# State Ex Rel. Department of Transportation v. Pile

> Supreme Court of Oklahoma · November 13, 1979 · 603 P.2d 337

URL: https://www.frixlaw.com/law-library/cases/9628280

## Case

- **Full name:** STATE of Oklahoma Ex Rel. DEPARTMENT OF TRANSPORTATION of the State of Oklahoma, Appellant, v. Mrs. C. v. PILE, Appellee
- **Court:** Supreme Court of Oklahoma
- **Decided:** November 13, 1979
- **Citations:** 603 P.2d 337; 1979 OK 152; 1979 Okla. LEXIS 321
- **Precedential status:** Published
- **Opinion:** Concurring in part by Doolin
- **Judges:** Hargrave, Lavender, Irwin, Williams, Hodges, Simms, Opa-La, Doolin, Barnes
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9628280

## How later opinions describe it (automated extraction)

- holding that a statute prohibiting billboards along state highways did not cover non-commercial speech, thus avoiding constitutional doubt as to its validity

## Opinion text

DOOLIN, Justice,
specially concurring in part, dissenting in part:
Specific control of highway advertising became the law and policy of this state in 1968, 69 O.S.1971 § 1271 et seq. The state action was in response to acts of the United States Congress specifically 23 U.S.C. § 131 (Federal Act), which under section (a) thereof sets policy and declares that outdoor advertising signs, displays and devices in areas adjacent to the Interstate and the Primary system of roads shall be controlled in order to protect the public investment of such highways to promote the safety and recreational value of public travel and to preserve natural beauty. 1
The majority opinion affirms the action of the trial court in sustaining the demurrer to state’s petition on three grounds: 1) 69 O.S.1971 § 1271 et seq. was never intended to apply to first amendment rights guaranteed by the United States Constitution; 2) § 1271 et seq. abridges first amendment rights if it attempts to regulate freedom of expression; 3) § 1271 et seq. is constitutional except under the facts and circumstances of this case.
The trial court held the state was not entitled to relief upon its position in as much as the relief sought (injunction) “would be an infringement upon the first amendment rights of defendant to express herself on a political issue.”
At the risk of oversimplification, the Federal Act among other things created a system of controlled advertising along the Interstate and Primary highway system. It authorized the Secretary to promulgate national standards of compliance. Under both State Act and the Federal Act, the sign that we deal with in this case stands in a prohibited status within 660 feet of the right of way of U.S. 270 running through Harper County, Oklahoma. U.S. 270 is a part of the Primary road system.
After the passage of the Federal Act, the various states including Oklahoma, enacted Highway Advertising Control Acts. 2
I have no quarrel with the majority’s opinion academically when it differentiates between commercial advertising and the political “advertising” or opinion under the first amendment of the United States Constitution and Art. II, § 22 of the Oklahoma Constitution. Neither do I balk in principle at the majority’s requirements and conclusions as to a clear and present danger being necessary before first amendment rights may be abridged or limited. Likewise, I find no objection to the majority’s conclusion as to streets and the right to use same as a place of assembly as guaranteed by the first amendment.
There are at least two vices or misconceptions as to the conclusion of the majority.
First, the majority overlooks those cases that hold first amendment rights of assembly and speech may be limited by a time, place and manner limitation albeit that such cases usually apply to commercial advertising. Such limitations might apply to the defendant in this case, for she is most free to opine or advocate beyond the 660 foot limit of the acts. Secondly, the majori *346 ty affirms the trial court’s denial that a state could ever, under the police power, state a cause of action under the limitation of time, place and manner. 3
Certainly a citizen may use the streets, parks and his own premises adjacent thereto as a means of communicating his thoughts and to assemble peaceably. But, I suggest his right is not absolute; it must be exercised in subordination to the general comfort and convenience of all. His rights must not, in the guise of regulation, be totally abridged or subverted. 4
A valid exercise of the police power in regulating public streets as to loud and raucous noise does not deny freedom of speech but regulates it as to place, time and manner. 5
Both the Federal Act and State Act are limitations on place and manner of communication or advertising within the “time, place and manner of speech” regulation discussed with approval by the United States Supreme Court most recently in Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 93 , 97 S.Ct. 1614 , 52 L.Ed.2d 155, 162 (1977); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 , 96 S.Ct. 1817, 1830 , 48 L.Ed.2d 346 (1976).
Such limitations on opinion or private expression exist as to loud and raucous noises, 6 class room discussions which would disrupt discipline; 7 see also the filthy word case, Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 , 98 S.Ct. 3026 , 57 L.Ed.2d 1073 (1978). Curtis Publishing Company v. Butts and Walker v. Associated Press, 388 U.S. 130 , 87 S.Ct. 1975 , 18 L.Ed.2d 1094 points up the limitation that libel actions place on First Amendment rights:
“The fact that dissemination of information and opinion on questions of public concern is ordinarily a legitimate, protected and indeed cherished activity does not mean, however, that one may in all" respects carry on that activity exempt from sanctions designed to safeguard the legitimate interests of others.”
“The guarantees of freedom of speech and press were not designed to prevent ‘the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public 8 matters as seems absolutely essential * * *.”
The Acts attempt to place a limitation on the First Amendment as to place and manner based upon the police power. Both Acts recite or imply that the limitation is imposed because of the compelling interest of the State in preserving aesthetic qualities of roadways and the promotion of safety of motorists and the traveling public. 9
In my opinion the State has pled and stated a cause of action for the reasons stated aforesaid, and the cause should be remanded for trial.
*347 I do not indicate nor suggest the State is entitled to judgment on its pleadings. Its burden remains to show a clear and present danger and looms large. The existence of the Acts heretofore described is no evidence in itself of a valid exercise of police power; it remains suspect in the face of the Constitutions.
I would remand, for an evidentiary hearing would allow us to test or weigh evidence of the existence of a compelling public interest under the police power.
. 69 O.S.1971 § 1271 et séq.; the statutory history of 23 U.S.C. § 131 may be found following 23 U.S.C.A. § 131 and 23 U.S.C.S. 131. As to the regulatory history, see 23 C.F.R., Highways, as amended.
. Oklahoma Highway Advertising Control Act of 1965 has been at least twice amended, 69 O.S.Supp. 1972 § 1271 and 69 O.S.Supp. 1978 § 1272 et seq.
. This case was decided on a demurrer to petition. We are therefore limited to the pleadings and a transcript of the court’s oral findings. From the latter we know the state refused to amend its petition and elected to stand on it. Our examination of these limited sources might entitle us to remand under the time honored theory that a demurrer admits all facts pled and all logical conclusions to be drawn therefrom. Thus this court might find an abuse of discretion on the part of the trial court and could direct a hearing. I discard this action, for neither party advances such an argument and sooner or later, this court would be faced with the merits of a free speech issue.
. Hague v. C.I.O., 307 U.S. 496, 516 , 59 S.Ct. 954, 964 , 84 L.Ed. 1423 , 1437 (1939).
. Kovacs v. Cooper, 336 U.S. 77 , 69 S.Ct. 448 , 93 L.Ed. 513 (1949). Various hypothetical cases and situations may be assumed which would illustrate this point.
. See footnote 5, supra.
. Tinker v. Des Moines Independent Community School District, 393 U.S. 503 , 89 S.Ct. 733 , 21 L.Ed.2d 731 (1969). Cf. In re Primus, 436 U.S. 412 , 98 S.Ct. 1893 , 56 L.Ed.2d 417 (1978).
. Per Mr. Justice Harlan with three Justices concurring and the Chief Justice concurring in result.
. State v. Lotze, 92 Wash.2d 52 , 593 P.2d 811, 814 (1979). Notice of Appeal to United States Supreme Court filed August 30, 1979.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9628280. Public record. Not legal advice.