Scylla or Charybdis: navigating the jurisprudence of visual clutter.

• Author: Calo, M. Ryan

TABLE OF CONTENTS INTRODUCTION I. A HELLER OF A TRY: THE POPULAR ONSITE/OFFSITE DISTINCTION RUNS AFOUL OF THE FIRST AMENDMENT II. IF THE GREATER CULPRIT: THE COMMERCIAL/NONCOMMERCIAL DISTINCTION REMAINS VIABLE AFTER DISCOVERY NETWORK III. CERBERUS: PROTECTING THE MARKETPLACE OF IDEAS CONCLUSION INTRODUCTION

In the early 1980s, outdoor advertising was a one-billion dollar industry. (1) Within the last twenty years, it has grown five-fold. (2) Today's billboards both can talk (3) and they can listen. (4) Spokespersons for the industry praise its advancements and proliferation with their own brand of poetry: "Things are happening up there: moving parts, eye-catching devices, video projection." (5) Many local municipalities, however, are less than thrilled. Aside from the obvious visual blight, (6) outdoor advertising can compromise the safety of travelers. (7) Federal attempts to regulate the sea of highway billboards have backfired, (8) and local governments are left to sink or swim alone.

Meanwhile, the waters are treacherous. The jurisprudence of visual clutter is in a state of disarray. The Chief Justice of the Supreme Court has famously lamented the "genuine misfortune [that] the Court's treatment of the subject [is a] virtual Tower of Babel, from which no definitive principles can be clearly drawn." (9) As this Note explains, state and local government actors must negotiate two obstacles of First Amendment law to arrive at a constitutionally permissible regulation. (10) The first obstacle is the Supreme Court's decision in Metromedia, Inc. v. City of San Diego. (11) Following Metromedia, regulators can neither select among noncommercial messages nor privilege commercial messages over noncommercial ones. The Court has previously defined "commercial speech" to mean, alternately, "expression related solely to the economic interests of the speaker and its [sic] audience," (12) and, more recently, expression that "propose[s] a commercial transaction." (13) Noncommercial speech consists of all other protected expression. (14)

After Metromedia, regulators who did not want to effectuate a total ban on signs took the one avenue that appeared available to them: they targeted only commercial speech. The Court's decision in City of Cincinnati v. Discovery Network, (15) however, presented a second obstacle. Following Discovery Network, regulators had to account for why they were privileging noncommercial over commercial speech when neither was intrinsically more harmful to the public. (16) A growing billboard industry, meanwhile, is happy to capitalize on the resulting catch-22. (17)

Metromedia, though splintered (18) and at times criticized, (19) lays out the basic analytic framework for assessing the constitutionality of a billboard regulation against a First Amendment challenge. Metromedia involved San Diego's attempt to prohibit all advertising except for a narrow series of enumerated exceptions. (20) Those exceptions included signs that relate to the property to which they are attached (21) and twelve other categories of signs such as "government signs," "signs depicting time, temperature and news," and "for sale and for lease signs." (22) The Court struck down the San Diego ordinance insofar as it privileged "commercial" over "noncommercial" speech, by allowing the former to be communicated where the latter could not be, (23) and because the ordinance impermissibly drew distinctions within noncommercial speech. (24)

Commentators and courts have devoted significant effort to unpacking Metromedia's intricate holding. (25) The following several propositions, however, commanded a majority of the Court. First, aesthetics and traffic safety are valid rationales for billboard regulation. (26) Second, the constitutionality of the effects of a regulation on commercial speech and noncommercial speech are to be analyzed separately. (27) Third, regulators may distinguish between types of commercial speech, such that one type or category of commercial speech may be prohibited while another is allowed. (28)

Similar distinctions cannot be made, however, within noncommercial speech because this would allow the government to "choose the appropriate subjects for public discourse." (29) The Court held that by limiting the range of ideas that can be expressed to those that relate to their site of display, regulators impermissibly barred property owners from discussing topics irrelevant to their property. (30) Thus regulators cannot limit noncommercial messages to only those related to the facility to which they are attached. (31) Finally, noncommercial speech may not be prohibited where commercial speech is allowed. (32) If the owner of a given location can communicate a commercial message of any kind on her property, she must also be able to communicate any noncommercial message that is entitled protection under the First Amendment. (33)

Although commercial speech could not be privileged over noncommercial speech, the Metromedia plurality suggested that noncommercial speech could be placed in a privileged position vis-avis commercial speech. Justice White, writing for four, maintained that "the California courts may sustain the ordinance by limiting its reach to commercial speech" because "our judgment is based essentially on the inclusion of noncommercial speech within the prohibitions of the ordinance." (34) Lower courts took the plurality at its word: in addition to dutifully striking down ordinances that privileged commercial over noncommercial speech, they have upheld regulations that completely exempted noncommercial speech from their regulatory scheme. (35) Justice Brennan's concurrence in Metromedia, which questioned the wisdom of distinguishing between noncommercial and commercial speech for purposes of exemption, (36) might have been a lonely voice of protest were it not for the 1993 decision of City of Cincinnati v. Discovery Network, Inc. (37) This case called into question whether noncommercial speech, no less offensive than commercial speech in terms of safety or aesthetics, could be privileged over commercial speech after all. (38)

Discovery Network involved a municipal effort to reduce visual clutter caused by freestanding newsracks (39) A city ordinance banned only those newsracks that distributed commercial handbills on the theory that commercial speech "has only a low value" and the city's "[a]esthetic and safety interests are stronger than the interest in allowing commercial speakers to have similar access to the reading public." (40) Six Justices voted to strike down the regulation, noting that it "seriously underestimate[d] the value of commercial speech." (41) Analyzing the regulation under Central Hudson Gas & Electricity Corp. v. Public Service Commission of New York (42) and Board of Trustees of the State University of New York v. Fox, (43) the Court found an "[un]reasonable fit" between the city's ends and its means. (44) The Court accepted that "every decrease in the number of [newsracks] necessarily effects an increase in safety and an improvement in the attractiveness ... [such that] the prohibition is thus entirely related to [the city's] legitimate interests." (45) The commercial/noncommercial distinction, however, "bears no relationship whatsoever to the particular interests that the city has asserted" (46) because commercial newsracks "are no more harmful than the permitted newsracks." (47) In short, the Discovery Network Court was unwilling to allow the city to single out commercial newsracks--newsracks that were no more ugly or dangerous than noncommercial newsracks--for regulation, without furnishing any justification beyond that commercial speech enjoys less First Amendment protection than noncommercial speech. (48)

Despite the implication of Discovery Network for billboard regulation, (49) varying interpretations of the case have resulted in a circuit split. Some lower courts have attempted to circumvent Discovery Network, sometimes in problematic ways. The Ninth Circuit, for instance, offered a 1984 Supreme Court case as proof of continued reliance on Metromedia in the face of Discovery Network, which was decided almost a decade later. (50) The Eleventh Circuit, in upholding a noncommercial exception to a commercial speech regulation, relegated Discovery Network to an unelaborated "but see" cite at the end of a long footnote. (51) Other lower courts, however, have recognized, and sometimes expanded, the scope of Discovery Network. (52)

Like Odysseus, would-be regulators face a dangerous path between two monsters. (53) If a regulator plans to reduce visual clutter by privileging commercial over noncommercial speech or by drawing distinctions among noncommercial messages, she finds herself menaced by one monster: Metromedia. Metromedia means that if an advertisement for soda can be erected on a given plot of land, a neighboring plot must be able to display a sign in support of the local Congressman. Further, Metromedia means that if any property owner can show support for a Congressman, a sign bearing the time of day must also be allowed. An ordinance allowing commercial speech must allow noncommercial speech, and an ordinance allowing some noncommercial speech must allow all noncommercial speech. (54) If, wary of Metromedia, a regulator decides instead to reduce visual clutter by regulating only commercial speech, she soon finds herself menaced by a second monster: Discovery Network. After Discovery Network, an ordinance is also in jeopardy if it exempts noncommercial speech merely because of the greater relative protection for this type of speech. (55) Thus, if signage is to be reduced without being totally eliminated, very careful distinctions must be made. (56) A monster guards each side of the regulator's path.

This Note argues that passing close to Discovery Network is the safest route--municipalities can still drastically reduce visual clutter by regulating commercial...