|Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent
[ Stevens ]
[ Brennan ]
Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent
APPEAL FROM UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, dissenting.
The plurality opinion in Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981), concluded that the City of San Diego could, consistently with the First Amendment, restrict the commercial use of billboards in order to "preserve and improve the appearance of the City." Id. at 493. Today, the Court sustains the constitutionality of Los Angeles' similarly motivated ban on the posting of political signs on public property. Because the Court's lenient approach towards the restriction of speech for reasons of aesthetics threatens seriously to undermine the protections of the First Amendment, I dissent.
The Court finds that the City's "interest [in eliminating visual clutter] is sufficiently substantial to justify the effect of the ordinance on appellees' expression," and that the effect of the ordinance on speech is "no greater than necessary to accomplish the City's purpose." Ante at 466 U.S. 805"]805. These are the right questions to consider when analyzing the constitutionality of the challenged ordinance, see Metromedia, supra, at 525-527 (BRENNAN, J., concurring in judgment); 805. These are the right questions to consider when analyzing the constitutionality of the challenged ordinance, see Metromedia, supra, at 525-527 (BRENNAN, J., concurring in judgment); Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 656 (1981) (BRENNAN, J., concurring in part and dissenting in part), but the answers that the Court provides reflect a startling insensitivity to the principles embodied in the First Amendment. In my view, the City of Los Angeles has not shown that its interest in eliminating "visual clutter" justifies its restriction of appellees' ability to communicate with the local electorate.
The Court recognizes that each medium for communicating ideas and information presents its own particular problems. Our analysis of the First Amendment concerns implicated by a given medium must therefore be sensitive to these particular problems and characteristics. The posting of signs is, [p819] of course, a time-honored means of communicating a broad range of ideas and information, particularly in our cities and towns. At the same time, the unfettered proliferation of signs on public fixtures may offend the public's legitimate desire to preserve an orderly and aesthetically pleasing urban environment. In this case, as in Metromedia, we are called upon to adjudge the constitutionality under the First Amendment of a local government's response to this recurring dilemma -- namely, the clash between the public's aesthetic interest in controlling the use of billboards, signs, handbills, and other similar means of communication and the First Amendment interest of those who wish to use these media to express their views, or to learn the views of others, on matters of importance to the community.
In deciding this First Amendment question, the critical importance of the posting of signs as a means of communication must not be overlooked. Use of this medium of communication is particularly valuable, in part, because it entails a relatively small expense in reaching a wide audience, allows flexibility in accommodating various formats, typographies, and graphics, and conveys its message in a manner that is easily read and understood by its reader or viewer. There may be alternative channels of communication, but the prevalence of a large number of signs in Los Angeles [n1] is a strong indication that, for many speakers, those alternatives are far less satisfactory. Cf. Southeastern Promotion, Ltd. v. Conrad, 420 U.S. 546, 556 (1975).
Nevertheless, the City of Los Angeles asserts that ample alternative avenues of communication are available. The City notes that, although the posting of signs on public property is prohibited, the posting of signs on private property and the distribution of handbills are not. Brief for Appellants [p820] 25-26. But there is no showing that either of these alternatives would serve appellees' needs nearly as well as would the posting of signs on public property. First, there is no proof that a sufficient number of private parties would allow the posting of signs on their property. Indeed, common sense suggests the contrary, at least in some instances. A speaker with a message that is generally unpopular or simply unpopular among property owners is hardly likely to get his message across if forced to rely on this medium. It is difficult to believe, for example, that a group advocating an increase in the rate of a property tax would succeed in persuading private property owners to accept its signs.
Similarly, the adequacy of distributing handbills is dubious, despite certain advantages of handbills over signs. See Martin v. Struthers, 319 U.S. 141, 145-146 (1943). Particularly when the message to be carried is best expressed by a few words or a graphic image, a message on a sign will typically reach far more people than one on a handbill. The message on a posted sign remains to be seen by passersby as long as it is posted, while a handbill is typically read by a single reader and discarded. Thus, not only must handbills be printed in large quantity, but many hours must be spent distributing them. The average cost of communicating by handbill is therefore likely to be far higher than the average cost of communicating by poster. For that reason, signs posted on public property are doubtless "essential to the poorly financed causes of little people," id. at 146, and their prohibition constitutes a total ban on an important medium of communication. Cf. Stone, Fora Americana: Speech in Public Places, 1974 S.Ct.Rev. 233, 257. Because the City has completely banned the use of this particular medium of communication, and because, given the circumstances, there are no equivalent alternative media that provide an adequate substitute, the Court must examine with particular care the justifications that the City proffers for its ban. See Metromedia, supra, at 525-527 (BRENNAN, J., concurring [p821] in judgment); Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 93 (1977).
As the Court acknowledges, ante at 805, when an ordinance significantly limits communicative activity,
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.
Schneider v. State, 308 U.S. 147, 161 (1939). The Court's first task is to determine whether the ordinance is aimed at suppressing the content of speech, and, if it is, whether a compelling state interest justifies the suppression. Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 540 (1980); Police Department of Chicago v. Mosley, 408 U.S. 92, 99 (1972). If the restriction is content-neutral, the court's task is to determine (1) whether the governmental objective advanced by the restriction is substantial, and (2) whether the restriction imposed on speech is no greater than is essential to further that objective. Unless both conditions are met, the restriction must be invalidated. See ante at 805, 808, 810. [n2]
My suggestion in Metromedia was that courts should exercise special care in addressing these questions when a purely aesthetic objective is asserted to justify a restriction of speech. Specifically,
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.
453 U.S. at 531. I adhere to that view. Its correctness -- premised largely on my concern that aesthetic interests are easy for a city to assert and difficult for a court to evaluate is, for me, reaffirmed by this case.
The fundamental problem in this kind of case is that a purely aesthetic state interest offered to justify a restriction on speech -- that is, a governmental objective justified solely [p822] in terms like "proscribing intrusive and unpleasant formats for expression," ante at 806 -- creates difficulties for a reviewing court in fulfilling its obligation to ensure that government regulation does not trespass upon protections secured by the First Amendment. The source of those difficulties is the unavoidable subjectivity of aesthetic judgments -- the fact that "beauty is in the eye of the beholder." As a consequence of this subjectivity, laws defended on aesthetic grounds raise problems for judicial review that are not presented by laws defended on more objective grounds -- such as national security, public health, or public safety. [n3] In practice, therefore, the inherent subjectivity of aesthetic judgments makes it all too easy for the government to fashion its justification for a law in a manner that impairs the ability of a reviewing court meaningfully to make the required inquiries. [n4]
Initially, a reviewing court faces substantial difficulties determining whether the actual objective is related to the suppression of speech. The asserted interest in aesthetics may be only a facade for content-based suppression. Of course, all would agree that the improvement and preservation [p823] of the aesthetic environment are important governmental functions, and that some restrictions on speech may be necessary to carry out these functions. Metromedia, supra, at 453 U.S. 530"]530. But a governmental interest in aesthetics cannot be regarded as sufficiently compelling to justify a restriction of speech based on an assertion that the content of the speech is, in itself, aesthetically displeasing. 530. But a governmental interest in aesthetics cannot be regarded as sufficiently compelling to justify a restriction of speech based on an assertion that the content of the speech is, in itself, aesthetically displeasing. Cohen v. California, 403 U.S. 15 (1971). Because aesthetic judgments are so subjective, however, it is too easy for government to enact restrictions on speech for just such illegitimate reasons, and to evade effective judicial review by asserting that the restriction is aimed at some displeasing aspect of the speech that is not solely communicative -- for example, its sound, its appearance, or its location. An objective standard for evaluating claimed aesthetic judgments is therefore essential; for without one, courts have no reliable means of assessing the genuineness of such claims.
For example, in evaluating the ordinance before us in this case, the City might be pursuing either of two objectives, motivated by two very different judgments. One objective might be the elimination of "visual clutter," attributable in whole or in part to signs posted on public property. The aesthetic judgment underlying this objective would be that the clutter created by these signs offends the community's desire for an orderly, visually pleasing environment. A second objective might simply be the elimination of the messages typically carried by the signs. [n5] In that case, the aesthetic judgment would be that the signs' messages are themselves displeasing. The first objective is lawful, of course, but the second is not. Yet the City might easily mask the second [p824] objective by asserting the first and declaring that signs constitute visual clutter. In short, we must avoid unquestioned acceptance of the City's bare declaration of an aesthetic objective, lest we fail in our duty to prevent unlawful trespasses upon First Amendment protections.
A total ban on an important medium of communication may be upheld only if the government proves that the ban (1) furthers a substantial government objective, and (2) constitutes the least speech-restrictive means of achieving that objective. Schad v. Mount Ephraim, 452 U.S. 61 (1981). Here too, however, meaningful judicial application of these standards is seriously frustrated.(1)
No one doubts the importance of a general governmental interest in aesthetics, but in order to justify a restriction of speech, the particular objective behind the restriction must be substantial. E.g., United States v. Grace, 461 U.S. 171, 177 (1983); Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45 (1983); United States v. O'Brien, 391 U.S. 367, 377 (1968). Therefore, in order to uphold a restriction of speech imposed to further an aesthetic objective, a court must ascertain the substantiality of the specific objective pursued. Although courts ordinarily defer to the government's assertion that its objective is substantial, that assertion is not immune from critical examination. See, e.g., Schad v. Mount Ephraim, supra, at 72-73. This is particularly true when aesthetic objectives underlie the restrictions. But in such cases, independent judicial assessment of the substantiality of the government's interest is difficult. Because aesthetic judgments are entirely subjective, the government may too easily overstate the substantiality of its goals. Accordingly, unless courts carefully scrutinize [p825] aesthetics-based restrictions of speech, they risk standing idly by while important media of communication are foreclosed for the sake of insubstantial governmental objectives.(2)
Similarly, when a total ban is justified solely in terms of aesthetics, the means inquiry necessary to evaluate the constitutionality of the ban may be impeded by deliberate or unintended government manipulation. Governmental objectives that are purely aesthetic can usually be expressed in a virtually limitless variety of ways. Consequently, objectives can be tailored to fit whatever program the government devises to promote its general aesthetic interests. Once the government has identified a substantial aesthetic objective and has selected a preferred means of achieving its objective, it will be possible for the government to correct any mismatch between means and ends by redefining the ends to conform with the means.
In this case, for example, any of several objectives might be the City's actual substantial goal in banning temporary signs: (1) the elimination of all signs throughout the City, (2) the elimination of all signs in certain parts of the City, or (3) a reduction of the density of signs. Although a total ban on the posting of signs on public property would be the least restrictive means of achieving only the first objective, it would be a very effective means of achieving the other two as well. It is quite possible, therefore, that the City might select such a ban as the means by which to further its general interest in solving its sign problem, without explicitly considering which of the three specific objectives is really substantial. Then, having selected the total ban as its preferred means, the City would be strongly inclined to characterize the first objective as the substantial one. This might be done purposefully in order to conform the ban to the least-restrictive-means requirement, or it might be done inadvertently as a natural [p826] concomitant of considering means and ends together. But regardless of why it is done, a reviewing court will be confronted with a statement of substantiality the subjectivity of which makes it impossible to question on its face.
This possibility of interdependence between means and ends in the development of policies to promote aesthetics poses a major obstacle to judicial review of the availability of alternative means that are less restrictive of speech. Indeed, when a court reviews a restriction of speech imposed in order to promote an aesthetic objective, there is a significant possibility that the court will be able to do little more than pay lipservice to the First Amendment inquiry into the availability of less restrictive alternatives. The means may fit the ends only because the ends were defined with the means in mind. In this case, for example, the City has expressed an aesthetic judgment that signs on public property constitute visual clutter throughout the City, and that its objective is to eliminate visual clutter. We are then asked to determine whether that objective could have been achieved with less restriction of speech. But to ask the question is to highlight the circularity of the inquiry. Since the goal, at least as currently expressed, is essentially to eliminate all signs, the only available means of achieving that goal is to eliminate all signs.
The ease with which means can be equated with aesthetic ends only confirms the importance of close judicial scrutiny of the substantiality of such ends. See supra at 824-825. In this case, for example, it is essential that the Court assess the City's ban on signs by evaluating whether the City has a substantial interest in eliminating the visual clutter caused by all posted signs throughout the City -- as distinguished from an interest in banning signs in some areas or in preventing densely packed signs. If, in fact, either of the latter two objectives constitute the substantial interest underlying this ordinance, they could be achieved by means far less restrictive [p827] of speech than a total ban on signs, and the ban, therefore, would be invalid.
Regrettably, the Court's analysis is seriously inadequate. Because the Court has failed to develop a reliable means of gauging the nature or depth of the City's commitment to pursuing the goal of eradicating "visual clutter," it simply approves the ordinance with only the most cursory degree of judicial oversight. Without stopping to consider carefully whether this supposed commitment is genuine or substantial, the Court essentially defers to the City's aesthetic judgment, and, in so doing, precludes serious assessment of the availability of alternative means.
The Court begins by simply affirming that
[t]he problem addressed by this ordinance -- the visual assault on the citizens of Los Angeles presented by an accumulation of signs posted on public property -- constitutes a significant substantive end within the City's power to prohibit.
Ante at 807. Then, addressing the availability of less restrictive alternatives, the Court can do little more than state the unsurprising conclusion that, "[b]y banning these signs, the City did no more than eliminate the exact source of the evil it sought to remedy." Ante at 808. Finally, as if to explain the ease with which it reaches its conclusion, the Court notes that,
[w]ith respect to signs posted by appellees . . . , it is the tangible medium of expressing the message that has adverse impact on the appearance of the landscape.
Ante at 810. But, as I have demonstrated, it is precisely the ability of the State to make this judgment that should lead us to approach these cases with more caution.
The fact that there are difficulties inherent in judicial review of aesthetics-based restrictions of speech does not imply [p828] that government may not engage in such activities. As I have said, improvement and preservation of the aesthetic environment are often legitimate and important governmental functions. But because the implementation of these functions creates special dangers to our First Amendment freedoms, there is a need for more stringent judicial scrutiny than the Court seems willing to exercise.
In cases like this, where a total ban is imposed on a particularly valuable method of communication, a court should require the government to provide tangible proof of the legitimacy and substantiality of its aesthetic objective. Justifications for such restrictions articulated by the government should be critically examined to determine whether the government has committed itself to addressing the identified aesthetic problem.
In my view, such statements of aesthetic objectives should be accepted as substantial and unrelated to the suppression of speech only if the government demonstrates that it is pursuing an identified objective seriously and comprehensively, and in ways that are unrelated to the restriction of speech. Metromedia, 453 U.S. at 531 (BRENNAN, J., concurring in judgment). Without such a demonstration, I would invalidate the restriction as violative of the First Amendment. By requiring this type of showing, courts can ensure that governmental regulation of the aesthetic environment remains within the constraints established by the First Amendment. First, we would have a reasonably reliable indication that it is not the content or communicative aspect of speech that the government finds unaesthetic. Second, when a restriction of speech is part of a comprehensive and seriously pursued program to promote an aesthetic objective, we have a more reliable indication of the government's own assessment of the substantiality of its objective. And finally, when an aesthetic objective is pursued on more than one front, we have a better basis upon which to ascertain its precise nature, [p829] and thereby determine whether the means selected are the least restrictive ones for achieving the objective. [n6]
This does not mean that a government must address all aesthetic problems at one time, or that a government should hesitate to pursue aesthetic objectives. What it does mean, however, is that, when such an objective is pursued, it may not be pursued solely at the expense of First Amendment freedoms, nor may it be pursued by arbitrarily discriminating against a form of speech that has the same aesthetic characteristics as other forms of speech that are also present in the community. See Metromedia, supra, at 531-534 (BRENNAN, J., concurring in judgment).
Accordingly, in order for Los Angeles to succeed in defending its total ban on the posting of signs, the City would have to demonstrate that it is pursuing its goal of eliminating visual clutter in a serious and comprehensive manner. Most importantly, the City would have to show that it is pursuing its goal through programs other than its ban on signs, that at least some of those programs address the visual clutter problem through means that do not entail the restriction of speech, and that the programs parallel the ban in their stringency, geographical scope, and aesthetic focus. In this case, however, as the Court of Appeals found, there is no indication that the City has addressed its visual clutter problem in any way other than by prohibiting the posting of signs -- [p830] throughout the City and without regard to the density of their presence. 682 F.2d 847, 852 (CA9 1982). Therefore, I would hold that the prohibition violates appellees' First Amendment rights.
In light of the extreme stringency of Los Angeles' ban -- barring all signs from being posted -- and its wide geographical scope -- covering the entire City -- it might be difficult for Los Angeles to make the type of showing I have suggested. Cf. Metromedia, supra, at 533-534. A more limited approach to the visual clutter problem, however, might well pass constitutional muster. I have no doubt that signs posted on public property in certain areas -- including, perhaps, parts of Los Angeles -- could contribute to the type of eyesore that a city would genuinely have a substantial interest in eliminating. These areas might include parts of the City that are particularly pristine, reserved for certain uses, designated to reflect certain themes, or so blighted that broad-gauged renovation is necessary. Presumably, in these types of areas, the City would also regulate the aesthetic environment in ways other than the banning of temporary signs. The City might zone such areas for a particular type of development or lack of development; it might actively create a particular type of environment; it might be especially vigilant in keeping the area clean; it might regulate the size and location of permanent signs; or it might reserve particular locations, such as kiosks, for the posting of temporary signs. Similarly, Los Angeles might be able to attack its visual clutter problem in more areas of the City by reducing the stringency of the ban, perhaps by regulating the density of temporary signs, and coupling that approach with additional measures designed to reduce other forms of visual clutter. There are a variety of ways that the aesthetic environment can be regulated, some restrictive of speech and others not, but it is only when aesthetic regulation is addressed in a comprehensive and focused manner that we can ensure that the [p831] goals pursued are substantial and that the manner in which they are pursued is no more restrictive of speech than is necessary.
In the absence of such a showing in this case, I believe that Los Angeles' total ban sweeps so broadly and trenches so completely on appellees' use of an important medium of political expression that it must be struck down as violative of the First Amendment. [n7]
I therefore dissent.
1. According to the Court of Appeals, street inspection personnel removed 51,662 illegally posted signs between January 1, 1980, and May 24, 1980. 682 F.2d 847, 853, n. 6. (1982).
2. Of course, a content-neutral restriction must also leave open ample alternative avenues of communication. See supra at 819-820, and this page.
3. Safety, health, and national security have their subjective aspects as well, but they are not wholly subjective. When these objectives are invoked to justify a restriction of speech, courts can broadly judge their plausibility. This is not true of aesthetics.
4. As one scholar has stated:
Aesthetic policy, as currently formulated and implemented at the federal, state, and local levels, often partakes more of high farce than of the rule of law. Its purposes are seldom accurately or candidly portrayed, let alone understood, by its most vehement champions. Its diversion to dubious or flatly deplorable social ends undermines the credit that it may merit when soundly conceived and executed. Its indiscriminate, often quixotic demands have overwhelmed legal institutions, which all too frequently have compromised the integrity of legislative, administrative, and judicial processes in the name of "beauty."
Costonis, Law and Aesthetics: A Critique and a Reformation of the Dilemmas, 80 Mich.L.Rev. 355 (1982).
5. The fact that a ban on temporary signs applies to all signs does not necessarily imply content neutrality. Because particular media are often used disproportionately for certain types of messages, a restriction that is content-neutral on its face may, in fact, be content-hostile. Cf. Stone, Fora Americana: Speech in Public Places, 1974 S.Ct.Rev. 233, 257.
6. It is theoretically, though remotely, possible that a form of speech could be so distinctively unaesthetic that a comprehensive program aimed at eliminating the eyesore it causes would apply only to the unpleasant form of speech. Under the approach I suggest, such a program would be invalid because it would only restrict speech, and the community, therefore, would have to tolerate the displeasing form of speech. This is no doubt a disadvantage of the approach. But at least when the form of speech that is restricted constitutes an important medium of communication, and when the restriction would effect a total ban on the use of that medium, that is the price we must pay to protect our First Amendment liberties from those who would use aesthetics alone as a cloak to abridge them.
7. Although the Court does not reach the question, appellants argue that the City's interest in traffic safety provides an independent and significant justification for its ban on signs. As the Court of Appeals concluded, however,
[t]he City has not offered to prove facts that raise any genuine issue regarding traffic safety hazards with respect to the posting of signs on many of the objects covered by the ordinance.