Carlson's Chrysler v. City of Concord - the New Hampshire Supreme Court's Foray Into the World of Sign Regulation

• Jurisdiction: New Hampshire,United States
• Citation: Vol. 49 No. 2 Pg. 0014
• Publication year: 2008
• Pages: 0014
• Year: 2008
• topic: Constitutional Law

New Hampshire Bar Journal 2008.

2008 Autumn, Pg. 14. CARLSON'S CHRYSLER v. CITY OF CONCORD - The New Hampshire Supreme Court's Foray into the World of Sign Regulation

New Hampshire Bar Journal
Volume 49, No. 2
Autumn 2008

CARLSON'S CHRYSLER v. CITY OF CONCORD - The New Hampshire Supreme Court's Foray into the World of Sign Regulation

By Attorney Matthew R. Serge

I. INTRODUCTION

For decades, the Free Speech clause of the First Amendment to the United States Constitution has been the subject of scores of judicial opinions. Through time, the forms of communication found protected by the First Amendment have varied, almost certainly beyond that which the founding fathers envisioned when they adopted the Amendment. One mode of communication that has seen increasing attention over the last two decades is the display of signs. Be it commercial billboards displayed along a highway or political campaign signs displayed on someone's front lawn, courts have been called upon to evaluate the constitutionality of municipal regulations seeking to control this form of communication.

Although entitled to constitutional protection, signs, regardless of the message conveyed, are not immune from regulation. Indeed, towns and cities have a judicially recognized interest in regulating signs for the purpose of aesthetics and traffic safety and, therefore, may proscribe the placement of signs in furtherance of those interests. Nevertheless, given the constitutional significance of a person's right to express his or her ideas through the use of signs, a municipality's ordinance must be carefully drafted so as not to cross the sometime amorphous boundaries set by courts interpreting the First Amendment. Less than a year ago, the New Hampshire Supreme Court decided Carlson's Chrysler v. City of Concord,(fn1) in which it addressed the constitutionality of a sign ordinance regulating certain kinds of electronic signs.(fn2)

In evaluating the constitutionality of local regulations, the court first must decide whether the signs being regulated fall under the category of commercial speech or non-commercial speech. To the extent a local ordinance seeks to regulate purely commercial speech, the municipality has greater liberty at controlling the display of these signs, since commercial speech is universally afforded less protection under the Constitution. If an ordinance treads into the world of non-commercial speech, however, the ordinance will receive close scrutiny to ensure the local government is not discriminating among the conflicting ideas expressed by its citizens. Ordinances that cross the line into content-specific regulation will receive the strictest scrutiny, while truly content-neutral regulations -- a concept that is not as clear as it may sound -- will be subject to the more flexible standard known as time, place and manner.

In its decision in Carlson's Chrysler, the majority of the New Hampshire Supreme Court analyzed the Concord ordinance as regulating purely commercial speech even though, as Justice Duggan noted in a concurring opinion, it was debatable that the ordinance actually regulated both types of speech. As explained later in this article, treating the ordinance as pure commercial speech was significant because the ordinance contained exceptions for certain messages. To the extent the ordinance included non-commercial speech within its purview, the Court would have needed to address the content-neutrality of the ordinance. Moreover, the Chrysler decision raises questions regarding the proper burden placed upon a municipality to introduce evidence to support the constitutionality of its regulation.

The purpose of this article is to explain the general background of judicial review of sign regulations, both commercial and noncommercial, and how the Chrysler case fits within that matrix.

II. DISCUSSION

A. The Concept of Free Speech, and the Constitutional Protection Afforded Signs

The First Amendment to the United States Constitution states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."(fn3) The First Amendment is made applicable to the states through the Fourteenth Amendment to the Constitution.(fn4) New Hampshire's own constitution contains a similar protection, stating "Free speech and liberty of the press are essential to the security of freedom in a state: They ought, therefore, to be inviolably preserved."(fn5) The New Hampshire Supreme Court has stated that the standards for considering restrictions on the freedom of speech are the same the State and Federal Constitutions.(fn6) As a result, parties and courts in New Hampshire look to cases analyzing the First Amendment when addressing the constitutionality of local speech restrictions.

Over the years, the United States Supreme Court has analyzed the reach of the First Amendment's free speech protection to a wide array of expressive forms.(fn7) It has been widely held that "communication by signs and posters is virtually pure speech" protected by the Constitution.(fn8) Despite the protected status of signs, however, municipalities have authority to regulate them under some circumstances.(fn9) The United States Supreme Court has recognized that First Amendment values must sometimes "yield to other societal interests," and that "each method of communicating an idea is a law unto itself, and that law must reflect the differing natures, values, abuses and dangers of each method."(fn10) In weighing the burden on free speech against the societal impact of signs, the Court has stated:

While signs are a form of expression protected by the Free Speech Clause, they pose distinctive problems that are subject to municipalities' police powers. Unlike oral speech, signs take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation. It is common ground that governments may regulate the physical characteristics of signs -- just as they can, within reasonable bounds and absent censorial purpose, regulate audible expression in its capacity as noise.(fn11)

In New Hampshire, municipalities are given fairly broad discretion to adopt ordinances for the purpose of protecting the citizenry's health, safety and general welfare.(fn12) Typically, the purpose underlying sign regulations is to protect traffic safety and preserve aesthetic quality.(fn13) A municipality may indeed exercise its zoning power solely to advance aesthetic values, on the premise that preserving or enhancing the visual environment will promote the general welfare.(fn14) "Municipalities have a weighty, essentially esthetic interest in proscribing intrusive and unpleasant formats of expression, including some types of signage."(fn15)

That a regulation addresses the goals of aesthetics and traffic safety, however, does not guarantee that the regulation is constitutional. Rather, the court must first determine the level of scrutiny to which the regulation must be subjected. This requires a threshold determination of whether the particular regulation affects commercial speech, non-commercial speech, or both.

B. Categories of Protected Speech, and the Standards Used to Analyze Regulations Controlling That Speech

The two categories of speech subject to governmental regulation are commercial speech and non-commercial speech. Commercial speech, which has been loosely defined as speech that does no more than propose a commercial transaction,(fn16) is entitled to some constitutional protection(fn17) since "[t]he commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish."(fn18) The United States Supreme Court has "emphasized that commercial speech [enjoys] a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, and is subject to "modes of regulation that might be impermissible in the realm of noncommercial expression."(fn19)

In Central Hudson Gas & Electric Corporation v. Public Service Commission of New York,(fn20) the United States Supreme Court adopted the following test for evaluating regulations of commercial speech:

(1) The First Amendment protects commercial speech only if that speech concerns lawful activity and is not misleading. A restriction on otherwise protected commercial speech is valid only if it (2) seeks to implement a substantial governmental interest, (3) directly advances that interest, and (4) reaches no further than necessary to accomplish the given objective.(fn21)

The party seeking to uphold a restriction burdening commercial speech has the burden of justifying the regulation.(fn22) Assuming the commercial speech at issue concerns lawful activity and is not misleading, a sign regulation is typically found to implement the substantial government interests of traffic safety and aesthetics. It is the third and fourth prongs of the commercial speech test that are generally at issue in cases analyzing the commercial speech doctrine.(fn23)

In explaining the government's burden with respect to the third and fourth prongs of the Central Hudson Gas test, the United States Supreme Court has stated:

The third step of Central Hudson concerns the relationship between the harm that underlies the State's interest and the means identified by the State to advance that interest. It requires that the speech restriction directly and materially advanc[e] the asserted governmental interest. This burden is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and...