|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
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 [p556] 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Indeed, lurking in the recesses of today's opinions is a not-so-veiled threat that the second option, too, may soon be withdrawn.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, 76 (1976) (POWELL, J., concurring). See Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 134 (1973) (STEWART, J., concurring). [p557]
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, 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 501, n. 8 (plurality opinion); ante at 527-528 (BRENNAN, J., concurring in judgment) (quoting Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975)). Accord, California v. LaRue, 409 U.S. 109, 117 (1972); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386 (1969); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503 (1952); Kovacs v. Cooper, 336 U.S. 77, 97 (1949) (Jackson, J., concurring). [n1] The uniqueness of [p558] 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 647 (emphasis added). Justice Black, speaking for the Court in Adderley v. Florida, 385 U.S. 39, 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 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 82-83 (plurality opinion [p559] 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 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, 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, 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 647-648. Accord, Schad v. Mount Ephraim, 452 U.S. 61, 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 [p560] 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. [n2] The plurality acknowledges -- as they must -- that promoting traffic safety and preserving scenic beauty "are substantial governmental goals." Ante at 507-508. See also ante at 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 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. [n3] In addition, a legislative body reasonably can conclude that every large billboard adversely [p561] affects the environment, for each destroys a unique perspective on the landscape and adds to the visual pollution of the city. [n4] 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 997 (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 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 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. [p562] 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, 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, 785 (1978) (footnote omitted). See Madison School District v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 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, 282 (1951) (Frankfurter, J., concurring in result). Moreover, aside from a few narrow and essentially negligible exceptions, see infra at 564-565, 566, San Diego has not differentiated with regard to topic. See Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. at 537-538; Carey v. Brown, 447 U.S. 455, 462, n. 6, 463 (1980); First National Bank v. Bellotti, supra, at 784-785; Police Dept. of Chicago v. Mosley, supra, at 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, 339 (1974) (quoting Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 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 [p563] 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, [n5] 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 789. See also Martin v. Struthers, 319 U.S. 141, 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. [p564]
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 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 512. More generally, as stated supra at 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 [p565] 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 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. [n6] 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. [p566]
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 562. Accord, Shuttlesworth v. Birmingham, 394 U.S. 147, 150-151 (1969); Staub v. City of Baxley, 355 U.S. 313, 322-325 (1958); Lovell v. Griffin, 303 U.S. 444, 451-452 (1938). See also Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. at 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 649. [n7]
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, 270 (1964). [p567](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 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 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, 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. [p568]
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. [n8] 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. [n9]
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 [p569] 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 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 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, 222 (1973) (WHITE, J., dissenting), and is far removed from the high purposes of the First Amendment.
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, 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.
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. § 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 515, n. 20 (plurality opinion); ante at 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.
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.
4. Indeed, streets themselves may be places of tranquility. Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 651 (1981).
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.
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 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.
7. As JUSTICE BRENNAN recognizes, ante at 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.
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 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 304 (plurality opinion of BLACKMUN, J.). The same constitutional dangers do not arise in allocating space among commercial advertisers.
9. See 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 562-563. I intimate no view on whether I would accept such an argument should that case ever arise.