finding that the exceptions are "quite small ... not for particular subjects likely to generate much debate ... and do not discriminate by viewpoint. Thus, they do not appear to be motivated by a desire to suppress certain speech... in a way that makes it likely that the government is aiming to shape the public agenda or is in fact significantly affecting the shape of that agenda.”
How later courts described this case
- finding that the exceptions are "quite small ... not for particular subjects likely to generate much debate ... and do not discriminate by viewpoint. Thus, they do not appear to be motivated by a desire to suppress certain speech... in a way that makes it likely that the government is aiming to shape the public agenda or is in fact significantly affecting the shape of that agenda.”
- finding that allowing some signs but not others is evidence that the government's asserted interests in traffic safety and aesthetics is not sufficiently compelling to justify disparate treatment between classes of speech
- finding that a view taken by a majority of concurring and dissenting Justices could not have precedential value, “as the precedential meaning would then he inconsistent with the result in that case”
- concluding that when there is a significant relationship between the content of a particular speech and a specific location or its use, the state can exempt it from a general ban
Written by the judges who cited it.
The opinion
ALITO, Circuit Judge,
concurring:
While I completely agree with most of the court’s opinion, I would, if sitting alone, employ a method of analysis somewhat different from that used by the court. Nevertheless, because this analysis would lead to conclusions quite similar to those reached by the court and because I think it is important for the panel to agree on a judgment and rationale, I concur in the court’s judgment and opinion. I will, however, very briefly explain my own preferred method of analysis.
I view both subchapter 1 1 and subehapter II 2 of Title 17, chapter 11 of the Delaware Code as essentially banning signs (within the areas they cover) with two significant exceptions and a number of other exceptions that are insignificant for present purposes. The two significant exceptions pertain to “for sale” signs and signs relating to on-site activities. The exceptions that are not important for present purposes are, first, those exceptions, such as the exceptions for directional and warning signs, that are narrowly tailored *1080 to further the state’s compelling interest in highway safety and could thus survive the test for a content-based restriction on speech (see Maj. at 1066) and, second, those exceptions that I believe are truly de minimis, such as those for highway beautification signs and signs announcing a municipality or a local attraction.
Since subchapters I and II (within the areas they cover) ban all signs not falling under their listed exceptions, I think that both subchapters should, at the outset, be tested to see if they can at least pass the test that would be applied to a content-neutral law restricting the locations in which all signs may be placed. Subchapter I, in my view, cannot survive that test. Under that test, a law must, among other things, be “narrowly tailored to serve a significant governmental interest.” Ward v. Rock Against Racism, 491 U.S. 781, 791 , 109 S.Ct. 2746, 2753 , 105 L.Ed.2d 661 (1989) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 , 104 S.Ct. 3065, 3069 , 82 L.Ed.2d 221 (1984)). While Delaware’s interests in traffic safety and highway beautification are significant, subchapter I is not narrowly tailored. This subehapter generally prohibits signs on all property within 25 feet of the right of way of all portions of every state highway except for those portions that are located within an incorporated town or city but not within a “controlled area.” This regulation sweeps broadly and indiscriminately, and I cannot see how it can be viewed as narrowly tailored. Subchapter II, by contrast, has a very limited geographical reach, applying only to areas adjacent to the interstate and primary highway system, and therefore I think it can survive the test for a content-neutral time, place, or manner restriction. See Wheeler v. Commissioner of Highways, Commonwealth of Kentucky, 822 F.2d 586, 594-96 (6th Cir.1987), cert. denied, 484 U.S. 1007 , 108 S.Ct. 702 , 98 L.Ed.2d 653 (1988).
The question remains, however, whether subchapter II’s exceptions for “for sale” signs and signs relating to on-site activities render the subchapter content-based. There is no easy answer to this question. Until the Supreme Court provides further guidance concerning the constitutionality of sign laws (see Maj. at 1062 n. 29), I endorse the test set out in the court’s opinion (see Maj. at 1065).
. Del.Code Ann. Tit. 17, §§ 1121-1126.