Lead Opinion
Article I, section 8, of the Oregon Constitution provides, in part, that “[n]o law shall be passed restraining the tree expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever [.]” In these five consolidated cases, we consider the relationship between that provision and the state’s regulation of signs along highways under the Oregon Motorist Information Act, ORS 377.700 to 377.840 and ORS 377.992 (1999) (OMIA).
I. BACKGROUND
Petitioner, Outdoor Media Dimensions, Inc., is an outdoor advertising company that owns signs visible from state highways. In each of these cases, the state cited petitioner for displaying one or more of its outdoor advertising signs without a permit in violation of the OMIA and ordered the removal of the signs.
We begin with an overview of the OMIA. As this court explained in an earlier case brought by petitioner, Outdoor Media Dimensions Inc. v. State of Oregon,
The OMIA comprehensively regulates signs visible from public highways for the purposes of “promot[ing] the public safety,” “preserving] the recreational value of public
Of particular relevance to these cases, the OMIA establishes a permit requirement for outdoor advertising signs,
The OMIA’s definitions of “on-premises sign” and “outdoor advertising sign” are central to the Article I, section 8, issues in this case. The legislature defined those terms in ORS 377.710:
“(22) ‘On-premises sign’ means a sign designed, intended or used to advertise, inform or attract the attention of the public as to:
“(a) Activities conducted on the premises on which the sign is located; or
“(b) The sale or lease of the premises on which the sign is located.
“(23) ‘Outdoor advertising sign’ means a sign designed, intended or used to advertise, inform or attract the attention of the public as to:
“(a) Goods, products or services which are not sold, manufactured or distributed on or from the premises on which the sign is located;
“(b) Facilities not located on the premises on which the sign is located; or
“(c) Activities not conducted on the premises on which the sign is located.”
As a result of the definitions just quoted and the substantive provisions of the OMIA that we outlined previously, a person who wants to erect an on-premises sign need not obtain a permit from the state, while a person who wants to erect an outdoor advertising sign must obtain one of the limited number of available permits.
With that summary of the OMIA’s key provisions in mind, we return to petitioner’s cases. Before the Court of Appeals, petitioner did not challenge any finding of fact in the agency orders, but it raised a number of constitutional arguments. Petitioner argued, among other things, that the administrative procedure that led to the final agency orders violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution; that the OMIA permit and fee requirements are prior restraints in violation of Article I, section 8, and the First Amendment to the United States Constitution; that the OMIA violates the First Amendment by giving greater protection to commercial than to noncommercial speech; that the OMIA regulates speech, both generally and on the basis of content, in violation of Article I, section 8; that the OMIA violates the Equal Protection Clause of the Fourteenth Amendment; and that the OMIA violates Article I, section 20, of the Oregon Constitution.
The Court of Appeals rejected petitioner’s claims in each case, holding that the claims either had been resolved against petitioner’s position in earlier cases or did not merit discussion. See, e.g., Outdoor Media Dimensions,
In our view, two constitutional issues are at the heart of this case: First, whether the state may regulate highway signs by imposing content-neutral restrictions on those signs, including permit and fee requirements, as it does under the OMIA; and second, whether the OMIA’s distinction between outdoor advertising signs, sometimes referred to as “off-premises” signs, and on-premises signs, for purposes of the permit and fee requirements, violates Article I, section 8. We now turn to those issues.
III. THE OMIA’S RESTRICTIONS ON SIGNS, INCLUDING PERMIT AND FEE REQUIREMENTS
Petitioner first argues that the OMIA’s permit and fee requirements violate Article I, section 8, because they are impermissible prior restraints. Petitioner further asserts that those requirements, as well as the OMIA’s other restrictions on signs, violate Article I, section 8, because they improperly restrict petitioner’s right to erect the kind of sign that it wishes where it wishes.
A. Petitioner’s Prior Restraint Argument
Petitioner argues that, because the OMIA requires a person to obtain a permit before an outdoor advertising sign lawfully may be erected, it is an unconstitutional prior restraint. Petitioner claims that “Article I, section 8, mandates that speech can be displayed without a permit,” and that, under that provision, the state “may take action only after the speech is displayed.” The state first responds that petitioner cannot sustain a prior restraint claim because no prior restraint occurred in these cases: Petitioner did
The state is mistaken. The prior restraint issue in Outdoor Media I involved petitioner’s claim for damages under 42 USC section 1983, and this court concluded that, because petitioner had erected and maintained its signs without permits notwithstanding the OMIA’s permit and fee requirements, he could not prove that those requirements had caused his alleged damage. Id. at 654-55. Here, in contrast, petitioner does not seek monetary damages but instead argues that the permit and fee requirements that are the basis for the orders requiring removal of its signs are themselves unconstitutional prior restraints. The parties agree that those requirements, on their face, apply to petitioner, so the only question is whether they are constitutionally permissible. In those circumstances, we perceive no reason to require petitioner to seek permits for its signs before raising its constitutional challenges.
We turn to the merits of petitioner’s prior restraint argument. As noted, petitioner argues that the requirement that it pay a fee and obtain a permit before erecting an outdoor advertising sign constitutes a prior restraint that is barred by Article I, section 8. The state counters that the permit and fee requirements are not impermissible prior restraints because they are content neutral and have adequate standards to guide official discretion in the issuance of permits. The gravamen of a prohibited prior restraint, according to the state, is the prospect of government censorship of speech; the OMIA’s content-neutral permit and fee requirements do not raise that prospect and thus are not unconstitutional prior restraints.
Welch and Sports Management News illustrate the purpose of the prohibition on prior restraints: to bar the state from deciding in advance what expression it will permit. See Welch,
Petitioner raises several objections to the OMIA in addition to the prior restraint argument, which we have rejected above, and the permit exemption for on-premises signs, which we discuss below. Those include its arguments that the fee requirement violates Article I, section 8, because it “necessarily deters Oregonians from expressing themselves freely on any subject” and that any “regulation of the placement of speech on otherwise lawful structures violates Article I, section 8 * * *.” Moreover, implicit in petitioner’s state constitutional arguments is the assumption that Article I, section 8, prohibits any time, place, and manner regulations — such as the OMIA’s location, size, permit, and fee provisions. Petitioner also asserts that those regulations are to be examined using the test for restrictions on the content of speech that this court articulated in State v. Robertson,
Amicus Oregon Outdoor Advertising Association (OOAA) takes a similar position, arguing that, under Article I, section 8, “a law that does not favor or disfavor a particular viewpoint is nonetheless content based if it burdens, in any manner, protected speech.” OOAA appears to view Article I, section 8, as barring any “burden” on “protected speech,” regardless of the extent of the burden or its content neutrality or viewpoint neutrality.
The parties correctly view Robertson as establishing the framework “that this court traditionally has employed in evaluating Article I, section 8, challenges.” Fidanque,
In employing the Robertson framework, however, this court consistently has stated that there is room for “regulations imposed for reasons other than the substance of [a] particular message.” City of Portland v. Tidyman,
“Even structures and activities unquestionably devoted to constitutionally privileged purposes such as * * * free expression are not immune from regulations imposed for reasons other than the substance of their particular message.”
Id. Similarly, in City of Hillsboro v. Purcell,
Thus, while this court struck down the ban on door-to-door solicitation in Purcell because it arguably prohibited all door-to-door solicitation and the ban on adult bookstores in Tidyman because it was based on the content of the expression at issue, those cases also stand for the proposition that Article I, section 8, does not bar every content-neutral
The provisions quoted earlier show that the OMIA permit scheme, which on its face is neutral as to the content of speech, is not, in application, a means for the state to permit some speech and prohibit other speech based on content. Moreover, with the exception of the distinction between on-premises and off-premises signs, petitioner has not identified any instances in which the state has used its enforcement authority against petitioner or others to permit certain signs and prohibit others based on content. Put differently, because the permit scheme on its face (and, so far as this record demonstrates, also in practice) does not discriminate on the basis of the subject or content of speech, the OMIA does not effectuate government censorship of speech.
Notwithstanding the facial validity and content neutrality of the OMIA (other than the on-premises/off-premises distinction), petitioner argues that the fee requirement, as applied, is invalid because it “deters” speech. Of course, even a minimal fee or tax, at the margin, tends to reduce the level of the activity to which it applies. The real question, however, is whether the fee requirement suppresses speech in such a way that it “restrains” the free expression of opinion or “restricts” the right to speak freely on any subject, as protected by Article I, section 8. Fidanque held that the lobbyist registration fee at issue there was impermissible because
Finally, petitioner argues that the OMIA’s permit requirement, as applied, so burdens protected expression that it violates Article I, section 8. In that aspect of its case, petitioner relies on Purcell and City of Eugene v. Miller,
We disagree. Outdoor advertising signs, like other forms of expression, may have characteristics that make them uniquely suited to conveying certain messages to certain audiences. If the state were to prohibit billboards — or some other form of expression — entirely, then perhaps there would be reason to consider whether the effect of such a ban
For the foregoing reasons, we conclude that the OMIA’s provisions regarding the erection and maintenance of signs visible from public highways, including the permit and fee requirements — again with the exception of the statute’s different treatment of on-premises and off-premises signs, as discussed below — are content-neutral time, place, and manner restrictions that do not violate Article I, section 8.
IV. ON-PREMISES AND OFF-PREMISES SIGNS
We now turn to petitioner’s contention that the OMIA violates Article I, section 8, on its face by exempting on-premises signs from the permit and fee requirements. Petitioner argues that, under this court’s decision in Robertson, the legislature may not enact restrictions that focus on the content or subject matter of expression unless the scope of the restraint is wholly confined within a “recognized historical constitutional exception.” By requiring permits for off-premises signs, but not for on-premises signs, petitioner asserts, the OMIA restricts expression on the basis of “content” or “subject.” Thus, petitioner argues that, under the OMIA, a sign above a gas station visible from a highway may, without a permit, carry the message “Gas for Sale,” but it
Before turning to the state’s response, we note that the scope of the issue here is not as broad as petitioner suggests. Petitioner’s brief uses, as additional examples of signs that it contends are prohibited by the OMIA, signs that in fact might not be prohibited by that law. Petitioner asserts that signs expressing the message “Pray for Peace” or the message “Keep Abortion Legal” always would require permits because they necessarily would be “outdoor advertising signs” rather than on-premises signs. Arguably, however, if the first message were displayed on the property of a church or the second message on the property of a facility offering abortion services, those signs would inform the public about “activities conducted on the premises on which the sign is located,” ORS 377.710(22), and thus be considered on-premises signs not subject to the OMIA’s permit requirement. Moreover, a plausible argument can be made that a sign with the message “Pray for Peace” on a residential lot is about activity on the premises, namely that the owner of the residence prays for peace and exhorts others to do the same. As we noted previously,
The state responds that the on-premises/off-premises distinction is a content-neutral time, place, and manner regulation. The state first asserts that Article I, section 8, does not bar the state from imposing reasonable time, place, and manner restrictions on expression. It then argues
The state contrasts this case with other cases in which an apparently neutral regulation had the effect of restricting certain categories of speech. In Fidanque, for example, a law that required registration fees for lobbyists was held to violate Article I, section 8, because it focused on only one category of speech “political speech.”
We agree, as we have explained above, with the state’s view that Article I, section 8, does not prohibit reasonable time, place, and manner regulation of speech imposed for reasons apart from the message of the speech. We also understand that the state is asserting that there is a constitutionally meaningful difference between the OMIA and laws that focus directly on categories of speech that are familiar from First Amendment cases, such as obscenity, political speech, and commercial speech. However, unlike the dissent, we do not find the state’s argument persuasive. As noted, the
Although we recognize the differences between the OMIA and the statutes that we have considered in prior cases, our analysis is similar. As we have described above, for more than two decades, this court’s consideration of challenges under Article I, section 8, to statutes that restrict speech has been guided by the framework laid out in Robertson, in which this court considered a statute criminalizing coercion. This court there held that Article I, section 8, “prohibits lawmakers from enacting restrictions that focus on the content of speech or writing, either because that content itself is deemed socially undesirable or offensive, or because it is thought to have adverse consequences.”
In each of those cases, this court applied the framework established in Robertson and considered whether the statute or ordinance restricted the “content” of speech because that speech was “deemed socially undesirable or
The state’s argument suffers from two related flaws. First, it is not accurate to say that the on-premises/off-premises distinction is content neutral. That distinction allows a sign owner without a permit to display one narrowly defined category of message — a message related to activity conducted on the premises where the sign is located — but not to display any message respecting any other subject. The OMIA thus treats signs differently on the basis of the content of their message.
As to the state’s effort to comply with the HBA through enactment and enforcement of the OMIA, we are sympathetic to the state’s arguments, recognizing the possibility that the failure to enforce restrictions such as those in the OMIA might result in a reduction in federal highway funds. See 23 USC § 131(b), (c) (HBA allows exemption for on-premises signs; state’s failure to provide “effective control” of outdoor advertising signs may cause state to lose 10 percent of federal highway funds). Nevertheless, this court’s Article I, section 8, cases consistently have held that the state may not enact restrictions that focus on the content of speech, and this restriction does just that.
We also find unpersuasive the state’s arguments that are based on cases from other jurisdictions. Some courts and commentators have concluded that the distinction between on-premises and off-premises signs is not “content-based,” e.g., Rappa v. New Castle County,
In Ciancanelli, this court reassessed and reaffirmed its Article I, section 8, jurisprudence. Examining the text of that constitutional provision, this court stated:
“Turning our focus to the first clause of Article I, section 8, one is struck by its sweeping terms, both with respect to the legislative power (‘[n]o’ law shall be passed restraining * * * or restricting) (emphasis added) and the kinds of expression protected (‘* * * the free expression of opinion, or * * * the right to speak, write, or print freely on any subject whatever1) (emphasis added). In fact, the words are so clear and sweeping that we think that we would not be keeping faith with the framers who wrote them if we were to qualify or water them down[.]”
The broad sweep of Article I, section 8, compels us to conclude that the provision was not intended only to prevent content-based restrictions that are motivated by an intent to censor offensive, disruptive, or potentially harmful speech. Although the dissent appears to accept that limited reading of Article I, section 8, in our view, Article I, section 8, prohibits laws that distinguish among messages because of what they say, even if some may view the basis for the distinction as benign. The OMIA does distinguish between messages on the basis of what they say: It permits a sign owner to display one message, but not to display a different message solely
The Robertson framework next asks whether the scope of the content-based restraint “is wholly confined within some historical exception,” in which case it may be permitted notwithstanding Article I, section 8. Robertson,
For the forgoing reasons, we conclude that the OMIA’s on-premises/off-premises distinction — more particularly, the exemption from the OMIA’s permit and fee requirements for on-premises signs, ORS 377.735(l)(c) — is, on its face, an impermissible restriction on the content of speech.
V. REMEDY
We now turn to the consequences of our holding for the remaining parts of the OMIA. Throughout this litigation, petitioner has argued that this court should invalidate the entire OMIA, and we now consider that issue in light of our resolution of petitioner’s constitutional challenges.
In the context of statutes that violate Article I, section 8, this court held in Robertson that the remedy will depend on the particular constitutional defect. If part of the statute is unconstitutional on its face because it is “written in terms directed to the substance of any ‘opinion’ or any ‘subject’ of communication,” then that part is simply invalid. Robertson,
In this case, we have agreed only with petitioner’s argument that the OMIA violates Article I, section 8, by imposing greater restrictions on some signs than others
Our conclusion that the OMIA’s different treatment of on-premises and off-premises signs is unconstitutional presents a more difficult problem. We can end that infirmity either by striking from the OMIA the exemption from the permit requirement for on-premises signs, ORS 377.735(l)(c), or by striking the permit requirement itself, ORS 377.725(1), as it applies to outdoor advertising signs (off-premises signs).
As we have accepted one of petitioner’s legal arguments and rejected others, we reverse the agency orders requiring the removal of petitioner’s signs and remand the cases to the respective agencies for further proceedings.
The decisions of the Court of Appeals and the orders of the Driver and Motor Vehicle Services Branch and the Department of Transportation are reversed. Case numbers S50003, S50007, and S50044 are remanded to the Driver and Motor Vehicle Services Branch for further proceedings, and case numbers S49978 and S50458 are remanded to the Department of Transportation for further proceedings.
Notes
Unless otherwise indicated, we refer in this opinion to the 1999 version of the OMIA.
The Driver and Motor Vehicle Services Branch issued three of the citations, and the Department of Transportation issued the two other citations. For convenience, we refer to those state agencies collectively as the “state” or the “agency.”
The legislature has amended the OMIA many times. In 1999, the legislature made a number of changes to the OMIA, including adding a definition of “on-premises sign” and changing the exemptions to the OMIA’s permit requirement. See Or Laws 1999, ch 877, §§ 2, 7. The state does not rely on or seek to enforce
ORS 377.725(1) provides, “Unless an annual permit has been issued therefor, an outdoor advertising sign or a directional sign shall not be erected, maintained or replaced by any person.” See also ORS 377.715 (“A person may not erect or maintain an outdoor advertising, on-premises or directional sign visible to the traveling public from a state highway * * * unless it complies with [the OMIA and federal requirements].”).
The 1999 amendments to the OMIA eliminated a long list of exemptions from the permit requirement, leaving only the exemptions for government signs, certain temporary signs, and on-premises signs. ORS 377.735(1); Or Laws 1999, ch 877, § 7. As previously noted, because those former exemptions have no place in the present regulatory scheme and have no impact on the enforcement actions against petitioner or the relief that petitioner seeks, we do not consider them. As to the remaining exemptions, petitioner has offered fully developed arguments as to the on-premises exemption only, and we consider those arguments later in this opinion.
As we discuss in greater detail below, the statutory definitions of “on-premises sign” and “outdoor advertising sign” raise a number of interpretive issues that we do not address in this opinion, including the meaning of the phrase “activities conducted [or not conducted] on the premises on which the sign is located.” It
Petitioner did not make all of those arguments in each case.
In general, the term “content neutral” means that a particular restriction on expression applies to all expression, regardless of its subject or content. For example, a law or other government action that prohibits all signs that interfere with drivers’ lines of sight near an intersection is “content neutral,” while a law that permits noncommercial (for example, political) signs but prohibits commercial signs is not content neutral. See generally Geoffrey R. Stone, Content-Neutral Restrictions, 54 U Chi L Rev 46 (1987) (analyzing First Amendment cases involving content-neutral restrictions on speech). The term “viewpoint neutral” means that the government action, although restricting some expression and permitting other expression, is neutral as to the particular views that it allows to be expressed. Under the First Amendment, for example, a state-run television network is permitted to decide which candidates may participate in a televised debate and to exclude minor candidates, as long as the exclusion is not based on the viewpoints of the excluded candidates. See, e.g., Arkansas Educ. Television Comm’n v. Forbes,
The phrase “time, place, and manner restrictions” originated in First Amendment cases and generally refers to government limitations on speech, including license and permit requirements, that are imposed without reference to the content of the regulations. See Heffron v. Int’l Soc’y for Krishna Consciousness,
The current version of ORS 377.729, which ties the fee to the cost of the regulatory program, was not enacted until 2001. However, neither party suggests that the state has any intention of seeking to collect from petitioner any fee based on earlier versions of the statute, and we therefore do not consider the validity of the fee-setting provisions of earlier versions of ORS 377.729.
This case was submitted before this court had issued its decision in State v. Ciancanelli,
This is the focal point of the dissent’s disagreement with this opinion. The dissent states that the OMIA does not “favor one subject of speech over another one.”
Because we conclude that the OMIA establishes a content-based restriction on expression, in our analysis the OMIA falls within the first class of laws described in Robertson. See
The OMIA requires permits for signs other than outdoor advertising signs and contains exceptions to the permit requirement for signs other than on-premises signs. The validity of the permit scheme, as applied to other kinds of signs, such as “directional signs” and “motorist informational signs,” is not at issue in this case and may involve different considerations than those that we have discussed in this opinion. Accordingly, we express no view as to the constitutionality of the OMIA’s permit requirements as applied to those other kinds of signs.
Concurrence Opinion
RIGGS, J.,
concurring in part and dissenting in part.
I concur with the majority in every respect except that part of its opinion holding that the OMIA’s exemption from the permit and fee requirements for on-premises signs violates Article I, section 8, of the Oregon Constitution. The majority incorrectly concludes that the OMIA impermissibly regulates the content of speech. I conclude that the OMIA is constitutional under Article I, section 8.
This court’s framework for analyzing claims under Article I, section 8, was set out in State v. Robertson,
“In State v. Robertson, * * * this court established a framework for evaluating whether a law violates Article I, section 8. First, the court recognized a distinction between laws that focus on the content of speech or writing and laws that focus on the pursuit or accomplishment of forbidden results. The court reasoned that a law of the former type, a
“ ‘unless the scope of the restraint is wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach.’
“Laws of the latter type, which focus on forbidden results, can be divided further into two categories. The first category focuses on forbidden effects, but expressly prohibits expression used to achieve those effects. The coercion law at issue in Robertson was of that category. Such laws are analyzed for overbreadth:
“ ‘When the proscribed means include speech or writing, however, even a law written to focus on a forbidden effect * * * must be scrutinized to determine whether it appears to reach privileged communication or whether it can be interpreted to avoid such “overbreadth.” ’
“The second kind of law also focuses on forbidden effects, but without referring to expression at all. Of that category, this court wrote:
“ ‘If [a] statute [is] directed only against causing the forbidden effects, a person accused of causing such effects by language or gestures would be left to assert (apart from a vagueness claim) that the statute could not constitutionally be applied to his particular words or other expression, not that it was drawn and enacted contrary to article I, section 8.’ ”
State v. Plowman,
The majority correctly begins its analysis of the OMIA by considering whether the OMIA “focus [es] on the content of speech or writing” or whether it “focus [es] on proscribing the pursuit or accomplishment of forbidden results.” See Plowman,
By laws that focus on the content of speech, this court in Robertson meant laws that restrict or prohibit a particular message or subject of communication, such as obscenity, “either because that content itself is deemed socially undesirable or offensive, or because it is thought to have adverse consequences.” Robertson,
This court’s cases reflect the understanding that laws focus on the content of speech when they attack a particular, identifiable subject of communication. The cases relied on by the majority, plus others, struck down limits on just such particular subjects of communication. In State v. Henry,
But the OMIA does not prohibit any particular subject of speech for being “socially undesirable or offensive” or for “hav[ing] adverse consequences.” Nor does it favor one subject of speech over another one.
“[T]he distinction between ‘on-premises’ and ‘off-premises’ speech has no meaning in terms of the content of the speech; the only distinction is the relationship between the message on the sign and its location.”
The OMIA does not prohibit any identifiable message. It does not restrict speech as speech. It is not in the first class of laws described by Robertson, and the majority errs in concluding otherwise.
Instead, the OMIA falls within the second class of laws described by Robertson: It “focuses on forbidden effects, but expressly prohibits expression used to achieve those
Because the OMIA falls within the second class of laws described in Robertson, we should consider whether the OMIA is overbroad. See, e.g., Plowman,
“Unlike with other facial challenges, a challenger raising an overbreadth challenge need not demonstrate that the statute at issue is unconstitutional under the particular circumstances at hand. Rather, the challenger will prevail in his or her facial challenge if the court concludes that the statute in question prohibits constitutionally protected conduct of any kind.”
State v. Hirsch/Friend,
The majority’s analysis here shows why the OMIA is not unconstitutionally overbroad. Only the limits on “outdoor advertising sign[s]” bar any manner of speech, so only those limits could render the OMIA unconstitutionally overbroad. (The exception for on-premises signs is beside the point, because that exception does not prohibit any constitutionally protected messages. It does not prohibit any messages at all — it allows them, and without discriminating in favor of any particular subject of communication.) As the majority explains, the “outdoor advertising sign” limits are constitutional as a reasonable manner restriction, and I agree.
The OMIA is concerned with “the medium, not the message, as when park regulations ban fireworks even for a Fourth of July celebration.” Tidyman,
The majority itself essentially relies on the same distinction elsewhere in its opinion. The majority rejects petitioner’s “prior restraint” argument because “the purpose of the prohibition on prior restraints” is “to bar the state from deciding in advance what expression it will permit.”
The same purpose underlies the distinction between laws that focus on speech as speech and laws that focus on preventing harmful results. Yet, the majority refuses to recognize it here.
In particular, let me reaffirm one other statement by the majority. The statute does not, contrary to petitioner’s arguments, favor commercial speech over political speech. “Pray for Peace,” for example, would qualify as an on-premises sign for a church.