CITY OF LADUE ET AL. v. GILLEO
No. 92-1856
Supreme Court of the United States
Argued February 23, 1994—Decided June 13, 1994
512 U.S. 43
Jordan B. Cherrick argued the cause for petitioners. With him on the briefs were Robert F. Schlafly and Jay A. Summerville.
Gerald P. Greiman argued the cause for respondent. With him on the brief were Martin M. Green, Mitchell A. Margo, and Steven R. Shapiro.
Deputy Solicitor General Bender argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Days, Assistant Attorney General Hunger, and Amy L. Wax.*
*Briefs of amici curiae urging reversal were filed for the State of Hawaii et al. by J. Joseph Curran, Jr., Attorney General of Maryland, and Jack Schwartz and Diane Krejsa, Assistant Attorneys General, Robert A. Marks, Attorney General of Hawaii, Pamela Carter, Attorney General of Indiana, Jeffrey R. Howard, Attorney General of New Hampshire, Fred DeVesa, Acting Attorney General of New Jersey, Ernest D. Preate, Jr., Attorney General of Pennsylvania, and Jeffrey L. Amestoy, Attorney General of Vermont; and for the National Institute of Municipal Law Officers et al. by Richard Ruda and Lee Fennell.
Briefs of amici curiae urging affirmance were filed for the American Advertising Federation et al. by Richard E. Wiley, Lawrence W. Secrest III, Howard H. Bell, John F. Kamp, David S. Versfelt, Kenneth M. Vittor, and Slade Metcalf; for the Association оf National Advertisers, Inc., by Burt Neuborne and Gilbert H. Weil; for People for the American Way
JUSTICE STEVENS delivered the opinion of the Court.
An ordinance of the City of Ladue prohibits homeowners from displaying any signs on their property except “residence identification” signs, “for sale” signs, and signs warning of safety hazards. The ordinance permits commercial establishments, churches, and nonprofit organizations to erect certain signs that are not allowed at residences. The question presented is whether the ordinance violates a Ladue resident‘s right to free sрeech.1
I
Respondent Margaret P. Gilleo owns one of the 57 single-family homes in the Willow Hill subdivision of Ladue.2 On December 8, 1990, she placed on her front lawn a 24- by 36-inch sign printed with the words, “Say No to War in the Persian Gulf, Call Congress Now.” After that sign disappeared, Gilleo put up another but it was knocked to the ground. When Gilleo reported these incidents to the police, they advised her that such signs were prohibited in Ladue. The city council denied her petition for a variance.3 Gilleo then filed this action under
The District Court issued a preliminary injunction аgainst enforcement of the ordinance. 774 F. Supp. 1559 (ED Mo. 1991). Gilleo then placed an 8.5- by 11-inch sign in the second story window of her home stating, “For Peace in the Gulf.” The Ladue City Council responded to the injunction by repealing its ordinance and enacting a replacement.4 Like its predecessor, the new ordinance contains a general prohibition of “signs” and defines that term broadly.5 The ordinance prohibits all signs except those that fall within 1 of 10 exemptions. Thus, “residential identification signs” no larger than one square foot are allowed, as are signs advertising “that the property is for sale, lease or exchange” and identifying the owner or agent. § 35-10, App. to Pet. for Cert. 45a. Also exempted are signs “for churches, religious institutions, and schools,” § 35-5, id., at 41a, “[c]ommercial signs in commercially zoned or industrial zoned districts,” § 35-4, ibid., and on-site signs advertising “gasoline filling
“proliferation of an unlimited number of signs in private, residential, commercial, industrial, and public areas of the City of Ladue would create ugliness, visual blight and clutter, tarnish the natural beauty of the landscape as well as the residential and commercial architecture, impair property values, substantially impinge upon the privacy and special ambience of the community, and may cause safety and traffic hazards to motorists, pedestrians, and children.” Id., at 36a.
Gilleo amended her complaint to challenge the new ordinance, which explicitly prohibits window signs like hers. The District Court held the ordinance unconstitutional, 774 F. Supp. 1559 (ED Mo. 1991), and the Court of Appeals affirmed, 986 F. 2d 1180 (CA8 1993). Relying on the plurality opinion in Metromedia, Inc. v. San Diego, 453 U. S. 490 (1981), the Court of Appeals held the ordinance invalid as a “content based” regulation because the City treated commercial speech more favorably than noncommercial speech and favored some kinds of noncommercial speech over others.
We granted the City of Ladue‘s petition for certiorari, 510 U. S. 809 (1993), and now affirm.
II
While signs are a form of expression protected by the Free Speech Clause, they pose distinctive problems that are subject to municipalities’ police powers. Unlike oral speech, signs take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation. It is cоmmon ground that governments may regulate the physical characteristics of signs—just as they can, within reasonable bounds and absent censorial purpose, regulate audible expression in its capacity as noise. See, e. g., Ward v. Rock Against Racism, 491 U. S. 781 (1989); Kovacs v. Cooper, 336 U. S. 77 (1949). However, because regulation of a medium inevitably affects communication itself, it is not surprising that we have had occasion to review the constitutionality of municipal ordinances prohibiting the display of certain outdoor signs.
In Linmark Associates, Inc. v. Willingboro, 431 U. S. 85 (1977), we addressed an ordinance that sought to maintain stable, integrated neighborhoods by prohibiting homeowners from placing “For Sale” or “Sold” signs on their property. Although we recognized the importance of Willingboro‘s objective, we held that the First Amendment prevented the township from “achieving its goal by restricting the free flow of truthful information.” Id., at 95. In some respects Linmark is the mirror image of this case. For instead of prohibiting “For Sale” signs without banning any other
In Metromedia, we reviewed an ordinance imposing substantial prohibitions on outdoor advertising displays within the city of San Diego in the interest of traffic safety and esthetics. The ordinance generally banned all except those advertising “on-site” activities.7 The Court concluded that the city‘s interest in traffic safety and its esthetic interest in preventing “visual clutter” could justify a prohibition of off-site commercial billboards even though similar on-site signs were allowed. 453 U. S., at 511-512.8 Nevertheless, the Court‘s judgment in Metromedia, supported by two different lines of reasoning, invalidated the San Diego ordinance in its entirety. According to Justice White‘s plurality opiniоn, the ordinance impermissibly discriminated on the basis of content by permitting on-site commercial speech while broadly prohibiting noncommercial messages. Id., at 514-515. On
In Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789 (1984), we upheld a Los Angeles ordinance that prohibited the posting of signs on public property. Noting the conclusion shared by seven Justices in Metromedia that San Diego‘s “interest in avoiding visual clutter” was sufficient to justify a prohibition of commercial billboards, 466 U. S., at 806-807, in Vincent we upheld the Los Angeles ordinance, which was justified on the same grounds. We rejected thе argument that the validity of the city‘s esthetic interest had been compromised by failing to extend the ban to private property, reasoning that the “private citizen‘s interest in controlling the use of his own property justifies the disparate treatment.” Id., at 811. We also rejected as “misplaced” respondents’ reliance on public forum principles, for they had “fail[ed] to demonstrate the existence of a traditional right of access respecting such items as utility poles . . . comparable to that recognized for public streets and parks.” Id., at 814.
These decisions identify two analytically distinct grounds for challenging the constitutionality of a municipal ordinance regulating the display of signs. One is that the measure in
III
While surprising at first glance, the notion that a regulation of speech may be impermissibly underinclusive is firmly grounded in basic First Amendment principles.9 Thus, an exemption from an otherwise permissible regulation of speech may represent a governmental “attempt to give one side of a debatable public question an advantage in expressing its views to the people.” First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 785-786 (1978). Alternatively, through the combined operation of a general speech restriction and its exemptions, the government might seek to select the “permissible subjects for public debate” and thereby to “control . . . the search for political truth.” Consolidated Edison Co. of N. Y. v. Public Serv. Comm‘n of N. Y., 447 U. S. 530, 538 (1980).10
Exemptions from an otherwise legitimate regulation of a medium of speech may be noteworthy for a reason quite aрart from the risks of viewpoint and content discrimination: They may diminish the credibility of the government‘s rationale for restricting speech in the first place. See, e. g.,
Under the Court of Appeals’ content discrimination rationale, the City might theoretically remove the defects in its ordinance by simply repealing all of the exemptions. If, however, the ordinance is also vulnerable because it prohibits too much speech, that solution would not save it. Moreover, if the prohibitions in Ladue‘s ordinance are impermissible, resting our decision on its exemptions would afford scant relief for respondent Gilleo. She is primarily concerned not with the scope of the exemptions available in other locations, such as commercial areas and on church property; she asserts a constitutional right to display an antiwar sign at her own home. Therеfore, we first ask whether Ladue may properly prohibit Gilleo from displaying her sign, and then, only if necessary, consider the separate question whether it was improper for the City simultaneously to permit certain other signs. In examining the propriety of Ladue‘s near-total prohibition of residential signs, we will assume, arguendo, the validity of the City‘s submission that the various exemptions are free of impermissible content or viewpoint discrimination.11
In Linmark we held that the city‘s interest in maintaining a stable, racially integrated neighborhood was not sufficient to support a prohibition of residential “For Sale” signs. We recognized that even such a narrow sign prohibition would have a deleterious effect on residents’ ability to convey important information because alternatives were “far from satisfactory.” 431 U. S., at 93. Ladue‘s sign ordinance is supported principally by the City‘s interest in minimizing the visual clutter associated with signs, an interest that is concededly valid but certainly no more compelling than the interests at stake in Linmark. Moreover, whereas the ordinance in Linmark applied only to a form of commercial speech, Ladue‘s ordinance covers even such absolutely pivotal speech as a sign protesting an imminent governmental decision to go to war.
The impact on free сommunication of Ladue‘s broad sign prohibition, moreover, is manifestly greater than in Linmark. Gilleo and other residents of Ladue are forbidden to display virtually any “sign” on their property. The ordinance defines that term sweepingly. A prohibition is not always invalid merely because it applies to a sizeable category of speech; the sign ban we upheld in Vincent, for example, was quite broad. But in Vincent we specifically noted that the category of speech in question—signs placed on public property—was not a “uniquely valuable or important mode of communication,” and that there was no evidence that “appellees’ ability to communicate effectively is threatened by ever-increasing restrictions on expression.” 466 U. S., at 812.
Here, in contrast, Ladue has almost completely foreclosed a venerable means of communication that is both unique and important. It has totally foreclosed that medium to political, religious, or personal messages. Signs that react to a local happening or express a view on a controversial issue both reflect and animate change in the life of a community.
Our prior decisions have voiced particular concern with laws that foreclose an entire medium of expression. Thus, we have held invalid ordinances that completely banned the distribution of pamphlets within the municipality, Lovell v. City of Griffin, 303 U. S. 444, 451-452 (1938); handbills on the public streets, Jamison v. Texas, 318 U. S. 413, 416 (1943); the door-to-door distribution of literature, Martin v. City of Struthers, 319 U. S. 141, 145-149 (1943); Schneider v. State (Town of Irvington), 308 U. S. 147, 164-165 (1939), and live entertainment, Schad v. Mount Ephraim, 452 U. S. 61, 75-76 (1981). See also Frisby v. Schultz, 487 U. S. 474, 486 (1988) (picketing focused upon individual residence is “fundamentally different from more generally directed means оf communication that may not be completely banned in residential areas“). Although prohibitions foreclosing entire media may be completely free of content or viewpoint discrimination, the danger they pose to the freedom of speech is readily apparent—by eliminating a common means of speaking, such measures can suppress too much speech.13
Displaying a sign from one‘s own residence often carries a message quite distinct from placing the same sign someplace else, or conveying the same text or picture by other means. Precisely because of their location, such signs provide information about the identity of the “speaker.” As an early and eminent student of rhetoric observed, the identity of the speaker is an important component of many attempts to persuade.14 A sign advocating “Peace in the Gulf” in the front lawn of a retired general or decorated war veteran may provoke a different reaction than the same sign in a 10-year-old child‘s bedroom window or the same message on a bumper sticker of a passing automobile. An espоusal of socialism may carry different implications when displayed
Residential signs are an unusually cheap and convenient form of communication. Especially for persons of modest means or limited mobility, a yard or window sign may have no practical substitute. Cf. Vincent, 466 U. S., at 812-813, n. 30; Anderson v. Celebrezze, 460 U. S. 780, 793-794 (1983); Martin v. City of Struthers, 319 U. S., at 146; Milk Wagon Drivers v. Meadowmoor Dairies, Inc., 312 U. S. 287, 293 (1941). Even for the affluent, the added costs in money or time of taking out a newspaper advertisement, handing out leaflets on the street, or standing in front of one‘s house with a hand-held sign may make the difference between participating and not participating in some public debate.15 Furthermore, a person who puts up a sign at her residence often intends to reach neighbors, an audience that could not be reached nearly as well by other means.16
Our decision that Ladue‘s ban on almost all residential signs violates the First Amendment by no means leaves the City powerless to address the ills that may be associated with residential signs.17 It bears mentioning that individual residents themselves have strong incentives to keep their own property values up and to prevent “visual clutter” in their own yards and neighborhoods—incentives markedly different from those of persons who erect signs on others’ land, in others’ neighborhoods, or on public property. Residents’ self-interest diminishes the danger of the “unlimited” proliferation of residential signs that concerns the City of Ladue. We are confident that more temperate measures could in large part satisfy Ladue‘s stated regulatory needs
Accordingly, the judgment of the Court of Appeals is
Affirmed.
JUSTICE O‘CONNOR, concurring.
It is unusual for us, when faced with a regulation that on its face draws content distinctions, to “assume, arguendo, the validity of the City‘s submission that the various exemptions are free of impermissible сontent or viewpoint discrimination.” Ante, at 53. With rare exceptions, content discrimination in regulations of the speech of private citizens on private property or in a traditional public forum is presumptively impermissible, and this presumption is a very strong one. Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 115-116 (1991). The normal inquiry that our doctrine dictates is, first, to determine whether a regulation is content based or content neutral, and then, based on the answer to that question, to apply the proper level of scrutiny. See, e. g., Burson v. Freeman, 504 U. S. 191, 197-198 (1992) (plurality opinion); Forsyth County v. Nationalist Movement, 505 U. S. 123, 133-135 (1992); Simon & Schuster, supra, at 115-116; Boos v. Barry, 485 U. S. 312, 318-321 (1988) (plurality opinion); Arkansas Writers’ Project, Inc. v. Ragland, 481 U. S. 221, 229-231 (1987); Carey v. Brown, 447 U. S. 455, 461-463 (1980); Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95, 98-99 (1972).
Over the years, some cogent criticisms have been leveled at our approach. See, e. g., R. A. V. v. St. Paul, 505 U. S. 377, 420-422 (1992) (STEVENS, J., concurring in judgment); Consolidated Edison Co. of N. Y. v. Public Serv. Comm‘n of N. Y., 447 U. S. 530, 544-548 (1980) (STEVENS, J., concurring in judgment); Farber, Content Regulation and the First Amendment: A Revisionist View, 68 Geo. L. J. 727 (1980);
But though our rule has flaws, it has substantial merit as well. It is a rule, in an area where fairly precise rules are better thаn more discretionary and more subjective balancing tests. See Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 52-53 (1988). On a theoretical level, it reflects important insights into the meaning of the free speech principle—for instance, that content-based speech restrictions are especially likely to be improper attempts to value some forms of speech over others, or are particularly susceptible to being used by the government to distort public debate. See, e. g., ante, at 51-53; Mosley, supra, at 95; Stone, Content Regulation and the First Amendment, 25 Wm. & Mary L. Rev. 189 (1983). On a practical level, it has in application generally led to seemingly sensible results. And, perhaps most importantly, no better alternativе has yet come to light.
I would have preferred to apply our normal analytical structure in this case, which may well have required us to examine this law with the scrutiny appropriate to content-based regulations. Perhaps this would have forced us to confront some of the difficulties with the existing doctrine; perhaps it would have shown weaknesses in the rule, and led us to modify it to take into account the special factors this case presents. But such reexamination is part of the process by which our rules evolve and improve.
Nonetheless, I join the Court‘s opinion, because I agree with its conclusion in Part IV that even if the rеstriction were content neutral, it would still be invalid, and because I do not think Part III casts any doubt on the propriety of our normal content discrimination inquiry.