Outdoor Media Dimensions, Inc. v. Department of Transportation

2004, Appeals 10, September of Court Argued decisions submitted Transpor Department of Services Branch Driver and Motor Vehicle orders of S50007, S50003, Driver reversed; remanded to and S50044 numbers tation case proceedings, numbers and case Branch for further Services and Motor Vehicle Transportation Department for further remanded to S49978 and S50458 20, 2006 denied June proceedings March reconsideration INC., DIMENSIONS, MEDIA OUTDOOR Review, on Petitioner v. TRANSPORTATION, OF

DEPARTMENT Review. on Respondent 91564; 89838, 90587, 90588, ODOT A116814; SC S50458 CA INC., DIMENSIONS, MEDIA OUTDOOR Review, Petitioner on v. TRANSPORTATION,

DEPARTMENT OF Review. on Respondent 79817, 85185; ODOT (Control), A114027; SC S49978 CA A113875 DIMENSIONS, INC., MEDIA OUTDOOR Review, Petitioner on v.

DRIVER AND MOTOR VEHICLE (DMV),

SERVICES BRANCH Review. Respondent 74889; 68677, 70642, 74573, DMV A106450; CA SC S50007 DIMENSIONS, INC., MEDIA OUTDOOR Review, Petitioner on v. MOTOR VEHICLE

DRIVER AND (DMV), BRANCH SERVICES Review. Respondent A102328; S50003 58118; SC DMV CA OUTDOOR MEDIA DIMENSIONS, INC., Review,

Petitioner on DRIVER AND MOTOR VEHICLE (DMV),

SERVICES BRANCH Respondent on Review.

DMV 63047; CA A100658 (Control), A100659; SC S50044

(Consolidated for Argument Opinion) 634,20 See also 331 Or P3d 180. argued

Alan and filed Herson, Jacksonville, R. cause petitioner the briefs for on review. Attorney Metcalf, General, Salem,

Janet A. Assistant argued respondent the cause and filed the briefs for Kelly Knivila, review. her Assistant With briefs were Attorney Hardy Myers, Attorney General, General, and Mary Williams, H. Solicitor General. City, argued Baldwin, the cause and

Russell L. Lincoln Ray Drayton. curiae filed brief for amicus Wyatt, Schwabe, & Garone, Michael T. Williamson Oregon P.C., Portland, filed the brief for amicus curiae Advertising Outdoor Association. With him on the brief were Willis and Jill S. Donald Joe Gelineau. Wright

Margarita Tremaine, Portland, Molina, of Davis Oregon. ACLU Foundation of filed the brief for amicus curiae her on the brief was Patricia McGuire. With Justice,** Gillette, Durham, Carson, Before Chief Riggs, Balmer, Muniz,*** De Justices.****

BALMER, J. ** argued. Chief Justice when case was

*** was rendered. Chief Justice when decision **** jQstler, J., participate in the or decision ofthis case. did not consideration

278-a Riggs, part part filed J., concurred dissented opinion. an

278-b

BALMER, J. pro Oregon 8, of Constitution restraining passed “[n]o part, law shall be vides, in speak, restricting right opinion, tree [.]” print freely In these five whatever write, or relationship cases, we consider the between consolidated highways regulation signs along provision and the state’s Oregon Act, ORS 377.700 Motorist Information under the (1999) (OMIA).1For reasons and ORS 377.992 377.840 (1) many of the below, we conclude that that we discuss including imposi highway signs, OMIA’srestrictions permit requirements, fee are reasonable certain tion of place, to the that are unrelated time, manner restrictions message particular not vio and therefore do substance (2) unconstitutionally 8; the OMIA late Article but “subject” the in violation of restricts section message permit sign requiring a 8, a whose sign premises the located not relate to the on which does exemption sign message providing does for a whose while an premises to the on which the is located. relate

I. BACKGROUND an Dimensions, Inc., is Petitioner, Outdoor Media signs advertising company visible from outdoor that owns peti highways. cases, the state In each of these state cited advertising displaying outdoor tioner for one or more of its signs a of the OMIA and ordered without violation signs.2 The issued one of those cita the removal the state the of OMIA and the other cita tions under 1999 version the challenged cita under earlier versions.3 Petitioner each

tions tion on several state grounds, and, and federal constitutional 1 indicated, opinion to the Unless otherwise we refer in this 1999 version OMIA. 2 citations, the The Driver and Motor Vehicle Services Branch issued three of Department Transportation conven- the two other citations. For and the issued “agency.” ience, agencies collectively the “state” the we refer to those state 3 many legislature legislature the OMIA times. has amended OMIA, adding including “on- changes definition of made a number of to the exemptions permit requirement. premises sign” changing to the OMIA’s rely on enforce ch 7. The does not or seek to §§ See Or Laws state agency peti upheld each case, the citation and ordered signs. judicial

tioner to On review, remove Court Appeals agency affirmed each decision. Outdoor Media Dept. Transportation, App Dimensions v. 187 Or 503, 68 (2003); P3d 274 Outdoor Media v. ODOT, Dimensions 185 Or App (2002); 161, 57 P3d 970 Outdoor Media v. Dimensions (A10645), (2002); App 502, DMV 184 Or 56 P3d 935 Outdoor (A103238), App 501, Media v. Dimensions DMV 184 Or (2002); P3d 522 Outdoor Media Dimensions DMV (2002). (A100659), App 495, 184 Or Petitioner petitioned for review of each decision in this court, and we petitions. allowed those begin

We with an overview of the OMIA. As this explained brought by petitioner, court in an earlier case Oregon, Outdoor Inc. Media Dimensions v. State (2001) (Outdoor I), legislature 634, 20 P3d 180 Media comply High- enacted the OMIA 1971 to with federal way (HBA), § Beautification Act of 1965 23 USC 131. The erecting HBA established federal standards for and main- taining advertising along federally interstate and aided primary highways. requires provide The HBA of each state to advertising signs. “effective § control” outdoor 23 USC (c). 131(b), per- so, If state fails to do then it lose 10 131(b). highway § cent of its federal funds. USC “Effective essentially requires prohibit control” states to all outdoor advertising pri- that are visible from an interstate or mary highway, particular sign unless a meets one of stat- five utory exceptions or is in an located industrial or commercial exceptions zone. Media Or at Outdoor 331 637. Those “on-premises” signs include that con- advertise “activities property they located,” ducted on the on which are “direc- * * * signs “signs notices,” tional and official and and adver- tising property upon they the sale or lease of which are 131(c). § 23 located.” USC comprehensively regulates signs

The OMIA visible public highways purposes “promot[ing] from for the public safety,” “preserving] public the recreational value of provisions longer that are in of the OMIA no effect. Because the earlier versions of petitioner the OMIA are not relevant to the relief that seeks —reversal of the argu- agency requiring petitioner’s orders removal of do not address —we provisions changed. that ments relate to of the OMIA that have been “preserving] highways,” natural and state’s travel on the beauty highways.” ORS of such features and aesthetic setting signs, by prohibiting kinds of some It does so 377.705. size and prohibited, signs that are not other limitations signs. requirement establishing permit for certain a and prevent prohibits example, a driver OMIA, for approaching or having view a clear and unobstructed from merging flashing 377.720(2); or include traffic, ORS 377.720(3); “in a moving lights, are not maintained ORS goodrepair,” ORS and attractive condition neat, clean and 377.720(8); vehi- trailer, unless the or that are on a vehicle person transportation the owner or for trailer is used cle or property ORS located, it is on which in control 377.720(10). spacing requires minimum certain The OMIA pro- advertising signs,” 377.750, and ORS “outdoor between vides that those length signs may and a of 48 feet not exceed supports, height, excluding 14 feet. ORS foundation a 377.745(1). particular cases, the OMIA relevance to these Of advertising permit requirement for outdoor establishes signs, regulates permissible signs,4 377.765(1), ORS location of those permits effectively caps the number advertising signs in com located of outdoor at the number See Outdoor 12,1975. June mercial or industrial zones as of 377.712). (citing contrast, “on- I, 331 Or at 638 ORS Media permit exempted premises” signs specifically requirement, from the are 377.735(l)(c),5 although they are ORS parts above, described such of the OMIA to certain other 377.725(1) therefor, permit provides, has been issued “Unless an annual ORS erected, sign advertising sign not be maintained or a directional shall an outdoor (“A person main- not erect or replaced by person.” 377.715 See also ORS traveling to the advertising, on-premises directional visible tain an outdoor * * * complies [the and federal highway with OMIA public unless it from a state requirements].”). long exemptions from list of to the OMIA eliminated The 1999 amendments government signs, only exemptions certain requirement, leaving 377.735(1); ch on-premises signs. Or Laws temporary signs, ORS place in the noted, exemptions have no previously because those former 7. As § against impact actions the enforcement present regulatory and have no scheme seeks, As to the petitioner consider them. petitioner we do not or the relief that fully developed arguments as to remaining exemptions, petitioner has offered arguments later in this exemption only, on-premises and we consider those opinion.

the prohibition on flashing lights and the requirement they be maintained in a neat and clean condition. The per- mits required for outdoor advertising signs may be trans- ferred as of right by notifying state, 377.725(2), ORS the message on such sign may changed be without a new 377.725(8). permit and without state approval. ORS The per- mit fee is set at a level to recover cost to the state of (2001). administering regulatory ORS program. 377.729 The OMIA’s definitions of “on-premises sign” “outdoor advertising are central to the Article sign” 8, issues in this case. legislature defined those terms ORS 377.710:

“(22) ‘On-premises sign’ sign designed, means a advertise, intended or used to inform or attract the atten- public tion of the as to:

“(a) Activities conducted on the premises on which the sign located;

“(b) The premises sign sale lease ofthe on which the is located.

“(23) ‘Outdoor advertising sign’ sign means designed, advertise, intended or used inform or attract the attention the public as to:

“(a) Goods, products sold, or services which are not manufactured or distributed on or from the premises located; which the sign is

“(b) Facilities not located premises on the on which the located; sign is

“(c) premises Activities not conducted on the on which sign is located.”

As a result of the and the just quoted definitions sub stantive of the OMIA that we outlined provisions previously, a person sign who wants to erect an need not on-premises state, obtain a from the while a who wants to person erect an outdoor one the lim advertising sign must obtain ited of available number permits.6 below, greater statutory “on- As we discuss in detail definitions of advertising sign” interpretive

premises sign” and “outdoor raise a number of issues including meaning phrase opinion, that we do not address in this “activ- premises [or conducted] on which the is located.” It ities conducted BELOW

II. PROCEEDINGS AND PETITIONER’S ARGUMENTS key provisions summary in of the OMIA’s With that petitioner’s Before the Court of we return to cases. mind, any finding petitioner challenge Appeals, in of fact did not agency orders, it raised a number constitutional the but argued, among things, arguments. the other that Petitioner procedure agency to the final orders administrative led Due Clause the Fourteenth Amend violates the Process per Constitution; that the OMIA ment to the United States requirements prior in mit fee are restraints violation and Amendment to the United I, Article section and the First Constitution; violates the First States OMIA by protection giving greater to than Amendment commercial regulates speech; speech, that the OMIA noncommercial generally content, in Arti both and on the basis of violation of Equal 8; the OMIA Protection cle section violates and OMIA Amendment; Clause of the Fourteenth that the Oregon violates Article Constitution.7 Appeals rejected petitioner’s in The Court of claims holding had case, each that the claims either been resolved against petitioner’s position in merit earlier cases did not App e.g., See, Dimensions, discussion. Outdoor 184 Or Media (illustrative holding). Judge Landau a concur- at 496 wrote major- ring opinion agreed in one of those He with the cases. ity precedent compelled Appeals affirmance of that Court agency questioned prece- orders, but he whether those rejected petitioner’s chal- dents —which lenge off-premises to the OMIA’s distinction between on-premises signs light signs and valid of this —were opinion Fidanque Oregon Govt. Standards and court’s (1998). Practices, Outdoor Media (Landau, concurring). App Dimensions, J., 184 Or at 496-98 purposes opinion classifies otherwise is sufficient for of this that the OMIA some message on-premises if activities con- identical as their advertises Here”), on-premises “Buy advertising signs if {e.g., their ducted Gas but as outdoor goods premises {e.g., message Ahead”). “Gas for 10 Miles advertises not sold on Sale: arguments did those in each case. Petitioner not make all of petitioner arguments

In court, this reiterates the Appeals. that it made before Court of Petitioner asserts provisions that various OMIA, face, ofthe on their violate the federal and state that, constitutions and to the extent that provisions facially they those are not unconstitutional, are applied petitioner unconstitutional as state has them to in these cases. As the clear, discussion below will make how- petitioner’s large, challenges ever, are, claims and facial regulatory only scheme, OMIA’s in a few instances is application petitioner it useful to discuss the of the OMIA to particular. view, our two constitutional issues are at the may regulate high- First, heart ofthis case: whether the state way signs by imposing content-neutral restrictions those signs, including permit requirements, and fee does OMIA; second, under the whether the OMIA’s distinc- signs, advertising tion between outdoor sometimes referred “off-premises” signs, on-premises signs, pur- to as poses permit requirements, I, and fee violates Article section 8. We now turn to those issues.

III. THE SIGNS, OMIA’SRESTRICTIONS ON REQUIREMENTS INCLUDING PERMIT AND FEE argues permit Petitioner first that the OMIA’s and requirements they I, fee violate Article are because impermissible prior restraints. Petitioner further asserts requirements, that those as well as the OMIA’sother restric- signs, they I, tions on improperly violate Article because petitioner’s right

restrict to erect the kind of that it wishes where it wishes. Argument

A. Petitioner’s Prior Restraint argues requires that, Petitioner because the OMIA a person permit advertising sign to obtain a an outdoor before lawfully may prior erected, be it is an unconstitutional I, restraint. Petitioner claims that “Article section man speech displayed permit,” dates that can be without a only provision, “may that, under that the state take action displayed.” responds The that after the is state first petitioner prior cannot sustain a restraint claim because no prior in these Petitioner did restraint occurred cases: “display’ “speech” permit, his and the state took without only petitioner argues that, after did so. The state action Outdoor Media petitioner applied per- never for or obtained signs mits for the erection or maintenance ofits and therefore prior In this case, was not restraint. court rejected “prior holding petitioner’s claim, that, restraint” “respecting prior restraint, none occurred under the facts of argues n that this case this case.” 331 Or at 654 11. The state procedural posture that, as in Outdoor is the same petitioner’s argument Media we should decline to consider permit requirement prior that restraint. is an unconstitutional prior The state is mistaken. The restraint issue petitioner’s damages Outdoor Media I involved claim for that, under 42 USC section and this court concluded petitioner signs had erected and maintained its permits notwithstanding permit without the OMIA’s and fee requirements, prove requirements he could not that those alleged damage. had caused trast, Here, his Id. at 654-55. in con- petitioner monetary damages does not seek but instead argues permit requirements that the and fee that are the requiring basis for the orders removal are them- prior parties agree selves unconstitutional restraints. requirements, apply petitioner, face, those on their so only question they constitutionally per- is whether are perceive circumstances, missible. those we no reason to require petitioner permits raising to seek for its before challenges. its constitutional petitioner’s prior

We turn to the restraint merits argument. petitioner argues requirement noted, As that the pay erecting that it fee obtain a before an out- advertising sign prior door constitutes a restraint per- barred Article section 8. The that the state counters requirements impermissible prior mit and fee are not they restraints are neutral and have because content ade- quate guide standards to official in the issuance of discretion permits. gravamen prohibited prior restraint, The of a according government prospect state, to the censor- ship permit speech; the OMIA’s and fee content-neutral requirements prospect do not raise that and thus are not prior unconstitutional restraints. City Welch, 308, 367 Portland v. 229 Or P2d 403

(1961), city required this court considered a ordinance that wishing persons public to the to a to exhibit movies obtain government license from a censor. It held the ordinance under Article because it was a unconstitutional prior stating by licensing “[c]ensorship is, of restraint, prior course, restraint,” a at and “the draftsmen Or Oregon’s censorship Oregon.” charter wanted no in basic Similarly, recently provision that a Id. this court more held Oregon Uniform Trade Secrets Act was an unconstitu prior tional restraint because it allowed a court to order a alleged prior person “not to disclose an trade secret without Sports Management approval.” News v. court State ex rel (1996) Nachtigal, (quoting 80, 88, ORS 646.469). authorizing that statute as a This court described permitted judge prior restraint, it a to “classic” require third-party publisher had not a who committed obtaining information “to submit its for crime approval publication.” Id. court before Sports Management

Welch and News illustrate purpose prohibition prior the state on restraints: to bar deciding expression permit. in advance what will See from prior (describing on Welch, 229 Or at 319-20 reasons ban restraint). permit scheme, with the The OMIA’s fee statutory off-premises/on-premises exception distinc- below, does not allow the state ban tion that we discuss expression The of a certain in advance. owner in a commer- 12, 1975, on June and that was located existed date, “is entitled to the issu- cial or industrial zone on 377.712(1), messages per- permit, and the ance” of ORS changed approval. without state ORS mitted be 377.725(8). judicial requirement in Welchand license Sports Management prior approval speech at News issue authority government gave decide, advance, permitted. magazine movie content would be what scenes appears permit and record, in this the OMIA’s From all that covering requirements a con- in a con- the cost of fee are focused implemented permit and are tent-neutral tent-neutral and scheme nonarbitrary reason, the manner. For that danger requirements pose no of official cen- and fee prior impermissible sorship therefore, do not constitute and, section 8. in violation of restraints on

287 Regulation”Argument B. Petitioner's “No objections to the OMIA in Petitioner raises several argument, prior have which we addition to the restraint exemption on-premises permit rejected for above, and the arguments signs, Those include its which we discuss below. requirement I, 8, Article section because that the fee violates “necessarily Oregonians expressing from them deters any subject” any “regulation freely and that selves placement speech violates on otherwise lawful structures * * implicit petitioner’s Moreover, I, Article section 8 *.” assumption arguments that Article state constitutional is the regula prohibits any place, I, 8, time, section and manner permit, pro location, size, and fee tions—such as the OMIA’s regulations that those are to visions. Petitioner also asserts using be examined the test for restrictions on the content of speech Robertson, that this court articulated in State v. 293 (1982), recently 402, Or v. reaffirmed State (2005). Ciancanelli, 282, 121 P3d 613 Oregon Advertising Amicus Outdoor Association (OOAA) position, arguing that, takes a similar under Article particular I, 8, section “a law that does not favor or disfavor a viewpoint burdens, is nonetheless content based if it protected speech.” appears manner, OOAA Article to view barring any “protected speech,” section as “burden” on regardless ity the extent of the burden or its content neutral viewpoint neutrality.8 ple, expression applies mits noncommercial not content neutral. See neutral public support First ernment candidates, S Ct candidates. sion, decide which candidates 54 U Chi Rev 46 drivers’ lines of did not violate First extent to which Article a law or other 1633, 140 Amendment, neutral as restrictions on general, action, although L See, e.g., from debate televised long L sight the term “content neutral” means that a Ed to all government as for Amendment). (1987) (analyzing Arkansas Educ. Television Comm’n v. (for example, political) signs near an intersection is “content 2d speech). example, Geoffrey generally expression, may participate particular restricting exclusion (1998) (exclusion The term action that a state-run television network is This court has not views might is not regardless some First Amendment state in a televised debate and to exclude minor require “viewpoint neutrality.” “viewpoint based R. prohibits network was Stone, it allows to be of its independent on the but neutral,” had Content-Neutral neutral” means that prohibits all viewpoints occasion cases permitting particular “viewpoint Forbes, or content. For exam expressed. candidate with little while a law that commercial involving to determine the 523 US of the excluded interfere with restriction on other permitted Restrictions, neutral” and Under the content- 666, 118 expres gov per is responds that, state while most of this court’s decisions over the last two decades have

focused on laws that restrict certain because ofits con analyzing tent, and thus have relied on the framework for content-based in Robertson, restrictions set out this court regulation never has held that Article I, section bars all speech, including regulations imposed content-neutral public safety, important public aesthetics, reasons or other purposes. argues The state therefore that the OMIA’s requirements geographic and fee and its and size limits on permissible place, time, are and manner restrictions9 that do I, not violate Article section 8. parties correctly establishing

The view Robertson as traditionally employed the framework “that this court in has evaluating challenges.” Fidanque, I, Article section 328 Or distinguished at 5. Robertson “between laws that focus on the writing proscrib- content of and laws that focus on ing pursuit accomplishment results,” the that oí hold- forbidden ing pro- the former violate Article section unless the exception. hibition comes within a well-established historical (1992), Plowman, State v. 314 Or 157, 163, 838 P2d 558 cert (1993) (summarizing holding den, Robertson-, 508 US 974 Plowman). emphasis in Robertson further divided the latter type laws, results, those that focus on forbidden into two categories: expression prohibit those laws that used to prohibited achieve those effects those laws focus referring the forbidden effects without to at all. 417-18). (citing Plowman, Robertson, 314 Or at 164 293 at Or place, time, Because content-neutral and manner restric- accomplishment results,” tions focus on the of “forbidden but by restricting expression, appear do so such restrictions categories. come of the three Yet within second Robertson “time, phrase place, originated in Amend- manner restrictions” First including generally government speech, ment cases and refers to limitations on permit requirements, imposed license and that are without reference to the con- Consciousness, Soc’y regulations. tent of the See v. Int’l Krishna 452 US Heffron for (1981) 640, 647-48, (describing concept L and cases 101 S Ct 69 Ed 2d 298 it). applying phrase reg- We use that here to describe the OMIA’s content-neutral highway signs, including they ulation of the extent that are content neutral— —to requirements. require precisely and fee This case does not us to define permissible the kinds of restrictions that be under Article time, permissible extent to which those restrictions are similar to or different from place, and manner restrictions under First Amendment. analysis appropriate did not elaborate on Robertson itself place, regulation government time, of content-neutral rarely surprisingly, speech, court and, this and manner of validity regulations. of such had occasion to consider the has employing however, framework, In the Robertson “reg- consistently for has stated that there is room this court ulations particular message.” [a] imposed for reasons other than the substance City Tidyman, 306 Or Portland (1988). Tidyman, example, this 174, 182, P2d 242 city for prohibited “adult book- court considered a ordinance specified The court held the ordi- stores” certain locations. “flatly it was directed nance unconstitutional because pictorial against type or verbal communi- one disfavored city at had failed to dem- cation,” 184, specific type because question of communication onstrate that justify restriction. Id. caused invidious effects that would opinion Tidyman pains point at took out 184-86.Yet the always [under “regulation is not unconstitutional place 8,] it restricts one’s choice of a or time * * self-expression The court *.”Id. at 182. stated: unquestionably “Even structures and activities devotedto * * * constitutionally privileged purposes expression free such as regulations imposed for are not immune from particular reasons other than the substance of their message.” Similarly, City Purcell, Id. in 306 Or Hillsboro of (1988), city P2d 510 this court struck down as overbroad pointed ordinance that banned door-to-door solicitation but out that the city adopt regulations could “that donot foreclose entirely expression regulate it can occur.” but when and how emphasized that Article section did Id. at 554. This court prohibit limitations on door-to-door solicita- not “reasonable totally [d]” “regulate proscribe [d], tions” that rather than practice. Id. at 556. on door-

Thus, while this court struck down the ban arguably prohibited it to-door solicitation Purcell because and the on adult bookstores all door-to-door solicitation ban Tidyman of the it was based on the content because proposition expression issue, stand for the at those cases also every content-neutral that Article does bar regulation place, speech. time, and manner of See also (1987) Henry, (holding State v. that 302 Or 525, 732 P2d 9 expression solely ground cannot be outlawed that it is * * * rul[ing] place obscene, but “not out time, reasonable and regulations aspect [obscene] manner ofthe nuisance of mate protect unwilling children”); rial or laws to viewer or City of Nyssa accord v. Dufloth/Smith, 330, 338-39, (2005) (ordinance purporting only to restrict expression by requiring “manner” of nude dancers to remain patrons at least four feet from their was unconstitutional expression “applied only restriction on it because to one dis * * *”). type favored view, communication In our regulation highway signs, including permit OMIA’s and requirements, except fee below, as discussed are reasonable place, time, substance of and manner restrictions that are unrelated to the

any particular message. provisions quoted earlier show that the OMIA permit scheme, which on its face is neutral as to the content speech, application, per- not, is a means for the state to speech prohibit mit some and other based on content. exception Moreover, with the of the distinction between on- premises off-premises signs, petitioner has not identified any instances in which the state has used its enforcement authority against petitioner permit or others to certain prohibit differently, others based on content. Put (and, because scheme on its face so far as this rec- practice) demonstrates, ord also in does not discriminate on speech, the basis of the not effectuate content the OMIA does government censorship speech. Notwithstanding validity the facial neu- content (other trality on-premises/off-premises the OMIA than the distinction), argues petitioner requirement, that the fee as applied, speech. course, invalid Of even “deters” margin, tax, a minimal fee or at the to reduce the level tends activity applies. question, however, ofthe to which it The real requirement suppresses speech is whether the fee way in such a opinion it “restrains” the free freely right speak any subject, pro- “restricts” the lobbyist Fidanque tected Article registration section 8. held that the impermissible

fee at issue there was

291 fee to the costs asso face does not tie the “the on its statute lobbyists.” registering However, this Or at 9. ciated with expenses may charged for the a fee be court assumed “that particular government com of a incurs as result that the providing activity, expense added such as municative police protection parade.” Here, noted, as ORS Id. at 8. regulatory expressly the fee to the cost of 377.729 ties argue program, petitioner that the fee is unrea does not program.10 record, On this the cost of the sonable or exceeds impermis requirement that the fee is an cannot conclude we speech. restriction on sible permit

Finally, petitioner argues that the OMIA’s expression applied, protected requirement, so burdens aspect case, 8. In that of its that it violates Article petitioner City Eugene Miller, 318 relies on Purcell (1994), of which involved ordi- Or both effectivelyprohibited speech. In certain forms of nances that solicitation, Purcell, the ordinance banned all door-to-door permitted the sale of some while, Miller, the ordinance expressive products city all sidewalks but banned sales by limiting apparent that, it case, material. this is advertising sign permits to the number of number of outdoor signs that existed in commercial and industrial zones cap to, does, 1975, the OMIAwas intended number public highways. are from Petitioner those visible appears to assert that the fact that must obtain lawfully permits display and that the number of necessarily limited that the OMIA violates means section 8. signs, disagree. advertising like other Outdoor

We expression, that make have characteristics forms of messages uniquely conveying to cer- them suited to certain prohibit tain If the state were to billboards —or audiences. perhaps expression entirely, then there some other form of — the effect of such a ban would be reason to consider whether 377.729, reg- ties the fee to the cost of the The current version of ORS which However, party suggests ulatory program, not enacted until 2001. neither was any seeking petitioner collect from fee based the state has intention of validity statute, of the earlier and we therefore do consider versions fee-setting provisions of ORS 377.729. of earlier versions

“restrained] the free opinion” or “restrict[ed] the right write, to speak, print freely” I, under Article sec- Miller, tion 8. 318 Or at 487 ban on sale and (complete dis- Cf. tribution of all expressive material, content neu- although tral, would likely violate Article section it “because would restrict greatly too ‘the free expression opinion’ and ‘the ”). write, right speak, print freely whatever’ any subject But the OMIA differs fundamentally from the complete ban on door-to-door solicitation in Purcell and the blanket exclu- sion of sellers of books and magazines from the sidewalk mar- ketplace Miller. The OMIA allows many as outdoor adver- tising signs (off-premises signs) 12, 1975, as existed on June potentially well as thousands of on-premises signs. Peti- tioner has avenues to communicate ample both messages, on highway other means. On signs by record, this the and fee permit do not requirements unconstitutionally restrain the free expression opinion or restrict the right write, or speak, freely on whatsoever. print any subject

For reasons, the we conclude that foregoing the OMIA’s provisions regarding the erection and maintenance of signs public visible from the highways, including permit and fee requirements again with the of the stat- exception — ute’s different on-premises treatment and off-premises signs, time, as discussed below —are content-neutral place, and manner restrictions that do not violate Article 8.

IV. ON-PREMISES AND OFF-PREMISES SIGNS

We now turn to contention that the petitioner’s OMIA violates Article on its face exempting on-premises signs from the and fee requirements. that, Robertson, Petitioner under this argues court’s decision legislature may not enact restrictions that focus on the content or matter of unless the expression scope historical restraint confined a wholly “recognized within constitutional for off- exception.” By requiring permits premises signs, on-premises signs, but not petitioner asserts, the OMIA restricts on the basis of “con- tent” under “subject.” Thus, that, petitioner argues from a OMIA, gas highway may, above station visible Sale,” without a “Gas for but permit, carry message message carry Ahead.” “Eat at Joe’s: 10 Miles exception” permits argues also that no “historical Petitioner off-premises signs in circumstances the state to restrict signs. on-premises it does not restrict where turning response, we note that to the state’s Before petitioner sug- scope of the issue here is not as broad as examples gests. uses, Petitioner’s brief as additional prohibited by OMIA, that it contends are might prohibited by Petitioner asserts fact not be that law. message “Pray signs expressing for Peace” or the that message “Keep always require per- Legal” would Abortion necessarily advertising they mits would be “outdoor signs. Arguably, signs” on-premises however, if rather than message displayed property on the of a church the first were facility message property offering on the of a or the second signs public services, abortion those would inform the about sign premises the is “activities conducted on the on which 377.710(22), on-prem- located,” ORS and thus be considered subject permit requirement. ises not to the OMIA’s sign plausible argument with Moreover, a can be made that a “Pray message the for Peace” on residential lot is about activity premises, namely the that the owner of the resi- prays peace dence and exhorts others to do the same. As previously, present n 6, we noted 340 Or at 282-83 none ofthe requires interpret scope phrase us to the “activi- cases premises [or conducted] conducted not on the on which ties the sign statutory is located” in the definitions of “on- advertising sign.” premises sign” and “outdoor See ORS (23) 377.710(22), sign” (defining “on-premises and “outdoor par- advertising sign”). example previous in However, the (describing agraph and “Eat at Joes: “Gas for Sale” Ahead”) many in that, is sufficient to demonstrate Miles message high- on a circumstances, the OMIAwill one message, way sign prohibiting and that dif- while a different squarely presents petitioner’s claim. constitutional ference responds on-premises/off-

The state place, premises time, a content-neutral distinction is regulation. that Article sec- The state first asserts manner imposing time, the state from reasonable tion does not bar argues expression. place, It then and manner restrictions on on-premises/off-premises not a restric that the distinction is expression, tion on the content or of such as the rejected restrictions that this court considered—and —in Tidyman, primary Robertson, and similar cases.11The state’s “Any message point straightforward: can an on- be premises any message off-premises one, and can be an one.” suppresses Therefore, view, the OMIA no mes the state’s sage viewpoint. and no

The state contrasts this case with other cases regulation apparently an neutral had the of which restricting effect categories speech. Fidanque, for certain required registration lobbyists example, a fees for law Article it focused on was held to violate only category speech “political speech.” Or at 8 n 4. one recognized cat- Here, however, that, the state asserts unlike “political speech” egories speech or “commercial such “on-premises” speech,” and “off- the distinction between premises” speech meaning has no in terms of the content relationship speech; message only distinction is the between argues: on the a distinction between and its location. The state categories speech “Simply put, can- any speech truly if could fit into either ‘content-based’ be only.” (Emphasis category depending on its location original.) agree, explained above, with the

We as we have prohibit does not reason- state’s view that imposed place, regulation time, and manner able message speech. apart We also from the for reasons asserting is a consti- that the state is that there understand meaningful tutionally and laws difference the OMIA between directly categories speech are familiar that that focus on obscenity, political as cases, from First Amendment such speech, speech. dissent, However, unlike the and commercial persuasive. argument noted, As not find the state’s we do in court had issued its decision State This case was submitted before this (2005). Ciancanelli, here, Ciancanelli, 282, the state In 339 Or I, analyzing Article section urged the framework for us to reconsider abandon Ciancanelli, 8, subsequent cases. In court articulated in Robertson and that this I, progeny Article section and its and examined this court reconsidered Robertson 8, concluding the Robertson framework. that it would retain in detail before Ciancanelli, repeat that discussion here. There is no need to 339 Or at 314-15. “Buy message sign Here,” Gas a with the would allow OMIA message carrying prohibit “Eat at the same from but length greater explain at As we Miles Ahead.” Joe’s: 10 speech prohibits certain face, its restriction, a below, such of on- different treatment The OMIA’s on its content. based off-premises speech premises I, Article therefore violates section 8.

Although recognize the differences between we prior in have considered the statutes that we OMIA and analysis above, have described is similar. As we cases, our this court’s consideration decades, than two for more challenges that 8, to statutes I, under Article section by speech guided the framework laid out has been restrict a criminal- this court considered statute Robertson, in which izing court there held that Article coercion. This enacting “prohibits that focus on from restrictions lawmakers writing, speech either because that content the content of or socially offensive, or or because itself is deemed undesirable thought consequences.” at 416. have adverse 293 Or it is This court followed Robertson holding of cases a series categories legislative certain restrictions on unconstitutional Henry, speech. In 302 Or the court held that a statute prohibiting possession of obscene materials violated guarantee expression it free of Article because expression. category directed, terms, at a was city Tidyman, the court struck down ordinance activity expressive sale of “adult” restricted certain —the speech question. This of the content of the books—because prohibited the use court also has held invalid statute telemarketing purchase to solicit the automatic devices realty, goods, not when used to solicit services, but political organizations. Moser v. funds for charitable (1993). Frohnmayer, That statute 845 P2d specific [was] [ed] directed at a because “restrict excluding speech based communication, some message,” violated and therefore the content of Id. at 376. section 8. applied the frame- cases, this court

In each of those and considered whether in Robertson work established speech “content” of restricted the statute or ordinance socially undesirable was “deemed [was] thought offensive, or because it to have adverse conse- quences.” argues Robertson, 293 Or at 416. The state that the on-premises/off-premises distinction does not focus on the speech government content of seeks to restrict speech may because that undesirable, offensive, is have consequences. adverse in Rather, view, the state’s the on- premises/off-premises is a distinction content- and view- point-neutral regulation “secondary that focuses instead on effects” in an effort to advance the state’s interests as set out including promoting highway safety pre- in the OMIA, serving beauty [state] the “natural and aesthetic features of (statement highways adjacent areas.” See ORS 377.705 OMIA). purpose points The state also out that the OMIA designed compliance highway is to ensure with federal stat- particularly e.g., (prohibit- utes, ing See, the HBA. ORS 377.715 signs comply erection or maintenance of that fail to with requirements). federal argument

The state’s suffers from two related say on-premises/off- First, flaws. it is not accurate to that the premises distinction is content neutral. That distinction sign display narrowly allows a owner without a to one category message message activity defined related to —a premises conducted on the where the located—but display any message respecting subject. other The signs differently OMIA thus treats on the basis ofthe content message.12 legiti Second, of their the state’s reliance on the safety goals justify mate and aesthetic of the OMIA does not prohibition speech content. based This court faced legislature sought pre Moser, a similar issue in where the telephone vent the solicitation, harmful effects of automatic prohibited only allowing solicitation, but commercial while political rejected charitable and solicitation. This court respect, dissent states that one.” 340 Or at 305 over cuss and in the OMIA the “socially constitutionally off-premises signs. This is the focal of their the OMIA does undesirable text, message. relevant the OMIA does not “favor one legislature (Riggs, point offensive” nature of exactly because, dissent J., of the dissent’s that: concurring restricted some 8, prohibits in the dissent’s apparently 'unquestionably off-premises signs. restrictions on the disagreement part believes signs, subject view, but not “favors” dissenting it is not based on the with this that distinction is not others, However, “subject” on-premises signs over another opinion. based on the part). as we speech, With The dis- speech itself, “directed at was the restriction effort because prevention actual effect of an identified not towards may prohibit at The state Moser, 315 Or 379. harm.” driving, and it with safe that interfere and other structures pur- may or structures for total number of limit the scenery. pose preserving court’s However, this views and consistently opinions not, that the state demonstrate per- expression, prohibit while I, 8, some with Article simply mitting expression a the latter concerns other require subject. On-premises signs, do not which different require permit, off-premises signs, permit, do which safety pose adverse and have the same can the same risk to beauty. legislature’s decision to limit one effect on scenic of those stringently types expression the other more than impermissible an restriction on because of its content is “subject” expression I, section 8. under Article comply HBA with the

As to the state’s effort through OMIA, we are enactment and enforcement possi- arguments, recognizing sympathetic to the state’s bility restrictions such as those that the failure to enforce highway might result in a reduction in federal the OMIA funds. See 23 USC premises signs; (c)(HBA 131(b), exemption § for on- allows provide failure to “effectivecontrol” state’s percent advertising signs may outdoor cause state to lose funds). highway Nevertheless, I, this court’sArticle offederal section cases consistently not have held that the state speech, that the content of and this enact restrictions focus on just restriction does that. arguments unpersuasive the state’s

We also find jurisdictions. other Some courts that are based on cases from that have concluded the distinction and commentators “content-based,” on-premises off-premises between e.g., County, Rappa 1043, 1067 18 F3d v. New Castle (3d worthy 1994), “technically content-based,” if is not or, Cir very unlikely protection because “it is of constitutional government would use it to control Sign Regulation public Cordes, Mark distort debate.” would Examining Evolving First Amend Limits Ladue: After (1995); & n 257 see also L Rev Protection, ment 74 Neb Geoffrey Regulation Stone, R. Content and the First Amend- (1983) Mary (analyzing policy ment, 25 Wm & L Rev 189 rea- restrictions). prohibiting sons for content-based Whatever appropriate pol- the merits of those conclusions as matters of icy interpretations towards or as of the First they guidance interpret- Amendment, however, offer little ing Oregon Constitution. The words of Article section interpretation and this court’s consistent of those words expressly forbid the enactment of laws restrict otherwise permissible speech “subject.” because of its See Bank of Oregon Independent News, 298 434, 439, Or 693 P2d 35, (1985) (“There den, cert 474 US 826 is no basis under the Oregon provide protection Constitution to more to certain upon non-abusive communication based the content of the communication.”). Ciancanelli, this court reassessed and reaffirmed jurisprudence. Examining its Article that constitutional the text of provision, this court stated: “Turningour focusto the first clause ofArticle section sweeping respect 8, one terms, is struck both with (‘[n]o’ legislativepower passed restraining law shall be * * * added) restricting) (emphasis or and the kinds of * * (‘* expressionprotected expression opinion, the free or * * * right speak, print freely any subject write, to on whatever1) added). (emphasis fact, the words are so clear sweeping keeping that we think that we would not be qualify faith with the framers whowrote them if wewereto down[.]” or water them Ciancanelli). (emphases 339 Or at 311 omissions sweep compels The broad I, Article us to provision only prevent conclude that the was not intended to content-based restrictions that are an motivated intent to disruptive, potentially speech. offensive, censor harmful Although appears accept reading the dissent to that limited prohib- I, view, of Article section in our Article distinguish among messages its laws that because of what they say, may if even some view the basis for the distinction benign. distinguish messages as The OMIA does between on they say: permits sign display the basis of what It to owner message, display message solely one but not to a different message. reason, we For that the content of the because of on-premises treatment of the OMIA’sdifferent conclude that off-premises content of a restriction on the and speech is purposes section 8.13 Article for whether the framework next asks The Robertson wholly scope confined restraint “is of the content-based exception,” in which case it be within historical some notwithstanding permitted Robertson, section 8. aspect In this that ofRobertson would context, 293 Or at 412. sign require messages the state to demonstrate restrictions distinguished messages related to between occurring property on the where the located activities and messages related activities “were well to elsewhere guarantees American 'the offreedoms established when first ” (quoting adopted.’ Moser, were 315 Or at 412). argument has Robertson, 293 Or at The state offered no exception, to historical are aware none. such we (state See Or at failed show that “restric- Moser, 315 advertising within tions came commercial solicitations” exception). historical forgoing reasons,

For the we conclude par- on-premises/off-premises OMIA’s distinction —more ticularly, exemption and fee from OMIA’s on-premises 377.735(l)(c) requirements signs, is, for ORS — impermissible face, on its speech. an restriction on the content of REMEDY

V. consequences holding now turn our We remaining parts litigation, Throughout ofthe OMIA. this argued petitioner has that this court should invalidate the light entire and we OMIA, now consider that issue our petitioner’s challenges. resolution of constitutional 13Because we conclude that the OMIA establishes a content-based restriction analysis expression, on in our OMIA falls within the first class laws framework). (discussing See Robertson described in Robertson. 340 Or at 288-89 contrast, dissent, simply one “manner” in that the OMIA restricts claims expression therefore the second class of laws described in falls within J., (Riggs, concurring part dissenting 340 Or at 305-06 Robertson. See part). part This court has that held when of a statute is unconstitutional, found to be the whole be statute need not part invalidated if remainder unconstitutional is severable from the City University Oregon the statute. See Office (1994) (so Policy, 320 422, 425, Or stat of Educ. ing). Ordinarily, part when one of a is statute found uncon (and practice legislature’s stitutional, this court’s stated preference) offending part tois sever the save legislature the statute, remainder of unless the has directed parts otherwise, unless the are so statute intercon appears likely remaining parts nected that it that the would part, not have been enacted without the unconstitutional remaining parts incomplete unless the are and cannot be exe (dis legislative cuted in accordance with intent. Id. at 426 174.040). cussing ORS In the context of statutes that violate Article sec- remedy 8, tion this court held in Robertson will depend particular part on the constitutional If defect. statute is unconstitutional on its face because it is “written any ‘opinion’ terms to the directed substance of ‘sub- ject’ part simply communication,” then that is invalid. Robertson, 412; Miller, If, however, 293 Or at Or 488. at the statute is unconstitutional because it “overbroad” and prohibits constitutionally privileged expression as as well may legislation lawfully punish pro- that the hibit, then the court examines the statute determine “narrowing possible, whether a construction” ofthe statute is narrowing Robertson, 293 Or at or whether the “needed accomplished byjudicial interpretation,” cannot be id. at legislature it, and the instead must undertake id. at 437. Finally, if the law because, violates even though expression, focused forbidden effects rather than applied, protected expression, nevertheless, then restricts ordinarily unconstitutional, is not statute itself but the person successfully applied to whom it was defend (dis- against application. Robertson, See 293 Or at 417 cussing challenges as-applied focus statutes that on forbid- may implicate expression). den effects but agreed petitioner’s only case, with this we have argument the OMIA violates Article imposing greater than restrictions some others sign. message on That differ- of the based on the the category the first within Robertson ence in treatment comes expression, facially on the content of of invalid restrictions parts are the OMIAthat effectuate that difference and the parts are sev- whether those therefore consider invalid. We above, As the from the rest of the OMIA. described erable highway signs many that we OMIA includes do restrictions sign including unconstitutional, restrictions not find lighting. spacing, restrictions, in location, Those size, general, and signs, equally on-premises off-premises apply and to legislature the them to and think that would have wanted we unconstitutionality notwithstanding the effect, remain in the Accordingly, on-premises/off-premises we distinction. entirety. hold the OMIA is unconstitutional that different the OMIA’s treatment Our conclusion that signs off-premises on-premises and is unconstitutional infirmity presents problem. that a more difficult We can end striking exemption by either from the OMIA the from on-premises signs, permit requirement the for ORS 377.735(l)(c), by striking permit requirement itself, the 377.725(1), signs advertising applies ORS (off-premises as it to outdoor

signs).14 choosing between those alterna legislature’s policy mindful of statement in tives, we are purposes ORS that include 377.705 the OMIA “promoting] beauty public safety,” “preserving] the natural highways, “prohibiting] and aesthetic features” of state * ** advertising.” How the indiscriminate use of outdoor record the number of ever, we also are aware from the per on-premises require existing signs, do not OMIA which advertising fees, mits far the number of outdoor exceeds signs, require permits find our which do and fees. We thus unpalatable faced with the choices selves same two legislature premises” permits required display permitting face: to “off- would owners (outdoor obtaining advertising) signs without permit imposing OMIA, new advertising signs permits requires than The OMIA for other outdoor exceptions permit requirement other than on- contains scheme, validity premises permit applied kinds signs. as to other signs, signs” signs,” at is not issue as “directional and “motorist informational such we have involve considerations than those that dis- this case and different constitutionality opinion. Accordingly, express no view as to the cussed in this we signs. requirements applied permit to those other kinds of OMIA’s requirements

fee on thousands of individuals and businesses on-premises signs. that now have We think that, faced with legislature willing choice, the would not have been permit requirements extend the large OMIA’s and fee to the category existing on-premises signs. Accordingly, new and appropriate remedy light we conclude that the of our hold- ing is to strike require- from the OMIA the and fee 377.725(1). advertising signs, ments for outdoor ORS accepted petitioner’s legal argu- As we have one of rejected agency ments and requiring others, we reverse the orders petitioner’s signs the removal of and remand the respective agencies proceedings. cases to the for further Appeals The decisions of the Court of and the orders of the Driver and Motor Vehicle Services Branch and the Department Transportation are reversed. Case numbers S50003, S50007, and S50044 are remanded to the Driver and proceedings, Motor Vehicle Services Branch for further case numbers S49978 and S50458 are remanded to the Department Transportation proceedings. for further concurring part dissenting RIGGS, J., in part. majority every respect except I concur with the part opinion holding exemption of its that the OMIA’s requirements on-premises from and fee Oregon violates Article I, Constitution. The majority incorrectly impermissibly concludes that the OMIA regulates speech. the content of I conclude that the OMIA is constitutional I, under Article section 8. analyzing

This court’s framework for claims under Article section was set out in State v. Robertson, (1982). 402, 649 P2d 569 This court has summarized that framework as follows: * * * “In Robertson, State v. this court established a evaluating

frameworkfor whether a law violates Article recognized First, section 8. the court a distinctionbetween speech writing laws that focuson the contentof or and laws pursuit accomplishment that focus on the results. The court or of forbidden type, reasoned a law ofthe former “opin- any in terms directed to substance law ‘written communication,’ “subject” violates ion” or “ wholly confined scope the restraint ‘unless well estab- exception historical that was within some guarantees offreedom when the first American lished then guarantees were and that the expression adopted to reach.’ demonstrably in 1859 were intended type, which focus on forbidden “Laws of latter two The first results, categories. divided further into can be effects, prohib- expressly focuses on but category forbidden used those effects. The coercion to achieve expression laws category. was of that Such law at issue Robertson analyzed are for overbreadth:

“ writing, include proscribed ‘When the means however, a forbidden even a law written to focus on * ** determine must whether effect be scrutinized privileged to reach communication or whether appears ’ interpreted such it can be to avoid “overbreadth.” also on forbidden “The second kind of law focuses all. Of that effects, referring without at but this court wrote: category,

“ only causing the against ‘If statute [a] [is] directed effects, causing accused such person forbidden left to assert by language gestures would be effects (apart claim) that could vagueness from a the statute or particular to his words constitutionally applied be it was drawn enacted con- expression, not that other ” article 8.’ trary to Plowman, State 163-64, (1992), P2d 558 v. 157, 314 Or 838 (1993) Robertson-, internal cita- cert den, US 974 (quoting 508 omitted; emphasis tions alterations and footnote Plowman). begins analysis majority correctly

The OMIA the considering [es] the “focus OMIA whether pro- [es] or or whether it “focus writing” content of speech forbidden results.” or of scribing pursuit accomplishment Plowman, See deleted; setting out (emphasis 314 Or at 164 however, when it concludes analysis). majority errs, 304 unconstitutionally speech OMIA on the focuses content of writing,

or the first class of laws identified Robertson.

By speech, that focus laws on the content of this prohibit par- court Robertson meant laws that or restrict subject message communication, ticular ity, such as obscen- of socially “either because that content is itself deemed thought offensive, undesirable or because have to consequences.” adverse 293 Or Robertson, 416; at see also (2005) Ciancanelli, v. 282, 318, State 339 Or 121 P3d 613 (such purport protect against “any supposed laws to harm message might presumed that the be to cause to the itself added)); (emphasis City society” hearer or to v. Hillsboro (1988) (distinguish- Purcell, 306 554 n Or 761 P2d 510 ing communication,” between “the offensive some form regulated, which be and “the an offensive character of regulated (emphasis idea,” which cannot be added; internal omitted)); quotation Tidyman, City marks and citation v. Portland (1988) (speech 174, 182, 306 Or 759 P2d 242 “not regulations imposed immune from for reasons other than the added)). (emphasis particular message” substance their understanding This court’s cases reflect they par- laws focus on the content when attack a ticular, identifiable of communication. The cases by majority, plus relied on others, struck down limits on just particular subjects such of communication. In State v. Henry, (1987), example, 732 Or P2d 9 the chal- lenged statute criminalized the of obscene mate- distribution Tidyman, zoning rial. ordinance at issue restricted that the ordi- bookstores”; location of “adult noted this court “flatly against pic- type nance was directed one disfavored torial or verbal Or at 184. In v. communication.” 306 Moser Frohnmayer, (1993), the chal- lenged prohibited using statute from telemarketers auto- message realty, goods, matic to sell services; machines court noted statute it is that the “restricts specific subject communication[.]” directed at a Id. at 376. Oregon Fidanque And, in Practices, Govt. Standards and (1998), required 1,Or at 969 P2d the statute issue lobbyists licensing pay fee; the court noted that the stat- ute “turns out not be content-neutral at all. Its focus is political speech.” at 8 n 4. this court’s Id. Even most recent

305 City e.g., See, sort of restrictions. the same involved decisions Nyssa 330, 339, 339 Or v. Dufloth/Smith, (“the type (2005) only applies disfavored to one ordinance (nude type performances) disfavored in one communication of entertainment)”).1 (one type regularly features establishment any particular prohibit sub not the OMIA does But “socially being ject speech or offensive” undesirable for consequences.” “hav[ing] it favor one does Nor adverse for speech subject Indeed, the OMIA another one.2 over nicely majority message The at all. of the the about argument: the state’s summarizes ‘off-premises’ ‘on-premises’

“[T]he between distinction speech; meaning speech ofthe in terms ofthe content has no relationship only mes- the is the between the distinction sign sage and its location.” on message original). “Any (emphasis can be an 294 340 Or at off-premises message any on-premises can be an one, and property depends argues. all on what one,” as the state It property sign is located—and owner does where government. that, not the owner controls prohibit identifiable mes- OMIA does not The speech. speech sage. It is not in the first as It does not restrict majority by errs Robertson, and the class of described laws concluding otherwise. the second class falls within

Instead, OMIA by effects, It “focuses on forbidden Robertson: laws described expression expressly prohibits those to achieve used but 1 essentially elsewhere majority on the same distinction itself relies The argument “prior “the majority rejects petitioner’s opinion. restraint” The deciding in prior the state from purpose prohibition restraints” is “to bar on majority permit.” The also concludes 340 Or at 286. what it will advance govern- effectuate it “does not is constitutional because that the scheme censorship speech.” at 290. ment speech laws that focus purpose underlies the distinction between The same Yet, majority preventing results. speech harmful and laws that focus recognize it here. refuses to majority. by stat- statement particular, me reaffirm one other let speech arguments, over not, contrary petitioner’s favor commercial ute does on-premises Peace,” example, qualify “Pray as an political speech. for would 340 Or at 293. for a church. merely effects." Plowman, Or at 164. The OMIA restricts messages may one manner in which be communicated — prevent billboard. It seeks to the effects of carried on way distracting blocking in that drivers, views of traffic — blocking e.g., hazards, views, See, scenic etc. ORS 377.705 (OMIA among things, “promote public intended, other to safety; preserve public the recreational value of travel on highways; preserve beauty the state’s the natural and aes highways adjacent areas”); thetic features of such ORS 377.720(2) (prohibiting signs that block view of traffic traffic). approaching Although the OMIAfocuses on harm expressly prohibits expression ful effects, it that is used to achieve those effects.

Because the OMIA falls within the second class of laws Robertson, described in we should consider whether the (so e.g., OMIAis See, Plowman, overbroad. 314 Or at 164 not- ing). prohibits party A statute is overbroad when it a from engaging expression constitutionally protected (here, conduct free 8) under Article in at least some situations: challenges, challenger raising

“Unlike with other facial challenge an overbreadth need not demonstrate that the particular statute at issue is unconstitutionalunder the cumstances at hand. cir- challenger prevail Rather, will challenge his or her facial if the court concludesthat the questionprohibits constitutionallyprotected statute in con- any duct of kind.” (2005) State Hirsch/Friend, 622, 628, 114 338 Or P3d 1104 (citation omitted). majority’s analysis why here shows the OMIAis unconstitutionally Only overbroad. the limits on “outdoor advertising sign[s]” speech, only bar manner of so those unconstitutionally limits could render the OMIA overbroad. (The exception on-premises point, is beside the exception prohibit any constitutionally because that does not protected messages. prohibit any messages It does not at discriminating all—it them, allows and without in favor of communication.) any particular subject majority As the explains, advertising sign” the “outdoor limits are constitu- agree. tional restriction, reasonable manner I advertising sign off-premises restrictions Because the unconstitutionally constitutional, the OMIA is not are overbroad. medium, “the not the concerned with The OMIA is regulations message, park for a fireworks even ban as when Tidyman, July It at 182-83. celebration.” Fourth of Although I concur I, section 8. under Article constitutional reasoning, respectfully majority’s dissent I with much of point. on that

Case Details

Case Name: Outdoor Media Dimensions, Inc. v. Department of Transportation

Court Name: Oregon Supreme Court

Date Published: Mar 23, 2006

Citation: 132 P.3d 5

Docket Number: ODOT 88691, 89838, 90587, 90588, 90589, 91564; CA A116814; SC S50458; ODOT 79817, 85185; CA A113875, A114027; SC S49978; DMV 66981, 68677, 70642, 74573, 74889; CA A106450; SC S50007; DMV 58118; CA A102328; SC S50003; DMV 61907, 63047; CA A100658, A100659; SC S50044

Court Abbreviation: Or.