|Metromedia, Inc. v. City of San Diego
[ White ]
[ Brennan ]
[ Stevens ]
[ Burger ]
[ Rehnquist ]
Metromedia, Inc. v. City of San Diego
APPEAL FROM THE SUPREME COURT OF CALIFORNIA
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 515, n. 20, the plurality does not decide [p522] "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 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.
As construed by the California Supreme Court, a billboard subject to San Diego's regulation is
a rigidly assembled sign, [p523] 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. § 18090.2 (West Supp.1970-1980). [n1] San Diego's billboard regulation bans all commercial and noncommercial billboard advertising, [n2] 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 [p524] 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 495, n. 3. [n3]
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 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 [p525] socially-related endeavors, and to provide directions to the traveling public.
Joint Stipulation of Facts No. 23, App. 46a-47a. [n4] 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, 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, 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 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 [p526] 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. [n5] 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 [p527] prohibitions of particular media of communication. [n6] 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 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 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, 416-417 (1943) (distribution of handbills); Hague v. CIO, 307 U.S. 496, 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 501, quoting Kovacs v. Cooper, supra, at 97 (Jackson, J., concurring). Similarly, in Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975), this Court observed:
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 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 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. [n7] Moreover, the ordinance is not [p529] 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 [p530] 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, 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 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 [p531] 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. [n8] 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, 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 [p532] 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, [n9] and by allowing only narrowly tailored exceptions, if any, [n10] San Diego could demonstrate [p533] 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 [p534] 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. [n11] See Schad v. Mount Ephraim, 452 U.S. at 77 (BLACKMUN, J., concurring). But San Diego failed to do so here, and, for that reason, I would strike down its ordinance.
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 Part IV of its opinion, 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. [n12] In Part V, [p535] 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 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. [p536] 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. [n13] 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 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 [p537] 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 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 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 306. See Saia v. New York, 334 U.S. 558, 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 564 (dissenting opinion).
According such wide discretion to city officials to control the free exercise of First Amendment rights is precisely what [p538] has consistently troubled this Court in a long line of cases starting with Lovell v. Griffin, 303 U.S. 444, 451 (1938). See, e.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. at 552-553 (theatrical performance in city-owned auditorium); Shuttlesworth v. Birmingham, 394 U.S. 147, 150-153 (1969) (picketing and parading); Staub v. City of Baxley, 355 U.S. 313, 321-325 (1958) (solicitation); Kunz v. New York, 340 U.S. 290, 294 (1951) (public meetings); Saia v. New York, supra, at 560-562 (sound trucks); Cantwell v. Connecticut, supra, at 307 (solicitation); Schneider v. State, 308 U.S. at 16164 (handbills); Hague v. CIO, 307 U.S. at 516 (handbills). See also Young v. American Mini Theatres, Inc., 427 U.S. 50, 93 (1976) (BLACKMUN, J., dissenting); Hynes v. Mayor and Council of Oradell, 425 U.S. 610, 617 (1976); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 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 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 [p539] 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? [n14]
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, 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 764-765. Cf. Murdock v. Pennsylvania, 319 U.S. 105, 111 (1943). In Bigelow v. Virginia, 421 U.S. 809, 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 [p540] 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, 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.
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).
2. I will sometimes refer to billboards containing commercial speech messages as "commercial billboards," and billboards containing noncommercial speech messages as "noncommercial billboards."
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.
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."
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).
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.
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 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).
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.
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 § 30-80 (1979).
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 Part V of its opinion, 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.
11. Likewise, I express no view on the constitutionality of the Highway Beautification Act of 1965, 23 U.S.C. § 131 (1976 ed. and Supp. III).
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"]512 (emphasis added). But 512 (emphasis added). But Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557"]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.'" 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, 98 (1977), quoting 431 U.S. 85, 98 (1977), quoting Virginia Pharmacy Board v. Virginia Citizens Consumers Council, Inc., 425 U.S. 748, 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 98.
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.
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 n. 4, supra. What if Exxon had placed the advertisement? Could Shell respond in kind?