Metromedia, Inc. v. City of San Diego

CLARK, J.

I dissent. The San Diego ordinance unconstitutionally prohibits speech protected by the First Amendment. Because the ordinance must be considered a nullity, other issues are not reached.

The outdoor sign or symbol is a venerable medium for expressing political, social and commercial ideas. From the poster or “broadside” to the billboard, outdoor signs have played a prominent role throughout American history, rallying support for political and social causes. (See, Davidson, Propaganda and The American Revolution (U.N.C. Press 1941); Houck, Outdoor Advertising: History and Regulation (U.Notre Dame Press 1969).) The majority today call for absolute prohibition of this expression in violation of the First Amendment. (Bates v. State Bar of Arizona (1977) 433 U.S. 350 [53 L.Ed.2d 810, 97 S.Ct. 2691]; Linmark Associates, Inc. v. Willingboro (1977) 431 U.S. 85 [52 L.Ed.2d 155, 97 S.Ct. 1614]; Va. Pharmacy Bd. v. Va. Consumer Council (1976) 425 U.S. 748 [48 L.Ed.2d 346, 96 S.Ct. 1817]; Bigelow v. Virginia (1975) 421 U.S. 809 [44 L.Ed.2d 600, 95 S.Ct. 2222]; Welton v. City of Los Angeles (1976) 18 Cal.3d 497 [134 Cal.Rptr. 668, 556 P.2d 1119].)

The briefs before us reveal political, cultural and social messages on San Diego billboards that encourage the 55 mph speed limit and safety seatbelt; protest involvement in the United Nations and Vietnam; blast *889rising taxes; condemn assassination of the Israeli delegation to the Munich Olympic Games. All such communication is protected by the First Amendment. Commercial communication may be restricted by government only after considering informational value to the public, adequate alternative means for dissemination, and state interest. (Va. Pharmacy Bd. v. Va. Consumer Council, supra, 425 U.S. 748, 770 [48 L.Ed.2d 346, 363]; Ohralik v. Ohio State Bar Assn. (1978) 436 U.S. 447, 455-456 [56 L.Ed.2d 444, 452-453, 98 S.Ct. 1912].) But the issue before us is not scope of permissible regulation of commercial thought. By written stipulation the parties have agreed on the valuable content of materials displayed on outdoor signs the ordinance would prohibit. The stipulation provides that plaintiffs’ signs “are located in areas zoned for commercial and industrial purposes”; that outdoor advertising “produces numerous direct and indirect benefits to the public”; and that U[v\aluable commercial, political and social information is communicated to the public through the use of outdoor advertising. Many businesses and politicians and other persons rely upon outdoor advertising because other forms of advertising are insufficient, inappropriate and prohibitively expensive.” (Joint stipulation of facts Nos. 20, 28, ante, p. 857; italics added.) As applied in this case, the ordinance clearly prohibits expression of political, social and commercial thought. The ordinance must therefore satisfy the most stringent rules flowing from the First Amendment.

In spite of the stipulation, and without scrutiny of the effect on protected speech, the majority grandly uphold the San Diego ordinance. The majority’s withdrawal from this court’s recent and unanimous decision in Welton v. City of Los Angeles, supra, 18 Cal.3d 497, by effectively ignoring it, is particularly significant and distressing.

Under a municipal ordinance not unlike that before us today, the City of Los Angeles prosecuted Mrs. Welton for sidewalk sale of maps revealing the homes of movie stars. When challenged as an invasion of Mrs. Welton’s First Amendment rights, the city contended her commercial activity constituted unprotected speech. In holding the ordinance could not be constitutionally applied to Mrs. Welton, we stated: “The fact that some may view the map as lacking opinion, newsworthiness or information of social worth, is constitutionally irrelevant.... Mrs. Welton and her maps are entitled to the same First Amendment protection as the political candidate and his political pamphlet.” (Id., at p. 504.)

*890Using both stale and distinguishable cases, the majority attempt to justify the ordinances’ blanket prohibition by claiming (1) outdoor signs are not entitled to the same protection as other speech, (2) governmental interests here outweigh any First Amendment interest involved, and (3) “probable” alternative means exist for plaintiffs to communicate public messages.

Cases cited by the majority predating recognition of First Amendment protection of commercial speech, upholding zoning ordinances prohibiting off-site billboards, are of no precedential value. Those cases assumed commercial communication lacks First Amendment protection and failed to recognize signs might be used for noncommercial messages. (See, Markham Advertising Co. v. State (1968) 73 Wn.2d 405, 429 [439 P.2d 248]; Murphy, Inc. v. Westport (1944) 131 Conn. 292, 302 [40 A.2d 177]; Matter of Cromwell v. Ferrier (1967) 19 N.Y.2d 263, 270 [279 N.Y.S.2d 22, 225 N.E.2d 749, 21 A.L.R.3d 1212]; Howard v. State Department of Hwys. of Colorado (10th Cir. 1973) 478 F.2d 581, 584; United Advertising Corp. v. Burrough of Raritan (1952) 11 N.J. 144, 152 [93 A.2d 362].)

Further, cases relied on by the majority decided following recognition of First Amendment protection of commercial speech (see, Va. Pharmacy Bd. v. Va. Consumer Council, supra, 425 U.S. 748; Bigelow v. Virginia, supra, 421 U.S. 809) are clearly distinguishable from the case at bench.

Contrary to majority assertion (ante, p. 867), Suffolk Outdoor Adv. v. Hulse (1977) 43 N.Y.2d 483 [402 N.Y.S.2d 368, 373 N.E.2d 263], does not resolve the issue of whether the San Diego ordinance violates the First Amendment. Examination of Suffolk reveals the New York Court of Appeals devoted a scant paragraph to the First Amendment, summarily determining the ordinance in question was not a regulation based on content, and operative alternative means such as accessory or on-premise billboards existed for outdoor advertising. Suffolk does not deal with the issue of whether the ordinance curtailed noncommercial thought similar to the communication stipulated to in this case, so does not examine the availability of adequate alternatives. Thus, while of some precedential value on the issue of permissible regulation of commercial ideas, Suffolk does not address the critical issue faced by this *891court: whether noncommercial as well as commercial speech can be constitutionally restricted in the manner provided in the ordinance.1

Other cases relied on by the majority, while upholding banning of billboards, exempt noncommercial messages from the ban. (John Donnelly & Sons v. Mallar (S.D.Me. 1978) 453 F.Supp. 1272, 1280; John Donnelly & Sons, Inc. v. Outdoor Advertising Bd. (1975) 369 Mass. 206 [339 N.E.2d 709, 721]; Newman Signs, Inc. v. Hjelle (N.D. 1978) 268 N.W.2d 741, 760-762.) Such cases have no precedential value when, as here, the ordinance includes noncommercial thought.

Still other cases relied on by the majority uphold restrictions on billboards because they were banned only in one area but permitted in other areas of the community. (Donnelly Advertising Corp. v. City of Baltimore (1977) 279 Md. 660 [370 A.2d 1127, 1132] (urban renewal ordinance banning billboards only in the renewal area of the city); Lubbock Poster Co. v. City of Lubbock (Tex.Civ.App. 1978) 569 S.W.2d 935, 945 (ordinance did not totally prohibit billboards but rather regulated only the location, size, separation and height); State v. Lotze (1979) 92 Wn.2d 52 [593 P.2d 811, 813] (Washington State Advertising Control Act prohibited billboards along scenic highways but permitted them in commercial and industrial areas).) In contrast, the San Diego ordinance constitutes a total ban on all olf-site billboards anywhere in the City of San Diego.

Billboards Are Entitled to the Same First Amendment Protection as Other Forms of Speech

First Amendment protection extends to virtually all media utilized to disseminate ideas. (Erznoznik v. City of Jacksonville (1974) 422 U.S. 205 [45 L.Ed.2d 125, 95 S.Ct. 2268] (drive-in movies); Police Depart*892ment of Chicago v. Mosley (1972) 408 U.S. 92 [33 L.Ed.2d 212, 92 S.Ct. 2286] (picketing); Schneider v. State (1939) 308 U.S. 147 [84 L.Ed. 155, 60 S.Ct. 146] (leafletting); Welton v. City of Los Angeles, supra, 18 Cal.3d 497 (roadside sale of maps); Dulaney v. Municipal Court (1974) 11 Cal.3d 77 [112 Cal.Rptr. 777, 520 P.2d 1] (posting signs on public utility poles); Dillon v. Municipal Court (1971) 4 Cal.3d 860 [94 Cal.Rptr. 777, 484 P.2d 945] (demonstrations and parades); Wollam v. City of Palm Springs (1963) 59 Cal.2d 276 [29 Cal.Rptr. 1, 379 P.2d 481] (sound trucks); California Newspaper Publishers Assn., Inc. v. City of Burbank (1975) 51 Cal.App.3d 50 [123 Cal.Rptr. 880] (newspaper racks).) “The right of free speech necessarily embodies the means used for its dissemination because the right is worthless in the absence of a meaningful method of its expression. To take the position that the right of free speech consists merely of the right to be free from censorship of the content rather than any protection of the means used, would, if carried to its logical conclusion, eliminate the right entirely.” (Wollam v. City of Palm Springs, supra, 59 Cal.2d 276, 284.)

In addressing their first basis in justification of the San Diego ordinance’s blanket prohibition—outdoor signs are not entitled to the same protections as other forms of speech—the majority attempt to distinguish outdoor signs from “other forms of communication which courts have held can be subjected only to narrowly drawn regulations serving a compelling governmental interest” (e.g., leafletting, sound trucks, etc.) because an outdoor sign is a “large, immobile and permanent structure” as opposed to “more transitory and less obtrusive media.” (Ante, p. 870.) Such distinction suffers the same overbreath as the ordinance itself. While the ordinance may seek to prohibit small, unobtrusive off-site signs, it permits obtrusive and perhaps even offensive on-site billboards. Being equally inconsistent, the majority selectively sustain the prohibition of “offensive” billboards but support the use of sound trucks, picketing, leafletting and demonstrations as constituting “more transitory or less obtrusive media.”

Obtrusiveness does not justify total prohibition of protected expression. In Erznoznik v. City of Jacksonville, supra, 422 U.S. 205, the Supreme Court struck down a city ordinance prohibiting exhibition of a motion picture displaying the bare female body by a drive-in theater whose screen was visible from a public street. Off-site advertising hardly commands the same attention as the “unique type of eye-catching display” of an animated drive-in movie (id., at p. 222 [45 L.Ed.2d at *893p. 138]; Burger, C. J., dis.), yet the court noted “the screen of a drive-in theater is not ‘so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it.’” (Id., at p. 212 [45 L.Ed.2d at p. 132].)

Obtrusiveness is thus measured by not only quality or degree of offensive intrusion, but also by the ability of the offended to avoid it. Is it not fair to assume that a display of animated nudes on a screen constitutes an intrusion of greater degree than a motionless sign or symbol advertising some product? Yet the Supreme Court did not find. the nude display so offensive that its effect could not be kept within permissible limits. Off-site displays also are not so offensive that they cannot be kept within reasonable limits.

While obtrusiveness may be a factor to be weighed in the balance in determining whether a restriction is reasonable as to time, place and manner, the majority fail to even attempt a balance. Rather, they use obtrusiveness as a sole reason, a la Ogden Nash, for the blanket ban on billboards.

In instances when obtrusiveness has been deemed a factor justifying billboard regulation, the courts were persuaded by other considerations, such as the discredited view that the Constitution did not protect commercial speech, or that only those billboards next to interstate and state highways should be banned. (General Outdoor Adv. Co. v. Department of Public Wks. (1935) 289 Mass. 149 [193 N.E. 799, 803-804, 814]; Markham Advertising Co. v. State (1968) 73 Wn.2d 405, 428-429 [439 P.2d 248].) In this case, obtrusiveness must be balanced against constitutional protection given noncommercial as well as commercial uses of billboards, and the total ban of the San Diego ordinance. These factors compel the conclusion the ordinance is over-broad, constituting an impermissible infringement on First Amendment protections.

Governmental Interests Do Not Justify the Ordinance’s Infringement on First Amendment Rights

The majority assert as their second justification for blanket prohibition that the balance must be tilted in favor of governmental interests, resulting in imbalance.

While recognizing that aesthetic beauty and traffic safety are legitimate police power objectives, the majority fail to show these interests *894outweigh First Amendment rights of plaintiffs, advertisers and the viewing public.2 The conflict between police powers on the one hand and First Amendment rights on the other must seek compromise, allowing government to reasonably regulate the time, place and manner in which First Amendment rights may be exercised. (Grayned v. City of Rockford (1972) 408 U.S. 104 [33 L.Ed.2d 222, 92 S.Ct. 2294]; Healy v. James (1972) 408 U.S. 169 [33 L.Ed.2d 266, 92 S.Ct. 2338]; Welton v. City of Los Angeles, supra, 18 Cal.3d 497; Burton v. Municipal Court (1968) 68 Cal.2d 684 [68 Cal.Rptr. 721, 441 P.2d 281]; Wollam v. City of Palm Springs, supra, 59 Cal.2d 276.) Thus government may validly regulate the use of newsracks (Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d 294 [138 Cal.Rptr. 53, 562 P.2d 1302]), sound trucks (Kovacs v. Cooper (1949) 336 U.S. 77 [93 L.Ed.513, 69 S.Ct. 448, 10 A.L.R.2d 608]), street sales of goods or merchandise (Welton v. City of Los Angeles, supra, 18 Cal.3d 497), and the operation of “adult” movie theaters (Young v. American Mini Theatres (1976) 427 U.S. 50 [49 L.Ed.2d 310, 96 S.Ct. 2440]). Similarly, off-site advertising signs may be reasonably regulated.

Notwithstanding the state’s power to regulate, such power “does not necessarily sanction the outright prohibition.” (Wollam v. City of Palm Springs, supra, 59 Cal.2d 276, 284.) To be constitutionally reasonable, regulation of time, place or manner must be written narrowly and explicitly, in furtherance of a legitimate police power purpose. (Welton v. City of Los Angeles, supra, 18 Cal.3d 497.) But here the majority push police power objectives so far from center balance as to abolish protected speech. The absolute prohibition of off-site signs is justified by neither community appearance nor traffic improvement. Furthermore, the ordinance—written in terms of total prohibition—is not susceptible to interpretation avoiding constitutional infirmity. (See Welton v. City of Los Angeles, supra, 18 Cal.3d 497.)

Further, in support of the conclusion that the city’s interest in regulating commercial use of property justifies the instant ordinance the majority mistakenly rely on Young v. American Mini Theatres, supra, 427 U.S. 50. While upholding a zoning ordinance restricting the location of “adult” theaters, Young was careful to observe the First Amendment protection of such communication from total suppression. *895While Young affirms the proposition that commercial speech acquires a lesser degree of constitutional protection than other more traditionally protected varieties of thought (id., at p. 68 [49 L.Ed.2d at pp. 324-325]; Ohralik v. Ohio State Bar Assn., supra, 436 U.S. 447, 455-456 [56 L.Ed.2d 444, 452-453]), the statute was upheld in part because it did not completely ban theaters from the city. Instead, theaters were restricted to areas more than 500 feet beyond residential areas and 1,000 feet beyond other adult establishments. In contrast, the San Diego ordinance bans billboards altogether.

Adequate Alternative Means of Dissemination of Speech Are Not Available

The third purported justification urged by the majority in support of the ordinance—existing “adequate alternative means” for advertisers to communicate their ideas—is likewise without merit. The parties’ stipulation establishes that the ordinance will eliminate outdoor advertising, that outdoor advertising benefits the public in numerous ways, and that politicians and others rely on outdoor advertising because other forms of advertising are “insufficient, inappropriate and prohibitively expensive.” (See Joint Stipulation of Facts Nos. 20 and 28, ante, p. 857.) Thus, in numerous situations, including the delivery of political messages, traditional off-site advertising is the only practical means of communicating.

The majority further rely on John Donnelly & Sons v. Mallar, supra, 453 F.Supp. 1272, as support for the proposition that alternative means of communicating such as on-premise advertising, official business directional signs, tourist information centers and publications justify the ordinance’s prohibition against outdoor advertising. However, Mollar is limited to a ban on only commercial billboards: "... non-commercial messages such as those conveyed by political, civic and charitable signs, are specifically exempted from the broad ban on off-premises advertising.” (Id., at p. 1280.) Mollar's holding that existing alternatives justified a ban on commercial speech, while specifically exempting noncommercial messages from that holding, forecloses any argument that such alternatives would justify a ban on noncommercial messages as proposed by the broad San Diego billboard ban.

Recognizing freedom of speech entails not only communication, but effective communication, courts have refused to impose absolute prohibition of a medium when there exists no practical alternative. In our *896recent case of Welton v. City of Los Angeles, supra, 18 Cal.3d 497, we unanimously invalidated on First Amendment grounds an ordinance banning sidewalk and parkway sales of commercial books, magazines, maps, and other constitutionally protected material despite readily apparent alternative methods of distribution. We noted the “city has failed to demonstrate that such a broad prohibition is necessary to the attainment of a legitimate police power purpose. Its interest in abating public nuisance cannot be pursued by means infringing personal liberties when less restrictive alternatives are available.” (Id. at pp. 507-508.) In Wollam v. City of Palm Springs, supra, 59 Cal.2d 276, we held unconstitutional an ordinance prohibiting use of stationary sound trucks where other methods including moving sound trucks were available. Similarly, in Linmark Associates, Inc. v. Willingboro, supra, 431 U.S. 85, the Supreme Court rejected a contention that because ample alternative methods of communication existed, an ordinance prohibiting the posting of real estate “For Sale” and “Sold” signs should be sustained.3

There being no basis upon which the absolute prohibition of outdoor advertising can be justified, the judgment should be affirmed.

Appellants’ petition for a rehearing was denied May 14, 1980, and the opinion was modified to read as printed above.

The majority view the Supreme Court dismissal of appeal in Suffolk as indicating that court’s approval of the prohibition of off-site billboards. (Ante, p. 867; citing Hicks v. Miranda (1975) 422 U.S. 332, 343-345 [45 L.Ed.2d 223, 235-237, 95 S.Ct. 2281].)

The majority’s one-paragraph analysis of Suffolk {ante, p. 867) based on only a one-line Supreme Court order, itself based on a one-paragraph discussion by the New York Court of Appeals summarily determining there are adequate alternatives while focusing only on advertising alternatives, is not the type of close scrutiny mandated by the First Amendment in limiting speech.

Further, summary dismissals are of only limited precedential value and do not carry the full weight of a Supreme Court ruling after full briefing and argument and certainly do not endorse any matter not considered by the opinion below. (Washington v. Yakima Indian Nation (1979) 439 U.S. 463, 477, fn. 20 [58 L.Ed.2d 740, 753, 99 S.Ct. 740].)

It is well-settled that the right to receive “information of potential interest and value” is protected by the First Amendment. (Bigelow v. Virginia, supra, 421 U.S. 809, 822 [44 L.Ed.2d 600, 612]; see also, Stanley v. Georgia (1969) 394 U.S. 557, 564 [22 L.Ed.2d 542, 549, 89 S.Ct. 1243].)

The majority’s statement that the “possibility that the ordinance may impede an occasional advertiser from communicating his message to the public, however, is not sufficient to invalidate the ordinance on its face” (ante, p. 869, fn. 14), ignores both the joint stipulation of facts by which we are bound and traditional First Amendment over-breadth analysis. The parties’ stipulation that many advertisers rely exclusively on outdoor advertising provides more than mere “possibility” that communication will be impeded. Furthermore, while the overbreadth doctrine may not apply with the same force in situations involving commercial speech (see Bates v. State Bar of Arizona, supra, 433 U.S. 350, 380 [53 L.Ed.2d 810, 833]), the instant ordinance affects social and political expressions as well as commercial speech. It is apparent, for instance, that political expression will be significantly curtailed although political campaign posters are authorized. The restriction to temporary signs, less efficient in terms of cost and effectiveness than the prohibited large and permanent display structures whose costs can be depreciated over long periods, will work to the detriment of “the poorly financed causes of little people” (Martin v. Struthers (1943) 319 U.S. 141, 146 [87 L.Ed. 1313, 1319, 63 S.Ct. 862]), whose proponents are unable to afford other more costly mass media advertising.