Metromedia, Inc. v. City of San Diego

PETITIONER:Metromedia, Inc. et al.
RESPONDENT:City of San Diego et al.
LOCATION:City of San Diego

DOCKET NO.: 80-195
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: Supreme Court of California

CITATION: 453 US 490 (1981)
ARGUED: Feb 25, 1981
DECIDED: Jul 02, 1981

ADVOCATES:
C. Alan Sumption – on behalf of the Appellees
Floyd Abrams – on behalf of the Appellants

Facts of the case

The city of San Diego banned most outdoor advertising display signs in order to improve the city’s appearance and prevent dangerous distractions to motorists. Only “onsite” billboards with a message relating to the property they stood on would be permitted. Upon petition by a coalition of businesses owning advertising signs, a trial court ruled that the ban was an unconstitutional exercise of the city’s police powers and hindered First Amendment rights of the businesses. The California Court of Appeals affirmed that the city had exceeded its police powers, but the California Supreme Court reversed this judgment.

Question

Does a city ban on “offsite” outdoor advertising signs violate First and Fourteenth Amendment provisions for free speech?

Warren E. Burger:

We’ll hear arguments first this morning in Metromedia, Incorporated v. City of San Diego.

Mr. Abrams, you may proceed whenever you are ready.

Floyd Abrams:

Mr Chief Justice, and may it please the Court:

This is an appeal from a decision of the California Supreme Court upholding against constitutional challenge a San Diego ordinance the purpose and effect of which is to prohibit all off-premise outdoor advertising within the City of San Diego.

There has been some dispute between the parties in the briefs as to the precise scope of the statute and I would like to begin my argument with that.

The parties have stipulated that San Diego, now the eighth largest city in the nation and the second in California, is a sprawling 320-mile city filled with hundreds of miles of streets, with a significant industrial and commercial area, and as well, of course, with park areas, beach areas, residential and other areas.

Warren E. Burger:

Would it make any difference, Mr. Abrams, if this were a town of 10,000?

Floyd Abrams:

It would make a difference only in this sense, Mr. Chief Justice, we do think that it is relevant that this is a case which arises entirely out of a ban which takes place in an industrial and commercial area, in part because we are met with the argument by our opponents that outdoor advertising is in its entirety commercial speech, which it is not.

But even if it were commercial speech, or even if it is, as it is, more commercial speech than other kinds of speech, then it’s surely relevant that we deal here only with an industrial and commercial area.

In a smaller community which had an industrial and commercial area, we would be urging on you virtually the same arguments as today.

It is conceivable that in some other area, on some different facts, absent the stipulated record here today, that a balance could conceivably be struck in a different fashion than we are urging on you today.

It is conceivable that that could be the case in an area of 10,000 people rather than a large industrial city.

Potter Stewart:

Mr. Abrams, I gather that you concede, at least implicitly, that outdoor advertising could constitutionally be banned in a residential area?

Floyd Abrams:

We do concede, Mr. Justice Stewart, that it could be banned in certain residential areas, particularly, for example, a residential area as part of a larger community where it is allowed elsewhere; yes.

Potter Stewart:

Some communities are zoned entirely residential?

Floyd Abrams:

Yes, and–

Potter Stewart:

Some governmental entities are, almost?

Floyd Abrams:

–All I’m saying is that we think it does depend, as a number of the cases of this Court in other areas have indicated, upon the relationship between one area and another.

If there’s a residential area of a city, for example, we certainly do concede that that is doable.

Potter Stewart:

Some governmental entities are so-called bedroom communities, under the law entirely residential.

Floyd Abrams:

Yes, and that does not raise in the same acute fashion the issue–

Potter Stewart:

So the size and characteristics of San Diego are relevant?

Floyd Abrams:

–Yes, sir.

Warren E. Burger:

Would that mean that in an area that was mixed, that is, residences and stores and theaters and the usual mix, you’d have a different rule?

Floyd Abrams:

We think the rule of law that we would urge on you today would be the same.

The only thing that would be different is that to the extent that there is any balance to be struck at all, I must acknowledge to you that it is at least conceivable on a different factual record that the balance could be struck in a different way than we would urge on you today.

If you do anything less than establish a per se rule that under no circumstances may outdoor advertising be banned… and we have not gone that far in our advocacy view… implicit in that is that there could be some circumstance, and that there would be some circumstance, in which it could be proper to ban outdoor advertising.

Now, there are factors we think that you should consider.

There are things to be weighed in making that decision, but one of them, we think, is that this arises in a commercial and industrial area of a large urban community.

I wish to emphasize that based on the stipulated facts we deal here with a case where San Diego has 2.8 percent of the city which is zoned commercial and industrial.

Floyd Abrams:

All outdoor advertising as the parties have defined it, as legislation generally defines it, is in that area.

And by outdoor advertising we mean outdoor advertising as distinguished from so-called on-site advertising.

On-site advertising is basically advertising about the building, the place itself in which an event, a business, occurs.

The service is sold there, the products made there.

Outdoor advertising, as the parties have stipulated, is a different thing.

It is, as the parties have said, a medium of communication.

It is in fact a medium which is distinct and unique in a variety of ways.

William H. Rehnquist:

But it’s a medium of communication that is made a medium of communication only by the fact that the city has put in roads which lead past the billboard, is it not?

I mean, if you had an–

Floyd Abrams:

It would not exist, Mr. Justice Rehnquist, if there were no roads.

William H. Rehnquist:

–Well, you wouldn’t have a big billboard 50 miles out in the desert where no one could see it.

Floyd Abrams:

That’s correct.

One wouldn’t choose to build it there, but I would say that it is no less a medium of communication because it’s based on roads than sound trucks are, which need roads to travel on.

Media of communication are not the same, but the fact that one requires a road to be on or to travel on doesn’t seem to us to make it any less a medium of communication.

William H. Rehnquist:

But a billboard wouldn’t be constructed before the road was there.

Floyd Abrams:

That’s correct.

Potter Stewart:

A sound truck wouldn’t either.

Floyd Abrams:

A sound truck wouldn’t be there.

A leaflet distributor wouldn’t have streets to walk on, if he were distributing leaflets, unless the streets were there.

I think it fair to say that these things are, in this respect at least, essentially the same.

It is perfectly true that for billboards to exist one needs the things, the road near it to exist.

And we don’t think that makes it any less a medium of communication.

William J. Brennan, Jr.:

Mr. Abrams, does your approach suggest that the analysis is time, place, and manner, rather than content?

Rather than compelling state interest?

Floyd Abrams:

We would urge on you, as strenuously as we can, Mr. Justice Brennan, that no less than a compelling state interest test ought to be applied.

Now, we believe, for reasons… I would like to turn–

William J. Brennan, Jr.:

Whether as commercial advertising, ideological or whatever?

Floyd Abrams:

–That the medium itself can’t be destroyed unless you meet something in the order of a compelling state interest test and a statute drafted as the compelling state interest test requires, of the narrowest possible nature to serve the interest.

Potter Stewart:

Well, now, Mr. Abrams, zoning ordinances and zoning laws typically if not universally ban outdoor advertising from residential areas throughout the country.

And you’re not here taking any issue with such laws as that, are you?

Floyd Abrams:

That’s correct, Mr. Justice Stewart.

John Paul Stevens:

Is it also true that the First Amendment issue would be the same if there had been no history of outdoor advertising in San Diego but that you wanted to enter the market for the first time?

Floyd Abrams:

It would in the main be the same, Mr. Justice Stevens.

The only difference that I can conceive of is this.

To the extent that a time, place, and manner test were applied… as we would urge on you that it is not the correct test, but if that were applied… alternative channels of communication is one of the aspects of that test.

Again, it is conceivable, although I think highly unlikely and it’s really not the case in San Diego, that a community which has never ever had any kind of outdoor advertising could in theory have built up such alternatives of such a discreet and unique nature to compensate for the absence of it that maybe in some city or community they have found their way around it.

I don’t think that’s likely and it is our argument to you that the issue is basically the same, for example, in San Diego, whether no billboards had been built or whether there are a number of billboards available now.

Now, the reason that we feel freer to say that in San Diego is that we do have a stipulation of the parties which says, in as close to so many words as parties can, that there are no alternative means which do suffice.

So I am comfortable at least in the San Diego context of saying to you that whether or not there were a lot of billboards there or not, the result should be the same.

John Paul Stevens:

I’m not familiar with that part of the stipulation.

There are no alternative means that suffice to do what?

Floyd Abrams:

Well, stipulation 28 entered into by the parties–

William J. Brennan, Jr.:

Where can we find that?

Floyd Abrams:

–It’s at page 125a and 126a of the jurisdictional statement.

It says:

“Valuable 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. “

We think that goes about as far as parties could, or indeed, a court could, to establish the fact that alternative channels of communication are insufficient to serve the many people who find outdoor advertising indispensable in San Diego.

And the language of the stipulation, we think, is clear enough on its face.

John Paul Stevens:

I suppose that’s really just another way of saying there’s a market for outdoor advertising?

Some people prefer it as the most efficient way of communicating their message.

Floyd Abrams:

Well, I think the parties, Mr. Justice Stevens, really would have said “some” if they had meant “some”.

“Many”–

John Paul Stevens:

Well, “many”.

Floyd Abrams:

–The dictionary definition of “many” is “large”–

John Paul Stevens:

Over 20?

Floyd Abrams:

–Oh, no, no, not over 20.

It does seem to us that–

John Paul Stevens:

However, the number of people who use outdoor advertising probably is related to the number of signs you have up, because they’re all being sold and used.

So that’s what… you have many signs.

John Paul Stevens:

So many people are using them.

They’ve obviously found it the most efficient way to advertise.

Floyd Abrams:

–That’s true.

But what the stipulation indicates to you and what a brief, for example, submitted to you amicus curiae by users of outdoor advertising in support of the stipulation indicate to you is that this is not a little thing, that this is in fact many businesses, and they find it the best way to communicate.

And it’s not just business-oriented, and that they do it because other means are insufficient, inappropriate, and prohibitively expensive.

Thurgood Marshall:

Mr. Abrams, along with my brother Stevens I have trouble with the word “many”.

Floyd Abrams:

Well, the dictionary definition, Mr. Justice Marshall, is “large”.

I can’t do better than to tell you it’s–

Thurgood Marshall:

Well, I mean, without precedent, our opinion would have to say that the precedent is that in the case where “many businesses” et cetera et cetera, that this would be invalid.

Floyd Abrams:

–No.

If you were to apply a time, place, and manner test, what your opinion, what the precedent, as I view it, would be is that where alternate channels of communication are as a matter of fact… in this case we think it is, as a matter of fact… and where they are, as a matter of fact, insufficient–

Thurgood Marshall:

But it doesn’t say that they’re… this does not say that they are insufficient, it says many people think it is insufficient.

Isn’t that what it says?

Floyd Abrams:

–Well, it says, many people of a variety of sorts rely upon it because other means are insufficient, inappropriate, and prohibitively expensive.

Thurgood Marshall:

Well, it doesn’t say it’s true or not.

Floyd Abrams:

I’m sorry?

Thurgood Marshall:

It doesn’t say it’s a fact or not, it just says, many people think it’s a fact.

Floyd Abrams:

Well, if I can go back to the Linmark case, for example, which Your Honor wrote a few years ago, in the context of dealing with signs on lawns, the Court indicated that it was by no means clear that other means of communication would serve, even though that was a situation in which ads could be put in the newspaper and that there were other ways to communicate.

We don’t deny… how could we?

that there are other ways to communicate.

What we do urge on you is that in the context where you have a distinct, unique kind of communication, that at least the law ought to provide a First Amendment test… and we think we can meet any First Amendment test, but a First Amendment test… and not simply a property-oriented test before allowing its complete destruction.

And that–

Thurgood Marshall:

One more question and then I’m true.

Is there any testimony other than that stipulation?

Floyd Abrams:

–There was no testimony, Your Honor, because this case came up–

Thurgood Marshall:

That’s right.

So that’s the only thing we’ve got, to say that there are not other means?

Floyd Abrams:

–That is the record on this subject.

Thurgood Marshall:

That’s what I’m saying.

Floyd Abrams:

There are briefs which lend support to that record, but the record as such, on that point, is the stipulation.

Floyd Abrams:

Now–

Harry A. Blackmun:

Mr. Abrams, is the joint stipulation of facts in the joint appendix the same stipulation?

Floyd Abrams:

–Yes, sir.

Harry A. Blackmun:

I’d prefer to use it because the one in the jurisdictional statement has an amazing word “prohibitilly” in there.

Floyd Abrams:

Yes, that was a typographical error that should be corrected.

Harry A. Blackmun:

It’s corrected in the other one and I think the Joint Stipulation probably is the preferred one to use, the one in the Joint Appendix.

Floyd Abrams:

Yes… I must tell you, though, Mr. Justice Blackmun, that the typographical error was in the stipulation and we corrected it, as it were.

Harry A. Blackmun:

You were not a party to it, anyway.

Floyd Abrams:

No, sir, and I don’t think anyone’s to blame for it.

It just happened in the typing of the stipulation.

William H. Rehnquist:

Mr. Abrams, supposing that the City of San Diego, instead of barring outside advertising, had barred dirigibles from coming below a 500-foot level over the city limits, which carried signs similar to billboard signs?

Would you make the same argument?

Floyd Abrams:

I hope not, Mr. Justice Rehnquist.

I don’t believe that dirigibles carrying signs are a distinct medium of communication.

They’re certainly not a recognized medium of communication in the same sense as Congress, say, itself in various legislation referring to outdoor advertising, meaning and saying that they mean commercial billboards as outdoor advertising.

It’s not the same thing in terms of the commonplace use through centuries of outdoor advertising.

William H. Rehnquist:

Well, we all know that Goodyear or Goodrich, I forget which it is, blimp.

Floyd Abrams:

No, I think that, you know, one is entitled… I would like to put it this way, that the response that I would give to the question of, how can you tell if something is a medium of communication, because I think that’s what we’re really addressing now, is well put by Mr. Justice Black in the Martin v. Struthers case when he dealt with door-to-door solicitation.

And he looked at the history of door-to-door solicitation, he looked at the commonplace nature of door-to-door solicitation, he looked at the fact that it was available and important to diverse groups of citizens.

Those things are true, we think, on the stipulated record of this case, and on the facts of this case, with respect to outdoor advertising.

I don’t think it’s true with respect to dirigibles flying over a community.

Beyond that–

John Paul Stevens:

It could be with respect to small airplanes carrying signs in Miami, though.

Maybe that isn’t the same sort of thing.

Floyd Abrams:

–That, too… I mean, the fact that these things happen, and they do, they are really not–

John Paul Stevens:

And they’re a regular, customary method of advertising, frequently used, and some people regard them as rather an unpleasant sight.

Floyd Abrams:

–But if airplanes went about dropping leaflets, say, I don’t think one would call that a medium of communication, even though leaflets are.

There are some things which become well established enough, we think, for this Court to give it a treatment as if it is something not the same as other things.

We think outdoor advertising, by the stipulation of the parties, by the recognition by Congress, by its historical use, has achieved that status.

John Paul Stevens:

But you’ve acknowledged that a residential community which may be growing could start out with no billboard advertising.

John Paul Stevens:

And what you’re saying, I suppose, is that at a point in its growth there would come into being a constitutional right to put billboards up, if it grew gradually from a small residential community to a large city?

At some point in its historical development a constitutional right would emerge.

Floyd Abrams:

I responded earlier to Justice Stewart by saying that we do not quarrel with the constitutionality, per se, at least, of zoning regulations which ban outdoor advertising in residential areas.

That does not mean, or I don’t want to convey to you the proposition that there is never an area which is residential or of sufficient size or of a sufficient nature where outdoor advertising is not in fact a medium of communication of which the public can’t be deprived.

I could imagine, for example, a different ruling from this Court as to sound trucks going through one kind of community and another.

It cannot be that sound trucks can be banned in their entirety from the width and breadth of San Diego.

It is conceivable that in a community small enough and sleepy enough and quiet enough that the Court might strike a different balance with respect to sound trucks in that area.

And I think the same is true, I urge upon you, it would be true with respect to leaflets.

It does make a difference where First Amendment rights are claimed.

And it seems to us that it makes a difference therefore, whether it is claimed in a residential or an urban area.

William H. Rehnquist:

Do you accept the validity of both the Saia and the Kovacs decisions?

Floyd Abrams:

Yes, Mr. Justice Rehnquist.

Lewis F. Powell, Jr.:

Mr. Abrams, may I add one more easy hypothetical?

What would you think of an ordinance adopted by the city government of Washington, D.C., that dealt with billboards of this character in downtown Washington.

Would that ordinance banning… I suppose there may be one; I don’t recall seeing any such ads… would that ordinance be subject to the same infirmities that you suggest for this one?

Floyd Abrams:

It would depend, Mr. Justice Powell, it seems to me, on where it is.

Washington, for example, now does allow outdoor advertising in its commercial-manufacturing zone.

You will see some billboards out on New York Avenue, for example.

There are some billboards in certain other areas of town.

If the statute related to the area around this Courthouse, say, which is essentially federal land and which would, as I understand it, require a new federal law, in fact, to allow it, it would not be unconstitutional.

Lewis F. Powell, Jr.:

What about Pennsylvania Avenue?

Floyd Abrams:

Pennsylvania Avenue, alone?

No, I would not say that that–

Lewis F. Powell, Jr.:

That area; that area, downtown Washington.

Floyd Abrams:

–Yes.

I would not say that downtown Washington alone is of a sort where it would be per se unconstitutional to have a ban on billboards.

Because it does depend on the separate facts of the situation.

Now, I must qualify my answers at least to this degree.

To the extent that factual issues are raised in a variety of questions asked here today, obviously, you would need a new factual record as to the nature of the community, the kind of people that live and work in the community, the size of the community, a variety of factors which we think at least ought to bear upon a decision.

William J. Brennan, Jr.:

To the extent you’re admitting that there may be situations where such bans might be constitutional, at least presenting no First Amendment difficulties, is this because in those situations you think your test for compelling state interest could be satisfied?

William J. Brennan, Jr.:

I gathered from what you answered me earlier, the analysis you suggested to us has to be in terms, if there’s to be any support for the regulation of San Diego, of compelling state interest, isn’t it?

Floyd Abrams:

We believe that compelling state interest–

William J. Brennan, Jr.:

Well, now, wait a minute.

Will you agree that the ban may be constitutional, anyway?

Floyd Abrams:

–I must say, Mr. Justice Brennan, I was premising my answer on the possibility that an even lesser standard could be applied.

William J. Brennan, Jr.:

Well, I thought, as time, place, and manner ordinarily does apply a significant state interest standard rather than compelling, doesn’t it?

Floyd Abrams:

If I may, I’d like to do a time, place, and manner analysis for you.

Now, we have urged upon you in our brief that a time, place, and manner analysis is insufficiently protective in a situation in which an entire medium is being banned.

And I would like to start briefly with that because we do think it’s important even though we think we can meet a time, place, and manner analysis.

To say this: if there were a ban in let’s say a large community or a small community of all magazines or of all something else, the problem with a time, place, and manner analysis is that if the ban gets large enough, sweeping enough, not subject as we argue with respect to this statute of certain underinclusiveness, that it might be able to meet a time, place, and manner test.

If some community were to object to magazines on the basis of littering the streets and big trucks going down the streets delivering magazines, it could be said that that is a significant governmental interest.

It could be said that it is content-neutral, because they’re banning all magazines.

And it could be said, given the theory of the California Supreme Court at least, contrary to our views, that there are adequate channels of alternative communication.

Potter Stewart:

But it can hardly be said that it’s a time, place, and manner regulation, if it’s a total prohibition.

Floyd Abrams:

Well, our view is that it is not.

It cannot be a time, place, and manner regulation if it is a total prohibition, for the reasons that I stated.

A total prohibition is, at its essence, something which is not time, place, and manner restriction.

Potter Stewart:

It’s self-contradictory.

Floyd Abrams:

Now, it happens in this case that we believe, for reasons I’ve indicated earlier, that even if we had to show you the absence of alternative channels of communication, that the stipulation of the parties goes a long way, and that for reasons stated in our brief the statute is underinclusive in other ways, and so we think it can’t be shown by them, as they must show, even in the time, place, and manner test, it can’t be shown by the City of San Diego that it is in fact content neutral, because of what it leaves untouched.

William H. Rehnquist:

Mr. Abrams, in your answer to Justice Powell’s question a moment ago, you said that if it were federal land here in the District involved, it perhaps could be sustained.

And yet the First Amendment is directed against the Federal Government, and it presumably incorporated only by the Fourteenth as against the states.

Are you suggesting that the Federal Government has more right to ban than the states?

Floyd Abrams:

Absolutely not.

I was simply trying to be informational about what I understand to be the law here.

My answer was not at all premised on the fact that it is federal land.

I agree with everything your question said.

My answer was premised on my own observation absent, I must say, a factual record, but my own sense of the City of Washington.

There is an area in Washington which I know as a commercial-industrial area.

There are outdoor advertising displays in that area.

There is an area of Washington which is of a special, scenic, governmental, other-nature.

Floyd Abrams:

It has never been our contention in this case that it is a flat ban or that it is unconstitutional to keep outdoor advertising out of certain parts of cities and that that was the basis of my answer.

Warren E. Burger:

How can you justify a ban on billboards across the street from the Supreme Court, as you suggested?

Floyd Abrams:

I can justify that as a time, place, and manner limitation.

It seems to me that if we are told that there there is a part of a city in which billboards are not to be allowed but that they are to be allowed elsewhere, that is a classic time, place, and manner limitation, precisely the same as if you said, no sound trucks outside the Supreme Court, or certain other limitations so long as there are other places where it can be done.

John Paul Stevens:

Well, if Washington had been limited to the governmental buildings and the park and historic areas and residential areas and there had been no manufacturing area, could there be a total ban in the city of Washington?

Floyd Abrams:

Mr. Justice Stevens, I don’t think there could be a total ban, but I would have to concede that the balance would be a different kind of balance.

John Paul Stevens:

How about the city of Williamsburg, Virginia, historic restoration?

Could they totally ban it?

Floyd Abrams:

I would give the same answer, that a different balance would have to be struck based on the nature of the community and the activities which occur.

Potter Stewart:

But your basic answer, Mr. Abrams, I think is that it would depend upon what you produced by the evidence in such a case.

Floyd Abrams:

Yes, in each of these cases there would necessarily be a different factual record.

John Paul Stevens:

What you’re really saying, I think, is a constitutional right to have billboards if you have factories.

Floyd Abrams:

No, I’m not saying, if you have factories.

What I am saying is that–

John Paul Stevens:

Well, what other than factories, what kind of community that does not have any manufacturing district in it could not ban billboards?

It seems to me you’ve conceded that they could be banned in historic areas, conceded they could be banned in residential areas.

But if the city adds a manufacturing area, then is it the constitutional duty to allow billboards?

Floyd Abrams:

–Well, what I’m saying is that the easiest case for determination is one in which there is a manufacturing area, and that that, in and of itself, ought to at least presumptively lead you to say that you can’t have a total ban.

The hardest–

Potter Stewart:

Because esthetic considerations of the governmental entity are minimal within such an area.

Floyd Abrams:

–Yes; absolutely.

Now, the hardest case for me to argue to you, that a ban, a total ban is unconstitutional, is in the smallest, most Williamsburg-like area.

Now, again, I’m not saying that because there’s an industrial area that’s the only area in which you have to allow some billboards, and that that is not our position at all.

Like so many First Amendment cases, the facts and the factors differ.

Where things occur, what traditionally occurs in an area, whether or not there are factories, bears upon the decision in the case.

William J. Brennan, Jr.:

But, Mr. Abrams, if in the Williamsburg case, to the extent you say that the ban does not offend the First Amendment, it has to be because esthetics around Williamsburg might be said to be a compelling state interest?

Floyd Abrams:

One of the–

William J. Brennan, Jr.:

Is that the reason?

Floyd Abrams:

–The reason in part, about Williamsburg.

And it is, really, where Williamsburg is and its relationship to other communities.

William J. Brennan, Jr.:

I’m trying to get to the First Amendment analysis that you’re submitting to us.

Floyd Abrams:

Yes.

William J. Brennan, Jr.:

If you concede that that might be, at least, I think you’ve said, a constitutional, notwithstanding, a First Amendment attack, on your submission isn’t this because the state interest there is compelling, in esthetics?

Floyd Abrams:

On my submission, what I am conceding arguendo is that a sufficient showing of esthetic claim could conceivably be made and proved by the state, which has the burden of proving it.

William J. Brennan, Jr.:

Of proving what?

By what standard?

Floyd Abrams:

Of proving even by compelling state interest test.

William H. Rehnquist:

What is a compelling state interest?

Floyd Abrams:

Well, it is something more than a significant state interest.

It is of overriding importance.

Now, we think that there is some real doubt as to, and, indeed, we urge upon you that the simple assertion of esthetics should in no circumstance be deemed a compelling state interest.

It is conceivable in the Williamsburg situation–

Potter Stewart:

Let me… this test, this so-called test, I’m sure, is meaningful to many members of the Court and maybe to every member of the Court except one, but to at least one it is no test whatsoever.

Well, and if… I don’t know if my brother Stewart referred to himself or to me but if he referred to himself he can add me.

Mr. Abrams, I suppose we’d all acknowledge and recognize that radio and television advertising is a multibillion dollar business today.

Could Congress totally ban all advertising on radio and television?

Floyd Abrams:

–Notwithstanding that radio and television is a regulated industry and that Congress has a significant amount of power with respect to it, I believe it would raise very grave constitutional problems.

Warren E. Burger:

But they’ve banned some kinds of advertising?

Floyd Abrams:

They have indeed, Mr. Chief Justice, but to have a total ban would in effect preclude radio and television from covering the news, because they wouldn’t be able to do it, from doing other things which on anyone’s theory in this room would be First Amendment-protected.

And that is also one–

Warren E. Burger:

Well, in some countries they do it without advertising.

Floyd Abrams:

–In some countries they do it without advertising.

It would be my view, perhaps for another day, that given the nature of broadcast regulation as we have in this country, to switch it so as totally to deprive broadcasters of the opportunity to stay in business and hence to do all the First Amendment-protected things that then they do would at least raise very serious First Amendment problems.

Byron R. White:

Mr. Abrams, suppose the ordinance permitted signs carrying noncommercial advertising, but forbade commercial advertising in this commercial zone?

And by the way, on its face this ordinance just applies to the commercial zone, doesn’t it?

Floyd Abrams:

Yes, sir.

Byron R. White:

But other ordinances keep it out of the city entirely?

Floyd Abrams:

Yes, sir.

Byron R. White:

Now, how about my first question?

Floyd Abrams:

We think it would violate the First Amendment if the statute contained a flat ban on all of commercial speech.

Floyd Abrams:

For one thing, it would discriminate–

Byron R. White:

No, I mean, billboard advertising, commercial billboard–

Floyd Abrams:

–Yes, sir.

I’m sorry.

Byron R. White:

–The same argument as you’ve been making, with respect to that?

Floyd Abrams:

Yes, I would think that the same argument I would be making, I would perhaps emphasize a little more, that even if you were to apply the commercial speech cases of this Court, and even if you were to assume that there was nothing more to protect here than that which this Court has said must be protected in the area of commercial speech, that this statute cannot meet a test which says that it’s no more extensive than necessary.

Byron R. White:

But that isn’t the compelling interest test, is it?

Floyd Abrams:

No, I’m saying that even if you apply a much lower level test, even if you apply a pure commercial speech test, that a statute which is a flat ban on all commercial billboard speech within a commercial area–

Byron R. White:

So your facial attack on this ordinance is really an overbreadth attack?

Floyd Abrams:

–That that is one of the devices of this statute.

Byron R. White:

To the extent that you’re invoking the compelling state interest, you’re really arguing that the ordinance is invalid because it bans noncommercial billboard?

Floyd Abrams:

No, sir, I’m saying that it is, that the reason we urge upon you a compelling state interest test or a test of that order of magnitude is because of the flatness of the ban here.

Byron R. White:

Well, and because it’s… but if it only banned commercial speech, you wouldn’t invoke the compelling state interest?

Floyd Abrams:

If it only banned commercial speech I would urge upon you a test which is of less protection–

Byron R. White:

Well, I know, but the only reason then that you’re urging on us the compelling state interest test is because it is a flat ban and includes noncommercial billboarding things.

Floyd Abrams:

–But, what I’m saying–

Byron R. White:

Is that right or not?

Floyd Abrams:

–It is correct that the advocacy of the compelling state interest test arises out of the totality of the ban which includes ideological and commercial speech.

Byron R. White:

Well, why… well, in that event, why wouldn’t we have to divide the case up into whether the ordinance is valid with respect to commercial speech and valid in… and the test would be the noncommercial speech?

Floyd Abrams:

Well, let me say, first of all because we have agreement of the parties here that if commercial speech is not allowed there can be no so-called ideological speech on outdoor advertising.

We urged that in our brief; Mr. Sumption agreed to it in his brief.

He’s–

Byron R. White:

Well, I know, but you can’t stipulate us in–

Floyd Abrams:

–I’m not saying that you are bound by that, I’m saying that it is certainly relevant in your consideration of the effects of a total ban.

And what I am saying is that even if you were to give us the most minimal test afforded by this Court under the commercial speech doctrine, that there is no way that the final prong of that doctrine can be met on the basis of a flat ban.

That prong is that the regulation can be no more extensive than is necessary to serve the state interest which is asserted.

And flat bans such as this–

–Mr. Abrams, it seems to me that you’re–

Floyd Abrams:

–given the assertion by them of the state interest that they assert and the total failure on this record of San Diego to meet any burden whatsoever, other than saying we haven’t met a burden, would in and of itself resolve this case in our favor.

John Paul Stevens:

–Mr. Abrams, it seems to me that your response to Justice White of a hypothetical of a partial ban would be even more objectionable than the total ban because (a) it wouldn’t take down the billboards and (b) it would be content-related.

Floyd Abrams:

Well, it would be content-related and it would have the vice of all content-related statutes.

We have urged indeed that the very statute before you is, because of various factors relating to it, content related.

But I should have added that in response to Justice White.

Lewis F. Powell, Jr.:

Mr. Abrams, perhaps we haven’t given you very much time to argue your own case but I might relieve you of any apprehension about Colonial Williamsburg.

There is an ordinance in that town which says that nothing may be located within a historic area that wasn’t there in the 18th Century.

Were there any billboards in the 18th Century?

Floyd Abrams:

Mr. Justice Powell, having been to Williamsburg, I can assert to the Court that on the outskirts of Williamsburg one sees more than a share of billboards.

Lewis F. Powell, Jr.:

But not in the historic–

Floyd Abrams:

Not in the historic section, and that again we believe–

Thurgood Marshall:

–You’re talking to the man who drew the ordinance.

Take care.

Floyd Abrams:

–Maybe I should stop.

But Williamsburg really is a good example, if I can sum up on that, that it’s perfectly proper to say in the historic section of Williamsburg, you’re not going to have billboards.

And one of the reasons that it’s proper is that in fact you do have exposure to outdoor advertising outside that central district.

And that’s all that we’ve come here to talk about today, that that is precisely what San Diego does not allow to any degree, not even in its business and commercial area.

John Paul Stevens:

Mr. Abrams, your point about the outside area reminds me that I meant to ask you, does your argument also apply to a total ban on billboards within a certain distance of interstate highways?

I suppose it does, doesn’t it?

That’s also unconstitutional?

Floyd Abrams:

No, I wouldn’t say that it applies to that.

Except in the circumstance where the totality of the effect of that in an area large enough to be of constitutional–

John Paul Stevens:

The whole State of California there, you’re talking about, or the western part of the United States.

No billboards with 100 yards of the highway, or whatever it is.

Floyd Abrams:

–That too we think is again a classic time, place and manner test.

That’s not unconstitutional.

The California statute, which–

John Paul Stevens:

Which could be a fortiori unconstitutional.

Floyd Abrams:

–Because there are limits on the distance from the highway?

Not at all, Mr. Justice Stevens.

John Paul Stevens:

They’ve got to be very, very large or you can’t even see them.

Floyd Abrams:

We would urge on you, as an example of how a statute can be drafted to meet constitutional demands, the California statute which is referred to at page 2 of our reply brief.

Floyd Abrams:

California has passed a statute, over 40 other states have passed statutes, which do have limitations on where billboards can be, which do have limitations on the relationship between a billboard and an intersection, for example.

That’s not unconstitutional.

What’s unconstitutional is a flat ban of the sort, of the nature, of the totality that San Diego has done.

Warren E. Burger:

I think we have that point clear, Mr. Abrams.

Floyd Abrams:

Thank you, Mr. Chief Justice.

Warren E. Burger:

Mr. Sumption.

C. Alan Sumption:

Mr. Chief Justice and may it please the Court:

I’d like to get straight at the outset a few factual statements that I think need some elucidation.

First of all, the City of San Diego’s ordinance does not prohibit all off-premise signs.

I believe that was Mr. Abrams’ statement.

What it does is prohibit certain types of off-site advertising that is commonly referred to as billboards.

The California Supreme Court specifically narrowed, gave a narrowing construction to the ordinance, applying it against the commercial type billboard, and indicated that it would not apply to small yard signs or things of this nature, of picket signs evidencing a labor dispute, things of this nature.

The stipulation No. 28 that Mr. Abrams refers to does not say that there are no alternative means of communication or advertising.

First of all, the language of the stipulation is ambiguous.

Secondly, subsequent to entering into that stipulation the ordinance was amended to add I believe it was either the 12th or 13th exception to the signs prohibited by excepting out temporary political campaign signs, a rather large area of signs.

Harry A. Blackmun:

Do you think that amendment strengthens or hurts your case?

C. Alan Sumption:

It strengthens the case, Your Honor, because without it it would mean, it would ban political campaign signs.

And part of the reason that the stipulation was entered into was that, I think it’s a commonly known fact that certain politicians do make use of off-site advertising to advertise their campaigns.

And the last point on the stipulation is that the California Supreme Court indicated that to the extent that a person may feel that he cannot convey his message without the use of an off-site billboard-type sign, that that person could come in and challenge the ordinance as applied to him.

But the court said that that was not sufficient to strike down the ordinance on its face.

Another statement was made, that the City of San Diego has agreed somehow that if you can’t have commercial speech you can’t have noncommercial or political and social speech.

That’s an incorrect statement of the City position.

What we did is, by way of argument in our brief, that that is in fact the position of the billboard companies.

We just turned their own argument around against them in the context of saying that this demonstrates even further that what we’re talking about is a commercial means of exploiting speech; that the income behind it is what enables the limited numbers of noncommercial speech to even exist.

We do not concede that.

Thurgood Marshall:

Is that sufficient?

C. Alan Sumption:

Yes, Your Honor?

Thurgood Marshall:

Is the fact that it’s commercial sufficient for you to win?

C. Alan Sumption:

Is the fact that it’s commercial sufficient?

I think that’s an important aspect, and to the extent–

Thurgood Marshall:

Is it sufficient, was my question.

C. Alan Sumption:

–I think that in view of some of the past decisions of this Court the fact that it’s commercial is sufficient.

Harry A. Blackmun:

Mr. Sumption, let me get back to your amendments.

What justification is there for exempting a temporary political campaign sign, but prohibiting other political signs such as are demonstrated in the jurisdictional statement?

C. Alan Sumption:

Well, there are several reasons, I think, behind that.

First of all, campaigns come and go.

They are temporary in nature.

The typical campaign type poster is not anywhere near as extensive as the permanent billboard-type structure that’s there long after the message goes.

The courts have said–

Harry A. Blackmun:

I take it that this one on

“Welcome to San Diego, Home of the 1,100 Underpaid Cops. “

is somewhat temporary?

C. Alan Sumption:

–The copy itself may be somewhat temporary, but the sign is there long after the message is gone.

Harry A. Blackmun:

Wasn’t there a campaign on for an increase in the salary of city employees?

C. Alan Sumption:

I believe that’s correct.

That’s my understanding.

William H. Rehnquist:

But if they succeed in getting their raise, presumably the owner of the billboard will just find another customer to put another message on?

C. Alan Sumption:

That’s also my understanding of the way they operate their business.

Also, as I started to say, the courts have given political speech, campaign-type speech, placed it on the highest level.

And that’s another reason why campaign-type advertising was excepted out from the prohibitions of this ordinance.

John Paul Stevens:

Mr. Sumption, I’m not entirely clear on the amendment to the ordinance after the stipulation, does that allow the permanent billboards to be used for these political ads?

Or is it something less?

C. Alan Sumption:

Well, the actual language of the exception simply says they’re not prohibited by the ordinance, so it’s permanent.

John Paul Stevens:

I mean, can they use the permanent billboard structures on these temporary political?

C. Alan Sumption:

The ordinance is silent on the intent.

John Paul Stevens:

But what are you telling us here?

You seem to think it’s significant, and is it significant in the sense that it allows these billboards to be used, or that they can just use posters, which I guess they could have, anyway?

C. Alan Sumption:

I think that the logical intent would be that political campaign signs should be something less than on permanent structures, of the structures remaining, because of the esthetic justifications and rationale of the ordinance.

John Paul Stevens:

So this amendment will not change the need to tear down all the permanent structures?

C. Alan Sumption:

That would be correct.

C. Alan Sumption:

I think a correct statement, Your Honor.

Lewis F. Powell, Jr.:

Where do we find the amendment, in the papers we have?

C. Alan Sumption:

It’s in the version of the ordinance that is–

Lewis F. Powell, Jr.:

On page 106a?

C. Alan Sumption:

–It begins at page 104a in the Appendix to the jurisdictional statement, Your Honor.

And the actual exception itself would be on page 112a, No. 12.

It’s the last exception under a list of twelve exceptions.

Lewis F. Powell, Jr.:

And when was that added?

C. Alan Sumption:

That was added, Your Honor, while the case was pending before the California Supreme Court, before they heard oral argument the first time on the case.

Lewis F. Powell, Jr.:

So that is before us?

C. Alan Sumption:

Yes, it certainly is, Your Honor.

The California Supreme Court had construed it as written.

Lewis F. Powell, Jr.:

112a, I think you said?

C. Alan Sumption:

That’s correct, Your Honor.

And as I indicated, the California Supreme Court further narrowed the application of the ordinance to make sure it didn’t apply to such things as yard signs and other non-commercial-type signs.

Potter Stewart:

The history of this case was that it was… I know, in the California Supreme Court, there was but one dissenter.

As it came up through the court system what was the case’s history?

C. Alan Sumption:

As it came up, all the way up, or from the California Supreme Court level?

Potter Stewart:

No, as it came up through the California court system?

C. Alan Sumption:

As it came up, the trial court issued summary judgment on cross-motions for summary judgment.

Each side brought motion for summary judgment; denied the cities, granted the Metromedias, the billboard companies.

It was appealed to the District Court of Appeal, the intermediate appellate court.

They upheld the trial court’s granting summary judgment.

It was appealed to the–

Potter Stewart:

That court’s judgment was reversed by the Supreme Court of California–

C. Alan Sumption:

–That court’s judgment was reversed by the California–

Potter Stewart:

–In which Justice Clark dissented.

C. Alan Sumption:

–Yes, Your Honor, and the California Supreme Court did grant a rehearing on the case, and it was argued a second time before the California Supreme Court.

At that time the California Supreme Court seemed mostly interested in an amendment to the Federal Highway Beautification Act as it related to a compensation question, and that’s an issue that has been raised by the City of San Diego because it was decided against us by the California Supreme Court on a petition for writ of cert that’s now pending before the Court, but not before it here today.

Another statement that has been made here today by counsel for Metromedia is that somehow the nature of a community and whether or not signs are in commercial versus noncommercial zones areas has a bearing, if not a crucial bearing, on whether or not billboards can be kept out of the city.

C. Alan Sumption:

It seems to me that in essence the logical conclusion that’s reached from that statement is that somehow the First Amendment is triggered by local zoning.

And of course zoning, the considerations behind local zoning, really, are done for reasons completely independent from First Amendment and perhaps other constitutional considerations.

For example, there are some cities, the largest one that comes to mind is Houston, that doesn’t even have zoning.

But, what do you do in a city that doesn’t have any zoning?

And along those lines I think in essence what one is–

Potter Stewart:

Does Houston have outdoor advertising in some areas?

C. Alan Sumption:

–I’m not certain, Your Honor, if they do.

My guess would be they do, but I don’t know.

Potter Stewart:

Last time I was there they did.

Maybe they’re gone now.

C. Alan Sumption:

The other thing about allowing billboards in commercial zones but not in others is, it seems to me that the esthetic justification of the ordinance should apply equally in commercial areas because municipalities including San Diego are recognizing perhaps their past mistakes in allowing commercial areas to be eyesores and trying to improve those areas.

And I don’t think we should be doomed to failure by saying, well, they’re not that attractive now, we’re bound to leave them that way.

William J. Brennan, Jr.:

Is San Diego’s only justification here the esthetic one?

C. Alan Sumption:

It’s esthetics and traffic safety and along the esthetic lines it is also to the extent that esthetics have an economic or a monetary value by encouraging tourists to come.

San Diego is highly dependent upon its tourist trade, it being a coastal city with beaches and bays, and upholding land values and preserving open space and public investment in highways and landscaping highways, but it’s–

William J. Brennan, Jr.:

But that’s in the content of esthetics?

C. Alan Sumption:

–It’s all tied into esthetics.

Warren E. Burger:

Before this argument, Mr. Sumption, was there any limitation on kinetic signs, the kind that have something moving to attract the eye?

C. Alan Sumption:

San Diego has attempted to broach the subject of regulating signs by dividing them into off-premise or off-site and on-site.

We have a separate ordinance that deals with on-site signs, and it does not allow any moving, flashing, et cetera type signs.

Byron R. White:

So, what about signs… there’s an exception here, among one of these, about signs for news?

C. Alan Sumption:

Yes, and that is specifically, defined, those public message, or public service–

Byron R. White:

You mean it isn’t a moving–

C. Alan Sumption:

–No.

Byron R. White:

–It isn’t a moving sign that has spot news on it?

C. Alan Sumption:

No.

They are controlled by the on-site sign ordinance which specifically says they shall not move from side to side, laterally; or–

Byron R. White:

Well, what kind of news goes on those signs?

C. Alan Sumption:

–What they’re talking about is if it comes on and shows a time or temperature or a word message, but it cannot appear to move, and it cannot have flashing lights.

Byron R. White:

Oh.

Byron R. White:

But it can change every five minutes?

C. Alan Sumption:

It can change, and I think there is some time period so that it isn’t just constantly coming on and coming off.

I couldn’t answer the specifics.

William J. Brennan, Jr.:

Now, is San Diego submitting that its esthetic justification is a compelling state interest or something less?

C. Alan Sumption:

Well, Your Honor, again I think we get into semantics.

I would answer your question by saying, yes, we do feel it’s a compelling state interest.

And, secondly, this Court in its O’Brien decision cited in our brief has indicated that really there’s a series of four or five words that have been used almost interchangeably: strong, prevailing, substantial, compelling.

And they all basically boil down to the same thing.

William J. Brennan, Jr.:

Significant?

C. Alan Sumption:

Significant.

I don’t think the Court has attempted to distinguish by giving a special definition.

Basically, the idea is that it’s a strong interest that supports the legislation.

Warren E. Burger:

One writer has suggested that the compelling state interest as a test is a test that a state can’t pass.

C. Alan Sumption:

I’m sorry.

I don’t follow that a state can’t pass.

Warren E. Burger:

I was just picking up what Justice Stewart and Justice Rehnquist had mentioned about this semantical problem that you mentioned.

C. Alan Sumption:

Yes, and I think–

Warren E. Burger:

The test is one that simply can’t be met.

C. Alan Sumption:

–Yes, I think it’s very difficult.

William J. Brennan, Jr.:

Since the ban is a total one, I gather you’re not defending this as a time, place, and manner justification?

C. Alan Sumption:

I am defending it as time, place, and manner, and that’s where we get into–

William J. Brennan, Jr.:

Oh, I see.

Even though it’s a total ban?

C. Alan Sumption:

–And that’s where we get into the other semantical–

Thurgood Marshall:

But it says, no time, no place, in no manner, doesn’t it?

C. Alan Sumption:

–First of all, Mr. Justice Marshall, what we’re talking about is signs, more specifically off-site signs.

And more specifically yet, a specific type of off-site sign known as a billboard.

Now, off-site signs are allowed by this ordinance.

They are not totally prohibited.

The particular type of sign, the manner of use of a particular type of sign, a billboard, is prohibited.

C. Alan Sumption:

It depends now on how you look at it.

We contend we’re regulating off-site signs.

We allow some and we do not allow others.

And secondly, I don’t think the compelling state interest test or whatever has any bearing on whether or not it’s… or rather, that the time, place, and manner test has anything to do with whether or not there’s a total prohibition.

William H. Rehnquist:

Well, large parts of the entire state of Vermont are regulated in such a manner that there may be no billboards whatever except a sign white on black, two feet high and three feet wide, and on site.

And I suppose one could say there’s a total ban of all billboard advertising except that kind of sign?

C. Alan Sumption:

That’s the kind of semantical problem, I think, that we get into when we start putting these in categories like “total prohibition”, “total ban”.

But time, place, and manner, as I understand the Court’s decisions, is really a means of distinguishing from a regulation that’s attempting to get at the content of speech, when we’re talking about First Amendment rights.

And it’s clear that we’re not dealing with the primary effects of a particular message that’s being advertised on a billboard.

As stated in the Linmark case, we’re talking about the adverse secondary effects from the manner in which the messages are portrayed or put before the public.

And therefore it is a time, place, and manner regulation.

Furthermore, because of the blight that they have aesthetically, you know, we talk about more narrowly drawn measures, which Mr. Abrams has mentioned, saying that this is not narrowly drawn because this is a total ban; we get into subjective decisions on, for example, well, let’s talk about the height, or the square footage of the sign.

If we were to put a regulation in either of those two respects or the distance between billboards, the next thing you have is, well, if we have 1,000 feet between billboards, why not 900 feet?

It could have been more narrowly drawn, and you go on and on and on.

I think that these things–

Potter Stewart:

And the claim could be made that it’s a total ban of any billboard in that 1,000-foot stretch?

C. Alan Sumption:

–That’s correct.

These things are debatable, and better left to the legislative discretion, especially when you’re in the area of esthetics.

Where we’ve been damned because the ordinance is overinclusive, we’ve been damned because it’s underinclusive, and these are the types of legislative judgments that necessarily have to be made when one attempts to deal with a problem of this sort.

John Paul Stevens:

Yes, but I suppose, as Mr. Abrams pointed out, that magazines and newspapers sometimes create environmental problems, an awful lot of garbage is created, and litter, and trucks driving at night, waking people up, throwing to the newsboys, and all the rest.

I suppose you’d make the same kind of argument for a total ban of other forms of communication media too, based on environmental or esthetic considerations?

C. Alan Sumption:

Well, but the distinction between that category of case is that the problem can really be dealt with.

The problem is, in one instance, litter.

And you can easily pass an ordinance that makes it against the law to litter.

It’s not the handing of the message, the leaflet, to somebody that should be banned, because people may want that message and somebody else may want to convey it.

But it’s you know, the dropping of it on the ground and leaving it there that’s the problem.

I don’t think we have that type of situation with the billboard.

How can we better, more narrowly, get at the problem?

John Paul Stevens:

Well, I suppose you could regulate the size of structures, size and shape of structures, as you do with buildings, and say, “no structure”, you know.

And if it’s on the wall of a factory, for example, you’d say it doesn’t affect the structures, just let them put a sign up.

John Paul Stevens:

It is at least theoretically possible, it seems to me, to conceive of–

C. Alan Sumption:

I think you’re right and I think different people could differ on that type of thing.

You know, what steps could be taken that would make the appearance better.

But again, I think we’re in an area that we’re… you know, a city can be second-guessed.

In instances where cities have regulated billboards the same First Amendment arguments are raised, simply because if it hurts the standardized manner in which they do business, the billboard companies, the way they do business, then suddenly the First Amendment crops up.

I think to a large degree their argument is predicated upon economics.

The reason why they say–

Thurgood Marshall:

–Could Los Angeles ban all billboards?

C. Alan Sumption:

–Does Los Angeles ban billboards?

Thurgood Marshall:

Could they, under your argument?

C. Alan Sumption:

Could they?

I think they could.

Certainly.

Thurgood Marshall:

Any city could?

C. Alan Sumption:

Yes.

I don’t think it depends on the particular facts of a particular city.

I think the things are a blight on any community and I think the communities… and to the extent that traffic safety is involved, the same considerations.

They’re put there on a highway intended with all the art and skill of the manufacturers to make people driving in automobiles look at them.

To the extent that that causes a momentary distraction, there’s a potential for some sort of action.

Thurgood Marshall:

Well, why don’t you ban women walking down the street?

C. Alan Sumption:

Well, there are certain things that obviously, you know, we just can’t get rid of women.

We’re stuck, fortunately or unfortunately, with women walking down the street.

It would seem to me, as I indicated, to a large extent the arguments set forth by the billboard companies are predicated, though, upon where they want to be, where it’s advantageous to them to be to make money.

And to the extent that we keep them out of areas that they feel they need to be in for the economics of the system to present a showing, as set forth in the stipulated facts, that national advertisers buy a program of local exposure throughout a community.

Their argument that, what if a community has one small commercial area?

And they say they have a right to be in the commercial area.

They probably wouldn’t want to be there, because one sign in one small commercial area isn’t going to be monetarily feasible to them.

So I think, to a large degree those arguments are not predicated upon the effect of the First Amendment, but upon–

Potter Stewart:

Well, the arguments are that the First Amendment protects their freedom to do exactly as they wish in this regard in the commercial and industrial areas, at least, of San Diego.

It’s not simply that they want to do it, but it’s that the First Amendment protects their freedom to do it.

C. Alan Sumption:

–To that extent, I think they’re incorrect.

I don’t–

Potter Stewart:

I know you do.

C. Alan Sumption:

–The First Amendment does compel that.

Potter Stewart:

At least it’s that argument.

C. Alan Sumption:

Yes.

This Court has never held that there’s a constitutional right to a particular mode of expression or the most cost-efficient means of getting a message across, and to the extent that these signs are intrusive and in effect invade the very privacy of people that are unwilling to receive the messages, there’s no ability to refuse the message, as there is in virtually every other means of communication.

And when billboard companies say this is a unique means of communication, I would have to agree with them in the sense that it is unique, because it’s making use of public highways and forcing the message upon the public, taxpayers that pay for beautification of the highways and yet, you know, may not choose to have the messages forced on them.

John Paul Stevens:

Mr. Sumption, does San Diego allow advertising in… do you have buses or street cars?

I suppose buses?

C. Alan Sumption:

We have buses and we are soon to have a street car system in San Diego.

John Paul Stevens:

Is there going to be advertising in?

C. Alan Sumption:

There is advertising, and that’s on buses, and the signs… specifically exempts that category of off-site advertising as well as on taxicabs and other vehicles.

John Paul Stevens:

What about in your ballpark or your football stadium?

C. Alan Sumption:

There has been… that’s been a matter of controversy.

I believe that at the present time there are some advertisement panels that face in to the stadium but are not visible from the public rights-of-way outside the stadium, and I believe that those messages change to some degree, but I think for the most part they stay there either for quite a while or semi-permanently.

Potter Stewart:

Of course, in that area there would be no traffic safety arguments, I would assume?

C. Alan Sumption:

That’s correct.

If the Court has no other questions, I would just conclude by saying that I think that justifications have been set forth and that this case is not easily squeezed into mechanical principles of other First Amendment cases.

This is not a content-based ordinance, and the principles that are cited by counsel for billboard companies have been applied in a very different context, and I don’t think that they’re applicable or binding in this fact situation.

And I would close on that note.

Potter Stewart:

Before you sit down, Mr. Sumption, I for one would like to congratulate you for getting through an entire argument without using the word analysis.

Warren E. Burger:

And we would add to that your yielding some of the Court’s time back to us.

C. Alan Sumption:

Thank you, Your Honor.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.