdoor
Advertising Co. v. Department of Public Works, 289 Mass. 149,
180-181, 193 N.E. 799, 813-814 (1935).
But see John Donnelly
& Sons v. Campbell, 639 F.2d 6, 11 (CA1 1980);
State
ex rel. Dept. of Transportation v. Pile, 603 P.2d at 343;
Metromedia, Inc. v. City of Des Plaines, 26 Ill.App.3d
942, 946, 326 N.E.2d 59, 62 (1975)
[
Footnote 15]
See John Donnelly & Sons v. Campbell, supra, at
11-12;
E. B. Elliott Adverting Co. v. Metropolitan Dade County,
supra, at 1152;
Newman Signs, Inc. v. Hjelle, supra,
at 757;
Markham Adverting Co. v. Washington, supra, at
422-423, 439 P.2d at 259;
Stuckey's Stores, Inc. v. O'Cheskey,
supra, at 321, 600 P.2d at 267;
Suffolk Outdoor Adverting
Co. v. Hulse, 43
N.Y.2d 483, 489, 373 N.E.2d 263, 265 (1977);
John Donnelly
& Sons, Inc. v. Outdoor Advertising Bd., 369 Mass. 206,
219,
339
N.E.2d 709, 717 (1975);
Cromwell v. Ferrier, 19 N.Y.2d
263, 269, 225 N.E.2d 749, 753 (1967);
State v. Diamond Motors,
Inc., 50 Haw. 33, 35-36,
429 P.2d 825,
827 (1967);
United Advertising Corp. v. Metuchen, 42 N.J.
1, 6,
198 A.2d
447, 449 (1964);
In re Opinion of the Justices, supra,
at 270-271, 169 A.2d at 764.
But see State ex rel. Dept. of
Transportation v. Pile, supra, at 342;
Sunad, Inc. v.
Sarasota, 122 So. 2d
611, 614-615 (Fla.1960).
[
Footnote 16]
The federal Highway Beautification Act of 1965, Pub.L. 89-285,
79 Stat. 1028, as amended, 23 U.S.C. ยง 131 (1976 ed. and Supp.
III), requires that States eliminate billboards from areas adjacent
to certain highways constructed with federal funds. The Federal
Government also prohibits billboards on federal lands. 43 CFR ยง
2921.0-6 (a) (1980). Three States have enacted statewide bans on
billboards. Maine, Me.Rev.Stat.Ann., Tit. 23, ยง 1901
et
seq. (1980); Hawaii, Haw. Rev.Stat. ยง 264-71
et seq.,
ยง 44111
et seq. (1976); Vermont, Vt.Stat.Ann., Tit. 10, ยง
488
et seq. (1973).
[
Footnote 17]
See Howard v. State Department of Highways of Colorado,
478 F.2d 581 (CA10 1973);
John Donnelly & Sons v. Campbell,
supra; John Donnelly & Sons, Inc. V. Outdoor Advertising Bd.,
supra; Donnelly Advertising Corp. v. City of Baltimore, 279
Md. 660, 668, 370 A.2d 1127, 1132 (1977);
Modjeska Sign
Studios, Inc. v. Berle, 43
N.Y.2d 468, 373 N.E.2d 255 (1977);
Suffolk Outdoor
Advertising Co. v. Hulse, supra; Ghaster Properties, Inc. v.
Preston, supra; Newman Signs, Inc. v. Hjelle, supra; United
Advertising Corp. v. Borough of Raritan, 11 N.J. 144,
93 A.2d
362 (1952) (Brennan, J.); United Advertising Corp. v. Metuchen,
supra; Stuckey's Stores, Inc. v. O'Cheskey,
supra.
[
Footnote 18]
In John Donnelly & Son v. Campbell, 639 F.2d 6 (1980), the
Court of Appeals for the First Circuit considered a statewide
limitation on billboards, which similarly afforded a greater degree
of protection to commercial than to noncommercial messages. That
court took a position very similar to the one that we take today:
it sustained the regulation insofar as it restricted commercial
advertising, but held unconstitutional its more intrusive
restrictions on noncommercial speech. The court stated:
"The law thus impacts more heavily on ideological than on
commercial speech -- a peculiar inversion of First Amendment
values. The statute . . . provides greater restrictions -- and
fewer alternatives, the other side of the coin -- for ideological
than for commercial speech. . . . In short, the statute's
impositions are both legally and practically the most burdensome on
ideological speech, where they should be the least."
639 F.2d at 15-16. Other courts, however, have failed to give
adequate weight to the distinction between commercial and
noncommercial speech, and to the higher level of protection to be
afforded the latter.
See Donnelly Advertising Corp. v. City of
Baltimore, 279 Md. 660, 370 A.2d 1127 (1977);
State v.
Lotze, 92 Wash. 2d
52,
593 P.2d
811 (1979). To the extent that this decision is not consistent
with the conclusion reached in
Lotze, we overrule our
prior summary approval of that decision in 444 U.S. 921 (1979).
[
Footnote 19]
In this sense, this case presents the opposite situation from
that in
Lehman v. City of Shaker Heights, 418 U.
S. 298 (1974), and
Greer v. Spock, 424 U.
S. 828 (1976). In both of those cases, a government
agency had chosen to prohibit from a certain forum speech relating
to political campaigns, while other kinds of speech were permitted.
In both cases, this Court upheld the prohibition, but both cases
turned on unique fact situations involving government-created
forums, and have no application here.
[
Footnote 20]
Because a total prohibition of outdoor advertising is not before
us, we do not indicate whether such a ban would be consistent with
the First Amendment.
But see Schad v. Mount Ephraim,
452 U. S. 61
(1981), on the constitutional problems created by a total
prohibition of a particular expressive forum, live entertainment in
that case. Despite JUSTICE STEVENS' insistence to the
contrary,
post, at
453 U. S. 540,
453 U. S. 541,
and
453 U. S. 548,
n. 16, we do not imply that the ordinance is unconstitutional
because it "does not abridge enough speech."
Similarly, we need not reach any decision in this case as to the
constitutionality of the federal Highway Beautification Act of
1965. That Act, like the San Diego ordinance, permits on-site
commercial billboards in areas in which it does not permit
billboards with noncommercial messages. 23 U.S.C. ยง 131(c) (1976
ed., Supp. III). However, unlike the San Diego ordinance, which
prohibits billboards conveying noncommercial messages throughout
the city, the federal law does not contain a total prohibit.ion of
such billboards in areas adjacent to the interstate and primary
highway systems. As far as the Federal Government is concerned,
such billboards are permitted adjacent to the highways in areas
zoned industrial or commercial under state law or in unzoned
commercial or industrial areas. 23 U.S.C. ยง 131(d). Regulation of
billboards in those areas is left primarily to the States. For this
reason, the decision today does not determine the constitutionality
of the federal statute. Whether, in fact, the distinction is
constitutionally significant can only be determined on the basis of
a record establishing the actual effect of the Act on billboards
conveying noncommercial messages.
[
Footnote 21]
See Joint Stipulation of Facts No. 28, App. 48a.
[
Footnote 22]
JUSTICE STEVENS' suggested standard seems to go even further
than THE CHIEF JUSTICE in ignoring the private interests protected
by the First Amendment. He suggests that regulation of speech is
permissible so long as it is not biased in favor of a particular
position and leaves open "ample" means of communication.
Post at
453 U. S. 552.
Nowhere does he suggest that the strength or weakness of the
government's interests is a factor in the analysis.
[
Footnote 23]
THE CHIEF JUSTICE correctly notes that traditional labels should
not be substituted for analysis and, therefore, he correctly
rejects any simple classification of the San Diego ordinance as
either a "prohibition" or a "time, place, and manner restriction."
These "labels" or "categories," however, have played an important
role in this Court's analysis of First Amendment problems in the
past. The standard THE CHIEF JUSTICE himself adopts appears to be
based almost exclusively on prior discussions of time, place, and
manner restrictions.
See Heffron v. International Society for
Krishna Consciousness, Inc., 452 U. S. 640
(1981);
Consolidated Edison Co. v. Public Service Comm'n,
447 U. S. 530,
447 U. S. 535
(1980);
California v. LaRue, 409 U.
S. 109,
409 U. S. 117,
n. 4 (1972);
Adderley v. Florida, 385 U. S.
39 (1966);
Kovacs v. Cooper, 336 U. S.
77 (1949). But this Court has never held that the less
strict standard of review applied to time, place, and manner
restrictions is appropriately used in every First Amendment case,
or that it is the most that the First Amendment requires of
government legislation which infringes on protected speech. If this
were the case, there would be no need for the detailed inquiry this
Court consistently pursues in order to answer the question of
whether a challenged restriction is in fact a time, place, and
manner restriction -- the same standard of review would apply
regardless of the outcome of that inquiry. As we demonstrated
above, the San Diego ordinance is not such a restriction, and there
is, therefore, no excuse for applying a lower standard of First
Amendment review to that ordinance.
[
Footnote 24]
Nor has this Court ever accepted the view that it must defer to
a legislative judgment that a particular medium of communication is
"offensive" and "intrusive" merely because "other means [of
communication] are available."
Post at
453 U. S.
561.
[
Footnote 25]
Appellants contend that the ordinance will effectively eliminate
their businesses, and that this violates the Due Process Clause. We
do not know, however, what kind of ordinance, if any, San Diego
will seek to enforce in place of that which we invalidate today. In
any case, any question of unconstitutional "takings" aside, the Due
Process Clause does not afford a greater degree of protection to
appellants' business than does the First Amendment. Since we hold
that the First Amendment interests in commercial speech are not
sufficient to prevent the city from prohibiting off-site commercial
advertisements, no different result should be reached under the Due
Process Clause.
[
Footnote 26]
Although the ordinance contains a severability clause,
determining the meaning and application of that clause is properly
the responsibility of the state courts.
See Dombrowski v.
Pfister, 380 U. S. 479,
380 U. S. 497
(1965) ("The record suffices . . . to permit this Court to hold
that, without the benefit of limiting construction, the statutory
provisions on which the indictments are founded are void on their
face; until an acceptable limiting construction is obtained, the
provisions cannot be applied");
Liggett Co. v. Lee,
288 U. S. 517,
288 U. S. 541
(1933) ("The operation of this [severability clause] consequent on
our decision is a matter of state law. While we have jurisdiction
of the issue, we deem it appropriate that we should leave the
determination of the question to the state court");
Dorchy v.
Kansas, 264 U. S. 286,
264 U. S. 291
("In cases coming from the state court, this Court, in the absence
of a controlling state decision, may, in passing upon the claim
under the federal law, decide also the question of severability.
But it is not obliged to do so. The situation may be such as to
make it appropriate to leave the determination of the question to
the state court"). This rule is reflected in the different
approaches this Court has taken to statutory construction of
federal and state statutes infringing on protected speech.
Compare United States v. Thirty-seven Photographs,
402 U. S. 363
(1971),
with Freedman v. Maryland, 380 U. S.
51,
380 U. S. 60
(1965). Since our judgment is based essentially on the inclusion of
noncommercial speech within the prohibitions of the ordinance, the
California courts may sustain the ordinance by limiting its reach
to commercial speech, assuming the ordinance is susceptible to this
treatment.
JUSTICE BRENNAN, with whom JUSTICE BLACKMUN joins, concurring in
the judgment.
Believing that "a total prohibition of outdoor advertising is
not before us,"
ante at
453 U.S. 515, n. 20, the plurality does
not decide
Page 453 U. S. 522
"whether such a ban would be consistent with the First
Amendment,"
ibid. Instead, it concludes that San Diego may
ban all billboards containing commercial speech messages without
violating the First Amendment, thereby sending the signal to
municipalities that bifurcated billboard regulations prohibiting
commercial messages but allowing noncommercial messages would pass
constitutional muster.
Ante at
453 U. S. 521,
n. 25. I write separately because I believe this case, in effect,
presents the total ban question, and because I believe the
plurality's bifurcated approach itself raises serious First
Amendment problems and relies on a distinction between commercial
and noncommercial speech unanticipated by our prior cases.
I
As construed by the California Supreme Court, a billboard
subject to San Diego's regulation is
"a rigidly assembled sign,
Page 453 U. S. 523
display, or device permanently affixed to the ground or
permanently attached to a building or other inherently permanent
structure constituting, or used for the display of, a commercial or
other advertisement to the public."
26 Cal. 3d
848, 856, n. 2, 610 P.2d 407, 410, n. 2 (1980), quoting
Cal.Rev. & Tax. Code Ann. ยง 18090.2 (West Supp.1970-1980).
[
Footnote 2/1] San Diego's
billboard regulation bans all commercial and noncommercial
billboard advertising, [
Footnote
2/2] with a few limited exceptions. The largest of these
exceptions is for on-premises identification signs, defined as
"signs designating the name of the owner or occupant of the
premises upon which such signs are placed, or identifying such
premises; or signs advertising goods manufactured or produced or
services rendered on the premises upon which such signs are
placed."
App. to Juris. Statement 107a. Other exceptions permit signs for
governmental functions, signs on benches at bus stops,
commemorative plaques for
Page 453 U. S. 524
historical sites, religious symbol signs, for-sale signs,
time/weather/news public service signs, and temporary political
campaign signs erected for no longer than 90 days and removed
within 10 days after the election to which they pertain.
Id. at 111a-112a;
ante at
453 U. S. 495,
n. 3. [
Footnote 2/3]
II
Let me first state the common ground that I share with the
plurality. The plurality and I agree that billboards are a medium
of communication warranting First Amendment protection. The
plurality observes that "[b]illboards are a well established medium
of communication, used to convey a broad range of different kinds
of messages."
Ante at
453 U. S. 501.
See generally Tocker, Standardized Outdoor Advertising:
History, Economics and Self-Regulation, in Outdoor Advertising:
History and Regulation 11, 11-56 (J. Houck ed.1969); F. Presbrey,
The History and Development of Advertising 497-511 (1929). As the
parties have stipulated, billboards in San Diego have been used
"to advertise national and local products, goods and services,
new products being introduced to the consuming public, to publicize
the 'City in Motion' campaign of the City of San Diego, to
communicate messages from candidates for municipal, state and
national offices, including candidates for judicial office, to
propose marriage, to seek employment, to encourage the use of seat
belts, to denounce the United Nations, to seek support for
Prisoners of War and Missing in Action, to promote the United
Crusade and a variety of other charitable and
Page 453 U. S. 525
socially-related endeavors, and to provide directions to the
traveling public."
Joint Stipulation of Facts No. 23, App. 46a-47a. [
Footnote 2/4] Although there are
alternative channels for communication of messages appearing on
billboards, such as newspapers, television, and radio, these
alternatives have never dissuaded active and continued use of
billboards as a medium of expression, and appear to be less
satisfactory.
See Linmark Associates, Inc. v. Willingboro,
431 U. S. 85,
431 U. S. 93
(1977). Indeed, the parties expressly stipulated that
"[m]any businesses and politicians and other persons rely upon
outdoor advertising because other forms of advertising are
insufficient, inappropriate and prohibitively expensive."
Joint Stipulation of Facts No. 28, App. 48a. Justice Black said
it well when he stated the First Amendment's presumption that
"all present instruments of communication, as well as others
that inventive genius may bring into being, shall be free from
governmental censorship or prohibition."
Kovacs v. Cooper, 336 U. S. 77,
336 U. S. 102
(1949) (dissenting opinion).
Where the plurality and I disagree is in the characterization of
the San Diego ordinance, and thus in the appropriate analytical
framework to apply. The plurality believes that the question of a
total ban is not presented in this case,
ante at
453 U.S. 515, n. 20,
because the ordinance contains exceptions to its general
prohibition. In contrast, my view is that the
practical
effect of the San Diego ordinance is to eliminate the billboard as
an effective medium of communication for the
Page 453 U. S. 526
speaker who wants to express the sorts of messages described in
Joint Stipulation of Facts No. 23, and that the exceptions do not
alter the overall character of the ban. Unlike the on-premises
sign, the off-premises billboard
"is, generally speaking, made available to 'all comers' in a
fashion similar to newspaper or broadcasting advertising. It is a
forum for the communication of messages to the public."
Joint Stipulation of Facts No. 22 (c), App. 46a. [
Footnote 2/5] Speakers in San Diego no
longer have the opportunity to communicate their messages of
general applicability to the public through billboards. None of the
exceptions provides a practical alternative for the general
commercial or noncommercial billboard advertiser. Indeed, unless
the advertiser chooses to buy or lease premises in the city, or
unless his message falls within one of the narrow exempted
categories, he is foreclosed from announcing either commercial or
noncommercial ideas through a billboard. The characterization of
the San Diego regulation as a total ban of a medium of
communication has more than semantic implications, for it suggests
a First Amendment analysis quite different from the plurality's.
Instead of relying on the exceptions to the ban to invalidate the
ordinance, I would apply the tests this Court has developed to
analyze content-neutral
Page 453 U. S. 527
prohibitions of particular media of communication. [
Footnote 2/6] Most recently, in
Schad
v. Mount Ephraim, 452 U. S. 61
(1981), this Court assessed "the substantiality of the governmental
interests asserted" and "whether those interests could be served by
means that would be less intrusive on activity protected by the
First Amendment," in striking down the borough's total ban on live
commercial entertainment.
Id. at
452 U. S. 70.
Schad merely articulated an analysis applied in previous
cases concerning total bans of media of expression. For example, in
Schneider v. State, 308 U. S. 147
(1939), the Court struck down total bans on handbill leafletting
because there were less restrictive alternatives to achieve the
goal of prevention of litter, in fact, alternatives that did not
infringe at all on that important First Amendment privilege.
Id. at
308 U. S. 162.
In
Martin v. City of Struthers, 319 U.
S. 141 (1943), the Court invalidated a municipal
ordinance that forbade persons from engaging in the time-honored
activity of door-to-door solicitation.
See also Jamison v.
Texas, 318 U. S. 413,
318 U. S.
416-417 (1943) (distribution of handbills);
Hague v.
CIO, 307 U. S. 496,
307 U. S. 518
(1939) (opinion of Roberts, J.) (distribution of pamphlets).
See generally Ely, Legislative and Administrative
Motivation in Constitutional Law, 79 Yale L.J. 1205, 1335-1336
(1970).
Of course, as the plurality notes,
"[e]ach method of communicating ideas is 'a law unto itself,'
and that law must reflect the 'differing natures, values, abuses
and dangers' of each method."
Ante at
453 U. S. 501,
quoting
Kovacs v. Cooper, supra, at
336 U. S. 97
(Jackson, J., concurring). Similarly, in
Southeastern
Promotions, Ltd. v. Conrad, 420 U. S. 546,
420 U. S. 557
(1975), this Court observed:
"Each medium of expression, of course, must be assessed for
First Amendment purposes by standards suited
Page 453 U. S. 528
to it, for each may present its own problems."
It is obvious that billboards do present their own unique
problems: they are large immobile structures that depend on
eye-catching visibility for their value. At the same time, the
special problems associated with billboards are not of a different
genus than those associated with commercial live entertainment in
the borough of Mount Ephraim, or with door-to-door literature
distribution in the city of Struthers. In the case of billboards, I
would hold that a city may totally ban them if it can show that a
sufficiently substantial governmental interest is directly
furthered by the total ban, and that any more narrowly drawn
restriction,
i.e., anything less than a total ban, would
promote less well the achievement of that goal.
Applying that test to the instant case, I would invalidate the
San Diego ordinance. The city has failed to provide adequate
justification for its substantial restriction on protected
activity.
See Schad v. Mount Ephraim, supra, at
452 U. S. 72.
First, although I have no quarrel with the substantiality of the
city's interest in traffic safety, the city has failed to come
forward with evidence demonstrating that billboards actually impair
traffic safety in San Diego. Indeed, the joint stipulation of facts
is completely silent on this issue. Although the plurality
hesitates
"to disagree with the accumulated, common sense judgments of
local lawmakers and of the many reviewing courts that billboards
are real and substantial hazards to traffic safety,"
ante at
453 U. S. 509,
I would not be so quick to accept legal conclusions in other cases
as an adequate substitute for evidence
in this case that
banning billboards directly furthers traffic safety. [
Footnote 2/7] Moreover, the ordinance is
not
Page 453 U. S. 529
narrowly drawn to accomplish the traffic safety goal. Although
it contains an exception for signs "not visible from any point on
the boundary of the premises," App. to Juris.Statement
Page 453 U. S. 530
111a, billboards not visible from the street but nevertheless
visible from the "boundary of the premises" are not exempted from
the regulation's prohibition.
Second, I think that the city has failed to show that its
asserted interest in aesthetics is sufficiently substantial in the
commercial and industrial areas of San Diego. I do not doubt that
"[i]t is within the power of the [city] to determine that the
community should be beautiful,"
Berman v. Parker,
348 U. S. 26,
348 U. S. 33
(1954), but that power may not be exercised in contravention of the
First Amendment. This Court noted in
Schad that
"[t]he [city] has presented no evidence, and it is not
immediately apparent as a matter of experience, that live
entertainment poses problems . . . more significant than those
associated with various permitted uses; nor does it appear that the
[city] has arrived at a defensible conclusion that unusual problems
are presented by live entertainment."
452 U.S. at
452 U. S. 73.
Substitute the word "billboards" for the words "live
entertainment," and that sentence would equally apply to this
case.
It is no doubt true that the appearance of certain areas of the
city would be enhanced by the elimination of billboards, but "it is
not immediately apparent as a matter of experience" that their
elimination in all other areas as well would
Page 453 U. S. 531
have more than a negligible impact on aesthetics.
See John
Donnelly & Sons v. Campbell, 639 F.2d 6, 23 (CA1 1980)
(Pettine, J., concurring in judgment),
summarily aff'd,
post, p. 916. [
Footnote 2/8]
The joint stipulation reveals that
"[s]ome sections of the City of San Diego are scenic, some
blighted, some containing strips of vehicle-related commercial
uses, some contain new and attractive office buildings, some
functional industrial development and some areas contain older but
useful commercial establishments."
Joint Stipulation of Facts No. 8, App. 43a. A billboard is not
necessarily inconsistent with oil storage tanks, blighted
areas, or strip development. Of course, it is not for a court to
impose its own notion of beauty on San Diego. But before deferring
to a city's judgment, a court must be convinced that the city is
seriously and comprehensively addressing aesthetic concerns with
respect to its environment. Here, San Diego has failed to
demonstrate a comprehensive coordinated effort in its commercial
and industrial areas to address other obvious contributors to an
unattractive environment. In this sense, the ordinance is
underinclusive.
See Ernoznick v. City of Jacksonville,
422 U. S. 205,
422 U. S. 214
(1975). Of course, this is not to say that the city must address
all aesthetic problems at the same time, or none at all. Indeed,
from a planning point of view, attacking the problem
Page 453 U. S. 532
incrementally and sequentially may represent the most sensible
solution. On the other hand, if billboards alone are banned and no
further steps are contemplated or likely, the commitment of the
city to improving its physical environment is placed in doubt. By
showing a comprehensive commitment to making its physical
environment in commercial and industrial areas more attractive,
[
Footnote 2/9] and by allowing only
narrowly tailored exceptions, if any, [
Footnote 2/10] San Diego could demonstrate
Page 453 U. S. 533
that its interest in creating an aesthetically pleasing
environment is genuine and substantial. This is a requirement
where, as here, there is an infringement of important
constitutional consequence.
I have little doubt that some jurisdictions will easily carry
the burden of proving the substantiality of their interest in
Page 453 U. S. 534
aesthetics. For example, the parties acknowledge that a
historical community such as Williamsburg, Va., should be able to
prove that its interests in aesthetics and historical authenticity
are sufficiently important that the First Amendment value attached
to billboards must yield.
See Tr. of Oral Arg. 22-25. And
I would be surprised if the Federal Government had much trouble
making the argument that billboards could be entirely banned in
Yellowstone National Park, where their very existence would so
obviously be inconsistent with the surrounding landscape. I express
no view on whether San Diego or other large urban areas will be
able to meet the burden. [
Footnote
2/11]
See Schad v. Mount Ephraim, 452 U.S. at
452 U. S. 77
(BLACKMUN, J., concurring). But San Diego failed to do so here,
and, for that reason, I would strike down its ordinance.
III
The plurality's treatment of the commercial-noncommercial
distinction in this case is mistaken in its factual analysis of the
San Diego ordinance, and departs from this Court's precedents. In
453 U. S. the plurality concludes
that the San Diego ordinance is constitutional insofar as it
regulates commercial speech. Under its view, a city with merely a
reasonable justification could pick and choose between those
commercial billboards it would allow and those it would not, or
could totally ban all commercial billboards. [
Footnote 2/12] In
453 U. S.
Page 453 U. S. 535
the plurality concludes, however, that the San Diego ordinance
as a whole is unconstitutional because,
inter alia, it
affords a greater degree of protection to commercial than to
noncommercial speech:
"The use of on-site billboards to carry commercial messages
related to the commercial use of the premises is freely permitted,
but the use of otherwise identical billboards to carry
noncommercial messages is generally prohibited. . . . Insofar as
the city tolerates billboards at all, it cannot choose to limit
their content to commercial messages; the city may not conclude
that the communication of commercial information concerning goods
and services connected with a particular site is of greater value
than the communication of noncommercial messages."
Ante at
453 U. S.
513.
The plurality apparently reads the on-site premises exception as
limited solely to commercial speech. I find no such limitation in
the ordinance. As noted
supra, the on-site exception
allows
"signs designating the name of the owner or occupant of the
premises upon which such signs are placed, or identifying such
premises; or signs advertising goods manufactured or produced or
services rendered on the premises upon which such signs are
placed."
App. to Juris. Statement 107a. As I read the ordinance, the
content of the sign depends strictly on the identity of the owner
or occupant of the premises. If the occupant is a commercial
enterprise, the substance of a permissible identifying sign would
be commercial.
Page 453 U. S. 536
If the occupant is an enterprise usually associated with
noncommercial speech, the substance of the identifying sign would
be noncommercial. Just as a supermarket or barbershop could
identify itself by name, so too could a political campaign
headquarters or a public interest group. I would also presume that,
if a barbershop could advertise haircuts, a political campaign
headquarters could advertise "Vote for Brown," or "Vote for
Proposition 13."
More importantly, I cannot agree with the plurality's view that
an ordinance totally banning commercial billboards but allowing
noncommercial billboards would be constitutional. [
Footnote 2/13] For me, such an ordinance raises
First Amendment problems at least as serious as those raised by a
total ban, for it gives city officials the right -- before
approving a billboard -- to determine whether the proposed message
is "commercial" or "noncommercial." Of course the plurality is
correct when it observes that
"our cases have consistently distinguished between the
constitutional protection afforded commercial, as opposed to
noncommercial, speech,"
ante at
453 U. S.
504-505, but it errs in assuming that a
governmental
unit may be put in the position in the first instance of
deciding whether the proposed speech is commercial or
noncommercial. In individual cases, this distinction is anything
but clear. Because making such determinations would entail a
substantial exercise of discretion by a city's official, it
presents a real danger of curtailing
Page 453 U. S. 537
noncommercial speech in the guise of regulating commercial
speech.
In
Cantwell v. Connecticut, 310 U.
S. 296 (1940), the Court reviewed a statute prohibiting
solicitation of money by religious groups unless such solicitation
was approved in advance by the Secretary of the Public Welfare
Council. The statute provided in relevant part:
"Upon application of any person in behalf of such
[solicitation], the secretary shall determine whether such cause is
a religious one . . . and conforms to reasonable standards of
efficiency and integrity, and, if he shall so find, shall approve
the same and issue to the authority in charge a certificate to that
effect."
Id. at
310 U. S. 302.
The Court held that conditioning the ability to solicit on a
license,
"the grant of which rests in the exercise of a determination by
state authority as to what is a religious cause, is to lay a
forbidden burden upon the exercise of liberty protected by the
Constitution."
Id. at
310 U. S. 307.
Specifically rejecting the State's argument that arbitrary and
capricious acts of a state officer would be subject to judicial
review, the Court observed:
"Upon [the state official's] decision as to the nature of the
cause, the right to solicit funds depends; . . . [T]he availability
of a judicial remedy for abuses in the system of licensing still
leaves that system one of previous restraint which, in the field of
free speech and press, we have held inadmissible."
Id. at
310 U. S. 306.
See Saia v. New York, 334 U. S. 558,
334 U. S. 560
(1948). As Justice Frankfurter subsequently characterized
Cantwell: "To determine whether a cause is, or is not,
religious' opens too wide a field of personal judgment to be
left to the mere discretion of an official." 334 U.S. at
334 U. S. 564
(dissenting opinion).
According such wide discretion to city officials to control the
free exercise of First Amendment rights is precisely what
Page 453 U. S. 538
has consistently troubled this Court in a long line of cases
starting with
Lovell v. Griffin, 303 U.
S. 444,
303 U. S. 451
(1938).
See, e.g., Southeastern Promotions, Ltd. v.
Conrad, 420 U.S. at
420 U. S.
552-553 (theatrical performance in city-owned
auditorium);
Shuttlesworth v. Birmingham, 394 U.
S. 147,
394 U. S.
150-153 (1969) (picketing and parading);
Staub v.
City of Baxley, 355 U. S. 313,
355 U. S.
321-325 (1958) (solicitation);
Kunz v. New
York, 340 U. S. 290,
340 U. S. 294
(1951) (public meetings);
Saia v. New York, supra, at
334 U. S.
560-562 (sound trucks);
Cantwell v. Connecticut,
supra, at
310 U. S. 307
(solicitation);
Schneider v. State, 308 U.S. at 16164
(handbills);
Hague v. CIO, 307 U.S. at
307 U. S. 516
(handbills).
See also Young v. American Mini Theatres,
Inc., 427 U. S. 50,
427 U. S. 93
(1976) (BLACKMUN, J., dissenting);
Hynes v. Mayor and Council
of Oradell, 425 U. S. 610,
425 U. S. 617
(1976);
Police Dept. of Chicago v. Mosley, 408 U. S.
92,
408 U. S. 97
(1972). The plurality's bifurcated approach, I fear, will generate
billboard ordinances providing the grist for future additions to
this list, for it creates discretion where none previously
existed.
It is one thing for a court to classify in specific cases
whether commercial or noncommercial speech is involved, but quite
another -- and for me dispositively so -- for a city to do so
regularly for the purpose of deciding what messages may be
communicated by way of billboards. Cities are equipped to make
traditional police power decisions,
see Saia v. New York,
supra, at
334 U. S.
564-565 (Frankfurter, J., dissenting), not decisions
based on the content of speech. I would be unhappy to see city
officials dealing with the following series of billboards and
deciding which ones to permit: the first billboard contains the
message "Visit Joe's Ice Cream Shoppe"; the second, "Joe's Ice
Cream Shoppe uses only the highest quality dairy products"; the
third, "Because Joe thinks that dairy products are good for you,
please shop at Joe's Shoppe"; and the fourth, "Joe says to support
dairy price supports: they mean lower prices for you at his
Shoppe." Or how about some San Diego Padres baseball fans -- with
no connection to
Page 453 U. S. 539
the team -- who together rent a billboard and communicate the
message "Support the San Diego Padres, a great baseball team." May
the city decide that a United Automobile Workers billboard with the
message "Be a patriot -- do not buy Japanese-manufactured cars" is
"commercial," and therefore forbid it? What if the same sign is
placed by Chrysler? [
Footnote
2/14]
I do not read our recent line of commercial cases as authorizing
this sort of regular and immediate line-drawing by governmental
entities. If anything, our cases recognize the difficulty in making
a determination that speech is either "commercial" or
"noncommercial." In
Virginia Pharmacy Board v. Virginia
Citizens Consumer Council, Inc.,
425 U.
S. 748,
425 U. S. 764
(197), after noting that "not all commercial messages contain . . .
a very great public interest element," the Court suggested that
"[t]here are few to which such an element, however, could not be
added." The Court continued:
"Our pharmacist, for example, could cast himself as a
commentator on store-to-store disparities in drug prices, giving
his own and those of a competitor as proof. We see little point in
requiring him to do so, and little difference if he does not."
Id. at
425 U. S.
764-765.
Cf. Murdock v. Pennsylvania,
319 U. S. 105,
319 U. S. 111
(1943). In
Bigelow v. Virginia, 421 U.
S. 809,
421 U. S. 822
(1975), the Court observed that the advertisement of abortion
services placed by a New York clinic in a Virginia weekly newspaper
-- although in part a commercial advertisement -- was far more than
that:
"Viewed in its entirety, the advertisement conveyed information
of potential interest and value to a diverse audience -- not only
to readers possibly in need of the services offered, but also to
those with a general curiosity
Page 453 U. S. 540
about, or genuine interest in, the subject matter or the law of
another State and its development, and to readers seeking reform in
Virginia. The mere existence of the Women's Pavilion in New York
City, with the possibility of its being typical of other
organizations there, and the availability of the services offered,
were not unnewsworthy."
"The line between ideological and nonideological speech is
impossible to draw with accuracy."
Lehman v. City of Shaker
Heights, 418 U. S. 298,
418 U. S. 319
(1974) (BRENNAN, J., dissenting). I have no doubt that those who
seek to convey commercial messages will engage in the most
imaginative of exercises to place themselves within the safe haven
of noncommercial speech, while at the same time conveying their
commercial message. Encouraging such behavior can only make the job
of city officials -- who already are inclined to ban billboards --
that much more difficult and potentially intrusive upon legitimate
noncommercial expression.
Accordingly, I would reverse the decision of the California
Supreme Court upholding the San Diego billboard ordinance.
[
Footnote 2/1]
According to Joint Stipulation of Facts No. 25 entered into by
the parties for purposes of cross-motions for summary judgment:
"Outdoor advertising is presented in two basic standardized
forms. A 'poster panel' is a 12-foot by 24-foot sign on which a
preprinted message is posted, in sheets. A 'painted bulletin' is
generally a 14-foot by 48-foot sign which contains a hand-painted
message. The message will remain in one place for a period of time,
usually a month, and will then be disassembled and replaced by
another message while the first message is moved to another sign.
In this way, the same hand-painted message will be moved throughout
a metropolitan area over a six-month or twelve-month period."
App. 47a. The ordinance does not apply to such signs as "a
picket sign announcing a labor dispute or a small sign placed in
one's front yard proclaiming a political or religious message."
26 Cal. 3d
848, 856, n. 2, 610 P.2d 407, 410, n. 2 (1980).
[
Footnote 2/2]
I will sometimes refer to billboards containing commercial
speech messages as "commercial billboards," and billboards
containing noncommercial speech messages as "noncommercial
billboards."
[
Footnote 2/3]
Additional exceptions include signs manufactured, transported,
or stored in San Diego so long as they are not used for advertising
purposes; signs located within areas where such signs are not
visible from the boundary of the premises; signs on vehicles such
as buses and taxicabs; signs on other licensed commercial vehicles;
and temporary off-premises subdivision directional signs. App. to
Juris. Statement 111a-112a.
[
Footnote 2/4]
Perusal of the photographs of billboards included in the
appendix to the jurisdictional statement filed in this Court
reveals the wide range of noncommercial messages communicated
through billboards, including the following: "Welcome to San
Diego[:] Home of 1,100 Underpaid Cops"; "Support San Diego's
No-Growth Policy[:] Spend Your Money in Los Angeles!"; "Voluntary
Integration. Better Education By Choice"; "Support America's First
Environment Strike. Don't Buy Shell!"; and "Get US out! of the
United Nations."
[
Footnote 2/5]
Outdoor advertising traditionally has been classified into two
categories: "on-premises" and "off-premises." One commentator
describes:
"The on-premise classification of outdoor advertising is
referred to as the sign industry, in that signs are custom-made and
are manufactured by a sign contractor on premises not owned, leased
or controlled by the sign contractor or his agent. Such signs are
used primarily for the purpose of identifying a business, its
products or its services at the point of manufacture, distribution
or sale, hence on-premise."
"
* * * *"
"Off-premise advertising is an advertising service for others
which erects and maintains outdoor advertising displays on premises
owned, leased or controlled by the producer of the advertising
service."
Tocker, Standardized Outdoor Advertising: History, Economics and
Self-Regulation, in Outdoor Advertising: History and Regulation 11,
15, 18 (J. Houck ed.1969).
[
Footnote 2/6]
Different factors come into play when the challenged legislation
is simply a time, place, or manner regulation, rather than a total
ban of a particular medium of expression.
[
Footnote 2/7]
Not 1 of the 11 cases cited by the plurality in its footnote 14
stands for the proposition that reviewing courts have determined
that "billboards are real and substantial hazards to traffic
safety." These 11 cases merely apply the minimal scrutiny rational
relationship test and the presumption of legislative validity to
hold that it would not be unreasonable or inconceivable for a
legislature or city government to conclude that billboards are
traffic hazards. For example, in
New York State Thruway
Authority v. Ashley Motor Court, Inc., 10 N.Y.2d 151, 156, 176
N.E.2d 566, 568 (1961), the court held:
"There are some, perhaps, who may dispute whether billboards and
other advertising devices interfere with safe driving and
constitute a traffic hazard . . . , but mere disagreement may not
cast doubt on the statute's validity. Matters such as these are
reserved for legislative judgment, and the legislative
determination, here expressly announced, will not be disturbed
unless manifestly unreasonable."
Only 5 of the 11 cases even discuss the First Amendment.
See
Stuckey's Stores, Inc. v. O'Cheskey, 93 N.M. 312,
600 P.2d
258 (1979),
appeal dism'd, 446 U.S. 930 (1980);
State v. Lotze, 92 Wash. 2d
52,
593 P.2d
811,
appeal dism'd, 444 U.S. 921 (1979);
Lubbock
Poster Co. v. City of Lubbock, 569 S.W.2d 935
(Tex.Civ.App.1978),
cert. denied, 444 U.S. 833 (1979);
Newman Signs, Inc. v. Hjelle, 268
N.W.2d 741 (N.D.1978),
appeal dism'd, 440 U.S. 901
(1979);
Markham Advertising Co. v.
Washington, 73 Wash. 2d
405,
439 P.2d
248 (1968),
appeal dism'd, 393 U.
S. 316 (1969). Therefore, when the plurality states that
"[t]here is nothing here to suggest that these judgments are
unreasonable,"
ante at
453 U. S. 509,
it is really saying that there is nothing unreasonable about other
courts finding that there is nothing unreasonable about a
legislative judgment. This is hardly a sufficient finding under the
heightened scrutiny appropriate for this case. It is not surprising
that, of the three cases cited in the plurality's footnote 14 that
declined to accept the traffic safety rationale, two were decided
under heightened scrutiny.
There is another reason why I would hesitate to accept the
purported judgment of lawmakers that billboards are traffic
hazards. Until recently, it was thought that aesthetics
alone could never be a sufficient justification to support
an exercise of the police power, and that aesthetics would have to
be accompanied by a more traditional health, safety, morals, or
welfare justification. Indeed, the California Supreme Court
decision below explicitly repudiated the holding of a prior case,
Varney & Green v. Williams, 155 Cal. 318, 100 P. 867
(1909), that held aesthetics to be an insufficient predicate for
police power action. 26 Cal. 3d at 860 861, 610 P.2d at 413.
Therefore, in the case of billboard regulations, many cities may
have used the justification of traffic safety in order to sustain
ordinances where their true motivation was aesthetics. As the
Hawaii Supreme Court commented in
State v. Diamond Motors,
Inc., 50 Haw. 33, 36,
429 P.2d 825,
827 (1967), in upholding a comprehensive sign ordinance:
"[The City's] answering brief admittedly 'does not extend to
supporting the proposition that aesthetics alone is a proper
objective for the exercise of the City's police power.' Perhaps,
the 'weight of authority' in other jurisdictions persuaded the City
to present the more traditional arguments because it felt that it
was safer to do so. However, the brief of The Outdoor Circle as
amicus curiae presents, as we think, a more modern and
forthright position. . . . "
". . . We are mindful of the reasoning of most courts that have
upheld the validity of ordinances regulating outdoor advertising,
and of the need felt by them to find some basis in economics,
health, safety, or even morality. . . . We do not feel so
constrained."
(Footnote omitted.) See also C. Haar, Land-Use Planning 403-408
(3d ed.1976).
[
Footnote 2/8]
Judge Pettine comments on Maine's statewide ban:
"Even assuming that a total ban on billboards will produce some
aesthetic gain in all highway areas, the quantum of improvement
will obviously vary with the site involved. In undeveloped areas,
it may very well be that signs and billboards are the principal
eyesores; here, the benefit will be great, for their removal would
return the landscape to its pristine beauty. In industrial and
commercial areas, however, signs and billboards are but one of
countless types of man-made intrusions on the natural landscape.
Without denying that some perceptible change for the better would
occur even here, I question whether the margin of improvement
obtained in these areas can really justify the state's decision to
virtually eradicate commercial speech by sign and billboard."
639 F.2d at 23.
[
Footnote 2/9]
For example, Williamsburg, Va., requires that any building newly
constructed or altered in the city
"shall have such design and character as not to detract from the
value and general harmony of design of buildings already existing
in the surrounding area in which the building is located or is to
be located."
Williamsburg City Code ยง 30-80 (1979).
[
Footnote 2/10]
Appellants argue that the exceptions to the total ban, such as
for on-premises signs, undercut the very goals of traffic safety
and aesthetics that the city claims as paramount, and therefore
invalidate the whole ordinance. Brief for Appellants 42-43. But
obviously, a city can have special goals the accomplishment of
which would conflict with the overall goals addressed by the total
billboard ban. It would make little sense to say that a city has an
all-or-nothing proposition -- either ban all billboards or none at
all. Because I conclude that the San Diego ordinance impermissibly
infringes First Amendment rights in that the city has failed to
justify the ordinance sufficiently in light of substantial
governmental interests, I need not decide, as the plurality does in
453 U. S.
whether the exceptions to the total ban constitute independent
grounds for invalidating the regulation. However, if a city can
justify a total ban, I would allow an exception only if it directly
furthers an interest that is at least as important as the interest
underlying the total ban, if the exception is no broader than
necessary to advance the special goal, and if the exception is
narrowly drawn so as to impinge as little as possible on the
overall goal. To the extent that exceptions rely on content-based
distinctions, they must be scrutinized with special care.
The San Diego billboard ordinance is a classic example of
conflicting interests. In its section entitled "Purpose and
Intent," the ordinance states:
"It is the purpose of these regulations to eliminate excessive
and confusing sign displays which do not relate to the premises on
which they are located; to eliminate hazards to pedestrians and
motorists brought about by distracting sign displays; to ensure
that signing is used as identification, and not as advertisement;
and to preserve and improve the appearance of the City as a place
in which to live and work."
"It is the intent of these regulations to protect an important
aspect of the economic base of the City by preventing the
destruction of the natural beauty and environment of the City,
which is instrumental in attracting nonresidents who come to visit,
trade, vacation or attend conventions; to safeguard and enhance
property values; to protect public and private investment in
buildings and open spaces; and to protect the public health, safety
and general welfare."
App. to Juris.Statement 106a-107a.
To achieve these purposes, the ordinance effects a general ban
on billboards, but with an exception for on-premises identification
signs. Of course, each on-premises sign detracts from achieving the
city's goals of traffic safety and aesthetics, but contributes to
the alternative goal of identification. In this way, San Diego
seeks to achieve the best compromise between the goals of traffic
safety and aesthetics on the one hand, and convenience for the
public, on the other.
San Diego has shown itself fully capable of drafting narrow
exceptions to the general ban. For example, the city has
promulgated special regulations for sign control in the La Jolla
sign control district:
"The Sign Control District is intended to maintain the unique,
distinctive character and economic value of the La Jolla area in
the City of San Diego and to regulate advertising of commercial
enterprises. . . . "
"
* * * *"
"One sign shall be permitted on each lot or parcel of real
estate, . . . provided . . . :"
"
* * * *"
"Such sign shall not exceed 5' x 8' in size and no part of such
sign shall extend more than four feet above the surface of the
ground upon which it is erected."
Id. at 113a-115a.
My views in this case make it unnecessary to decide the
permissibility of the on-premises exception, but it is not
inconceivable that San Diego could incorporate an exception to its
overall ban to serve the identification interest without violating
the Constitution. I also do not decide the validity of the other
exceptions to the San Diego regulation.
[
Footnote 2/11]
Likewise, I express no view on the constitutionality of the
Highway Beautification Act of 1965, 23 U.S.C. ยง 131 (1976 ed. and
Supp. III).
[
Footnote 2/12]
The plurality comments that
"the city
could reasonably conclude that a commercial
enterprise -- as well as the interested public -- has a stronger
interest in identifying its place of business and advertising the
products or services available there than it has in using or
leasing its available space for the purpose of advertising
commercial enterprises located elsewhere."
Ante at
453 U. S. 512
(emphasis added). But
Central Hudson Gas & Electric Corp.
v. Public Service Comm'n, 447 U. S. 557
(1980), demands more than a rational basis for preferring one kind
of commercial speech over another. Moreover, this case does not
present legislation implicating the "common sense differences"
between commercial and noncommercial speech that "
suggest that
a different degree of protection is necessary to insure that the
flow of truthful and legitimate commercial information is
unimpaired.'" Linmark Associates, Inc. v. Willingboro,
431 U. S. 85,
431 U. S. 98
(1977), quoting Virginia Pharmacy Board v. Virginia Citizens
Consumers Council, Inc., 425 U. S. 748,
425 U. S.
771-772, n. 24 (1976). There is no suggestion that San
Diego's billboard ordinance is designed to deal with "false or
misleading signs." Linmark Associates, Inc. v. Willingboro,
supra, at 431 U. S.
98.
[
Footnote 2/13]
Of course, as a matter of marketplace economics, such an
ordinance may prove the undoing of
all billboard
advertising, both commercial and noncommercial. It may well be that
no company would be able to make a profit maintaining billboards
used solely for noncommercial messages. Although the record does
not indicate how much of appellants' income is produced by
noncommercial communicators, it would not be unreasonable to assume
that the bulk of their customers advertise commercial messages.
Therefore, noncommercial users may represent such a small
percentage of the billboard business that it would be impossible to
stay in business based upon their patronage alone. Therefore, the
plurality's prescription may represent a
de facto ban on
both commercial and noncommercial billboards. This is another
reason to analyze this case as a "total ban" case.
[
Footnote 2/14]
These are not mere hypotheticals that can never occur. The Oil,
Chemical and Atomic Workers International Union, AFL-CIO, actually
placed a billboard advertisement stating: "Support America's First
Environment Strike. Don't Buy Shell!" App. to Juris.Statement;
see 453
U.S. 490fn2/4|>n. 4,
supra. What if Exxon had
placed the advertisement? Could Shell respond in kind?
JUSTICE STEVENS, dissenting in part.
If enforced as written, the ordinance at issue in this case will
eliminate the outdoor advertising business in the city of San
Diego. [
Footnote 3/1] The principal
question presented is, therefore, whether a city may prohibit this
medium of communication. Instead of answering that question, the
plurality focuses its attention on the exceptions from the total
ban and, somewhat ironically, concludes that the ordinance is an
unconstitutional abridgment of speech because it does not abridge
enough speech. [
Footnote 3/2]
Page 453 U. S. 541
The plurality first holds that a total prohibition of the use of
"outdoor advertising display signs" [
Footnote 3/3] for commercial messages, other than those
identifying or promoting a business located on the same premises as
the sign, is permissible. I agree with the conclusion that the
constitutionality of this prohibition is not undercut by the
distinction San Diego has drawn between on-site and off-site
commercial signs,
see ante at
453 U. S. 512
(plurality opinion), and I therefore join Parts I through IV of
JUSTICE WHITE's opinion. I do not, however, agree with the
reasoning which leads the plurality to invalidate the ordinance
because San Diego failed to include a total ban on the use of
billboards for both commercial and noncommercial messages. While
leaving open the possibility that a total ban on billboards would
be permissible,
see ante at
453 U.S. 515 n. 20, [
Footnote 3/4] the plurality finds two flaws in the
ordinance. First, because the ordinance permits commercial, but not
noncommercial, use of on-site signs, it improperly "afford[s] a
greater degree of protection to commercial than to noncommercial
speech."
Ante at
453 U. S. 513.
And, second, because the ordinance excepts certain limited
categories of noncommercial signs from the prohibition, the city is
guilty of "choos[ing] the appropriate subjects for public
discourse."
Ante at
453
U.S. 515.
Page 453 U. S. 542
Although it is possible that some future applications of the San
Diego ordinance may violate the First Amendment, I am satisfied
that the ordinance survives the challenges that these appellants
have standing to raise. Unlike the plurality, I do not believe that
this case requires us to decide any question concerning the kind of
signs a property owner may display on his own premises. I do,
however, believe that it is necessary to confront the important
question, reserved by the plurality, whether a city may entirely
ban one medium of communication. My affirmative answer to that
question leads me to the conclusion that the San Diego ordinance
should be upheld; that conclusion is not affected by the
content-neutral exceptions that are the principal subject of the
debate between the plurality and THE CHIEF JUSTICE.
I
Appellants are engaged in the outdoor advertising business. The
parties stipulated that there are critical differences between that
business and so-called "on-site" or business signs. [
Footnote 3/5]
Page 453 U. S. 543
Outdoor advertising is presented on large, standardized
billboards which display a variety of commercial and noncommercial
messages that change periodically. [
Footnote 3/6] The only information in the record about
on-site signs is that they "advertise businesses, goods or services
available on the property on which the sign is located." Joint
Stipulation of Facts No. 22, App. 4a. There is no evidence that any
on-site signs in San Diego of the permanent character covered by
the ordinance [
Footnote 3/7] have
ever been used for noncommercial messages.
If the ordinance is enforced, two consequences are predictable.
Appellants' large and profitable outdoor advertising businesses
will be destroyed. [
Footnote 3/8]
Moreover, many persons who
Page 453 U. S. 544
now rent billboards to convey both commercial and noncommercial
messages to the public will not have access to an equally effective
means of communication. [
Footnote
3/9] There is no evidence, however, that enforcement of the
ordinance will have any effect whatsoever upon any property owner's
use of on-site advertising signs. [
Footnote 3/10] Nor is there anything in the record to
suggest that the use of on-site signs has had any effect on the
outdoor advertising business or on any of the consumers of off-site
billboard space.
Appellants, of course, have standing to challenge the ordinance
because of its impact on their own commercial operations. Because
this challenge is predicated in part on the First Amendment, I
agree with the plurality and JUSTICE BRENNAN that they also have
standing to argue that the ordinance is invalid because of its
impact on their customers -- the persons who use their billboards
to communicate with the public.
See ante at
453 U. S. 504,
n. 11 (plurality opinion). I do not agree, however, that they have
any standing to assert the purely hypothetical claims of property
owners whose on-site advertising is entirely unaffected by the
application of the ordinance at issue in this case.
Page 453 U. S. 545
This case involves only the use of permanent signs in areas
zoned for commercial and industrial purposes. [
Footnote 3/11] It is conceivable that some
public-spirited or eccentric businessman might want to use a
permanent sign on his commercial property to display a
noncommercial message. The record, however, discloses no such use
in the past, and it seems safe to assume that such uses in the
future will be, at best, infrequent. Rather than speculate about
hypothetical cases that may be presented by property owners not now
before the Court, I would judge this ordinance on the basis of its
effect on the outdoor advertising market, and save for another day
any questions concerning its possible effect in an entirely
separate market.
The few situations in which constitutional rights may be
asserted vicariously represent exceptions from one of the Court's
most fundamental principles of constitutional adjudication.
[
Footnote 3/12] Our explanation
of that principle in
Broadrick v. Oklahoma, 413 U.
S. 601,
413 U. S.
610-611 (footnote omitted), merits emphasis and
repetition:
"Embedded in the traditional rules governing constitutional
adjudication is the principle that a person to whom a statute may
constitutionally be applied will not be heard to challenge that
statute on the ground that it may conceivably be applied
unconstitutionally to others,
Page 453 U. S. 546
in other situations not before the Court.
See, e.g.,
74 U.
S. The Aldermen, 7 Wall. 694,
74 U. S.
698-699 (1869);
Supervisors v. Stanley,
105 U. S.
305,
105 U. S. 311-315 (1882);
Hatch v. Reardon, 204 U. S. 152,
204 U. S.
160-161 (1907);
Yazoo & M. V. R. Co. v. Jackson
Vinegar Co., 226 U. S. 217,
226 U. S.
219-220 (1912);
United States v. Wurzbach, [280
U.S.] at
280 U. S. 399;
Carmichael v. Southern Coal & Coke Co., 301 U. S.
495,
301 U. S. 513 (1937);
United States v. Raines, 362 U. S. 17 (1960). A closely
related principle is that constitutional rights are personal, and
may not be asserted vicariously.
See McGowan v. Maryland,
366 U. S.
420,
366 U. S. 429-430 (1961).
These principles rest on more than the fussiness of judges. They
reflect the conviction that, under our constitutional system,
courts are not roving commissions assigned to pass judgment on the
validity of the Nation's laws.
See Younger v. Harris,
401 U. S.
37,
401 U. S. 52 (1971).
Constitutional judgments, as Mr. Chief Justice Marshall recognized,
are justified only out of the necessity of adjudicating rights in
particular cases between the litigants brought before the
Court:"
" So if a law be in opposition to the constitution; if both the
law and the constitution apply to a particular case, so that the
court must either decide that case conformably to the law,
disregarding the constitution, or conformably to the constitution,
disregarding the law, the court must determine which of these
conflicting rules governs the case. This is of the very essence of
judicial duty."
"
Marbury v. Madison, 1 Cranch
137,
5 U. S. 178 (1803)."
"In the past, the Court has recognized some limited exceptions
to these principles, but only because of the most 'weighty
countervailing policies.'
United States v. Raines, 362
U.S. at
362 U. S. 22-23."
The most important exception to this standing doctrine permits
some litigants to challenge on First Amendment grounds laws that
may validly be applied against them but
Page 453 U. S. 547
which may, because of their unnecessarily broad reach, inhibit
the protected speech of third parties. That exception plays a vital
role in our First Amendment jurisprudence. [
Footnote 3/13] But it is nonetheless a limited
exception. Because "[a]pplication of the overbreadth doctrine . . .
is, manifestly, strong medicine " it is employed "sparingly, and
only as a last resort."
Broadrick, 413 U.S. at
413 U. S. 613.
As the Court explained in
Broadrick, the doctrine will be
applied only if the overbreadth of a statute is substantial in
relation to its "plainly legitimate sweep:"
"Although such laws, if too broadly worded, may deter protected
speech to some unknown extent, there comes a point where that
effect -- at best, a prediction -- cannot, with confidence, justify
invalidating a statute on its face, and so prohibiting a State from
enforcing the statute against conduct that is admittedly within its
power to proscribe.
Cf. Alderman v. United States,
394 U. S.
165,
394 U. S. 174-175 (1969). To
put the matter another way, particularly where conduct, and not
merely speech, is involved, we believe that the overbreadth of a
statute must not only be real, but substantial, as well, judged in
relation to the statute's plainly legitimate sweep. It is our view
that ยง 818 is not substantially overbroad, and that whatever
overbreadth may exist should be cured through case-by-case analysis
of the fact situations to which its sanctions, assertedly, may not
be applied."
Id. at
413 U. S.
615-616 (footnote omitted). [
Footnote 3/14]
Page 453 U. S. 548
In my judgment, the likelihood that the San Diego ordinance will
have a significant adverse impact on the users of on-site signs is
sufficiently speculative and remote that I would not attempt to
adjudicate the hypothetical claims of such parties on this record.
Surely the interests of such parties do not necessarily parallel
the interests of these appellants. [
Footnote 3/15] Moreover, changes in the provisions of
the ordinance concerning on-site advertising would not avoid the
central question that is presented by appellants' frontal attack on
the application of the ordinance to their own businesses and to
their customers. [
Footnote 3/16]
I believe the Court should decide that question and put the
hypothetical claims of on-site advertisers entirely to one
side.
II
Just as the regulation of an economic market may either enhance
or curtail the free exchange of goods and services, [
Footnote 3/17] so may regulation of the
communications market sometimes facilitate and sometimes inhibit
the exchange of information, ideas, and impressions. Procedural
rules in a deliberative body are designed to improve the quality of
debate. Our
Page 453 U. S. 549
cases upholding regulation of the time, place, or manner of
communication have been decided on the implicit assumption that the
net effect of the regulation on free expression would not be
adverse. In this case, however, that assumption cannot be
indulged.
The parties have stipulated, correctly in my view, [
Footnote 3/18] that the net effect of the
city's ban on billboards will be a reduction in the total quantity
of communication in San Diego. If the ban is enforced, some present
users of billboards will not be able to communicate in the future
as effectively as they do now. [
Footnote 3/19] This ordinance cannot, therefore, be
sustained on the assumption that the remaining channels of
communication will be just as effective for all persons as a
communications marketplace which includes a thousand or more large
billboards available for hire.
The unequivocal language of the First Amendment prohibits any
law "abridging the freedom of speech." That language could surely
be read to foreclose any law reducing the quantity of communication
within a jurisdiction. I am convinced, however, that such a reading
would be incorrect. My conviction is supported by a hypothetical
example, by the Court's prior cases, and by an appraisal of the
healthy character of the communications market.
Archaeologists use the term "graffiti" to describe informal
inscriptions on tombs and ancient monuments. The graffito was
familiar in the culture of Egypt and Greece, in the Italian
decorative art of the 15th century, and it survives today in some
subways and on the walls of public buildings. [
Footnote 3/20] It is
Page 453 U. S. 550
an inexpensive means of communicating political, commercial, and
frivolous messages to large numbers of people; some creators of
graffiti have no effective alternative means of publicly expressing
themselves. Nevertheless, I believe a community has the right to
decide that its interests in protecting property from damaging
trespasses and in securing beautiful surroundings outweigh the
countervailing interest in uninhibited expression by means of words
and pictures in public places. If the First Amendment categorically
protected the marketplace of ideas from any quantitative restraint,
a municipality could not outlaw graffiti.
Our prior decisions are not inconsistent with this proposition.
Whether one interprets the Court's decision in
Kovacs v.
Cooper, 336 U. S. 77, as
upholding a total ban on the use of sound trucks, or merely a ban
on the "loud and raucous" use of amplifiers, the case at least
stands for the proposition that a municipality may enforce a rule
that curtails the effectiveness of a particular means of
communication. [
Footnote 3/21]
Even the dissenting Justices in that case thought it obvious that
"cities may restrict or absolutely ban the use of amplifiers on
busy streets in the business area."
Id. at
336 U. S. 104
(Black, J., joined by Douglas and Rutledge, JJ., dissenting).
[
Footnote 3/22]
Kovacs,
I believe,
Page 453 U. S. 551
forecloses any claim that a prohibition of billboards must fall
simply because it has some limiting effect on the communications
market. [
Footnote 3/23]
Page 453 U. S. 552
I therefore assume that some total prohibitions may be
permissible. It seems to be accepted by all that a zoning
regulation excluding billboards from residential neighborhoods is
justified by the interest in maintaining pleasant surroundings and
enhancing property values. The same interests are at work in
commercial and industrial zones. Reasonable men may assign
different weights to the conflicting interests, but in
constitutional terms, I believe the essential inquiry is the same
throughout the city. For whether the ban is limited to residential
areas, to the entire city except its most unsightly sections, or is
city-wide, it unquestionably will limit the quantity of
communication. Moreover, the interests served by the ban are
equally legitimate and substantial in all parts of the city. Those
interests are both psychological and economic. The character of the
environment affects property values and the quality of life not
only for the suburban resident, but equally so for the individual
who toils in a factory or invests his capital in industrial
properties.
Because the legitimacy of the interests supporting a city-wide
zoning plan designed to improve the entire municipality are beyond
dispute, in my judgment, the constitutionality of the prohibition
of outdoor advertising involves two separate questions. First, is
there any reason to believe that the regulation is biased in favor
of one point of view or another, or that it is a subtle method of
regulating the controversial subjects that may be placed on the
agenda for public debate? Second, is it fair to conclude that the
market which remains open for the communication of both popular and
unpopular ideas is ample, and not threatened with gradually
increasing restraints?
In this case, there is not even a hint of bias or censorship in
the city's actions. Nor is there any reason to believe that the
overall communications market in San Diego is inadequate.
Page 453 U. S. 553
Indeed, it may well be true in San Diego, as in other
metropolitan areas, that the volume of communication is excessive,
and that the public is presented with too many words and pictures
to recognize those that are most worthy of attention. In any event,
I agree with THE CHIEF JUSTICE that nothing in this record suggests
that the ordinance poses a threat to the interests protected by the
First Amendment.
III
If one is persuaded, as I am, that a wholly impartial total ban
on billboards would be permissible, [
Footnote 3/24] it is difficult to understand why the
exceptions in San Diego's ordinance present any additional threat
to the interests protected by the First Amendment. The plurality
suggests that, because the exceptions are based in part on the
subject matter of noncommercial speech, the city somehow is
choosing the permissible subjects for public debate.
See
ante at
453 U.S. 515.
While this suggestion is consistent with some of the broad dictum
in
Consolidated Edison Co. v. Public Service Comm'n,
447 U. S. 530, it
does not withstand analysis in this case.
The essential concern embodied in the First Amendment is that
government not impose its viewpoint on the public or select the
topics on which public debate is permissible. The San Diego
ordinance simply does not implicate this concern. Although
Consolidated Edison broadly identified regulations based on the
subject matter of speech as impermissible content-based
regulations, essential First Amendment concerns
Page 453 U. S. 554
were implicated in that case because the government was
attempting to limit discussion of controversial topics,
see
id. at
447 U. S. 533,
and thus was shaping the agenda for public debate. The neutral
exceptions in the San Diego ordinance do not present this
danger.
To the extent that the exceptions relate to subject matter at
all, [
Footnote 3/25] I can find
no suggestion on the face of the ordinance that San Diego is
attempting to influence public opinion or to limit public debate on
particular issues. Except for the provision allowing signs to be
used for political campaign purposes for limited periods,
see ยง 101.0700(F)(12), none of the exceptions even
arguably relates to any controversial subject matter. As a whole,
they allow a greater dissemination of information than could occur
under a total ban. Moreover, it was surely reasonable for the city
to conclude that, exceptions for clocks, thermometers, historic
plaques, and the like would have a lesser impact on the appearance
of the city than the typical large billboards.
The exception for political campaign signs presents a different
question. For I must assume that these signs may be
Page 453 U. S. 555
just as unsightly and hazardous as other off-site billboards.
Nevertheless the fact that the community places a special value on
allowing additional communication to occur during political
campaigns is surely consistent with the interests the First
Amendment was designed to protect. Of course, if there were reason
to believe that billboards were especially useful to one political
party or candidate, this exception would be suspect. But nothing of
that sort is suggested by this record. In the aggregate, therefore,
it seems to me that the exceptions in this ordinance cause it to
have a less serious effect on the communications market than would
a total ban.
In sum, I agree with THE CHIEF JUSTICE that nothing more than a
rather doctrinaire application of broad statements that were made
in other contexts may support a conclusion that this ordinance is
unconstitutional because it includes a limited group of exceptions
that neither separately nor in the aggregate compromise "our
zealous adherence to the principle that the government may not tell
the citizen what he may or may not say."
Young v. American Mini
Theatres, Inc., 427 U. S. 50,
427 U. S. 63
(opinion of STEVENS, J.). None of the exceptions is even arguably
"conditioned upon the sovereign's agreement with what a speaker may
intend to say."
Ibid. Accordingly, and for the reasons
stated in greater detail by THE CHIEF JUSTICE, I respectfully
dissent.
[
Footnote 3/1]
The parties so stipulated.
See Joint Stipulation of
Facts No. 2, App. 42a, quoted in
453
U.S. 490fn3/8|>n. 8,
infra.
[
Footnote 3/2]
That is the effect of both JUSTICE WHITE's reaction to the
exceptions from a total ban and JUSTICE BRENNAN's concern about the
city's attempt to differentiate between commercial and
noncommercial messages, although both of their conclusions
purportedly rest on the character of the abridgment, rather than
simply its quantity.
[
Footnote 3/3]
The ordinance does not define the term "outdoor advertising
display signs." The California Supreme Court adopted the following
definition to avoid overbreadth problems:
"'[A] rigidly assembled sign, display, or device permanently
affixed to the ground or permanently attached to a building or
other inherently permanent structure constituting, or used for the
display of, a commercial or other advertisement to the
public.'"
6 Cal. 3d 848, 856, n. 2, 610 P.2d 407, 410, n. 2 (1980).
[
Footnote 3/4]
As a practical matter, the plurality may well be approving a
total ban on billboards, or at least on off-site billboards. For it
seems unlikely that the outdoor advertising industry will be able
to survive if its only customers are those persons and
organizations who wish to use billboards to convey noncommercial
messages.
See ante at
453 U. S. 536,
n. 13 (BRENNAN, J., concurring in judgment).
[
Footnote 3/5]
The parties' stipulation described these differences:
"There is a difference between the outdoor advertising business
and 'on-site' or business signs. On-site signs advertise
businesses, goods or services available on the property on which
the sign is located. On the other hand, the outdoor advertising
businesses lease real property and erect signs thereon which are
made available to national and local advertisers for commercial,
political and social messages. Outdoor advertising is different
from on-site advertising in that:"
"(a) The outdoor advertising sign seldom advertises goods or
services sold or made available on the premises on which the sign
is located."
"(b) The outdoor advertising sign seldom advertises products or
services sold or made available by the owner of the sign."
"(c) The outdoor advertising sign is, generally speaking, made
available to 'all comers,' in a fashion similar to newspaper or
broadcasting advertising. It is a forum for the communication of
messages to the public."
"(d) The copy of the outdoor advertising sign changes, usually
monthly. For example, a particular sign may advertise a local
savings and loan association one month, a candidate for mayor the
next month, the San Diego Zoo the third month, a new car the fourth
month, and a union grievance the fifth month."
Joint Stipulation of Facts No. 22, App. 45a-46a.
The importance of the distinction between the outdoor
advertising business in which appellants are engaged and the use of
"on-site" signs is supported by the fact that the respective kinds
of signs are produced by different manufacturers.
See
JUSTICE BRENNAN's opinion concurring in the judgment,
ante
at
453 U. S. 526,
n. 5.
[
Footnote 3/6]
The physical characteristics of outdoor advertising signs were
established by stipulation:
"Outdoor advertising is presented in two basic standardized
forms. A 'poster panel' is a 12-foot by 24-foot sign on which a
pre-printed message is posted, in sheets. A 'painted bulletin' is
generally a 14-foot by 48-foot sign which contains a hand-painted
message."
Joint Stipulation of Facts No. 25, App. 47a.
[
Footnote 3/7]
The California Supreme Court's narrowing construction of the
ordinance,
see 453
U.S. 490fn3/3|>n. 3,
supra, makes it applicable
only to rigidly assembled permanent signs. For that reason, the
plurality is able to state that it deals only "with the law of
billboards."
Ante at
453 U. S.
501.
[
Footnote 3/8]
The parties stipulated to the economic effects of the
ordinance:
"If enforced as written, Ordinance No. 10795 will eliminate the
outdoor advertising business in the City of San Diego."
"
* * * *"
"Plaintiffs' outdoor advertising displays produce substantial
gross annual income."
"
* * * *"
"Enforcement of Ordinance No. 10795 will prevent plaintiffs from
engaging in the outdoor advertising business in the City of San
Diego and will cause plaintiffs to suffer substantial monetary
losses."
Joint Stipulation of Facts Nos. 2, 26, 32, App. 42a, 48a,
49a.
[
Footnote 3/9]
By stipulation, the parties agreed that the San Diego ordinance
will limit the ability of some billboard users to communicate their
messages to the public:
"Outdoor advertising increases the sales of products and
produces numerous direct and indirect benefits to the public.
Valuable commercial, political and social information is
communicated to the public through the use of outdoor advertising.
Many businesses and politicians and other persons rely upon outdoor
advertising because other forms of advertising are insufficient,
inappropriate and prohibitively expensive."
Joint Stipulation of Facts No. 28, App. 48a.
[
Footnote 3/10]
Nor is there any evidence that the total elimination of the
outdoor advertising business will have any economic effect on
manufacturers of on-site signs.
See JUSTICE BRENNAN's
opinion concurring in the judgment,
ante at
453 U. S. 526,
n. 5.
[
Footnote 3/11]
Appellants each own between 500 and 800 outdoor advertising
displays in San Diego.
See Joint Stipulation of Facts No.
13, App. 44a. All of their signs are located in areas zoned for
commercial and industrial uses. Joint Stipulation of Facts No. 20,
App. 45a.
The California Supreme Court's narrowing construction of the
ordinance was specifically intended to exclude from the coverage of
the ordinance signs very different from commercial billboards, such
as "a picket sign announcing a labor dispute or a small sign placed
in one's front yard proclaiming a political or religious message."
26 Cal. 3d at 856, n. 2, 610 P.2d at 410, n.2.
[
Footnote 3/12]
See, e.g., McGowan v. Maryland, 366 U.
S. 420,
366 U. S. 429:
"[T]he general rule is that
a litigant may only assert his own
constitutional rights or immunities.' . . . "
[
Footnote 3/13]
See, e.g., Dombrowski v. Pfister, 380 U.
S. 479;
Gooding v. Wilson, 405 U.
S. 518;
Keyishian v. Board of Regents,
385 U. S. 589;
Shuttlesworth v. Birmingham, 394 U.
S. 147.
[
Footnote 3/14]
Even the dissenting Justices in
Broadrick, although
they disagreed with the Court's refusal to apply the overbreadth
doctrine in that case, acknowledged that an overbreadth challenge
should not be entertained in every case raising First Amendment
issues:
"We have never held that a statute should be held invalid on its
face merely because it is possible to conceive of a single
impermissible application, and, in that sense, a requirement of
substantial overbreadth is already implicit in the doctrine."
413 U.S. at
413 U. S. 630
(BRENNAN, J. joined by STEWART and MARSHALL, JJ., dissenting).
[
Footnote 3/15]
Indeed, the parties stipulated that on-site advertising differs
in significant respects from the outdoor advertising business in
which appellants are engaged.
See 453
U.S. 490fn3/5|>n. 5,
supra.
[
Footnote 3/16]
Ironically, today the plurality invalidates this ordinance --
not because it is too broad -- but rather because it is not broad
enough. It assumes for the purpose of decision that a repeal of all
exceptions, including the exception for on-site advertising, would
cure the defects it finds in the present ordinance.
See
ante at
453 U.S. 515,
n. 20. However, because neither the appellants nor the on-site
advertisers would derive any benefits from a repeal of the
exception for on-site commercial signs, the plurality's reliance on
the overbreadth doctrine to support vicarious standing in this case
is curious indeed.
[
Footnote 3/17]
Compare Chicago Board of Trade v. United States,
246 U. S. 231,
with United States v. Trenton Potteries Co., 273 U.
S. 392.
[
Footnote 3/18]
Because the record makes it clear that the business of operating
billboards has prospered in San Diego, it is obvious that this
medium is more effective than others for some forms of
communication.
See 453
U.S. 490fn3/8|>n. 8,
supra.
[
Footnote 3/19]
See nn.
453
U.S. 490fn3/8|>8,
453
U.S. 490fn3/9|>9,
supra.
[
Footnote 3/20]
See generally A. Read, Classic American Graffiti
(1977); R. Reisner, Graffiti: Two Thousand Years of Wall Writing
(1971); V. Pritchard, English Medieval Graffiti (1967).
[
Footnote 3/21]
In his opinion announcing the judgment of the Court, Justice
Reed wrote:
"That more people may be more easily and cheaply reached by
sound trucks, perhaps borrowed without cost from some zealous
supporter, is not enough to call forth constitutional protection
for what those charged with public welfare reasonably think is a
nuisance when easy means of publicity are open."
336 U.S. at
336 U. S.
88-89.
[
Footnote 3/22]
That excerpt from Justice Black's dissent is not, of course,
sufficient evidence to tell us whether or not he would have upheld
a city's total ban on billboards. It does seem clear, however, that
he did not adopt the absolute position that any reduction in the
quantity of effective communication is categorically prohibited by
the First Amendment. The full paragraph in which the quoted phrase
appears reads
"I am aware that the 'blare' of this new method of carrying
ideas is susceptible of abuse, and may, under certain
circumstances, constitute an intolerable nuisance. But ordinances
can be drawn which adequately protect a community from unreasonable
use of public speaking devices without absolutely denying to the
community's citizens all information that may be disseminated or
received through this new avenue for trade in ideas. I would agree
without reservation to the sentiment that 'unrestrained use
throughout a municipality of all sound amplifying devices would be
intolerable.' And, of course, cities may restrict or absolutely ban
the use of amplifiers on busy streets in the business area. A city
ordinance that reasonably restricts the volume of sound, or the
hours during which an amplifier may be used, does not, in my mind,
infringe the constitutionally protected area of free speech. It is
because this ordinance does none of these things, but is instead an
absolute prohibition of all uses of an amplifier on any of the
streets of Trenton at any time, that I must dissent."
Id. at
336 U. S.
104.
[
Footnote 3/23]
Our decisions invalidating ordinances prohibiting or regulating
door-to-door solicitation and leafletting are not to the contrary.
In those cases, the state interests the ordinances purported to
serve -- for instance, the prevention of littering or fraud -- were
only indirectly furthered by the regulation of communicative
activity.
See, e.g., Schneider v. State, 308 U.
S. 147,
308 U. S. 164;
Martin v. City of Struthers. 319 U.
S. 141,
319 U. S.
147-148;
Cantwell v. Connecticut, 310 U.
S. 296,
310 U. S. 306:
Schaumburg v. Citizens for a Better Environment,
444 U. S. 620,
444 U. S.
636-639. In many of the cases, the ordinances provided
for a licensing scheme, rather than a blanket prohibition. The
discretion thus placed in the hands of municipal officials was
found constitutionally offensive because of the risk of censorship.
See, e.g., Schneider, supra. at
308 U. S.
163-164;
Hague v. CIO, 307 U.
S. 496,
307 U. S. 516
(opinion of Roberts. J.);
Lovell v. Griffin, 303 U.
S. 444,
303 U. S.
451-452;
Cantwell, supra, at
310 U. S.
305-307. In addition, because many of these cases
involved the solicitation efforts of the Jehovah's Witnesses,
see, e.g., Lovell, supra, at
303 U. S. 448;
Jamison v. Texas, 318 U. S. 413,
318 U. S. 413-414;
Schneider, supra, at
398 U. S. 158;
Martin, supra, at
319 U. S. 142;
Cantwell, supra, at
310 U. S. 300,
the Court was properly sensitive to the risk that the ordinances
could be used to suppress unpopular viewpoints.
In this case, as the plurality acknowledges, the ban on
billboards directly serves, and indeed is necessary to further, the
city's legitimate interests in traffic safety and aesthetics.
See ante at
453 U. S.
507-510,
453 U. S. 511.
San Diego's ordinance places no discretion in any municipal
officials, and there is no reason to suspect that the ordinance was
designed or is being applied to suppress unpopular viewpoints.
[
Footnote 3/24]
It seems fair to infer that Justice Douglas, who cast the
deciding vote in
Lehman v. City of Shaker Heights,
418 U. S. 298,
would have approved of a prohibition on billboards.
See
his opinion concurring in the judgment,
id. at
418 U. S.
306-308. After drawing an analogy between billboards and
advertising on municipal vehicles, Justice Douglas noted:
"In my view, the right of the commuters to be free from forced
intrusions on their privacy precludes the city from transforming
its vehicles of public transportation into forums for the
dissemination of ideas upon this captive audience."
Id. at
418 U. S.
307.
[
Footnote 3/25]
Most of the ordinance's 12 exceptions, quoted
ante at
453 U. S. 495,
n. 3 (opinion of WHITE, J.), are not based on the subject matter of
speech. Several exceptions can be disregarded, because they pertain
to signs that are not within the coverage of the ordinance at any
rate, in light of the California Supreme Court's limiting
construction.
See 453
U.S. 490fn3/3|>n. 3,
supra. The exceptions relating
to vehicular signs fall into this category,
see ยงยง
101.0700(F)(9), (10), as do the exceptions for signs in transit and
storage,
see ยง 101.0700(F)(3), and for temporary
subdivision directional signs,
see ยง 101.0700(F)(11). The
exception for "for-sale" signs also appears to describe signs not
covered by the ordinance, since such signs ordinarily are not
"permanently affixed to the ground or permanently attached to a
building." Of the remaining exceptions, two are based on the
location, rather than content, of the signs,
see ยงยง
101.0700(F)(2), (6), and a third permits signs required by law or
otherwise erected in discharge of governmental functions,
see ยง 101.0700(F)(1). Thus, only four exceptions are
actually based in any way on the subject matter of the signs at
issue.
See ยงยง 101.0700(F)(4), (5), (8), (12).
CHIEF JUSTICE BURGER, dissenting.
Today the Court takes an extraordinary -- even a bizarre -- step
by severely limiting the power of a city to act on risks it
perceives to traffic safety and the environment posed by large,
permanent billboards. Those joining the plurality opinion
invalidate a city's effort to minimize these traffic hazards and
eyesores simply because, in exercising rational legislative
judgment, it has chosen to permit a narrow class of signs that
serve special needs.
Relying on simplistic platitudes about content, subject matter,
and the dearth of other means to communicate, the
Page 453 U. S. 556
billboard industry attempts to escape the real and growing
problems every municipality faces in protecting safety and
preserving the environment in an urban area. The Court's
disposition of the serious issues involved exhibits insensitivity
to the impact of these billboards on those who must live with them
and the delicacy of the legislative judgments involved in
regulating them. American cities desiring to mitigate the dangers
mentioned must, as a matter of federal constitutional law, elect
between two unsatisfactory options: (a) allowing all
"noncommercial" signs, no matter how many how dangerous, or how
damaging to the environment; or (b) forbidding signs altogether.
Indeed, lurking in the recesses of today's opinions is a
not-so-veiled threat that the second option, too, may soon be
withdrawn. This is the long arm and voracious appetite of federal
power -- this time judicial power -- with a vengeance, reaching and
absorbing traditional concepts of local authority.
(1)
This case presents the Court with its first occasion to address
the constitutionality of billboard regulation by local government.
I fear that those joining in today's disposition have become
mesmerized with broad, but not controlling, language appearing in
our prior opinions but now torn from its original setting. They
overlook a cogent admonition to avoid
"mechanically apply[ing] the doctrines developed in other
contexts. . . . The unique situation presented by this ordinance
calls, as cases in this area so often do, for a careful inquiry
into the competing concerns of the State and the interests
protected by the guarantee of free expression."
Young v. American Mini Theatres, Inc., 427 U. S.
50,
427 U. S. 76
(1976) (POWELL, J., concurring).
See Columbia Broadcasting
System, Inc. v. Democratic National Committee, 412 U. S.
94,
412 U. S. 134
(1973) (STEWART, J., concurring).
Page 453 U. S. 557
It is not really relevant whether the San Diego ordinance is
viewed as a regulation regarding time, place, and manner, or as a
total prohibition on a medium with some exceptions defined, in
part, by content. Regardless of the label we give it, we are
discussing a very simple and basic question: the authority of local
government to protect its citizens' legitimate interests in traffic
safety and the environment by eliminating distracting and ugly
structures from its buildings and roadways, to define which
billboards actually pose that danger, and to decide whether, in
certain instances, the public's need for information outweighs the
angers perceived. The billboard industry's superficial sloganeering
is no substitute for analysis, and the plurality opinion and the
opinion concurring in the judgment adopt much of that approach
uncritically. General constitutional principles indeed apply, but
"each case ultimately must depend on its own specific facts. . . ."
Erznoznick v. City of Jacksonville, 422 U.
S. 205,
422 U. S. 209
(1975).
(2)
(a)
As all those joining in today's disposition necessarily
recognize,
"'[e]ach medium of expression . . . must be assessed for First
Amendment purposes by standards suited to it, for each may present
its own problems.'"
Ante at
453 U. S. 501,
n. 8 (plurality opinion);
ante at
453 U. S.
527-528 (BRENNAN, J., concurring in judgment) (quoting
Southeastern Promotions, Ltd. v. Conrad, 420 U.
S. 546,
420 U. S. 557
(1975)).
Accord, California v. LaRue, 409 U.
S. 109,
400 U. S. 117
(1972);
Red Lion Broadcasting Co. v. FCC, 395 U.
S. 367,
395 U. S. 386
(1969);
Joseph Burstyn, Inc. v. Wilson, 343 U.
S. 495,
343 U. S. 503
(1952);
Kovacs v. Cooper, 336 U. S.
77,
336 U. S. 97
(1949) (Jackson, J., concurring). [
Footnote 4/1] The uniqueness of
Page 453 U. S. 558
the medium, the availability of alternative means of
communication, and the public interest the regulation serves are
important factors to be weighed; and the balance very well may
shift when attention is turned from one medium to another.
Heffron v. International Society for Krishna Consciousness,
Inc., 452 U. S. 640
(1981). Regulating newspapers, for example, is vastly different
from regulating billboards.
Some level of protection is generally afforded to the medium a
speaker chooses, but as we have held just this past week in
Heffron,
"the First Amendment does not guarantee the right to communicate
one's views at all times and places or
in any manner that
may be desired."
Id. at
452 U. S. 647
(emphasis added). Justice Black, speaking for the Court in
Adderley v. Florida, 385 U. S. 39,
385 U. S. 48
(1966) (emphasis added), "vigorously and forthrightly rejected" the
notion that
"people who want to propagandize protests or views have a
constitutional right to do so whenever and
however and
wherever they please."
In
Kovacs v. Cooper, supra, the Court upheld a
municipal ordinance that totally banned sound trucks from a town's
borders; other media were available. The Court had no difficulty
distinguishing
Saia v. New York, 334 U.
S. 558 (1948), decided seven months earlier, where the
Court had invalidated an ordinance requiring a permit from the
local police chief before using a sound truck. The danger seen in
Saia was in allowing a single government official to
regulate a medium of communication, with the attendant risk that
the decision would be based on the message, not the medium.
Id. at
334 U. S.
560-561.
The ordinance in
Kovacs, however, did not afford that
kind of potential for censorship, and was held not to violate the
First Amendment. 336 U.S. at
336 U. S. 82-83
(plurality opinion
Page 453 U. S. 559
of Reed, J.). Justice Frankfurter, concurring, expressed this
point more broadly:
"So long as a legislature does not prescribe what ideas may be
noisily expressed and what may not be, nor discriminate among those
who would make inroads upon the public peace, it is not for us to
supervise the limits the legislature may impose in safeguarding the
steadily narrowing opportunities for serenity and reflection."
Id. at
336 U. S. 97.
Justice Jackson, also concurring separately, agreed with this core
proposition, writing that the
Kovacs type of regulation
would not infringe freedoms of speech "unless such regulation or
prohibition undertakes to censor the contents of the broadcasting."
Ibid.
Later, Chief Justice Warren, speaking for the Court in
United States v. O'Brien, 391 U.
S. 367,
391 U. S. 376
(1968), observed:
"[W]hen 'speech' and 'nonspeech' elements are combined in the
same course of conduct, a sufficiently important governmental
interest in regulating the nonspeech element can justify incidental
limitations on First Amendment freedoms."
In the 1979 Term, we once again reaffirmed that restrictions are
valid if they "serve a significant governmental interest and leave
ample alternative channels for communication."
Consolidated
Edison Co. v. Public Service Comm'n, 447 U.
S. 530,
447 U. S. 535
(1980). The Court has continued to apply this same standard almost
literally to this day in
Heffron v. International Society for
Krishna Consciousness, Inc., supra, at
452 U. S.
647-648.
Accord, Schad v. Mount Ephraim,
452 U. S. 61,
452 U. S. 75-76
(1981).
(b)
San Diego adopted its ordinance to eradicate what it perceives
-- and what it has a right to perceive -- as ugly and dangerous
eyesores thrust upon its citizens. This was done
Page 453 U. S. 560
with two objectives in mind: the disfigurement of the
surroundings and the elimination of the danger posed by these
large, eye-catching signs that divert the attention of motorists.
[
Footnote 4/2] The plurality
acknowledges -- as they must -- that promoting traffic safety and
preserving scenic beauty "are substantial governmental goals."
Ante at
453 U. S.
507-508.
See also ante at
453 U. S. 528
(BRENNAN, J., concurring in judgment) (traffic safety). But, having
acknowledged the legitimacy of local governmental authority, the
plurality largely ignores it.
As the plurality also recognizes,
ante at
453 U. S.
508-510, the means the city has selected to advance
these goals are sensible, and do not exceed what is necessary to
eradicate the dangers seen. When distraction of motorists is the
perceived harm, the authorities reasonably can conclude that each
billboard adds to the dangers in moving traffic; obviously, the
billboard industry does not erect message carriers that do not
catch the eye of the traveler. [
Footnote 4/3] In addition, a legislative body reasonably
can conclude that every large billboard adversely
Page 453 U. S. 561
affects the environment, for each destroys a unique perspective
on the landscape and adds to the visual pollution of the city.
[
Footnote 4/4] Pollution is not
limited to the air we breathe and the water we drink; it can
equally offend the eye and the ear.
The means chosen to effectuate legitimate governmental interests
are not for this Court to select. "These are matters for the
legislative judgment, controlled by public opinion."
Kovacs v.
Cooper, 336 U.S. at
336 U. S. 96-97
(Frankfurter, J., concurring). The plurality ignores this Court's
seminal opinions in
Kovacs by substituting its judgment
for that of city officials and disallowing a ban on one offensive
and intrusive means of communication when other means are
available. Although we must ensure that any regulation of speech
"further[s] a sufficiently substantial government interest,"
Schad v. Mount Ephraim, supra, at
452 U. S. 68,
given a reasonable approach to a perceived problem, this Court's
duty is not to make the primary policy decisions, but instead is to
determine whether the legislative approach is essentially neutral
to the messages conveyed and leaves open other adequate means of
conveying those messages. This is the essence of both democracy and
federalism, and we gravely damage both when we undertake to
throttle legislative discretion and judgment at the "grass roots"
of our system.
(c)
The plurality, in a remarkable
ipse dixit, states that
"[t]here can be no question that a prohibition on the erection of
billboards infringes freedom of speech. . . ."
Ante at
453 U. S. 520.
Of course the city has restricted one form of communication, and
this action implicates the First Amendment. But to say the
ordinance presents a First Amendment issue is not necessarily to
say that it constitutes a First Amendment
violation.
Page 453 U. S. 562
The plurality confuses the Amendment's coverage with the scope
of its protection.
See generally Schauer, Categories and
the First Amendment: A Play in Three Acts, 34 Vand.L.Rev. 265, 270,
275-276 (1981).
In the process of eradicating the perceived harms, the ordinance
here in no sense suppresses freedom of expression, either by
discriminating among ideas or topics or by suppressing discussion
generally. San Diego has not attempted to suppress any particular
point of view or any category of messages; it has not censored any
information; it has not banned any thought.
See Police Dept. of
Chicago v. Mosley, 408 U. S. 92,
408 U. S. 96
(1972). It has not "attempt[ed] to give one side of a debatable
public question an advantage in expressing its view to the people.
. . ."
First National Bank of Boston v. Bellotti,
435 U. S. 765,
435 U. S. 785
(1978) (footnote omitted).
See Madison School District v.
Wisconsin Employment Relations Comm'n, 429 U.
S. 167,
429 U. S.
175-176 (1976). There is no suggestion or danger that
the city has permitted these narrow categories of signs but
forbidden the vast majority "merely because public officials
disapprove of the speaker's view."
Niemotko v. Maryland,
340 U. S. 268,
340 U. S. 282
(1951) (Frankfurter, J., concurring in result). Moreover, aside
from a few narrow and essentially negligible exceptions,
see
infra at
453 U. S.
564-565,
453 U. S. 566,
San Diego has not differentiated with regard to topic.
See
Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. at
447 U. S.
537-538;
Carey v. Brown, 447 U.
S. 455,
447 U. S. 462,
n. 6,
447 U. S. 463
(1980);
First National Bank v. Bellotti, supra, at
435 U. S.
784-785;
Police Dept. of Chicago v. Mosley,
supra, at
408 U. S. 96.
The city has not undertaken to determine, paternalistically,
"
what information is relevant to self-government.'" Gertz
v. Robert Welch, Inc., 418 U. S. 323,
418 U. S. 339
(1974) (quoting Rosenbloom v. Metromedia, Inc.,
403 U. S. 29,
403 U. S. 79
(1971) (MARSHALL, J., dissenting)) .
The messages conveyed on San Diego billboards -- whether
commercial, political, social, or religious -- are not inseparable
from the billboards that carry them. These same messages
Page 453 U. S. 563
can reach an equally large audience through a variety of other
media: newspapers, television, radio, magazines, direct mail,
pamphlets, etc. True, these other methods may not be so
"eye-catching" -- or so cheap -- as billboards, [
Footnote 4/5] but there has been no suggestion that
billboards heretofore have advanced any particular viewpoint or
issue disproportionately to advertising generally. Thus, the ideas
billboard advertisers have been presenting are not relatively
disadvantaged
vis-a-vis the messages of those who
heretofore have chosen other methods of spreading their views.
See First National Bank v. Bellotti, supra, at
435 U. S. 789.
See also Martin v. Struthers, 319 U.
S. 141,
319 U. S. 146
(1943). It borders on the frivolous to suggest that the San Diego
ordinance infringes on freedom of expression, given the wide range
of alternative means available.
(3)
(a)
The plurality concludes that a city may constitutionally
exercise its police power by eliminating off-site commercial
billboards; they reach this result by following our recent cases
holding that commercial speech, while protected by the
Constitution, receives less protection than "noncommercial" --
i.e., political, religious, social -- speech.
See,
e.g, Central Hudson Gas & Electric Corp. v. Public Service
Comm'n, 447 U. S. 557
(1980);
Ohralik v. Ohio State Bar Assn., 436 U.
S. 447 (1978);
Bates v. State Bar of Arizona,
433 U. S. 350
(1977). But as the plurality giveth, they also taketh away -- and,
in the process, take away virtually everything.
Page 453 U. S. 564
In a bizarre twist of logic, the plurality seems to hold that,
because San Diego has recognized the hardships of its ordinance on
certain special needs of citizens and, therefore, exempted a few
narrowly defined classes of signs from the ordinance's scope -- for
example, on-site signs identifying places of business,
time-and-temperature signs, commemorative and historic plaques --
the ordinance violates the First Amendment. From these dubious
premises, the plurality has given every city, town, and village in
this country desiring to respond to the hazards posed by billboards
a choice, as previously noted, between two equally unsatisfactory
alternatives:
"(a) banning all signs of any kind whatsoever, or"
"(b) permitting all 'noncommercial' signs, no matter how
numerous, how large, how damaging to the environment, or how
dangerous to motorists and pedestrians."
Otherwise, the municipality must give up and do nothing in the
face of an ever-increasing menace to the urban environment. Indeed,
the plurality hints -- and not too subtly -- that the first option
might be withdrawn if any city attempts to invoke it.
See
ante at
453 U.S. 515,
n. 20. This result is insensitive to the needs of the modern urban
dweller, and devoid of valid constitutional foundations.
(b)
The exceptions San Diego has provided -- the presence of which
is the plurality's sole ground for invalidating the ordinance --
are few in number, are narrowly tailored to peculiar public needs,
and do not remotely endanger freedom of speech. Indeed, the
plurality concludes that the distinctions among commercial signs
are valid.
Ante at
453 U. S. 512.
More generally, as stated
supra at
453 U. S.
562-563, San Diego has not preferred any viewpoint and,
aside from these limited exceptions, has not allowed some subjects
while forbidding others.
Where the ordinance does differentiate among topics, it simply
allows such noncontroversial things as conventional
Page 453 U. S. 565
signs identifying a business enterprise, time-and-temperature
signs, historical markers, and for-sale sign. It borders -- if not
trespasses -- on the frivolous to suggest that, by allowing such
signs but forbidding noncommercial billboards, the city has
infringed freedom of speech. This ignores what we recognized in
Police Dept. of Chicago v. Mosley, 508 U.S. at
408 U. S. 98,
that "there may be sufficient regulatory interests justifying
selective exclusions or distinctions. . . ." For each exception,
the city is either acknowledging the unique connection between the
medium and the message conveyed,
see, e.g., Linmark Associates,
Inc. v. Willingboro, 431 U. S. 85 (1977)
(for-sale signs), or promoting a legitimate public interest in
information. Similarly, in each instance, the city reasonably could
conclude that the balance between safety and aesthetic concerns, on
the one hand, and the need to communicate, on the other, has tipped
the opposite way. [
Footnote 4/6]
More important, in no instance is the exempted topic controversial;
there can be no rational debate over, for example, the time, the
temperature, the existence of an offer of sale, or the identity of
a business establishment. The danger of San Diego's setting the
agenda of public discussion is not simply
de minimis; it
is nonexistent. The plurality today trivializes genuine First
Amendment values by hinging its holding on the city's decision to
allow some signs while preventing others that constitute the vast
majority of the genre.
Page 453 U. S. 566
Thus, despite the plurality's unique focus, we are not
confronted with an ordinance like the one in
Saia v. New
York, which vested in a single official -- the local police
chief -- an unlimited discretion to grant or to deny licenses for
sound trucks. "Annoyance at ideas can be cloaked in annoyance at
sound. The power of censorship inherent in this type of ordinance
reveals its vice." 334 U.S. at
334 U. S. 562.
Accord, Shuttlesworth v. Birmingham, 394 U.
S. 147,
394 U. S.
150-151 (1969);
Staub v. City of Baxley,
355 U. S. 313,
355 U. S.
322-325 (1958);
Lovell v. Griffin, 303 U.
S. 444,
303 U. S.
451-452 (1938).
See also Consolidated Edison Co. v.
Public Service Comm'n, 447 U.S. at
447 U. S.
546-548 (STEVENS, J., concurring in judgment). But here
we have no allegation and no danger that San Diego is using its
billboard ordinance as a mask for promoting or deterring any
viewpoint or issue of public debate. This ordinance, in precisely
the same sense as the regulation we upheld last week in
Heffron
v. International Society for Krishna Consciousness, Inc.,
"is not open to the kind of arbitrary application that this
Court has condemned . . . because such discretion has the potential
for becoming a means of suppressing a particular point of
view."
452 U.S. at
452 U. S. 649.
[
Footnote 4/7]
San Diego simply is exercising its police power to provide an
environment of tranquility safety, and as much residual beauty as a
modern metropolitan area can achieve. A city's simultaneous
recognition of the need for certain exceptions permitting limited
forms of communication purely factual in nature and neutral as to
the speaker should not wholly deprive the city of its ability to
address the balance of the problem. There is no threat here to our
"profound national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide-open. . . ."
New York Times Co. v. Sullivan, 376 U.
S. 254,
376 U. S. 270
(1964).
Page 453 U. S. 567
(c)
The fatal flaw in the plurality's logic comes when it concludes
that San Diego, by exempting on-site commercial signs, thereby has
"afford[ed] a greater degree of protection to commercial than to
noncommercial speech."
Ante at
453 U. S. 513.
The "greater degree of protection" our cases have given
noncommercial speech establishes a narrower range of
constitutionally permissible regulation. To say noncommercial
speech receives a greater degree of
constitutional
protection, however, does not mean that a legislature is forbidden
to afford differing degrees of
statutory protection when
the restrictions on each form of speech -- commercial and
noncommercial -- otherwise pass constitutional muster under the
standards respectively applicable.
No case in this Court creates, as the plurality suggests, a
hierarchy of types of speech in which, if one type is actually
protected through legislative judgment, the Constitution compels
that that judgment be exercised in favor of all types ranking
higher on the list. When a city chooses to impose looser
restrictions in one area than it does in another analogous area --
even one in which the Constitution more narrowly constrains
legislative discretion -- it neither undermines the
constitutionality of its regulatory scheme nor renders its
legislative choices
ipso facto irrational. A city does not
thereby "conced[e] that. some communicative interests . . . are
stronger than its competing interests in esthetics and traffic
safety,"
ante at
453 U. S. 520;
it has only declined, in one area, to exercise its powers to the
full extent the Constitution permits. The Constitution does not
require any governmental entity to reach the limit of permissible
regulation solely because it has chosen to do so in a related area.
Cf. Williamson v. Lee Optical Co., 348 U.
S. 483,
348 U. S. 489
(1955) (a "legislature may select one phase of one field and apply
a remedy there, neglecting the others"). The plurality today
confuses the degree of constitutional protection --
i.e.,
the strictness of the test applied -- with the outcome of
legislative judgment.
Page 453 U. S. 568
By allowing communication of certain commercial ideas via
billboards, but forbidding noncommercial signs altogether, a city
does not necessarily place a greater "value" on commercial speech.
[
Footnote 4/8] In these situations,
the city is simply recognizing that it has greater latitude to
distinguish among various forms of commercial communication when
the same distinctions would be impermissible if undertaken with
regard to noncommercial speech. Indeed, when adequate alternative
channels of communication are readily available, so that the
message may be freely conveyed through other means, a city arguably
is more faithful to the Constitution by treating all noncommercial
speech the same than by attempting to impose the same
classifications in noncommercial as it has in commercial areas. To
undertake the same kind of balancing and content judgment with
noncommercial speech that is permitted with commercial speech is
far more likely to run afoul of the First Amendment. [
Footnote 4/9]
Thus, we may, consistent with the First Amendment, hold that a
city may -- and perhaps must -- take an all-or-nothing approach
with noncommercial speech, yet remain free to adopt selective
exceptions for commercial speech, as long as the latter advance
legitimate governmental interests. In
Page 453 U. S. 569
deed, it is precisely because
"the city does not have the same range of choice in the area of
noncommercial speech to evaluate the strength of, or distinguish
between, various communicative interests,"
ante at
453 U. S. 514
that a city should be commended, not condemned, for treating all
noncommercial speech the same.
(4)
The Court today unleashes a novel principle, unnecessary and,
indeed, alien to First Amendment doctrine announced in our earlier
cases. As JUSTICE STEVENS cogently observes, the plurality,
"somewhat ironically, concludes that the ordinance is an
unconstitutional abridgment of speech
because it does not
abridge enough speech."
Ante at
453 U. S. 540
(emphasis added). The plurality gravely misconstrues the
commercial-noncommercial distinction of earlier cases when it holds
that the preferred position of noncommercial speech compels a city
to impose the same or greater limits on commercial as on
noncommercial speech. The Court today leaves the modern metropolis
with a series of Hobson's choices and rejects basic concepts of
federalism by denying to every community the important powers
reserved to the people and the States by the Constitution. This is
indeed "an exercise of raw judicial power,"
Doe v. Bolton,
410 U. S. 179,
410 U. S. 222
(1973) (WHITE, J., dissenting), and is far removed from the high
purposes of the First Amendment.
[
Footnote 4/1]
For example, because of the limited spectrum available and the
peculiar intrusiveness of the medium, broadcasting is subject to
limitations that would be intolerable if applied to other forms of
communication.
FCC v. Pacifica Foundation, 438 U.
S. 726,
438 U. S.
748-749 (1978).
Compare Red Lion Broadcasting Co. v.
FCC, 395 U. S. 367
(1969),
with Miami Herald Publishing Co. v. Tornillo,
418 U. S. 241
(1974). For the same reason, certain media may mix the form with
the substance of the communication, and the permissible range of
regulation is correspondingly narrower than when the message is
completely separable from the medium used to convey it.
[
Footnote 4/2]
Congress, too, has recognized the dangers to safety and the
environment posed by billboards. The Highway Beautification Act of
1965 provides in part:
"The Congress hereby finds and declares that the erection and
maintenance of outdoor advertising signs, displays, and devices in
areas adjacent to the Interstate System and the primary system
should be controlled in order to protect the public investment in
such highways,
to promote the safety and recreational value of
public travel, and to preserve natural beauty."
23 U.S.C. ยง 131(a) (emphasis added). If San Diego, through its
duly constituted legislative body, may not guard against the
defacing of its environs and the risks to the movement of traffic
by eliminating billboards, the authority of Congress to limit
billboards adjacent to federally funded highways is called into
question as well.
See ante at
453 U.S. 515, n. 20 (plurality
opinion);
ante at
453 U. S. 534, n. 11 (BRENNAN, J., concurring in
judgment). Surely, the legislative powers of a municipality over
its own affairs cannot be less than those of the Congress of the
United States in its area of authority.
[
Footnote 4/3]
The parties have stipulated that billboards come in "two basic
standardized forms," 12 ft. by 24 ft. and 14 ft. by 48 ft. Joint
Stipulation of Facts No. 25, App. 47a.
[
Footnote 4/4]
Indeed, streets themselves may be places of tranquility.
Heffron v. International Society for Krishna Consciousness,
Inc., 452 U. S. 640,
452 U. S. 651
(1981).
[
Footnote 4/5]
Before trial, the parties stipulated:
"Many businesses and politicians and other persons rely upon
outdoor advertising because other forms of advertising are
insufficient, inappropriate and prohibitively expensive."
Joint Stipulation of Facts No. 28, App. 48a. This sweeping,
conclusory, and rather vague generalization does nothing to explain
how other media are insufficient, inappropriate, or too expensive.
More important, the stipulation doe not suggest that any particular
point of view or issue will be suppressed by the elimination of
billboards.
[
Footnote 4/6]
Indeed, the plurality acknowledges that a city may undertake
this kind of balancing:
"As we see it, the city could reasonably conclude that a
commercial enterprise -- as well as the interested public -- has a
stronger interest in identifying its place of business and
advertising the products or services available there than it has in
using or leasing its available space for the purpose of advertising
commercial enterprises located elsewhere."
Ante at
453 U. S.
512.
A city reasonably may decide that on-site signs, by identifying
the premises (even if in the process of advertising), actually
promote traffic safety. Prohibiting them would require motorists to
pay more attention to street numbers and less to traffic.
[
Footnote 4/7]
As JUSTICE BRENNAN recognizes,
ante at
453 U. S.
536-540, the plurality's treatment of the ordinance may
well create this very danger, for the plurality appears willing to
allow municipal officials to determine what is and is not
noncommercial speech.
[
Footnote 4/8]
Indeed, in
Lehman v. City of Shaker Heights,
418 U. S. 298
(1974), we upheld a municipal policy allowing commercial but not
political advertising on city buses. I cannot agree with the
plurality that
Lehman "ha[s] no application here."
Ante at
453 U. S. 514,
n.19. Although
Lehman dealt with limited space leased by
the city, and this case deals with municipal regulation of
privately leased space, the constitutional principle is the same: a
city may forgo the "lurking doubts about favoritism" in granting
space to some, but necessarily not all, political advertisers. 418
U.S. at
418 U. S. 304
(plurality opinion of BLACKMUN, J.). The same constitutional
dangers do not arise in allocating space among commercial
advertisers.
[
Footnote 4/9]
See 453
U.S. 490fn4/8|>n. 8,
supra. If a city were to
permit on-site noncommercial billboards, one can imagine a
challenge based on the argument that this favors the views of
persons who can afford to own property in commercial districts.
See supra at
453 U. S.
562-563. I intimate no view on whether I would accept
such an argument should that case ever arise.
JUSTICE REHNQUIST, dissenting.
I agree substantially with the views expressed in the dissenting
opinions of THE CHIEF JUSTICE and JUSTICE STEVENS, and make only
these two additional observations: (1) In a case where city
planning commissions and zoning boards must regularly confront
constitutional claims of this sort, it is a genuine misfortune to
have the Court's treatment of the subject be a virtual Tower of
Babel, from which no definitive principles can be clearly drawn;
and (2) I regret even more
Page 453 U. S. 570
keenly my contribution to this judicial clangor, but find that
none of the views expressed in the other opinions written in the
case come close enough to mine to warrant the necessary compromise
to obtain a Court opinion.
In my view, the aesthetic justification alone is sufficient to
sustain a total prohibition of billboards within a community,
see Berman v. Parker, 348 U. S. 26,
348 U. S. 32-33
(1954), regardless of whether the particular community is "a
historical community such as Williamsburg" or one as unsightly as
the older parts of many of our major metropolitan areas. Such areas
should not be prevented from taking steps to correct, as best they
may, mistakes of their predecessors. Nor do I believe that the
limited exceptions contained in the San Diego ordinance are the
types which render this statute unconstitutional. The closest one
is the exception permitting billboards during political campaigns,
but I would treat this as a virtually self-limiting exception which
will have an effect on the aesthetics of the city only during the
periods immediately prior to a campaign. As such, it seems to me a
reasonable outlet, limited as to time, for the free expression
which the First and Fourteenth Amendments were designed to
protect.
Unlike JUSTICE BRENNAN, I do not think a city should be put to
the task of convincing a local judge that the elimination of
billboards would have more than a negligible impact on aesthetics.
Nothing in my experience on the bench has led me to believe that a
judge is in any better position than a city or county commission to
make decisions in an area such as aesthetics. Therefore, little can
be gained in the area of constitutional law, and much lost in the
process of democratic decisionmaking, by allowing individual judges
in city after city to second-guess such legislative or
administrative determinations.