Southlake Property Associates, Ltd. v. City of Morrow

United States Court of Appeals,

Eleventh Circuit.

No. 95-9525.

SOUTHLAKE PROPERTY ASSOCIATES, LTD., a Georgia Limited
Partnership, Plaintiff-Appellant,

v.

CITY OF MORROW, GEORGIA, a Political Subdivision of the State of
Georgia, Defendant-Appellee,

Joyce Bean, Defendant.

May 15, 1997.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:94-cv-3379-ODE), Orinda D. Evans,
Judge.

Before BARKETT, Circuit Judge, and DYER and HILL, Senior Circuit
Judges.

HILL, Senior Circuit Judge:

Southlake Property Associates, Ltd. brought this action to

enjoin enforcement of the City of Morrow's sign ordinance, arguing

that the ordinance, on its face, violates the First and Fourteenth

Amendments to the United States Constitution as well as similar

provisions of the State of Georgia Constitution. On cross motions

for summary judgment, the district court found no violation of

either constitution, and denied injunctive relief. For the

following reasons, we affirm.

I. Background

Southlake Property Associates, Ltd. (Southlake) is a Georgia

limited partnership which owns unimproved real property adjacent to

Interstate Highway 75 and State Route 401 in Morrow, Georgia. In

August 1994, Southlake desired to erect four offsite outdoor

advertising billboards on its property, primarily to communicate
commercial messages to travelers on I-75. To do so, Southlake was

required to obtain certification from the City of Morrow (Morrow)

stating that the signage is consistent with local law. Southlake

applied for this certification; Morrow denied it.

Morrow's sign ordinance prohibits billboards. 1 Section 8-5-

1(4) of the ordinance defines a billboard as an:

[a]dvertising sign or a sign which advertises a commodity,
product, service, activity or any other person, place or
thing, which is not located, found, or sold on the premises
upon which such sign is located; usually found along or near
major roadways and of such size as to catch the attention of
the motoring public and may sometimes be illuminated or
animated.

"Advertising sign" is defined in § 8-5-1(1) as

any letter, figure, character [etc.] ... which shall be so
constructed, placed, attached [etc.] ... so that the same
shall be used for the attraction of the public to any place,
subject, person, firm, corporation, public performance,
article, machine or merchandise whatsoever ... so as to draw
the attention of passerby [sic] ...

Southlake alleges that, on its face, the ordinance violates

the First and Fourteenth Amendments in several different ways: (1)

it contains no statement of the governmental interests it seeks to

advance; (2) it favors commercial over noncommercial, i.e.,

political or ideological speech; (3) it prohibits all offsite

noncommercial signs in Morrow; (4) it bans all permanent signs

placed in residential districts; and (5) it allows content-based

1
The City of Morrow Code of Ordinances, § 8-5-3, states in
part:

Except as otherwise provided by this chapter, the
following types of signs are prohibited:

...

(4) Billboard signs.
exemptions. The district court granted summary judgment to Morrow

on each of these claims; Southlake reasserts all five issues on

appeal.

Southlake's claims fall into two categories: (1) that the

ordinance impermissibly regulates commercial speech; and (2) that

the ordinance unconstitutionally burdens noncommercial speech.

II. Discussion

A. Commercial Speech

Prior to 1976, purely commercial advertisements of goods or

services were thought to be outside the protection of the First

Amendment. Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86

L.Ed. 1262 (1942). In 1976, however, the Supreme Court held that

no state may completely suppress the dissemination of truthful

information about an entirely lawful activity merely because it is

fearful of that information's effect upon its recipients. Virginia

Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425

U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976).

The Court has continued to observe, however, a distinction

between commercial and noncommercial speech, holding that the

former may be regulated in situations where the latter may not be.

Bates v. State Bar of Arizona, 433 U.S. 350, 379-81, 383-84, 97

S.Ct. 2691, 2706-08, 2708-09, 53 L.Ed.2d 810 (1977); Ohralik v.

Ohio State Bar Ass'n, 436 U.S. 447, 456, 98 S.Ct. 1912, 1918-19, 56

L.Ed.2d 444 (1978); Young v. American Mini Theatres, Inc., 427

U.S. 50, 69 n. 32, 96 S.Ct. 2440, 2452 n. 32, 49 L.Ed.2d 310

(1976).

Finally, in Central Hudson Gas & Electric Corp. v. Public
Service Comm'n of New York, 447 U.S. 557, 562-63, 100 S.Ct. 2343,

2349-50, 65 L.Ed.2d 341 (1980), the Court held: "[t]he

Constitution ... accords a lesser protection to commercial speech

than to other constitutionally guaranteed expression. The

protection available for a particular commercial expression turns

on the nature both of the expression and of the governmental

interests served by its regulation." 2 The Court adopted a

four-part test for evaluating the constitutionality of governmental

regulation of commercial speech as distinguished from more fully

protected 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. Id. at 563-66, 100 S.Ct. at 2350-51.

Southlake asserts that Morrow's ordinance fails the second

prong of this test by failing to articulate a significant

governmental interest. Southlake argues in its brief that Morrow's

ordinance contains "no indication of the governmental interests it

seeks to advance."3 At oral argument, however, Southlake admitted

that the ordinance does contain a "Statement of Findings" reciting

2
But see City of Cincinnati v. Discovery Network, Inc., 507
U.S. 410, 427-31, 113 S.Ct. 1505, 1515-18, 123 L.Ed.2d 99 (1993)
(ordinance banning newsracks carrying commercial advertisements
but permitting those carrying newspapers unconstitutional).
3
If this were so, the ordinance might well fail to meet this
prong of the Central Hudson test. See Dills v. City of Marietta,
674 F.2d 1377, 1381 (11th Cir.1982).
Morrow's significant interest in maintaining the "rights of the

public to clean, aesthetically pleasing and safe business

thoroughfares." These purposes have been recognized as significant

governmental interests which support restrictions on the time,

place, and manner of the display of commercial signs. Metromedia,

Inc. v. City of San Diego, 453 U.S. 490, 507-08, 101 S.Ct. 2882,

2892-93, 69 L.Ed.2d 800 (1981) ("Nor can there be substantial doubt

that the twin goals that the ordinance seeks to further—traffic

safety and the appearance of the city—are substantial governmental

goals. It is far too late to contend otherwise....").

Southlake's contention at oral argument that this statement of

purpose was added to the ordinance after it applied for billboard

permits is not supported by the record.4 Therefore, insofar as

Morrow's ordinance regulates commercial speech, it meets the

constitutional requirements of Central Hudson.5

B. Noncommercial speech

It does not necessarily follow, however, that Morrow's

prohibition on billboards places no impermissible burden on

noncommercial speech. To the extent that the ordinance regulates

noncommercial speech, it must withstand a heightened level of

scrutiny. Ohralik v. Ohio State Bar Ass'n, 436 U.S. at 456, 98

S.Ct. at 1918-19. Noncommercial speech is fully protected by the

First Amendment and Morrow's ordinance must be evaluated by this

4
We take this opportunity to reiterate that disputes such as
this over a readily ascertainable record fact have no place in
the briefs or at oral argument.
5
Southlake does not raise on appeal any challenge to the
ordinance based on the other three Central Hudson factors.
exacting standard. Id.

Morrow's ordinance on its face prohibits billboards, defined

as any "sign which advertises a commodity, product, service,

activity or any other person, place, or thing, which is not

located, found or sold on the premises upon which such sign is

located." As the ordinance makes no distinction between commercial

and noncommercial messages, the district court held that both

commercial and noncommercial speech are included within its

definition of billboard. If so, the ordinance prohibits all
offsite signs bearing noncommercial messages in Morrow.6

6
The district court relied on Messer v. City of
Douglasville, 975 F.2d 1505 (11th Cir.1992), cert. denied, 508
U.S. 930, 113 S.Ct. 2395, 124 L.Ed.2d 296 (1993), to hold this
prohibition of offsite, noncommercial signage constitutionally
permissible. In Messer, however, the prohibition on billboards
was limited to the historic district of Douglasville, in which
the city had a substantial aesthetic interest. In finding the
ordinance sufficiently narrowly drawn, we specifically reserved
the question of whether a government's interest in traffic safety
and aesthetics are an acceptable justification for a city-wide
ban on all offsite noncommercial signs. We held:

The ordinance does not apply to the entire city of
Douglasville. Off-premise noncommercial signs are
allowed in the parts of the city not designated as a
historic district. Because a blanket ban on
off-premise signs is limited to the historic district
of Douglasville, we do not need to decide if a
government's interests in traffic safety and aesthetics
are an acceptable justification for a city-wide ban of
off-premise noncommercial signs. We simply decide that
the government's interests in the aesthetics of a
designated historic district are sufficiently
significant to override the First Amendment rights of a
property owner to off-premise noncommercial signs.

975 F.2d at 1511.

We have since reiterated that restricting the
prohibition of offsite signs to a limited area of the city
was a factor in our decision. See Dimmitt v. City of
Clearwater, 985 F.2d 1565, 1569 n. 4 (11th Cir.1993) (city's
aesthetic interests in preserving historic district
 Morrow denies, however, that its ordinance prohibits offsite

signs bearing noncommercial messages. Morrow maintains:

The City has never interpreted its Ordinance to disallow
noncommercial speech. Further, the City's [sic] has
documented a three-year history of permitting noncommercial
off-premise messages to be posted on commercial properties
throughout the City. These provisions demonstrate a
long-standing pattern and practice of the City to allow free
expression of noncommercial speech. Further, ... the City has
never denied a sign permit for noncommercial speech.

. . . . .

While billboard is defined by the City Ordinance very broadly,
that broad interpretation has been narrowed by the City
practice of allowing noncommercial messages off premises over
an extended period of time. The City has therefore narrowed
its interpretation of billboard to refer to the billboard
industry as it exists in commercial practice.

Morrow's contention here is that the ordinance as applied

permits offsite noncommercial messages. The challenge to this

ordinance, however, is on its face. Although the city's

interpretation and enforcement of the ordinance are relevant to our

inquiry, they are not determinative. See Dimmitt v. City of

Clearwater, 985 F.2d 1565, 1572 (11th Cir.1993). If the ordinance,

by its own terms, unconstitutionally burdens protected speech, it

cannot be saved by an application inconsistent with those terms.

See American Booksellers v. Webb, 919 F.2d 1493, 1500 (11th

Cir.1990), cert. denied, 500 U.S. 942, 111 S.Ct. 2237, 114 L.Ed.2d

479 (1991).

Our task then is to determine whether the ordinance on its

face prohibits offsite noncommercial advertising signs, as

supported content neutral restriction upon offsite
commercial and noncommercial signs) (emphasis added).
Southlake contends.7 We conclude that it does not.

The ordinance permits onsite, but prohibits offsite

advertising signs. This onsite-offsite distinction is reasonably

clear and straightforward in the commercial speech context. The

site of a commercial activity can usually be recognized without

difficulty. Whether a sign bearing a commercial message is

offsite, therefore, is readily ascertainable. Such signs are

prohibited. This the Constitution allows. Metromedia, 453 U.S. at

512, 101 S.Ct. at 2894-95. See also Messer v. City of

Douglasville, 975 F.2d 1505, 1508 (11th Cir.1992).

Locating the site of noncommercial speech, however, is fraught

with ambiguity. The ordinance prohibits signs which seek to

attract attention to any person, place, subject, or thing not

located on the premises where the person, place, subject, or thing

is found. Noncommercial speech usually expresses an idea, an aim,

an aspiration, a purpose, or a viewpoint. Where is such an idea

located? What is the site upon which the aspiration is found?

In interpreting similar ordinances, many courts have assumed

that the address of identifiable groups or associations formed

around an idea, aim, philosophy or viewpoint defines the location

of the idea. For example, the First Circuit has recently observed,

"[t]he only signs containing noncommercial messages that are

[onsite] are those relating to the premises on which they stand,

which inevitably will mean signs identifying nonprofit

institutions." Ackerley Comm., Inc. v. City of Cambridge, 88 F.3d

7
If so, we must then determine whether this prohibition is
allowed by the First Amendment.
33, 37 (1st Cir.1996). Thus, speech advocating racial bigotry is

onsite at a Klavern of the Klan; "Save the Whales" is onsite where

Greenpeace has an office; and "Jesus Saves" is displayed onsite

only where a Christian religious organization is operating.

Under this view, the site of noncommercial speech, like

commercial speech, is wherever some organized activity associated

with the idea espoused is located or found. The expression of an

idea anywhere other than at the site of an activity dedicated to

that idea is "offsite." If an ordinance prohibits offsite signs,
all noncommercial messages located on signs, other than those

located at the site of the activity they espouse, are banned.8

8
While there is no claim in this case that the ordinance
permits bias, censorship, or preference regarding a speaker's
point of view, and no "hint of bias," Members of City Council v.
Taxpayers For Vincent, 466 U.S. 789, 804, 104 S.Ct. 2118, 2128,
80 L.Ed.2d 772 (1984) in this prohibition of all offsite
messages, there is a selection of certain messages. Metromedia
teaches that we may selectively allow certain kinds of commercial
speech, but we may not do the same in the noncommercial speech
arena. 453 U.S. at 514, 101 S.Ct. at 2896. Many courts,
therefore, which view the site of noncommercial speech, like
commercial speech, to be wherever some organized activity
associated with the idea espoused is located, have invalidated
ordinances prohibiting all offsite signs. See, e.g., Ackerley,
88 F.3d at 37 (ordinance unconstitutionally favored commercial
speech by disallowing offsite noncommercial speech); National
Advertising Co. v. City of Orange, 861 F.2d 246, 247-49 (9th
Cir.1988) (city sign ordinance unconstitutionally prohibited
offsite noncommercial signs based on their content); Jackson v.
City Council, 659 F.Supp. 470 (W.D.Va.1987) (invalidating
ordinance because it virtually prohibited noncommercial
advertising but permitted onsite commercial advertising), aff'd
in part, vacated in part, 840 F.2d 10 (4th Cir.1988). Cf.
National Advertising Co. v. City of Denver, 912 F.2d 405, 409
(10th Cir.1990) (ordinance constitutional because prohibition of
offsite signs limited to commercial speech); Metromedia, Inc. v.
Mayor and City Council of Baltimore, 538 F.Supp. 1183 (D.Md.1982)
(ordinance facially invalid since prohibited owner of commercial
property from displaying ideas of others).

Some municipalities have read Metromedia to prohibit
the banning of offsite noncommercial messages and have
 There is, however, no logical reason to interpret the

ordinance as locating the expression of ideas, aspirations, and

beliefs in this way. An idea, unlike a product, may be viewed as

located wherever the idea is expressed, i.e., wherever the speaker

is located.9 Under this alternative view, all noncommercial speech

is onsite. A sign bearing a noncommercial message is onsite

wherever the speaker places it.

Although Morrow's definition of billboard does not explicitly

exclude noncommercial speech, it defines billboard as a sign

containing an offsite message. Under the alternative view of the

onsite-offsite distinction, a "billboard" would not include a sign

carrying a noncommercial message. 10 Offsite noncommercial signs,

specifically limited their prohibition of billboards to
those displaying commercial messages. These ordinances have
been upheld. National Advertising Co. v. City of Denver,
912 F.2d 405, 409 (10th Cir.1990) (the preference for
noncommercial over commercial advertising under the new
ordinance is the kind of underinclusiveness the First
Amendment tolerates); Major Media, Inc. v. City of Raleigh,
792 F.2d 1269, 1272 (4th Cir.1986) (sign ordinance expressly
excludes noncommercial messages from its prohibitions);
Lamar-Orlando Outdoor Advertising v. City of Ormond Beach,
415 So.2d 1312 (Fla. 5th DCA 1982) (ordinance reaches only
commercial speech); R.O. Givens, Inc. v. Town of Nags Head,
58 N.C.App. 697, 294 S.E.2d 388 (1982) (ordinance restricts
commercial speech only); Singer Supermarkets v. Zoning Bd.
of Adjustment, 183 N.J.Super. 285, 443 A.2d 1082, 1084
(App.Div.1982) (ordinance does not reach noncommercial
speech).
9
The Supreme Court's holding in City of Ladue v. Gilleo, 512
U.S. 43, 56, 114 S.Ct. 2038, 2046, 129 L.Ed.2d 36 (1994),
recognizes the significance of locating an idea at the site of
the speaker: "Displaying a sign from one's own residence often
carries a message quite distinct from placing the same sign
someplace else, or conveying the same text or picture by other
means. Precisely because of their location, such signs provide
information about the identity of the "speaker.' "
10
Indeed, under this view, any ordinance which prohibits
billboards, defined as offsite signs, would not limit
therefore, would not be prohibited. This result is consistent with

Morrow's enforcement of its ordinance.

Which view of Morrow's ordinance is correct? As Morrow

itself concedes, the ordinance's definition of billboard is

ambiguous. In evaluating this facial challenge to the ordinance,

we must construe the ambiguity, if possible, in a manner which

avoids any constitutional problems. American Booksellers, 919 F.2d

at 1500. See also EEOC v. Southwestern Baptist Theological

Seminary, 651 F.2d 277, 285 (5th Cir.1981), cert. denied, 456 U.S.

905, 102 S.Ct. 1749, 72 L.Ed.2d 161 (1982). In so doing, we must

consider Morrow's own authoritative construction of the ordinance,

including its implementation and interpretation. Forsyth County,

Ga. v. Nationalist Movement, 505 U.S. 123, 131, 112 S.Ct. 2395,

2401-02, 120 L.Ed.2d 101 (1992). We must defer to the City's

statutory interpretation so long as its interpretation is based on

a permissible construction of the ordinance. Satellite

Broadcasting and Comm. Ass'n v. Oman, 17 F.3d 344, 347 (11th

Cir.1994).

Morrow interprets its ordinance to provide no restraint upon

noncommercial speech.11 We agree. The definition of billboard as

noncommercial messages anywhere. This does not necessarily mean,
however, that all noncommercial signs must be permitted
everywhere. See City of Ladue, 512 U.S. at 58 n. 17, 114 S.Ct.
at 2047 n. 17 ("Nor do we hold that every kind of sign must be
permitted in residential areas. Different considerations might
well apply, for example, in the case of signs [whether political
or otherwise] displayed by residents for a fee....") What those
different considerations might be must await a case presenting
the issue of signs for a fee and signs pro bono.
11
Of course, should Morrow reinterpret its ordinance to
prohibit noncommercial signage, this would present a different
case.
an offsite advertising sign does not include noncommercial speech

as such speech is always onsite.

III. Conclusion

Morrow's sign ordinance states that it seeks to promote the

twin goals of aesthetics and traffic safety. To accomplish these

goals it prohibits billboards, defined as offsite advertising

signs. This prohibition does not impermissibly restrict commercial

speech. The ordinance does not reach noncommercial speech. The

ordinance does not offend the Constitution. Accordingly, the

summary judgment of the district court is AFFIRMED.