METROMEDIA, INC., ET AL. v. CITY OF SAN DIEGO, ET AL.
APPEAL FROM THE SUPREME COURT OF CALIFORNIA.
Argued February 25, 1981.
Decided July 2, 1981.
Appellee city of San Diego enacted an ordinance which imposes substantial prohibitions on the erection of outdoor advertising displays' within the city. The stated purpose of the ordinance is "to eliminate hazards to pedestrians and motorists brought about by distracting sign displays" and "to preserve and improve the appearance of the City." The ordinance permits onsite commercial advertising (a sign advertising goods or services available on the property where the sign is located), but forbids other commercial advertising and noncommercial advertising using fixed-structure signs, unless permitted by 1 of the ordinance's 12 specified exceptions, such as temporary political campaign signs. Appellants, companies that were engaged in the outdoor advertising business in the city when the ordinance was passed, brought suit in state court to enjoin enforcement of the ordinance. The trial court held that the ordinance was an unconstitutional exercise of the city's police power and an abridgment of appellants' First Amendment rights. The California Court of Appeal affirmed on the first ground alone, but the California Supreme Court reversed, holding, inter alia, that the ordinance was not facially invalid under the First Amendment.
The judgment is reversed and the case is remanded. Pp. 498-521; 527-540.
26 Cal. 3d 848, 610 P.2d 407, reversed and remanded.
Floyd Abrams argued the cause for appellants. With him on the briefs were Theodore B. Olson, Dean Ringel, and Wayne W. Smith.
C. Alan Sumption argued the cause for appellees. With him on the brief was John W. Witt. *
[ Footnote * ] Briefs of amici curiae urging reversal were filed by Nadine Strossen and Bruce J. Ennis, Jr., for the American Civil Liberties Union; by Arthur B. Hanson, Frank M. Northam, and Mitchell W. Dale for the American Newspaper Publishers Association; by Eric M. Rubin for the Outdoor Advertising Association of America; by Ronald A. Zumbrun, Thomas E. Hookano, and Raymond M. Momboisse for the Pacific Legal Foundation; and by Kip Pope for Robert P. Pope et al.
Briefs of amici curiae urging affirmance were filed for the United States by Solicitor General McCree, Assistant Attorney General Moorman, Deputy Solicitor General Claiborne, Edwin S. Kneedler, F. Kaid Benfield, and Edward J. Shawaker; for the State of Hawaii et al. by Wayne Minami, Attorney General of Hawaii, and Laurence Lau, Deputy Attorney General, Richard S. Cohen, Attorney General of Maine, and Cabanne Howard, Assistant Attorney General, and M. Jerome Diamond, Attorney General of Vermont, and Benson D. Scotch, Assistant Attorney General; for the City of Alameda et al. by Carter J. Stroud, David E. Schricker, and John Powers; for the City and County of San Francisco by George Agnost, Burk E. Delventhal, Diane L. Hermann, and Alice Suet Yee Barkley; and for the National Institute of Municipal Law Officers by Aaron A. Wilson, J. LaMar Shelley, Benjamin L. Brown, John Dekker, James B. Brennan, Henry W. Underhill, Jr., William R. Quinlan, George F. Knox, Jr., Max P. Zall, Allen G. Schwartz, Lee E. Holt, Burt Pines, Walter M. Powell, Roger F. Cutler, Conrad B. Mattox, Jr., Charles S. Rhyne, and William S. Rhyne. [453 U.S. 490, 493]
JUSTICE WHITE announced the judgment of the Court and delivered an opinion, in which JUSTICE STEWART, JUSTICE MARSHALL, and JUSTICE POWELL joined.
This case involves the validity of an ordinance of the city of San Diego, Cal., imposing substantial prohibitions on the erection of outdoor advertising displays within the city.
Stating that its purpose was "to eliminate hazards to pedestrians and motorists brought about by distracting sign displays" and "to preserve and improve the appearance of the City," San Diego enacted an ordinance to prohibit "outdoor advertising display signs." 1 The California Supreme Court subsequently defined the term "advertising display sign" as "a rigidly assembled sign, display, or device permanently affixed to the ground or permanently attached to a building or other inherently permanent structure constituting, or used for the display of, a commercial or other advertisement to the public." 26 Cal. 3d 848, 856, n. 2, 610 P.2d 407, [453 U.S. 490, 494] 410, n. 2 (1980). "Advertising displays signs" include any sign that "directs attention to a product, service or activity, event, person, institution or business." 2
The ordinance provides two kinds of exceptions to the general prohibition: onsite signs and signs falling within 12 specified categories. Onsite signs are defined as those
Appellants are companies that were engaged in the outdoor advertising business in San Diego at the time the ordinance was passed. Each owns a substantial number of outdoor advertising displays (approximately 500 to 800) within the city. These signs are all located in areas zoned for commercial and industrial purposes, most of them on property leased by the owners to appellants for the purpose of maintaining billboards. Each sign has a remaining useful income-producing life of over 25 years, and each sign has a fair market value of between $2,500 and $25,000. Space on the signs was made available to "all comers" and the copy on each sign changed regularly, usually monthly. 4 The nature of the outdoor advertising business was described by the parties as follows:
Appellants brought suit in state court to enjoin enforcement of the ordinance. After extensive discovery, the parties filed a stipulation of facts, including:
Early cases in this Court sustaining regulation of and prohibitions aimed at billboards did not involve First Amendment considerations. See Packer Corp. v. Utah, 285 U.S. 105 (1932); St. Louis Poster Advertising Co. v. St. Louis, 249 U.S. 269 (1919); Thomas Cusack Co. v. City of Chicago, 242 U.S. 526 (1917). 7 Since those decisions, we have not given plenary consideration to cases involving First Amendment challenges to statutes or ordinances limiting the use of billboards, preferring on several occasions summarily to affirm decisions sustaining state or local legislation directed at billboards.
Suffolk Outdoor Advertising Co. v. Hulse, 439 U.S. 808 (1978), involved a municipal ordinance that distinguished between offsite and onsite billboard advertising prohibiting the former and permitting the latter. We summarily dismissed as not presenting a substantial federal question an appeal from a judgment sustaining the ordinance, thereby rejecting the submission, repeated in this case, that prohibiting [453 U.S. 490, 499] offsite commercial advertising violates the First Amendment. The definition of "billboard," however, was considerably narrower in Suffolk than it is here: "A sign which directs attention to a business, commodity, service, entertainment, or attraction sold, offered or existing elsewhere than upon the same lot where such sign is displayed." This definition did not sweep within its scope the broad range of noncommercial speech admittedly prohibited by the San Diego ordinance. Furthermore, the Southampton, N. Y., ordinance, unlike that in San Diego, contained a provision permitting the establishment of public information centers in which approved directional signs for businesses could be located. This Court has repeatedly stated that although summary dispositions are decisions on the merits, the decisions extend only to "the precise issues presented and necessarily decided by those actions." Mandel v. Bradley, 432 U.S. 173, 176 (1977); see also Hicks v. Miranda, 422 U.S. 332, 345 , n. 14 (1975); Edelman v. Jordan, 415 U.S. 651, 671 (1974). Insofar as the San Diego ordinance is challenged on the ground that it prohibits noncommercial speech, the Suffolk case does not directly support the decision below.
The Court has summarily disposed of appeals from state-court decisions upholding state restrictions on billboards on several other occasions. Markham Advertising Co. v. Washington, 393 U.S. 316 (1969), and Newman Signs, Inc. v. Hjelle, 440 U.S. 901 (1979), both involved the facial validity of state billboard prohibitions that extended only to certain designated roadways or to areas zoned for certain uses. The statutes in both instances distinguished between onsite commercial billboards and offsite billboards within the protected areas. Our most recent summary action was Lotze v. Washington, 444 U.S. 921 (1979), which involved an "as applied" challenge to a Washington prohibition on offsite signs. In that case, appellants erected, on their own property, billboards expressing their political and social views. Although billboards conveying information relating to the commercial [453 U.S. 490, 500] use of the property would have been permitted, appellants' billboards were prohibited, and the state courts ordered their removal. We dismissed as not raising a substantial federal question an appeal from a judgment rejecting the First Amendment challenge to the statute.
Insofar as our holdings were pertinent, the California Supreme Court was quite right in relying on our summary decisions as authority for sustaining the San Diego ordinance against First Amendment attack. Hicks v. Miranda, supra. As we have pointed out, however, summary actions do not have the same authority in this Court as do decisions rendered after plenary consideration, Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173 . 180-181 (1979); Edelman v. Jordan, supra, at 671; see also Fusari v. Steinberg, 419 U.S. 379, 392 (1975) (BURGER, C. J., concurring). They do not present the same justification for declining to reconsider a prior decision as do decisions rendered after argument and with full opinion. "It is not at all unusual for the Court to find it appropriate to give full consideration to a question that has been the subject of previous summary action." Washington v. Yakima Indian Nation, 439 U.S. 463, 477 , n. 20 (1979); see also Tully v. Griffin, Inc., 429 U.S. 68, 74 -75 (1976); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 14 (1976). Probable jurisdiction having been noted to consider the constitutionality of the San Diego ordinance, we proceed to do so.
This Court has often faced the problem of applying the broad principles of the First Amendment to unique forums of expression. See, e. g., Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530 (1980) (billing envelope inserts); Carey v. Brown, 447 U.S. 455 (1980) (picketing in residential areas); Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980) (door-to-door and on-street [453 U.S. 490, 501] solicitation); Greer v. Spock, 424 U.S. 828 (1976) (Army bases); Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) (outdoor movie theaters); Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (advertising space within city-owned transit system). Even a cursory reading of these opinions reveals that at times First Amendment values must yield to other societal interests. These cases support the cogency of Justice Jackson's remark in Kovacs v. Cooper, 336 U.S. 77, 97 (1949): Each method of communicating ideas is "a law unto itself" and that law must reflect the "differing natures, values, abuses and dangers" of each method. 8 We deal here with the law of billboards.
Billboards are a well-established medium of communication, used to convey a broad range of different kinds of messages. 9 As Justice Clark noted in his dissent below:
Billboards, then, like other media of communication, combine communicative and noncommunicative aspects. As with other media, the government has legitimate interests in controlling the noncommunicative aspects of the medium, Kovacs v. Cooper, supra, but the First and Fourteenth Amendments foreclose a similar interest in controlling the communicative aspects. Because regulation of the noncommunicative aspects of a medium often impinges to some degree on the communicative aspects, it has been necessary for the courts to reconcile the government's regulatory interests with the individual's right to expression. "`[A] court may not escape the task of assessing the First Amendment interest at stake and weighing it against the public interest allegedly served by the regulation.'" Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 91 (1977), quoting Bigelow v. [453 U.S. 490, 503] Virginia, 421 U.S. 809, 826 (1975). Performance of this task requires a particularized inquiry into the nature of the conflicting interests at stake here, beginning with a precise appraisal of the character of the ordinance as it affects communication.
As construed by the California Supreme Court, the ordinance restricts the use of certain kinds of outdoor signs. That restriction is defined in two ways: first, by reference to the structural characteristics of the sign; second, by reference to the content, or message, of the sign. Thus, the regulation only applies to a "permanent structure constituting, or used for the display of, a commercial or other advertisement to the public." 26 Cal. 3d, at 856, n. 2, 610 P.2d, at 410, n. 2. Within that class, the only permitted signs are those (1) identifying the premises on which the sign is located, or its owner or occupant, or advertising the goods produced or services rendered on such property and (2) those within one of the specified exemptions to the general prohibition, such as temporary political campaign signs. To determine if any billboard is prohibited by the ordinance, one must determine how it is constructed, where it is located, and what message it carries.
Thus, under the ordinance (1) a sign advertising goods or services available on the property where the sign is located is allowed; (2) a sign on a building or other property advertising goods or services produced or offered elsewhere is barred; (3) noncommercial advertising, unless within one of the specific exceptions, is everywhere prohibited. The occupant of property may advertise his own goods or services; he may not advertise the goods or services of others, nor may he display most noncommercial messages.
Appellants' principal submission is that enforcement of the ordinance will eliminate the outdoor advertising business in San Diego and that the First and Fourteenth Amendments [453 U.S. 490, 504] prohibit the elimination of this medium of communication. Appellants contend that the city may bar neither all offsite commercial signs nor all noncommercial advertisements and that even if it may bar the former, it may not bar the latter. Appellants may raise both arguments in their own right because, although the bulk of their business consists of offsite signs carrying commercial advertisements, their billboards also convey a substantial amount of noncommercial advertising. 11 Because our cases have consistently distinguished between the constitutional protection afforded commercial as [453 U.S. 490, 505] opposed to noncommercial speech, in evaluating appellants' contention we consider separately the effect of the ordinance on commercial and noncommercial speech.
The extension of First Amendment protections to purely commercial speech is a relatively recent development in First Amendment jurisprudence. Prior to 1975, purely commercial advertisements of services or goods for sale were considered to be outside the protection of the First Amendment. Valentine v. Chrestensen, 316 U.S. 52 (1942). That construction of the First Amendment was severely cut back in Bigelow v. Virginia, supra. In Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), we plainly held that speech proposing no more than a commercial transaction enjoys a substantial degree of First Amendment protection: A State may not completely suppress the dissemination of truthful information about an entirely lawful activity merely because it is fearful of that information's effect upon its disseminators and its recipients. That decision, however, did not equate commercial and noncommercial speech for First Amendment purposes; indeed, it expressly indicated the contrary. See id., at 770-773, and n. 24. See also id., at 779-781 (STEWART, J., concurring). 12 [453 U.S. 490, 506]
Although the protection extended to commercial speech has continued to develop, commercial and noncommercial communications, in the context of the First Amendment, have been treated differently. Bates v. State Bar of Arizona, 433 U.S. 350 (1977), held that advertising by attorneys may not be subjected to blanket suppression and that the specific advertisement at issue there was constitutionally protected. However, we continued to observe the distinction between commercial and noncommercial speech, indicating that the former could be forbidden and regulated in situations where the latter could not be. Id., at 379-381, 383-384. In Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978), the Court refused to invalidate on First Amendment grounds a lawyer's suspension from practice for face-to-face solicitation of business for pecuniary gain. In the course of doing so, we again recognized the common-sense and legal distinction between speech proposing a commercial transaction and other varieties of speech:
Finally, in Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557 (1980), we held: "The 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." Id., at 562-563 (citation omitted). We then adopted a four-part test for determining the validity of government restrictions on 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 563-566.
Appellants agree that the proper approach to be taken in determining the validity of the restrictions on commercial speech is that which was articulated in Central Hudson, but assert that the San Diego ordinance fails that test. We do not agree.
There can be little controversy over the application of the first, second and fourth criteria. There is no suggestion that the commercial advertising at issue here involves unlawful activity or is misleading. 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 [453 U.S. 490, 508] governmental goals. 13 It is far too late to contend otherwise with respect to either traffic safety, Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949), or esthetics, see Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978); Village of Belle Terre v. Boraas, 416 U.S. 1 (1974); Berman v. Parker, 348 U.S. 26, 33 (1954). Similarly, we reject appellants' claim that the ordinance is broader than necessary and, therefore, fails the fourth part of the Central Hudson test. If the city has a sufficient basis for believing that billboards are traffic hazards and are unattractive, then obviously the most direct and perhaps the only effective approach to solving the problems they create is to prohibit them. The city has gone no further than necessary in seeking to meet its ends. Indeed, it has stopped short of fully accomplishing its ends: It has not prohibited all billboards, but allows onsite advertising and some other specifically exempted signs.
The more serious question, then, concerns the third of the Central Hudson criteria: Does the ordinance "directly advance" governmental interests in traffic safety and in the appearance of the city? It is asserted that the record is inadequate to show any connection between billboards and traffic safety. The California Supreme Court noted the meager record on this point but held "as a matter of law that an ordinance which eliminates billboards designed to be viewed from streets and highways reasonably relates to traffic safety." 26 Cal. 3d, at 859, 610 P.2d, at 412. Noting that "[b]illboards are intended to, and undoubtedly do, divert a driver's attention from the roadway," ibid., and that [453 U.S. 490, 509] whether the "distracting effect contributes to traffic accidents invokes an issue of continuing controversy," ibid., the California Supreme Court agreed with many other courts that a legislative judgment that billboards are traffic hazards is not manifestly unreasonable and should not be set aside. We likewise hesitate to disagree with the accumulated, commonsense judgments of local lawmakers and of the many reviewing courts that billboards are real and substantial hazards to traffic safety. 14 There is nothing here to suggest that these judgments are unreasonable. As we said in a different context, Railway Express Agency, Inc. v. New York, supra, at 109:
It is nevertheless argued that the city denigrates its interest [453 U.S. 490, 511] in traffic safety and beauty and defeats its own case by permitting onsite advertising and other specified signs. Appellants question whether the distinction between onsite and offsite advertising on the same property is justifiable in terms of either esthetics or traffic safety. The ordinance permits the occupant of property to use billboards located on that property to advertise goods and services offered at that location; identical billboards, equally distracting and unattractive, that advertise goods or services available elsewhere are prohibited even if permitting the latter would not multiply the number of billboards. Despite the apparent incongruity, this argument has been rejected, at least implicitly, in all of the cases sustaining the distinction between offsite and onsite commercial advertising. 17 We agree with those cases and with our own decisions in Suffolk Outdoor Advertising Co. v. Hulse, 439 U.S. 808 (1978); Markham Advertising Co. v. Washington, 393 U.S. 316 (1969); and Newman Signs, Inc. v. Hjelle, 440 U.S. 901 (1979).
In the first place, whether onsite advertising is permitted or not, the prohibition of offsite advertising is directly related to the stated objectives of traffic safety and esthetics. This is not altered by the fact that the ordinance is under-inclusive because it permits onsite advertising. Second, the city may believe that offsite advertising, with its periodically changing content, presents a more acute problem than does onsite advertising. See Railway Express, 336 U.S., at 110 . [453 U.S. 490, 512] Third, San Diego has obviously chosen to value one kind of commercial speech - onsite advertising - more than another kind of commercial speech - offsite advertising. The ordinance reflects a decision by the city that the former interest, but not the latter, is stronger than the city's interests in traffic safety and esthetics. The city has decided that in a limited instance - onsite commercial advertising - its interests should yield. We do not reject that judgment. As we see it, the city could reasonably conclude that a commercial enterprise - as well as the interested public - has a stronger interest in identifying its place of business and advertising the products or services available there than it has in using or leasing its available space for the purpose of advertising commercial enterprises located elsewhere. See Railway Express, supra, at 116 (Jackson, J., concurring); Bradley v. Public Utilities Comm'n, 289 U.S. 92, 97 (1933). It does not follow from the fact that the city has concluded that some commercial interests outweigh its municipal interests in this context that it must give similar weight to all other commercial advertising. Thus, offsite commercial billboards may be prohibited while onsite commercial billboards are permitted.
The constitutional problem in this area requires resolution of the conflict between the city's land-use interests and the commercial interests of those seeking to purvey goods and services within the city. In light of the above analysis, we cannot conclude that the city has drawn an ordinance broader than is necessary to meet its interests, or that it fails directly to advance substantial government interests. In sum, insofar as it regulates commercial speech the San Diego ordinance meets the constitutional requirements of Central Hudson, supra.
It does not follow, however, that San Diego's general ban on signs carrying noncommercial advertising is also valid [453 U.S. 490, 513] under the First and Fourteenth Amendments. The fact that the city may value commercial messages relating to onsite goods and services more than it values commercial communications relating to offsite goods and services does not justify prohibiting an occupant from displaying its own ideas or those of others.
As indicated above, our recent commercial speech cases have consistently accorded noncommercial speech a greater degree of protection than commercial speech. San Diego effectively inverts this judgment, by affording a greater degree of protection to commercial than to noncommercial speech. There is a broad exception for onsite commercial advertisements, but there is no similar exception for noncommercial speech. The use of onsite billboards to carry commercial messages related to the commercial use of the premises is freely permitted, but the use of otherwise identical billboards to carry noncommercial messages is generally prohibited. The city does not explain how or why noncommercial billboards located in places where commercial billboards are permitted would be more threatening to safe driving or would detract more from the beauty of the city. Insofar as the city tolerates billboards at all, it cannot choose to limit their content to commercial messages; the city may not conclude that the communication of commercial information concerning goods and services connected with a particular site is of greater value than the communication of noncommercial messages. 18 [453 U.S. 490, 514]
Furthermore, the ordinance contains exceptions that permit various kinds of noncommercial signs, whether on property where goods and services are offered or not, that would otherwise be within the general ban. A fixed sign may be used to identify any piece of property and its owner. Any piece of property may carry or display religious symbols, commemorative plaques of recognized historical societies and organizations, signs carrying news items or telling the time or temperature, signs erected in discharge of any governmental function, or temporary political campaign signs. 19 No other noncommercial or ideological signs meeting the structural definition are permitted, regardless of their effect on traffic safety or esthetics.
Although the city may distinguish between the relative value of different categories of commercial speech, the city does not have the same range of choice in the area of noncommercial speech to evaluate the strength of, or distinguish between, various communicative interests. See Carey v. Brown, 447 U.S., at 462 ; Police Dept. of Chicago v. Mosley, [453 U.S. 490, 515] 408 U.S. 92, 96 (1972). With respect to noncommercial speech, the city may not choose the appropriate subjects for public discourse: "To allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for political truth." Consolidated Edison Co., 447 U.S., at 538 . Because some noncommercial messages may be conveyed on billboards throughout the commercial and industrial zones, San Diego must similarly allow billboards conveying other noncommercial messages throughout those zones. 20
Finally, we reject appellees' suggestion that the ordinance may be appropriately characterized as a reasonable "time, place, and manner" restriction. The ordinance does not generally [453 U.S. 490, 516] ban billboard advertising as an unacceptable "manner" of communicating information or ideas; rather, it permits various kinds of signs. Signs that are banned are banned everywhere and at all times. We have observed that time, place, and manner restrictions are permissible if "they are justified without reference to the content of the regulated speech, . . . serve a significant governmental interest, and . . . leave open ample alternative channels for communication of the information." Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S., at 771 . Here, it cannot be assumed that "alternative channels" are available, for the parties stipulated to just the opposite: "Many businesses and politicians and other persons rely upon outdoor advertising because other forms of advertising are insufficient, inappropriate and prohibitively expensive." 21 A similar argument was made with respect to a prohibition on real estate "For Sale" signs in Linmark Associates, Inc. v. Willingboro, 431 U.S. 85 (1977), and what we said there is equally applicable here:
Despite the rhetorical hyperbole of THE CHIEF JUSTICE'S dissent, there is a considerable amount of common ground between the approach taken in this opinion and that suggested by his dissent. Both recognize that each medium of communication creates a unique set of First Amendment problems, both recognize that the city has a legitimate interest in regulating the noncommunicative aspects of a medium of expression, and both recognize that the proper judicial role is to conduct "`a careful inquiry into the competing concerns of the State and the interests protected by the guarantee of free expression.'" Post, at 556. Our principal difference with his dissent is that it gives so little weight to the latter half of this inquiry. 22
THE CHIEF JUSTICE writes that
By "essentially neutral," THE CHIEF JUSTICE may mean either or both of two things. He may mean that government restrictions on protected speech are permissible so long as the government does not favor one side over another on a subject of public controversy. This concept of neutrality was specifically rejected by the Court last Term in Consolidated Edison Co. v. Public Service Comm'n, 447 U.S., at 537 . There, the Court dismissed the Commission's contention that a prohibition of all discussion, regardless of the viewpoint expressed, on controversial issues of public policy does not [453 U.S. 490, 519] unconstitutionally suppress freedom of speech. "The First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic." Ibid. On the other hand, THE CHIEF JUSTICE may mean by neutrality that government restrictions on speech cannot favor certain communicative contents over others. As a general rule, this, of course, is correct, see, e. g., Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972); Carey v. Brown, 447 U.S. 455 (1980). The general rule, in fact, is applicable to the facts of this case: San Diego has chosen to favor certain kinds of messages - such as onsite commercial advertising, and temporary political campaign advertisements - over others. Except to imply that the favored categories are for some reason de minimis in a constitutional sense, his dissent fails to explain why San Diego should not be held to have violated this concept of First Amendment neutrality.
Taken literally THE CHIEF JUSTICE'S approach would require reversal of the many cases striking down antisolicitation statutes on First Amendment grounds: In each of them the city would argue that preventing distribution of leaflets rationally furthered the city's interest in limiting litter, applied to all kinds of leaflets and hence did not violate the principle of government neutrality, and left open alternative means of communication. See, e.g., Martin v. Struthers, 319 U.S. 141 (1943); Schneider v. State, 308 U.S. 147 (1939). Despite the dissent's assertion to the contrary, however, it has been this Court's consistent position that democracy stands on a stronger footing when courts protect First Amendment interests against legislative intrusion, rather than deferring to merely rational legislative judgments in this area:
There can be no question that a prohibition on the erection of billboards infringes freedom of speech: The exceptions do not create the infringement, rather the general prohibition does. But the exceptions to the general prohibition are of great significance in assessing the strength of the city's interest in prohibiting billboards. We conclude that by allowing commercial establishments to use billboards to advertise the products and services they offer, the city necessarily has conceded that some communicative interests, e. g., onsite commercial advertising, are stronger than its competing interests in esthetics and traffic safety. It has nevertheless banned all noncommercial signs except those specifically excepted.
THE CHIEF JUSTICE agrees that in allowing the exceptions to the rule the city has balanced the competing interests, but he argues that we transgress the judicial role by independently reviewing the relative values the city has assigned to various communicative interests. He seems to argue that although the Constitution affords a greater degree of protection to noncommercial than to commercial speech, a legislature [453 U.S. 490, 521] need not make the same choices. Post, at 567. This position makes little sense even abstractly, and it surely is not consistent with our cases or with THE CHIEF JUSTICE'S own argument that statutes challenged on First Amendment grounds must be evaluated in light of the unique facts and circumstances of the case. Governmental interests are only revealed and given concrete force by the steps taken to meet those interests. If the city has concluded that its official interests are not as strong as private interests in commercial communications, may it nevertheless claim that those same official interests outweigh private interests in noncommercial communications? Our answer, which is consistent with our cases, is in the negative.
Because the San Diego ordinance reaches too far into the realm of protected speech, we conclude that it is unconstitutional on its face. 25 The judgment of the California Supreme Court is reversed, and the case is remanded to that court. 26
The general prohibition of the ordinance reads as follows:
[ Footnote 2 ] The California Supreme Court noted that the ordinance as written might be interpreted "to apply to signs of a character very different from commercial billboards - for example, to a picket sign announcing a labor dispute or a small sign placed in one's front yard proclaiming a political or religious message." 26 Cal. 3d, at 856, n. 2, 610 P.2d, at 410, n. 2. For this reason the court adopted the narrowing definition (quoted in the text). That definition, however, focused on the structure not the content of the billboard: It excluded "picket signs" but not billboards used to convey a noncommercial message. Cf. State ex rel. Dept. of Transportation v. Pile, 603 P.2d 337 (1979) (Oklahoma Supreme Court construed a state statute prohibiting outdoor advertising signs as not covering noncommercial speech in order to avoid constitutional problems). The court explicitly recognized this continuing burden on noncommercial speech: "The relatively few non-commercial advertisers who would be restricted by the San Diego ordinance . . . possess a great variety of alternative means of communication." 26 Cal. 3d, at 869, 610 P.2d, at 418-419. Furthermore, the city continues to contend that the ordinance prohibits the use of billboards to convey a noncommercial message, unless that message falls within one of the specified exemptions contained in the ordinance. Brief for Appellees 6.
[ Footnote 3 ] Section 101.0700 (F) provides as follows:
[ Footnote 4 ] This account of appellants' businesses is taken from the joint stipulation of facts entered into by the parties and filed with their cross-motions for summary judgment in the California Superior Court. See Joint Stipulation of Facts Nos. 12-20, App. 44a-45a.
[ Footnote 5 ] Joint Stipulation of Facts No. 24, App. 47a.
[ Footnote 7 ] These cases primarily involved due process and equal protection challenges to municipal regulations directed at billboards. The plaintiffs claimed that their method of advertising was improperly distinguished from other methods that were not similarly regulated and that the ordinances resulted in takings of property without due process. The Court rejected these claims, holding that the regulation of billboards fell within the legitimate police powers of local government.
[ Footnote 8 ] The uniqueness of each medium of expression has been a frequent refrain: See, e. g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975) ("Each medium of expression . . . must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems"); FCC v. Pacifica Foundation, 438 U.S. 726, 748 (1978) ("We have long recognized that each medium of expression presents special First Amendment problems"); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503 (1952) ("Each method tends to present its own peculiar problems").
[ Footnote 9 ] For a description of the history of the use of outdoor advertising in this country and the use of billboards within that history, see F. Presbrey, The History and Development of Advertising 497-511 (1929); Tocker, Standardized Outdoor Advertising: History, Economics and Self-Regulation, in Outdoor Advertising: History and Regulation 11, 29 (J. Houck ed. 1969).
[ Footnote 10 ] Joint Stipulation of Facts No. 23, App. 46a-47a.
[ Footnote 11 ] The California Supreme Court suggested that appellants, owners of billboard businesses, did not have standing to raise the argument that billboards may, for some individuals or groups, be the only affordable method of communicating to a large audience. 26 Cal. 3d, at 869, n. 14, 610 P.2d, at 419, n. 14. In so holding, the California court seems to have confused the category of "commercial speech" with the category of individuals who have a "commercial interest" in protected speech. We have held that the overbreadth doctrine, under which a party whose own activities are unprotected may challenge a statute by showing that it substantially abridges the First Amendment rights of parties not before the court, will not be applied in cases involving "commercial speech." Bates v. State Bar of Arizona, 433 U.S. 350, 381 (1977). However, we have never held that one with a "commercial interest" in speech also cannot challenge the facial validity of a statute on the grounds of its substantial infringement of the First Amendment interests of others. Were it otherwise, newspapers, radio stations, movie theaters and producers - often those with the highest interest and the largest stake in a First Amendment controversy - would not be able to challenge government limitations on speech as substantially overbroad. As the opinion in Bates observed, id., at 363:
[ Footnote 12 ] JUSTICE STEWART's comments in Virginia Pharmacy Board are worth quoting here:
[ Footnote 13 ] The California Supreme Court had held in Varney & Green v. Williams, 155 Cal. 318, 100 P. 867 (1909), that a municipal ordinance prohibiting all advertising billboards purely for esthetic reasons was an unconstitutional exercise of municipal police power. The court specifically overruled Varney in upholding the San Diego ordinance at issue here. California's current position is in accord with that of most other jurisdictions. See n. 15, infra.
[ Footnote 14 ] See E. B. Elliott Advertising Co. v. Metropolitan Dade County, 425 F.2d 1141, 1152 (CA5 1970); Markham Advertising Co. v. Washington, 73 Wash. 2d 405, 420-421, 439 P.2d 248, 258 (1968); New York State Thruway Authority v. Ashley Motor Court, Inc., 10 N. Y. 2d 151, 155-156, 176 N. E. 2d 566, 568 (1961); Ghaster Properties, Inc. v. Preston, 176 Ohio St. 425, 438, 200 N. E. 2d 328, 337 (1964); Newman Signs, Inc. v. Hjelle, 268 N. W. 2d 741, 757 (N. D. 1978); Lubbock Poster Co. v. City of Lubbock, 569 S. W. 2d 935, 939 (Tex. Civ. App. 1978); State v. Lotze, 92 Wash. 2d 52, 59, 593 P.2d 811, 814 (1979); Inhabitants, Town of Boothbay v. National Advertising Co., 347 A. 2d 419, 422 (Me. 1975); Stuckey's Stores, Inc. v. O'Cheskey, 93 N. M. 312, 321, 600 P.2d 258, 267 (1979); In re Opinion of the Justices, 103 N. H. 268, 270, 169 A. 2d 762, 764 (1961); General Outdoor Advertising Co. v. Department of Public Works, 289 Mass. 149, 180-181, 193 N. E. 799, 813-814 (1935). But see John Donnelly & Sons v. Campbell, 639 F.2d 6, 11 (CA1 1980); State ex rel. Dept. of Transportation v. Pile, 603 P.2d, at 343; Metromedia, Inc. v. City of Des Plaines, 26 Ill. App. 3d 942, 946, 326 N. E. 2d 59, 62 (1975).
[ Footnote 15 ] See John Donnelly & Sons v. Campbell, supra, at 11-12; E. B. Elliott Advertising Co. v. Metropolitan Dade County, supra, at 1152; Newman Signs, Inc. v. Hjelle, supra, at 757; Markham Advertising Co. v. Washington, supra, at 422-423, 439 P.2d, at 259; Stuckey's Stores, Inc. v. O'Cheskey, supra, at 321, 600 P.2d, at 267; Suffolk Outdoor Advertising Co. v. Hulse, 43 N. Y. 2d 483, 489, 373 N. E. 2d 263, 265 (1977); John Donnelly & Sons, Inc. v. Outdoor Advertising Bd., 369 Mass. 206, 219, 339 N. E. 2d 709, 717 (1975); Cromwell v. Ferrier, 19 N. Y. 2d 263, 269, 225 N. E. 2d 749, 753 (1967); State v. Diamond Motors, Inc., 50 Haw. 33, 35-36, 429 P.2d 825, 827 (1967); United Advertising Corp. v. Metuchen, 42 N. J. 1, 6, 198 A. 2d 447, 449 (1964); In re Opinion of the Justices, supra, at 270-271, 169 A. 2d, at 764. But see State ex rel. Dept. of Transportation v. Pile, supra, at 342; Sunad, Inc. v. Sarasota, 122 So.2d 611, 614-615 (Fla. 1960).
[ Footnote 16 ] The federal Highway Beautification Act of 1965, Pub. L. 89-285, 79 Stat. 1028, as amended, 23 U.S.C. 131 (1976 ed. and Supp. III), requires that States eliminate billboards from areas adjacent to certain highways constructed with federal funds. The Federal Government also prohibits billboards on federal lands. 43 CFR 2921.0-6 (a) (1980). Three States have enacted statewide bans on billboards. Maine, Me. Rev. Stat. Ann., Tit. 23, 1901 et seq. (1980); Hawaii, Haw. Rev. Stat. 264-71 et seq., 445-111 et seq. (1976); Vermont, Vt. Stat. Ann., Tit. 10, 488 et seq. (1973).
[ Footnote 17 ] See Howard v. State Department of Highways of Colorado, 478 F.2d 581 (CA10 1973); John Donnelly & Sons v. Campbell, supra; John Donnelly & Sons, Inc. v. Outdoor Advertising Bd., supra; Donnelly Advertising Corp. v. City of Baltimore, 279 Md. 660, 668, 370 A. 2d 1127, 1132 (1977); Modjeska Sign Studios, Inc. v. Berle, 43 N. Y. 2d 468, 373 N. E. 2d 255 (1977); Suffolk Outdoor Advertising Co. v. Hulse, supra; Ghaster Properties, Inc. v. Preston, supra; Newman Signs, Inc. v. Hjelle, supra; United Advertising Corp. v. Borough of Raritan, 11 N. J. 144, 93 A. 2d 362 (1952) (Brennan, J.); United Advertising Corp. v. Metuchen, supra; Stuckey's Stores, Inc. v. O'Cheskey, supra.
[ Footnote 18 ] In John Donnelly & Sons v. Campbell, 639 F.2d 6 (1980), the Court of Appeals for the First Circuit considered a statewide limitation on billboards, which similarly afforded a greater degree of protection to commercial than to noncommercial messages. That court took a position very similar to the one that we take today: it sustained the regulation insofar as it restricted commercial advertising, but held unconstitutional its more intrusive restrictions on noncommercial speech. The court stated: "The law thus impacts more heavily on ideological than on commercial speech - a peculiar inversion of First Amendment values. The statute . . . provides [453 U.S. 490, 514] greater restrictions - and fewer alternatives, the other side of the coin - for ideological than for commercial speech . . . . In short, the statute's impositions are both legally and practically the most burdensome on ideological speech, where they should be the least." 639 F.2d, at 15-16. Other courts, however, have failed to give adequate weight to the distinction between commercial and noncommercial speech and to the higher level of protection to be afforded the latter. See Donnelly Advertising Corp. v. City of Baltimore, 279 Md. 660, 370 A. 2d 1127 (1977); State v. Lotze, 92 Wash. 2d 52, 593 P.2d 811 (1979). To the extent that this decision is not consistent with the conclusion reached in Lotze, we overrule our prior summary approval of that decision in 444 U.S. 921 (1979).
[ Footnote 19 ] In this sense, this case presents the opposite situation from that in Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), and Greer v. Spock, 424 U.S. 828 (1976). In both of those cases a government agency had chosen to prohibit from a certain forum speech relating to political campaigns, while other kinds of speech were permitted. In both cases this Court upheld the prohibition, but both cases turned on unique fact situations involving government-created forums and have no application here.
[ Footnote 20 ] Because a total prohibition of outdoor advertising is not before us, we do not indicate whether such a ban would be consistent with the First Amendment. But see Schad v. Mount Ephraim, 452 U.S. 61 (1981), on the constitutional problems created by a total prohibition of a particular expressive forum; live entertainment in that case. Despite JUSTICE STEVENS' insistence to the contrary, post, at 540, 541, and 548, n. 16, we do not imply that the ordinance is unconstitutional because it "does not abridge enough speech."
Similarly, we need not reach any decision in this case as to the constitutionality of the federal Highway Beautification Act of 1965. That Act, like the San Diego ordinance, permits onsite commercial billboards in areas in which it does not permit billboards with noncommercial messages. 23 U.S.C. 131 (c) (1976 ed., Supp. III). However, unlike the San Diego ordinance, which prohibits billboards conveying noncommercial messages throughout the city, the federal law does not contain a total prohibition of such billboards in areas adjacent to the interstate and primary highway systems. As far as the Federal Government is concerned, such billboards are permitted adjacent to the highways in areas zoned industrial or commercial under state law or in unzoned commercial or industrial areas. 23 U.S.C. 131 (d). Regulation of billboards in those areas is left primarily to the States. For this reason, the decision today does not determine the constitutionality of the federal statute. Whether, in fact, the distinction is constitutionally significant can only be determined on the basis of a record establishing the actual effect of the Act on billboards conveying noncommercial messages.
[ Footnote 21 ] See Joint Stipulation of Facts No. 28, App. 48a.
[ Footnote 22 ] JUSTICE STEVENS' suggested standard seems to go even further than THE CHIEF JUSTICE in ignoring the private interests protected by the First Amendment. He suggests that regulation of speech is permissible so long as it is not biased in favor of a particular position and leaves open "ample" means of communication. Post, at 552. Nowhere does he suggest that the strength or weakness of the government's interests is a factor in the analysis.
[ Footnote 23 ] THE CHIEF JUSTICE correctly notes that traditional labels should not be substituted for analysis and, therefore, he correctly rejects any simple [453 U.S. 490, 518] classification of the San Diego ordinance as either a "prohibition" or a "time, place, and manner restriction." These "labels" or "categories," however, have played an important role in this Court's analysis of First Amendment problems in the past. The standard THE CHIEF JUSTICE himself adopts appears to be based almost exclusively on prior discussions of time, place, and manner restrictions. See Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981); Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 535 (1980); California v. LaRue, 409 U.S. 109, 117 , n. 4 (1972); Adderley v. Florida, 385 U.S. 39 (1966); Kovacs v. Cooper, 336 U.S. 77 (1949). But this Court has never held that the less strict standard of review applied to time, place, and manner restrictions is appropriately used in every First Amendment case, or that it is the most that the First Amendment requires of government legislation which infringes on protected speech. If this were the case, there would be no need for the detailed inquiry this Court consistently pursues in order to answer the question of whether a challenged restriction is in fact a time, place, and manner restriction - the same standard of review would apply regardless of the outcome of that inquiry. As we demonstrated above, the San Diego ordinance is not such a restriction and there is, therefore, no excuse for applying a lower standard of First Amendment review to that ordinance.
[ Footnote 24 ] Nor has this Court ever accepted the view that it must defer to a legislative judgment that a particular medium of communication is "offensive" and "intrusive," merely because "other means [of communication] are available." Post, at 561.
[ Footnote 25 ] Appellants contend that the ordinance will effectively eliminate their businesses and that this violates the Due Process Clause. We do not know, however, what kind of ordinance, if any, San Diego will seek to enforce in place of that which we invalidate today. In any case, any question of unconstitutional "takings" aside, the Due Process Clause does not afford a greater degree of protection to appellants' business than does the First Amendment. Since we hold that the First Amendment interests in commercial speech are not sufficient to prevent the city from prohibiting offsite commercial advertisements, no different result should be reached under the Due Process Clause.
[ Footnote 26 ] Although the ordinance contains a severability clause, determining the meaning and application of that clause is properly the responsibility of the state courts. See Dombrowski v. Pfister, 380 U.S. 479, 497 (1965) [453 U.S. 490, 522] ("The record suffices . . . to permit this Court to hold that, without the benefit of limiting construction, the statutory provisions on which the indictments are founded are void on their face; until an acceptable limiting construction is obtained, the provisions cannot be applied"); Liggett Co. v. Lee, 288 U.S. 517, 541 (1933) ("The operation of this [severability clause] consequent on our decision is a matter of state law. While we have jurisdiction of the issue, we deem it appropriate that we should leave the determination of the question to the state court"); Dorchy v. Kansas, 264 U.S. 286, 291 ("In cases coming from the state courts, this Court, in the absence of a controlling state decision may, in passing upon the claim under the federal law, decide, also, the question of severability. But it is not obliged to do so. The situation may be such as to make it appropriate to leave the determination of the question to the state court"). This rule is reflected in the different approaches this Court has taken to statutory construction of federal and state statutes infringing on protected speech. Compare United States v. Thirty-seven Photographs, 402 U.S. 363 (1971), with Freedman v. Maryland, 380 U.S. 51, 60 (1965). Since our judgment is based essentially on the inclusion of noncommercial speech within the prohibitions of the ordinance, the California courts may sustain the ordinance by limiting its reach to commercial speech, assuming the ordinance is susceptible to this treatment.
JUSTICE BRENNAN, with whom JUSTICE BLACKMUN joins, concurring in the judgment.
Believing that "a total prohibition of outdoor advertising is not before us," ante, at 515, n. 20, the plurality does not decide [453 U.S. 490, 522] "whether such a ban would be consistent with the First Amendment," ibid. Instead, it concludes that San Diego may ban all billboards containing commercial speech messages without violating the First Amendment, thereby sending the signal to municipalities that bifurcated billboard regulations prohibiting commercial messages but allowing noncommercial messages would pass constitutional muster. Ante, at 521, n. 25. I write separately because I believe this case in effect presents the total ban question, and because I believe the plurality's bifurcated approach itself raises serious First Amendment problems and relies on a distinction between commercial and noncommercial speech unanticipated by our prior cases.
As construed by the California Supreme Court, a billboard subject to San Diego's regulation is "a rigidly assembled sign, [453 U.S. 490, 523] display, or device permanently affixed to the ground or permanently attached to a building or other inherently permanent structure constituting, or used for the display of, a commercial or other advertisement to the public." 26 Cal. 3d 848, 856, n. 2, 610 P.2d 407, 410, n. 2 (1980), quoting Cal. Rev. & Tax. Code Ann. 18090.2 (West Supp. 1970-1980). 1 San Diego's billboard regulation bans all commercial and noncommercial billboard advertising 2 with a few limited exceptions. The largest of these exceptions is for on-premises identification signs, defined as
Let me first state the common ground that I share with the plurality. The plurality and I agree that billboards are a medium of communication warranting First Amendment protection. The plurality observes that "[b]illboards are a well-established medium of communication, used to convey a broad range of different kinds of messages." Ante, at 501. See generally Tocker, Standardized Outdoor Advertising: History, Economics and Self-Regulation, in Outdoor Advertising: History and Regulation 11, 11-56 (J. Houck ed. 1969); F. Presbrey, The History and Development of Advertising 497-511 (1929). As the parties have stipulated, billboards in San Diego have been used
Where the plurality and I disagree is in the characterization of the San Diego ordinance and thus in the appropriate analytical framework to apply. The plurality believes that the question of a total ban is not presented in this case, ante, at 515, n. 20, because the ordinance contains exceptions to its general prohibition. In contrast, my view is that the practical effect of the San Diego ordinance is to eliminate the billboard as an effective medium of communication for the [453 U.S. 490, 526] speaker who wants to express the sorts of messages described in Joint Stipulation of Facts No. 23, and that the exceptions do not alter the overall character of the ban. Unlike the on-premises sign, the off-premises billboard "is, generally speaking, made available to `all-comers', in a fashion similar to newspaper or broadcasting advertising. It is a forum for the communication of messages to the public." Joint Stipulation of Facts No. 22 (c), App. 46a. 5 Speakers in San Diego no longer have the opportunity to communicate their messages of general applicability to the public through billboards. None of the exceptions provides a practical alternative for the general commercial or noncommercial billboard advertiser. Indeed, unless the advertiser chooses to buy or lease premises in the city, or unless his message falls within one of the narrow exempted categories, he is foreclosed from announcing either commercial or noncommercial ideas through a billboard.
The characterization of the San Diego regulation as a total ban of a medium of communication has more than semantic implications, for it suggests a First Amendment analysis quite different from the plurality's. Instead of relying on the exceptions to the ban to invalidate the ordinance, I would apply the tests this Court has developed to analyze content-neutral [453 U.S. 490, 527] prohibitions of particular media of communication. 6 Most recently, in Schad v. Mount Ephraim, 452 U.S. 61 (1981), this Court assessed "the substantiality of the governmental interests asserted" and "whether those interests could be served by means that would be less intrusive on activity protected by the First Amendment," in striking down the borough's total ban on live commercial entertainment. Id., at 70. Schad merely articulated an analysis applied in previous cases concerning total bans of media of expression. For example, in Schneider v. State, 308 U.S. 147 (1939), the Court struck down total bans on handbill leafletting because there were less restrictive alternatives to achieve the goal of prevention of litter, in fact alternatives that did not infringe at all on that important First Amendment privilege. Id., at 162. In Martin v. City of Struthers, 319 U.S. 141 (1943), the Court invalidated a municipal ordinance that forbade persons from engaging in the time-honored activity of door-to-door solicitation. See also Jamison v. Texas, 318 U.S. 413, 416 -417 (1943) (distribution of handbills); Hague v. CIO, 307 U.S. 496, 518 (1939) (opinion of Roberts, J.) (distribution of pamphlets). See generally Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L. J. 1205, 1335-1336 (1970).
Of course, as the plurality notes, "[e]ach method of communicating ideas is `a law unto itself' and that law must reflect the `differing natures, values, abuses and dangers' of each method." Ante, at 501, quoting Kovacs v. Cooper, supra, at 97 (Jackson, J., concurring). Similarly, in Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975), this Court observed: "Each medium of expression, of course, must be assessed for First Amendment purposes by standards suited [453 U.S. 490, 528] to it, for each may present its own problems." It is obvious that billboards do present their own unique problems: they are large immobile structures that depend on eye-catching visibility for their value. At the same time, the special problems associated with billboards are not of a different genus than those associated with commercial live entertainment in the borough of Mount Ephraim, or with door-to-door literature distribution in the city of Struthers. In the case of billboards, I would hold that a city may totally ban them if it can show that a sufficiently substantial governmental interest is directly furthered by the total ban, and that any more narrowly drawn restriction, i. e., anything less than a total ban, would promote less well the achievement of that goal.
Applying that test to the instant case, I would invalidate the San Diego ordinance. The city has failed to provide adequate justification for its substantial restriction on protected activity. See Schad v. Mount Ephraim, supra, at 72. First, although I have no quarrel with the substantiality of the city's interest in traffic safety, the city has failed to come forward with evidence demonstrating that billboards actually impair traffic safety in San Diego. Indeed, the joint stipulation of facts is completely silent on this issue. Although the plurality hesitates "to disagree with the accumulated, common-sense judgments of local lawmakers and of the many reviewing courts that billboards are real and substantial hazards to traffic safety," ante, at 509, I would not be so quick to accept legal conclusions in other cases as an adequate substitute for evidence in this case that banning billboards directly furthers traffic safety. 7 Moreover, the ordinance is not [453 U.S. 490, 529] narrowly drawn to accomplish the traffic safety goal. Although it contains an exception for signs "not visible from any point on the boundary of the premises," App. to Juris. [453 U.S. 490, 530] Statement 111a, billboards not visible from the street but nevertheless visible from the "boundary of the premises" are not exempted from the regulation's prohibition.
Second, I think that the city has failed to show that its asserted interest in aesthetics is sufficiently substantial in the commercial and industrial areas of San Diego. I do not doubt that "[i]t is within the power of the [city] to determine that the community should be beautiful," Berman v. Parker, 348 U.S. 26, 33 (1954), but that power may not be exercised in contravention of the First Amendment. This Court noted in Schad that "[t]he [city] has presented no evidence, and it is not immediately apparent as a matter of experience, that live entertainment poses problems . . . more significant than those associated with various permitted uses; nor does it appear that the [city] has arrived at a defensible conclusion that unusual problems are presented by live entertainment." 452 U.S., at 73 . Substitute the word "billboards" for the words "live entertainment," and that sentence would equally apply to this case.
It is no doubt true that the appearance of certain areas of the city would be enhanced by the elimination of billboards, but "it is not immediately apparent as a matter of experience" that their elimination in all other areas as well would [453 U.S. 490, 531] have more than a negligible impact on aesthetics. See John Donnelly & Sons v. Campbell, 639 F.2d 6, 23 (CA1 1980) (Pettine, J., concurring in judgment), summarily aff'd, post, p. 916. 8 The joint stipulation reveals that
I have little doubt that some jurisdictions will easily carry the burden of proving the substantiality of their interest in [453 U.S. 490, 534] aesthetics. For example, the parties acknowledge that a historical community such as Williamsburg, Va., should be able to prove that its interests in aesthetics and historical authenticity are sufficiently important that the First Amendment value attached to billboards must yield. See Tr. of Oral Arg. 22-25. And I would be surprised if the Federal Government had much trouble making the argument that billboards could be entirely banned in Yellowstone National Park, where their very existence would so obviously be inconsistent with the surrounding landscape. I express no view on whether San Diego or other large urban areas will be able to meet the burden. 11 See Schad v. Mount Ephraim, 452 U.S., at 77 (BLACKMUN, J., concurring). But San Diego failed to do so here, and for that reason I would strike down its ordinance.
The plurality's treatment of the commercial-noncommercial distinction in this case is mistaken in its factual analysis of the San Diego ordinance, and departs from this Court's precedents. In Part IV of its opinion, the plurality concludes that the San Diego ordinance is constitutional insofar as it regulates commercial speech. Under its view, a city with merely a reasonable justification could pick and choose between those commercial billboards it would allow and those it would not, or could totally ban all commercial billboards. 12 In Part V, [453 U.S. 490, 535] the plurality concludes, however, that the San Diego ordinance as a whole is unconstitutional because, inter alia, it affords a greater degree of protection to commercial than to noncommercial speech:
More importantly, I cannot agree with the plurality's view that an ordinance totally banning commercial billboards but allowing noncommercial billboards would be constitutional. 13 For me, such an ordinance raises First Amendment problems at least as serious as those raised by a total ban, for it gives city officials the right - before approving a billboard - to determine whether the proposed message is "commercial" or "noncommercial." Of course the plurality is correct when it observes that "our cases have consistently distinguished between the constitutional protection afforded commercial as opposed to noncommercial speech," ante, at 504-505, but it errs in assuming that a governmental unit may be put in the position in the first instance of deciding whether the proposed speech is commercial or noncommercial. In individual cases, this distinction is anything but clear. Because making such determinations would entail a substantial exercise of discretion by a city's official, it presents a real danger of curtailing [453 U.S. 490, 537] noncommercial speech in the guise of regulating commercial speech.
In Cantwell v. Connecticut, 310 U.S. 296 (1940), the Court reviewed a statute prohibiting solicitation of money by religious groups unless such solicitation was approved in advance by the Secretary of the Public Welfare Council. The statute provided in relevant part:
According such wide discretion to city officials to control the free exercise of First Amendment rights is precisely what [453 U.S. 490, 538] has consistently troubled this Court in a long line of cases starting with Lovell v. Griffin, 303 U.S. 444, 451 (1938). See, e. g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S., at 552 -553 (theatrical performance in city-owned auditorium); Shuttlesworth v. Birmingham, 394 U.S. 147, 150 -153 (1969) (picketing and parading); Staub v. City of Baxley, 355 U.S. 313, 321 -325 (1958) (solicitation); Kunz v. New York, 340 U.S. 290, 294 (1951) (public meetings); Saia v. New York, supra, at 560-562 (sound trucks); Cantwell v. Connecticut, supra, at 307 (solicitation); Schneider v. State, 308 U.S., at 163 -164 (handbills); Hague v. CIO, 307 U.S., at 516 (handbills). See also Young v. American Mini Theatres, Inc., 427 U.S. 50, 93 (1976) (BLACKMUN, J., dissenting); Hynes v. Mayor and Council of Oradell, 425 U.S. 610, 617 (1976); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 97 (1972). The plurality's bifurcated approach, I fear, will generate billboard ordinances providing the grist for future additions to this list, for it creates discretion where none previously existed.
It is one thing for a court to classify in specific cases whether commercial or noncommercial speech is involved, but quite another - and for me dispositively so - for a city to do so regularly for the purpose of deciding what messages may be communicated by way of billboards. Cities are equipped to make traditional police power decisions, see Saia v. New York, supra, at 564-565 (Frankfurter, J., dissenting), not decisions based on the content of speech. I would be unhappy to see city officials dealing with the following series of billboards and deciding which ones to permit: the first billboard contains the message "Visit Joe's Ice Cream Shoppe"; the second, "Joe's Ice Cream Shoppe uses only the highest quality dairy products"; the third, "Because Joe thinks that dairy products are good for you, please shop at Joe's Shoppe"; and the fourth, "Joe says to support dairy price supports: they mean lower prices for you at his Shoppe." Or how about some San Diego Padres baseball fans - with no connection to [453 U.S. 490, 539] the team - who together rent a billboard and communicate the message "Support the San Diego Padres, a great baseball team." May the city decide that a United Automobile Workers billboard with the message "Be a patriot - do not buy Japanese-manufactured cars" is "commercial" and therefore forbid it? What if the same sign is placed by Chrysler? 14
I do not read our recent line of commercial cases as authorizing this sort of regular and immediate line-drawing by governmental entities. If anything, our cases recognize the difficulty in making a determination that speech is either "commercial" or "noncommercial." In Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 764 (1976), after nothing that "not all commercial messages contain . . . a very great public interest element," the Court suggested that "[t]here are few to which such an element, however, could not be added." The Court continued: "Our pharmacist, for example, could cast himself as a commentator on store-to-store disparities in drug prices, giving his own and those of a competitor as proof. We see little point in requiring him to do so, and little difference if he does not." Id., at 764-765. Cf. Murdock v. Pennsylvania, 319 U.S. 105, 111 (1943). In Bigelow v. Virginia, 421 U.S. 809, 822 (1975), the Court observed that the advertisement of abortion services placed by a New York clinic in a Virginia weekly newspaper - although in part a commercial advertisement - was far more than that:
[ Footnote 1 ] According to Joint Stipulation of Facts No. 25 entered into by the parties for purposes of cross-motions for summary judgment:
[ Footnote 2 ] I will sometimes refer to billboards containing commercial speech messages as "commercial billboards," and billboards containing noncommercial speech messages as "noncommercial billboards."
[ Footnote 3 ] Additional exceptions include signs manufactured, transported, or stored in San Diego so long as they are not used for advertising purposes; signs located within areas where such signs are not visible from the boundary of the premises; signs on vehicles such as buses and taxicabs; signs on other licensed commercial vehicles; and temporary off-premises subdivision directional signs. App. to Juris. Statement 111a-112a.
[ Footnote 4 ] Perusal of the photographs of billboards included in the appendix to the jurisdictional statement filed in this Court reveals the wide range of noncommercial messages communicated through billboards, including the following: "Welcome to San Diego[:] Home of 1,100 Underpaid Cops"; "Support San Diego's No-Growth Policy[:] Spend Your Money in Los Angeles!"; "Voluntary Integration. Better Education By Choice"; "Support America's First Environment Strike. Don't Buy Shell!"; and "Get US out! of the United Nations."
[ Footnote 5 ] Outdoor advertising traditionally has been classified into two categories: "on-premises" and "off-premises." One commentator describes:
[ Footnote 6 ] Different factors come into play when the challenged legislation is simply a time, place, or manner regulation rather than a total ban of a particular medium of expression.
[ Footnote 7 ] Not 1 of the 11 cases cited by the plurality in its footnote 14 stands for the proposition that reviewing courts have determined that "billboards are real and substantial hazards to traffic safety." These 11 cases merely apply the minimal scrutiny rational relationship test and the presumption of legislative validity to hold that it would not be unreasonable or inconceivable for a legislature or city government to conclude that billboards are [453 U.S. 490, 529] traffic hazards. For example, in New York State Thruway Authority v. Ashley Motor Court, Inc., 10 N. Y. 2d 151, 156, 176 N. E. 2d 566, 568 (1961), the court held:
There is another reason why I would hesitate to accept the purported judgment of lawmakers that billboards are traffic hazards. Until recently, it was thought that aesthetics alone could never be a sufficient justification to support an exercise of the police power, and that aesthetics would have to be accompanied by a more traditional health, safety, morals, or welfare justification. Indeed, the California Supreme Court decision below explicitly repudiated the holding of a prior case, Varney & Green v. Williams, 155 Cal. 318, 100 P. 867 (1909), that held aesthetics to be an insufficient predicate for police power action. 26 Cal. 3d, at 860-861, 610 P.2d, at 413. Therefore, in the case of billboard regulations, many cities may have used the justification of traffic safety in order to sustain ordinances where their true motivation was aesthetics. As the Hawaii Supreme Court [453 U.S. 490, 530] commented in State v. Diamond Motors, Inc., 50 Haw. 33, 36, 429 P.2d 825, 827 (1967), in upholding a comprehensive sign ordinance:
[ Footnote 8 ] Judge Pettine comments on Maine's statewide ban:
[ Footnote 9 ] For example, Williamsburg, Va., requires that any building newly constructed or altered in the city "shall have such design and character as not to detract from the value and general harmony of design of buildings already existing in the surrounding area in which the building is located or is to be located." Williamsburg City Code 30-80 (1979).
[ Footnote 10 ] Appellants argue that the exception to the total ban, such as for on-premises signs, undercut the very goals of traffic safety and aesthetics that the city claims as paramount, and therefore invalidate the whole ordinance. Brief for Appellants 42-43. But obviously, a city can have special goals the accomplishment of which would conflict with the overall goals addressed by the total billboard ban. It would make little sense to say that a city has an all-or-nothing proposition - either ban all billboards or none at all. Because I conclude that the San Diego ordinance impermissibly infringes First Amendment rights in that the city has failed to justify the ordinance sufficiently in light of substantial governmental interests, I need not decide, as the plurality does in Part V of its opinion, whether the exceptions to the total ban constitute independent grounds for invalidating the regulation. However, if a city can justify a total ban, I would allow an exception only if it directly furthers an interest that is at least as important as the interest underlying the total ban, if the exception is no broader than necessary to advance the special goal, and if the exception is narrowly drawn so as to impinge as little as possible on the overall goal. To the extent that exceptions rely on content-based distinctions, they must be scrutinized with special care.
The San Diego billboard ordinance is a classic example of conflicting interests. In its section entitled "Purpose and Intent," the ordinance states:
San Diego has shown itself fully capable of drafting narrow exceptions to the general ban. For example, the city has promulgated special regulations for sign control in the La Jolla sign control district:
[ Footnote 11 ] Likewise, I express no view on the constitutionality of the Highway Beautification Act of 1965, 23 U.S.C. 131 (1976 ed. and Supp. III).
[ Footnote 12 ] The plurality comments that "the city could reasonably conclude that a commercial enterprise - as well as the interested public - has a stronger interest in identifying its place of business and advertising the products or services available there than it has in using or leasing its available space for the purpose of advertising commercial enterprises located elsewhere." Ante, at 512 (emphasis added). But Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557 (1980), demands more than a rational basis for preferring one kind of commercial speech over another. Moreover, this case does not present legislation implicating the "commonsense [453 U.S. 490, 535] differences" between commercial and noncommercial speech that "`suggest that a different degree of protection is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired.'" Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 98 (1977), quoting Virginia Pharmacy Board v. Virginia Citizens Consumers Council, Inc., 425 U.S. 748, 771 -772, n. 24 (1976). There is no suggestion that San Diego's billboard ordinance is designed to deal with "false or misleading signs." Linmark Associates, Inc. v. Willingboro, supra, at 98.
[ Footnote 13 ] Of course, as a matter of marketplace economics, such an ordinance may prove the undoing of all billboard advertising, both commercial and noncommercial. It may well be that no company would be able to make a profit maintaining billboards used solely for noncommercial messages. Although the record does not indicate how much of appellants' income is produced by noncommercial communicators, it would not be unreasonable to assume that the bulk of their customers advertise commercial messages. Therefore, noncommercial users may represent such a small percentage of the billboard business that it would be impossible to stay in business based upon their patronage alone. Therefore, the plurality's prescription may represent a de facto ban on both commercial and noncommercial billboards. This is another reason to analyze this case as a "total ban" case.
[ Footnote 14 ] These are not mere hypotheticals that can never occur. The Oil, Chemical and Atomic Workers International Union, AFL-CIO, actually placed a billboard advertisement stating: "Support America's First Environment Strike. Don't Buy Shell!" App. to Juris. Statement; see, n. 4, supra. What if Exxon had placed the advertisement? Could Shell respond in kind?
JUSTICE STEVENS, dissenting in part.
If enforced as written, the ordinance at issue in this case will eliminate the outdoor advertising business in the city of San Diego. 1 The principal question presented is, therefore, whether a city may prohibit this medium of communication. Instead of answering that question, the plurality focuses its attention on the exceptions from the total ban and, somewhat ironically, concludes that the ordinance is an unconstitutional abridgment of speech because it does not abridge enough speech. 2 [453 U.S. 490, 541]
The plurality first holds that a total prohibition of the use of "outdoor advertising display signs" 3 for commercial messages, other than those identifying or promoting a business located on the same premises as the sign, is permissible. I agree with the conclusion that the constitutionality of this prohibition is not undercut by the distinction San Diego has drawn between onsite and offsite commercial signs, see ante, at 512 (plurality opinion), and I therefore join Parts I through IV of JUSTICE WHITE'S opinion. I do not, however, agree with the reasoning which leads the plurality to invalidate the ordinance because San Diego failed to include a total ban on the use of billboards for both commercial and noncommercial messages. While leaving open the possibility that a total ban on billboards would be permissible, see ante, at 515, n. 20, 4 the plurality finds two flaws in the ordinance. First, because the ordinance permits commercial, but not noncommercial, use of onsite signs, it improperly "afford[s] a greater degree of protection to commercial than to noncommercial speech." Ante, at 513. And, second, because the ordinance excepts certain limited categories of noncommercial signs from the prohibition, the city is guilty of "choos[ing] the appropriate subjects for public discourse." Ante, at 515. [453 U.S. 490, 542]
Although it is possible that some future applications of the San Diego ordinance may violate the First Amendment, I am satisfied that the ordinance survives the challenges that these appellants have standing to raise. Unlike the plurality, I do not believe that this case requires us to decide any question concerning the kind of signs a property owner may display on his own premises. I do, however, believe that it is necessary to confront the important question, reserved by the plurality, whether a city may entirely ban one medium of communication. My affirmative answer to that question leads me to the conclusion that the San Diego ordinance should be upheld; that conclusion is not affected by the content-neutral exceptions that are the principal subject of the debate between the plurality and THE CHIEF JUSTICE.
Appellants are engaged in the outdoor advertising business. The parties stipulated that there are critical differences between that business and so-called "onsite" or business signs. 5 [453 U.S. 490, 543] Outdoor advertising is presented on large, standardized billboards which display a variety of commercial and noncommercial messages that change periodically. 6 The only information in the record about onsite signs is that they "advertise businesses, goods or services available on the property on which the sign is located." Joint Stipulation of Facts No. 22, App. 45a. There is no evidence that any onsite signs in San Diego of the permanent character covered by the ordinance 7 have ever been used for noncommercial messages.
If the ordinance is enforced, two consequences are predictable. Appellants' large and profitable outdoor advertising businesses will be destroyed. 8 Moreover, many persons who [453 U.S. 490, 544] now rent billboards to convey both commercial and noncommercial messages to the public will not have access to an equally effective means of communication. 9 There is no evidence, however, that enforcement of the ordinance will have any effect whatsoever upon any property owner's use of onsite advertising signs. 10 Nor is there anything in the record to suggest that the use of onsite signs has had any effect on the outdoor advertising business or on any of the consumers of offsite billboard space.
Appellants, of course, have standing to challenge the ordinance because of its impact on their own commercial operations. Because this challenge is predicated in part on the First Amendment, I agree with the plurality and JUSTICE BRENNAN that they also have standing to argue that the ordinance is invalid because of its impact on their customers - the persons who use their billboards to communicate with the public. See ante, at 504, n. 11 (plurality opinion). I do not agree, however, that they have any standing to assert the purely hypothetical claims of property owners whose onsite advertising is entirely unaffected by the application of the ordinance at issue in this case. [453 U.S. 490, 545]
This case involves only the use of permanent signs in areas zoned for commercial and industrial purposes. 11 It is conceivable that some public-spirited or eccentric businessman might want to use a permanent sign on his commercial property to display a noncommercial message. The record, however, discloses no such use in the past, and it seems safe to assume that such uses in the future will be at best infrequent. Rather than speculate about hypothetical cases that may be presented by property owners not now before the Court, I would judge this ordinance on the basis of its effect on the outdoor advertising market and save for another day any questions concerning its possible effect in an entirely separate market.
The few situations in which constitutional rights may be asserted vicariously represent exceptions from one of the Court's most fundamental principles of constitutional adjudication. 12 Our explanation of that principle in Broadrick v. Oklahoma, 413 U.S. 601, 610 -611 (footnote omitted), merits emphasis and repetition:
Just as the regulation of an economic market may either enhance or curtail the free exchange of goods and services, 17 so may regulation of the communications market sometimes facilitate and sometimes inhibit the exchange of information, ideas, and impressions. Procedural rules in a deliberative body are designed to improve the quality of debate. Our [453 U.S. 490, 549] cases upholding regulation of the time, place, or manner of communication have been decided on the implicit assumption that the net effect of the regulation on free expression would not be adverse. In this case, however, that assumption cannot be indulged.
The parties have stipulated, correctly in my view, 18 that the net effect of the city's ban on billboards will be a reduction in the total quantity of communication in San Diego. If the ban is enforced, some present users of billboards will not be able to communicate in the future as effectively as they do now. 19 This ordinance cannot, therefore, be sustained on the assumption that the remaining channels of communication will be just as effective for all persons as a communications marketplace which includes a thousand or more large billboards available for hire.
The unequivocal language of the First Amendment prohibits any law "abridging the freedom of speech." That language could surely be read to foreclose any law reducing the quantity of communication within a jurisdiction. I am convinced, however, that such a reading would be incorrect. My conviction is supported by a hypothetical example, by the Court's prior cases, and by an appraisal of the healthy character of the communications market.
Archaeologists use the term "graffiti" to describe informal inscriptions on tombs and ancient monuments. The graffito was familiar in the culture of Egypt and Greece, in the Italian decorative art of the 15th century, and it survives today in some subways and on the walls of public buildings. 20 It is [453 U.S. 490, 550] an inexpensive means of communicating political, commercial, and frivolous messages to large numbers of people; some creators of graffiti have no effective alternative means of publicly expressing themselves. Nevertheless, I believe a community has the right to decide that its interests in protecting property from damaging trespasses and in securing beautiful surroundings outweigh the countervailing interest in uninhibited expression by means of words and pictures in public places. If the First Amendment categorically protected the marketplace of ideas from any quantitative restraint, a municipality could not outlaw graffiti.
Our prior decisions are not inconsistent with this proposition. Whether one interprets the Court's decision in Kovacs v. Cooper, 336 U.S. 77 , as upholding a total ban on the use of sound trucks, or merely a ban on the "loud and raucous" use of amplifiers, the case at least stands for the proposition that a municipality may enforce a rule that curtails the effectiveness of a particular means of communication. 21 Even the dissenting Justices in that case thought it obvious that "cities may restrict or absolutely ban the use of amplifiers on busy streets in the business area." Id., at 104 (Black, J., joined by Douglas and Rutledge, JJ., dissenting). 22 Kovacs, I believe, [453 U.S. 490, 551] forecloses any claim that a prohibition of billboards must fall simply because it has some limiting effect on the communications market. 23 [453 U.S. 490, 552]
I therefore assume that some total prohibitions may be permissible. It seems to be accepted by all that a zoning regulation excluding billboards from residential neighborhoods is justified by the interest in maintaining pleasant surroundings and enhancing property values. The same interests are at work in commercial and industrial zones. Reasonable men may assign different weights to the conflicting interests, but in constitutional terms I believe the essential inquiry is the same throughout the city. For whether the ban is limited to residential areas, to the entire city except its most unsightly sections, or is citywide, it unquestionably will limit the quantity of communication. Moreover, the interests served by the ban are equally legitimate and substantial in all parts of the city. Those interests are both psychological and economic. The character of the environment affects property values and the quality of life not only for the suburban resident but equally so for the individual who toils in a factory or invests his capital in industrial properties.
Because the legitimacy of the interests supporting a citywide zoning plan designed to improve the entire municipality are beyond dispute, in my judgment the constitutionality of the prohibition of outdoor advertising involves two separate questions. First, is there any reason to believe that the regulation is biased in favor of one point of view or another, or that it is a subtle method of regulating the controversial subjects that may be placed on the agenda for public debate? Second, is it fair to conclude that the market which remains open for the communication of both popular and unpopular ideas is ample and not threatened with gradually increasing restraints?
In this case, there is not even a hint of bias or censorship in the city's actions. Nor is there any reason to believe that the overall communications market in San Diego is inadequate. [453 U.S. 490, 553] Indeed, it may well be true in San Diego as in other metropolitan areas that the volume of communication is excessive and that the public is presented with too many words and pictures to recognize those that are most worthy of attention. In any event, I agree with THE CHIEF JUSTICE that nothing in this record suggests that the ordinance poses a threat to the interests protected by the First Amendment.
If one is persuaded, as I am, that a wholly impartial total ban on billboards would be permissible, 24 it is difficult to understand why the exceptions in San Diego's ordinance present any additional threat to the interests protected by the First Amendment. The plurality suggests that, because the exceptions are based in part on the subject matter of noncommercial speech, the city somehow is choosing the permissible subjects for public debate. See ante, at 515. While this suggestion is consistent with some of the broad dictum in Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530 , it does not withstand analysis in this case.
The essential concern embodied in the First Amendment is that government not impose its viewpoint on the public or select the topics on which public debate is permissible. The San Diego ordinance simply does not implicate this concern. Although Consolidated Edison broadly identified regulations based on the subject matter of speech as impermissible content-based regulations, essential First Amendment concerns [453 U.S. 490, 554] were implicated in that case because the government was attempting to limit discussion of controversial topics, see id., at 533, and thus was shaping the agenda for public debate. The neutral exceptions in the San Diego ordinance do not present this danger.
To the extent that the exceptions relate to subject matter at all, 25 I can find no suggestion on the face of the ordinance that San Diego is attempting to influence public opinion or to limit public debate on particular issues. Except for the provision allowing signs to be used for political campaign purposes for limited periods, see 101.0700 (F) (12), none of the exceptions even arguably relates to any controversial subject matter. As a whole they allow a greater dissemination of information than could occur under a total ban. Moreover, it was surely reasonable for the city to conclude that exceptions for clocks, thermometers, historic plaques, and the like, would have a lesser impact on the appearance of the city than the typical large billboards.
The exception for political campaign signs presents a different question. For I must assume that these signs may be [453 U.S. 490, 555] just as unsightly and hazardous as other offsite billboards. Nevertheless, the fact that the community places a special value on allowing additional communication to occur during political campaigns is surely consistent with the interests the First Amendment was designed to protect. Of course, if there were reason to believe that billboards were especially useful to one political party or candidate, this exception would be suspect. But nothing of that sort is suggested by this record. In the aggregate, therefore, it seems to me that the exceptions in this ordinance cause it to have a less serious effect on the communications market than would a total ban.
In sum, I agree with THE CHIEF JUSTICE that nothing more than a rather doctrinaire application of broad statements that were made in other contexts may support a conclusion that this ordinance is unconstitutional because it includes a limited group of exceptions that neither separately nor in the aggregate compromise "our zealous adherence to the principle that the government may not tell the citizen what he may or may not say." Young v. American Mini Theatres, Inc., 427 U.S. 50, 63 (opinion of STEVENS, J.). None of the exceptions is even arguably "conditioned upon the sovereign's agreement with what a speaker may intend to say." Ibid. Accordingly, and for the reasons stated in greater detail by THE CHIEF JUSTICE, I respectfully dissent.
[ Footnote 1 ] The parties so stipulated. See Joint Stipulation of Facts No. 2, App. 42a, quoted in n. 8, infra.
[ Footnote 2 ] That is the effect of both JUSTICE WHITE'S reaction to the exceptions from a total ban and JUSTICE BRENNAN'S concern about the city's attempt to differentiate between commercial and noncommercial messages, although [453 U.S. 490, 541] both of their conclusions purportedly rest on the character of the abridgment rather than simply its quantity.
[ Footnote 3 ] The ordinance does not define the term "outdoor advertising display signs." The California Supreme Court adopted the following definition to avoid overbreadth problems:
[ Footnote 4 ] As a practical matter, the plurality may well be approving a total ban on billboards, or at least on offsite billboards. For it seems unlikely that the outdoor advertising industry will be able to survive if its only customers are those persons and organizations who wish to use billboards to convey noncommercial messages. See ante, at 536, n. 13 (BRENNAN, J., concurring in judgment).
[ Footnote 5 ] The parties' stipulation described these differences:
[ Footnote 6 ] The physical characteristics of outdoor advertising signs were established by stipulation:
[ Footnote 7 ] The California Supreme Court's narrowing construction of the ordinance, see n. 3, supra, makes it applicable only to rigidly assembled permanent signs. For that reason, the plurality is able to state that it deals only "with the law of billboards." Ante, at 501.
[ Footnote 8 ] The parties stipulated to the economic effects of the ordinance:
[ Footnote 9 ] By stipulation, the parties agreed that the San Diego ordinance will limit the ability of some billboard users to communicate their messages to the public:
[ Footnote 10 ] Nor is there any evidence that the total elimination of the outdoor advertising business will have any economic effect on manufacturers of onsite signs. See JUSTICE BRENNAN'S opinion concurring in the judgment, ante, at 526, n. 5.
[ Footnote 11 ] Appellants each own between 500 and 800 outdoor advertising displays in San Diego. See Joint Stipulation of Facts No. 13, App. 44a. All of their signs are located in areas zoned for commercial and industrial uses. Joint Stipulation of Facts No. 20, App. 45a.
The California Supreme Court's narrowing construction of the ordinance was specifically intended to exclude from the coverage of the ordinance signs very different from commercial billboards, such as "a picket sign announcing a labor dispute or a small sign placed in one's front yard proclaiming a political or religious message." 26 Cal. 3d, at 856, n. 2, 610 P.2d, at 410, n. 2.
[ Footnote 14 ] Even the dissenting Justices in Broadrick, although they disagreed with the Court's refusal to apply the overbreadth doctrine in that case, acknowledged that an overbreadth challenge should not be entertained in every case raising First Amendment issues:
[ Footnote 15 ] Indeed, the parties stipulated that onsite advertising differs in significant respects from the outdoor advertising business in which appellants are engaged. See n. 5, supra.
[ Footnote 16 ] Ironically, today the plurality invalidates this ordinance - not because it is too broad - but rather because it is not broad enough. It assumes for the purpose of decision that a repeal of all exceptions, including the exception for onsite advertising, would cure the defects it finds in the present ordinance. See ante, at 515, n. 20. However, because neither the appellants nor the onsite advertisers would derive any benefits from a repeal of the exception for onsite commercial signs, the plurality's reliance on the overbreadth doctrine to support vicarious standing in this case is curious indeed.
[ Footnote 18 ] Because the record makes it clear that the business of operating billboards has prospered in San Diego, it is obvious that this medium is more effective than others for some forms of communication. See n. 8, supra.
[ Footnote 19 ] See nn. 8, 9, supra.
[ Footnote 20 ] See generally A. Read, Classic American Graffiti (1977); R. Reisner, Graffiti: Two Thousand Years of Wall Writing (1971); V. Pritchard, English Medieval Graffiti (1967).
[ Footnote 21 ] In his opinion announcing the judgment of the Court, Justice Reed wrote:
[ Footnote 22 ] That excerpt from Justice Black's dissent is not, of course, sufficient evidence to tell us whether or not he would have upheld a city's total ban on billboards. It does seem clear, however, that he did not adopt the absolute position that any reduction in the quantity of effective communication is categorically prohibited by the First Amendment. The full paragraph in which the quoted phrase appears reads:
[ Footnote 23 ] Our decisions invalidating ordinances prohibiting or regulating door-to-door solicitation and leafletting are not to the contrary. In those cases, the state interests the ordinances purported to serve - for instance, the prevention of littering or fraud - were only indirectly furthered by the regulation of communicative activity. See, e. g., Schneider v. State, 308 U.S. 147, 162 , 164; Martin v. City of Struthers, 319 U.S. 141, 147 -148; Cantwell v. Connecticut, 310 U.S. 296, 306 ; Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 636 -639. In many of the cases, the ordinances provided for a licensing scheme, rather than a blanket prohibition. The discretion thus placed in the hands of municipal officials was found constitutionally offensive because of the risk of censorship. See, e. g., Schneider, supra, at 163-164; Hague v. CIO, 307 U.S. 496, 516 (opinion of Roberts, J.); Lovell v. Griffin, 303 U.S. 444, 451 -452; Cantwell, supra, at 305-307. In addition, because many of these cases involved the solicitation efforts of the Jehovah's Witnesses, see, e. g., Lovell, supra, at 448; Jamison v. Texas, 318 U.S. 413, 413 -414; Schneider, supra, at 158; Martin, supra, at 142; Cantwell, supra, at 300, the Court was properly sensitive to the risk that the ordinances could be used to suppress unpopular viewpoints.
In this case, as the plurality acknowledges, the ban on billboards directly serves, and indeed is necessary to further, the city's legitimate interests in traffic safety and aesthetics. See ante, at 507-510, 511. San Diego's ordinance places no discretion in any municipal officials, and there is no [453 U.S. 490, 552] reason to suspect that the ordinance was designed or is being applied to suppress unpopular viewpoints.
[ Footnote 24 ] It seems fair to infer that Justice Douglas, who cast the deciding vote in Lehman v. City of Shaker Heights, 418 U.S. 298 , would have approved of a prohibition on billboards. See his opinion concurring in the judgment, id., at 306-308. After drawing an analogy between billboards and advertising on municipal vehicles, Justice Douglas noted:
[ Footnote 25 ] Most of the ordinance's 12 exceptions, quoted ante, at 495, n. 3 (opinion of WHITE, J.), are not based on the subject matter of speech. Several exceptions can be disregarded because they pertain to signs that are not within the coverage of the ordinance at any rate, in light of the California Supreme Court's limiting construction. See n. 3, supra. The exceptions relating to vehicular signs fall into this category, see 101.0700 (F) (9), (10), as do the exceptions for signs in transit and storage, see 101.0700 (F) (3), and for temporary subdivision directional signs, see 101.0700 (F) (11). The exception for "for sale" signs also appears to describe signs not covered by the ordinance since such signs ordinarily are not "permanently affixed to the ground or permanently attached to a building." Of the remaining exceptions, two are based on the location, rather than content, of the signs, see 101.0700 (F) (2), (6), and a third permits signs required by law or otherwise erected in discharge of governmental functions, see 101.0700 (F) (1). Thus, only four exceptions are actually based in any way on the subject matter of the signs at issue. See 101.0700 (F) (4), (5), (8), (12).
CHIEF JUSTICE BURGER, dissenting.
Today the Court takes an extraordinary - even a bizarre - step by severely limiting the power of a city to act on risks it perceives to traffic safety and the environment posed by large, permanent billboards. Those joining the plurality opinion invalidate a city's effort to minimize these traffic hazards and eyesores simply because, in exercising rational legislative judgment, it has chosen to permit a narrow class of signs that serve special needs.
Relying on simplistic platitudes about content, subject matter, and the dearth of other means to communicate, the [453 U.S. 490, 556] billboard industry attempts to escape the real and growing problems every municipality faces in protecting safety and preserving the environment in an urban area. The Court's disposition of the serious issues involved exhibits insensitivity to the impact of these billboards on those who must live with them and the delicacy of the legislative judgments involved in regulating them. American cities desiring to mitigate the dangers mentioned must, as a matter of federal constitutional law, elect between two unsatisfactory options: (a) allowing all "noncommercial" signs, no matter how many, how dangerous, or how damaging to the environment; or (b) forbidding signs altogether. Indeed, lurking in the recesses of today's opinions is a not-so-veiled threat that the second option, too, may soon be withdrawn. This is the long arm and voracious appetite of federal power - this time judicial power - with a vengeance, reaching and absorbing traditional concepts of local authority.
This case presents the Court with its first occasion to address the constitutionality of billboard regulation by local government. I fear that those joining in today's disposition have become mesmerized with broad, but not controlling, language appearing in our prior opinions but now torn from its original setting. They overlook a cogent admonition to avoid
It is not really relevant whether the San Diego ordinance is viewed as a regulation regarding time, place, and manner, or as a total prohibition on a medium with some exceptions defined, in part, by content. Regardless of the label we give it, we are discussing a very simple and basic question: the authority of local government to protect its citizens' legitimate interests in traffic safety and the environment by eliminating distracting and ugly structures from its buildings and roadways, to define which billboards actually pose that danger, and to decide whether, in certain instances, the public's need for information outweighs the dangers perceived. The billboard industry's superficial sloganeering is no substitute for analysis, and the plurality opinion and the opinion concurring in the judgment adopt much of that approach uncritically. General constitutional principles indeed apply, but "each case ultimately must depend on its own specific facts . . . ." Erznoznik v. City of Jacksonville, 422 U.S. 205, 209 (1975).
Some level of protection is generally afforded to the medium a speaker chooses, but as we have held just this past week in Heffron, "the First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired." Id., at 647 (emphasis added). Justice Black, speaking for the Court in Adderley v. Florida, 385 U.S. 39, 48 (1966) (emphasis added), "vigorously and forthrightly rejected" the notion that "people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please."
In Kovacs v. Cooper, supra, the Court upheld a municipal ordinance that totally banned sound trucks from a town's borders; other media were available. The Court had no difficulty distinguishing Saia v. New York, 334 U.S. 558 (1948), decided seven months earlier, where the Court had invalidated an ordinance requiring a permit from the local police chief before using a sound truck. The danger seen in Saia was in allowing a single government official to regulate a medium of communication with the attendant risk that the decision would be based on the message, not the medium. Id., at 560-561.
The ordinance in Kovacs, however, did not afford that kind of potential for censorship and was held not to violate the First Amendment. 336 U.S., at 82 -83 (plurality opinion [453 U.S. 490, 559] of Reed, J.). Justice Frankfurter, concurring, expressed this point more broadly:
Later, Chief Justice Warren, speaking for the Court in United States v. O'Brien, 391 U.S. 367, 376 (1968), observed:
As the plurality also recognizes, ante, at 508-510, the means the city has selected to advance these goals are sensible and do not exceed what is necessary to eradicate the dangers seen. When distraction of motorists is the perceived harm, the authorities reasonably can conclude that each billboard adds to the dangers in moving traffic; obviously, the billboard industry does not erect message carriers that do not catch the eye of the traveler. 3 In addition, a legislative body reasonably can conclude that every large billboard adversely [453 U.S. 490, 561] affects the environment, for each destroys a unique perspective on the landscape and adds to the visual pollution of the city. 4 Pollution is not limited to the air we breathe and the water we drink; it can equally offend the eye and the ear.
The means chosen to effectuate legitimate governmental interests are not for this Court to select. "These are matters for the legislative judgment controlled by public opinion." Kovacs v. Cooper, 336 U.S., at 96 -97 (Frankfurter, J., concurring). The plurality ignores this Court's seminal opinions in Kovacs by substituting its judgment for that of city officials and disallowing a ban on one offensive and intrusive means of communication when other means are available. Although we must ensure that any regulation of speech "further[s] a sufficiently substantial government interest," Schad v. Mount Ephraim, supra, at 68, given a reasonable approach to a perceived problem, this Court's duty is not to make the primary policy decisions but instead is to determine whether the legislative approach is essentially neutral to the messages conveyed and leaves open other adequate means of conveying those messages. This is the essence of both democracy and federalism, and we gravely damage both when we undertake to throttle legislative discretion and judgment at the "grass roots" of our system.
In the process of eradicating the perceived harms, the ordinance here in no sense suppresses freedom of expression, either by discriminating among ideas or topics or by suppressing discussion generally. San Diego has not attempted to suppress any particular point of view or any category of messages; it has not censored any information; it has not banned any thought. See Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96 (1972). It has not "attempt[ed] to give one side of a debatable public question an advantage in expressing its view to the people . . . ." First National Bank of Boston v. Bellotti, 435 U.S. 765, 785 (1978) (footnote omitted). See Madison School District v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 175 -176 (1976). There is no suggestion or danger that the city has permitted these narrow categories of signs but forbidden the vast majority "merely because public officials disapprove of the speaker's view." Niemotko v. Maryland, 340 U.S. 268, 282 (1951) (Frankfurter, J., concurring in result). Moreover, aside from a few narrow and essentially negligible exceptions, see infra, at 564-565, 566, San Diego has not differentiated with regard to topic. See Consolidated Edison Co. v. Public Service Comm'n, 447 U.S., at 537 -538; Carey v. Brown, 447 U.S. 455, 462 , n. 6, 463 (1980); First National Bank v. Bellotti, supra, at 784-785; Police Dept. of Chicago v. Mosley, supra, at 96. The city has not undertaken to determine, paternalistically, "`what information is relevant to self-government.'" Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974) (quoting Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 79 (1971) (MARSHALL, J., dissenting)).
The messages conveyed on San Diego billboards - whether commercial, political, social, or religious - are not inseparable from the billboards that carry them. These same messages [453 U.S. 490, 563] can reach an equally large audience through a variety of other media: newspapers, television, radio, magazines, direct mail, pamphlets, etc. True, these other methods may not be so "eye-catching" - or so cheap - as billboards, 5 but there has been no suggestion that billboards heretofore have advanced any particular viewpoint or issue disproportionately to advertising generally. Thus, the ideas billboard advertisers have been presenting are not relatively disadvantaged vis-a-vis the messages of those who heretofore have chosen other methods of spreading their views. See First National Bank v. Bellotti, supra, at 789. See also Martin v. Struthers, 319 U.S. 141, 146 (1943). It borders on the frivolous to suggest that the San Diego ordinance infringes on freedom of expression, given the wide range of alternative means available.
In a bizarre twist of logic, the plurality seems to hold that because San Diego has recognized the hardships of its ordinance on certain special needs of citizens and, therefore, exempted a few narrowly defined classes of signs from the ordinance's scope - for example, onsite signs identifying places of business, time-and-temperature signs, commemorative and historic plaques - the ordinance violates the First Amendment. From these dubious premises, the plurality has given every city, town, and village in this country desiring to respond to the hazards posed by billboards a choice, as previously noted, between two equally unsatisfactory alternatives:
Where the ordinance does differentiate among topics, it simply allows such noncontroversial things as conventional [453 U.S. 490, 565] signs identifying a business enterprise, time-and-temperature signs, historical markers, and for sale signs. It borders - if not trespasses - on the frivolous to suggest that, by allowing such signs but forbidding noncommercial billboards, the city has infringed freedom of speech. This ignores what we recognized in Police Dept. of Chicago v. Mosley, 408 U.S., at 98 , that "there may be sufficient regulatory interests justifying selective exclusions or distinctions . . . ." For each exception, the city is either acknowledging the unique connection between the medium and the message conveyed, see, e. g., Linmark Associates, Inc. v. Willingboro, 431 U.S. 85 (1977) (for sale signs), or promoting a legitimate public interest in information. Similarly, in each instance, the city reasonably could conclude that the balance between safety and aesthetic concerns on the one hand and the need to communicate on the other has tipped the opposite way. 6 More important, in no instance is the exempted topic controversial; there can be no rational debate over, for example, the time, the temperature, the existence of an offer of sale, or the identity of a business establishment. The danger of San Diego's setting the agenda of public discussion is not simply de minimis; it is nonexistent. The plurality today trivializes genuine First Amendment values by hinging its holding on the city's decision to allow some signs while preventing others that constitute the vast majority of the genre. [453 U.S. 490, 566]
Thus, despite the plurality's unique focus, we are not confronted with an ordinance like the one in Saia v. New York, which vested in a single official - the local police chief - an unlimited discretion to grant or to deny licenses for sound trucks. "Annoyance at ideas can be cloaked in annoyance at sound. The power of censorship inherent in this type of ordinance reveals its vice." 334 U.S., at 562 . Accord, Shuttlesworth v. Birmingham, 394 U.S. 147, 150 -151 (1969); Staub v. City of Baxley, 355 U.S. 313, 322 -325 (1958); Lovell v. Griffin, 303 U.S. 444, 451 -452 (1938). See also Consolidated Edison Co. v. Public Service Comm'n, 447 U.S., at 546 -548 (STEVENS, J., concurring in judgment). But here we have no allegation and no danger that San Diego is using its billboard ordinance as a mask for promoting or deterring any viewpoint or issue of public debate. This ordinance, in precisely the same sense as the regulation we upheld last week in Heffron v. International Society for Krishna Consciousness, Inc., "is not open to the kind of arbitrary application that this Court has condemned . . . because such discretion has the potential for becoming a means of suppressing a particular point of view." 452 U.S., at 649 . 7
San Diego simply is exercising its police power to provide an environment of tranquility, safety, and as much residual beauty as a modern metropolitan area can achieve. A city's simultaneous recognition of the need for certain exceptions permitting limited forms of communication, purely factual in nature and neutral as to the speaker, should not wholly deprive the city of its ability to address the balance of the problem. There is no threat here to our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open . . . ." New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). [453 U.S. 490, 567]
No case in this Court creates, as the plurality suggests, a hierarchy of types of speech in which, if one type is actually protected through legislative judgment, the Constitution compels that that judgment be exercised in favor of all types ranking higher on the list. When a city chooses to impose looser restrictions in one area than it does in another analogous area - even one in which the Constitution more narrowly constrains legislative discretion - it neither undermines the constitutionality of its regulatory scheme nor renders its legislative choices ipso facto irrational. A city does not thereby "conced[e] that some communicative interests . . . are stronger than its competing interests in esthetics and traffic safety," ante, at 520; it has only declined, in one area, to exercise its powers to the full extent the Constitution permits. The Constitution does not require any governmental entity to reach the limit of permissible regulation solely because it has chosen to do so in a related area. Cf. Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955) (a "legislature may select one phase of one field and apply a remedy there, neglecting the others"). The plurality today confuses the degree of constitutional protection - i. e., the strictness of the test applied - with the outcome of legislative judgment. [453 U.S. 490, 568]
By allowing communication of certain commercial ideas via billboards, but forbidding noncommercial signs altogether, a city does not necessarily place a greater "value" on commercial speech. 8 In these situations, the city is simply recognizing that it has greater latitude to distinguish among various forms of commercial communication when the same distinctions would be impermissible if undertaken with regard to noncommercial speech. Indeed, when adequate alternative channels of communication are readily available so that the message may be freely conveyed through other means, a city arguably is more faithful to the Constitution by treating all noncommercial speech the same than by attempting to impose the same classifications in noncommercial as it has in commercial areas. To undertake the same kind of balancing and content judgment with noncommercial speech that is permitted with commercial speech is far more likely to run afoul of the First Amendment. 9
Thus, we may, consistent with the First Amendment, hold that a city may - and perhaps must - take an all-or-nothing approach with noncommercial speech yet remain free to adopt selective exceptions for commercial speech, as long as the latter advance legitimate governmental interests. Indeed, [453 U.S. 490, 569] it is precisely because "the city does not have the same range of choice in the area of noncommercial speech to evaluate the strength of, or distinguish between, various communicative interests," ante, at 514, that a city should be commended, not condemned, for treating all noncommercial speech the same.
The Court today unleashes a novel principle, unnecessary and, indeed, alien to First Amendment doctrine announced in our earlier cases. As JUSTICE STEVENS cogently observes, the plurality, "somewhat ironically, concludes that the ordinance is an unconstitutional abridgment of speech because it does not abridge enough speech." Ante, at 540 (emphasis added). The plurality gravely misconstrues the commercial-noncommercial distinction of earlier cases when it holds that the preferred position of noncommercial speech compels a city to impose the same or greater limits on commercial as on noncommercial speech. The Court today leaves the modern metropolis with a series of Hobson's choices and rejects basic concepts of federalism by denying to every community the important powers reserved to the people and the States by the Constitution. This is indeed "an exercise of raw judicial power." Doe v. Bolton, 410 U.S. 179, 222 (1973) (WHITE, J., dissenting), and is far removed from the high purposes of the First Amendment.
[ Footnote 1 ] For example, because of the limited spectrum available and the peculiar intrusiveness of the medium, broadcasting is subject to limitations that would be intolerable if applied to other forms of communication. FCC v. Pacifica Foundation, 438 U.S. 726, 748 -749 (1978). Compare Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), with Miami Herald [453 U.S. 490, 558] Publishing Co. v. Tornillo, 418 U.S. 241 (1974). For the same reason, certain media may mix the form with the substance of the communication and the permissible range of regulation is correspondingly narrower than when the message is completely separable from the medium used to convey it.
[ Footnote 2 ] Congress, too, has recognized the dangers to safety and the environment posed by billboards. The Highway Beautification Act of 1965 provides in part:
[ Footnote 3 ] The parties have stipulated that billboards come in "two basic standardized forms," 12 ft. by 24 ft. and 14 ft. by 48 ft. Joint Stipulation of Facts No. 25, App. 47a.
[ Footnote 5 ] Before trial, the parties stipulated; "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 No. 28, App. 48a. This sweeping, conclusory, and rather vague generalization does nothing to explain how other media are insufficient, inappropriate, or too expensive. More important, the stipulation does not suggest that any particular point of view or issue will be suppressed by the elimination of billboards.
[ Footnote 6 ] Indeed, the plurality acknowledges that a city may undertake this kind of balancing:
[ Footnote 7 ] As JUSTICE BRENNAN recognizes, ante, at 536-540, the plurality's treatment of the ordinance may well create this very danger, for the plurality appears willing to allow municipal officials to determine what is and is not noncommercial speech.
[ Footnote 8 ] Indeed, in Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), we upheld a municipal policy allowing commercial but not political advertising on city buses. I cannot agree with the plurality that Lehman "ha[s] no application here." Ante, at 514, n. 19. Although Lehman dealt with limited space leased by the city and this case deals with municipal regulation of privately leased space, the constitutional principle is the same: a city may forgo the "lurking doubts about favoritism" in granting space to some, but necessarily not all, political advertisers. 418 U.S., at 304 (plurality opinion of BLACKMUN, J.). The same constitutional dangers do not arise in allocating space among commercial advertisers.
[ Footnote 9 ] See n. 8, supra. If a city were to permit onsite noncommercial billboards, one can imagine a challenge based on the argument that this favors the views of persons who can afford to own property in commercial districts. See supra, at 562-563. I intimate no view on whether I would accept such an argument should that case ever arise.
JUSTICE REHNQUIST, dissenting.
I agree substantially with the views expressed in the dissenting opinions of THE CHIEF JUSTICE and JUSTICE STEVENS and make only these two additional observations: (1) In a case where city planning commissions and zoning boards must regularly confront constitutional claims of this sort, it is a genuine misfortune to have the Court's treatment of the subject be a virtual Tower of Babel, from which no definitive principles can be clearly drawn; and (2) I regret even more [453 U.S. 490, 570] keenly my contribution to this judicial clangor, but find that none of the views expressed in the other opinions written in the case come close enough to mine to warrant the necessary compromise to obtain a Court opinion.
In my view, the aesthetic justification alone is sufficient to sustain a total prohibition of billboards within a community, see Berman v. Parker, 348 U.S. 26, 32 -33 (1954), regardless of whether the particular community is "a historical community such as Williamsburg" or one as unsightly as the older parts of many of our major metropolitan areas. Such areas should not be prevented from taking steps to correct, as best they may, mistakes of their predecessors. Nor do I believe that the limited exceptions contained in the San Diego ordinance are the types which render this statute unconstitutional. The closest one is the exception permitting billboards during political campaigns, but I would treat this as a virtually self-limiting exception which will have an effect on the aesthetics of the city only during the periods immediately prior to a campaign. As such, it seems to me a reasonable outlet, limited as to time, for the free expression which the First and Fourteenth Amendments were designed to protect.
Unlike JUSTICE BRENNAN, I do not think a city should be put to the task of convincing a local judge that the elimination of billboards would have more than a negligible impact on aesthetics. Nothing in my experience on the bench has led me to believe that a judge is in any better position than a city or county commission to make decisions in an area such as aesthetics. Therefore, little can be gained in the area of constitutional law, and much lost in the process of democratic decisionmaking, by allowing individual judges in city after city to second-guess such legislative or administrative determinations. [453 U.S. 490, 571]