Amicus Brief — Department of Transportation v. Pile

No. 79-1017 | F .

In the Supreme Court of the Mnited tals, Rl

OCTOBER !ERM, 1979

STATE OF OKLAHOMA EX REL. DEPARTMENT OF

LRANSPORTATION OF THE STATE OF OKLAHOMA,

PETITIONER

V.

Mrs. C. V. PILE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF OKLAHOMA

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE

WADE H. MCCREE, JR.

Solicitor General

JAMES W. MOORMAN

ALICE DANIEL

Assistant Attorneys General

Louis F. CLAIBORNE

Deputy Solicitor General

ELINOR HADLEY STILLMAN

Assistant to the Solicitor

General

Lois J. SCHIFFER

ROBERT L. KLARQUIS.

RICHARD JAMES LAZARUS

Altorneys

Deparimeni of Justice

Washingion, D.C. 20530

(202). 633-2217

Or COUNSEL

LHOMAS G. ALLISON

General Counsel

EDWARD V. A. Kussy

Attorney

Department of lransportation

Washington, D.C. 20590

In the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-1617

STATE OF OKLAHOMA Ex REL. DEPARTMENT OF

TRANSPORTATION OF THE STATE OF OKLAHOMA,

PETITIONER

Vv.

Mrs. C. V. PILE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF OKLAHOMA

BRIEF FOR THE UNITED STAIES AS

AMICUS CURIAE

QUESTION PRESENTED

Whether a ban on billboards in areas adjacent to

highways in the federal-aid highway system and outside of

commercial and industrial zones would violate the First

Amendment if it applied to billboards with noncommer-

cial messages.

TABLE OF CONTENTS

Page

a a ed cals nad oi ocd nssauaniienaasionasskcddanio’ |

le nt ca cev aa divcaneiuven 6.

Ss SN ad a a kick ca chanseiaonent (18

(EARNER ESE SS FE FEI RPE AC a la

TABLE OF AUTHORITIES

Cases:

Air Pollution Variance Board of Colorado v.

Western Alfalfa Corp., 416 U.S. 861... 8-9

Baldwin v. Redwood City, 540 F. 2d 1360,

a MU MOR MEDD, DED oo oc. ds csacdscccseceseseasss 12

Board of Adjustment v. Osage Oil &

Transportation, Inc., 258 Ark. 91, 522 S.W.2d

836, cert. denied and appeal dismissed,

ee, . sccneenusaisbann 15

California v. Krivda, 409 U.S. 33) cocccecccecceseeeeeeee 8

Carey v. Brown, No. 79-703 (June 20,

lad cic cucenescucvneonnace 16

Consolidated Edison v. Public Service Comm'n,

No. 79-134 (Jume 20, 1980) ................cccscccssseees 9

Cox v. New Hampshire, 312 U.S. 569 wo... 14

Donnelly Advertising Corp. v. Mayor and City

Council of Baltimore, 279 Md. 660, 370

PO BRINE ete geria cists cava nav edie vnndsdendscavice 12, 13

E.B. Elliott Advertising Co. v. Metropolitan

Dade County, 425 F. 2d 1114, cert. dismissed,

MS NI ee oriiicvnc ep cicdusnictWibcdsassteissaesxssne 15

Il

lil

Page

Cases—Continued:

Erznoznik v. City of Jacksonville, 422 U.S.

itt acess ski) da csdukalu umeibabadbaarebbaandamemealinanianen 9, Il

Fifth Avenue Coach Co. v. City of New York,

Be Me ke WOE iavbbedccdecccncssndcines epeodeciaticnlatoesnss 10

General Outdoor Advertising Co. Vv.

Department of Public Works, 289 Mass. 149,

193 N.E. 799, appeals dismissed, 296 U.S.

RD, Be Wiss. TURE eed ascibinsnlaccntackantaintaacveennen 15

Hennessey v. Independent School Dist. No. 4,

Lincoln County, Okla., 552 P. 2d 1141 ........... 7

John Donnelly & Sons v. Mallar, 453 . Supp.

1272, appeal pending, No. 79-1575

RU Fa GicainatescinibiesgauthaniNantesngenndoiicsinhintoess 12

John Donnelly & Sons, Inc. v. Outdoor

Advertising Board, 369 Mass. 206, 339

ee TE aceite ceicaieichp kien casas tbaehabanpnenccgitobes 12

Ries 0 Ce ,: B56 GB. FF scsicsnsiiarcceictcovntens 9

Lehman v. City of Shaker Heights, 418 U.S.

SE iad case Saesnniesscbaen dais sheibiaddiisteadedaasaimeciade 10, 14

Lubbock Poster ‘Co. v. City of Lubbock, 569

S.W. 2d 935, cert. denied, 444 U.S. 833 ....... 11

Markham Advertising Co. v. State, 73 Wash.

2d 405, 439 P. 2d 248, appeal dismissed,

ee ME ty, I einen cciakscackcasestuanmestbasinidieiin 12, 15

Mental Hygiene Dep't v. Kirchner, 380

Be UE Sadie eds wisss es snatnacegeibncctesocccinealneens 7,8

lV

Page

Cases—Continued:

Metromedia, Inc. v. City of San Diege,

26 Cal. 3d 848, 610 P. 2d 407,

164 Cal. Rptr. 510, appeal pending,

No. 80-195, and cert. pending,

PO ROTI ti caacsbteninchesadetsersannwnne 7, 8, Il, 14, 15

Minnesota v. National Tea Co., 309 U.S.

| ERNE CAA tie. RS A tes nae on eer yee 7,8

Newman Signs, Inc. v. Hjelle, 268 N.W. 2d 741,

appeal dismissed, 440 U.S. 901 .......... eee 11

Opinion of the Justices, 103 N.H. 268, 169

Di TUR sii etnias ct ccannieaccendis neakioesinaibelenceneoen 15

Packer Corp. v. State of Utah, 285 U.S.

ON iad teks hls Aceicentcavenshineanapabuinbene 10

Pruneyard Shopping Center v. Robins, No.

I icc cssnce cenenssonamenta 7

St. Louis Poster Advertising Co. v. City of St.

EE FIP A MI kde nin sas ci cascavcnanecmnetaicons 10

Schneider v. Siate, 308 U.S. 147 oo... eeeeeeees 13

Southeastern Promotions, Lid. v. Conrad,

EE A, I sail nectecteieevenccinnthacidntiingncnimnigvens 13

Stuckey’s Stores, Inc. v. O’Chesky, 93 N.M.

312, 600 P. 2d 258, appeal dismissed,

Nee. TH-EZFe Ce 1A, TD ovssirevcverccpnisccrcccesse ll

Suffolk Outdoor Advertising Co. v. Hulse,

43 N.Y. 2d 483, 373 N.E. 2d 263,

402 N.Y.S. 2d 368, appeal dismissed,

Oe Ch GD Sapritchhciteiep cir eriiecen 12, 13

Page

Cases—Continued:

Thomas Cusack Co. v. City of Chicago,

De A GI nethialan hiv take Sasecennnsenennckddinnhbantbausta’ 10

United Advertising Corp. v. Raritan, || N.J.

By Te Fea GE. <trcsbonvencn seven genase covcsaunstanennnnnenss 15

Veterans of Foreign Wars v. City of Steamboat

Springs, 195 Colo. 44, 575 P. 2d 835,

appeal dismissed, 439 U.S. 809 ........... 11-12, 13

Washington v. Lotze, 92 Wash. 2d 52, 593

P. 2d 811, appeal dismissed, 444 U.S.

NE. cakctchdatceckaiutauaretikestibeianssiviatisanentenasstboants Mi, Ta

Young v. American Mini Theatres, Inc.,

Pe Ris IN cian cvbkceendcquictabbscensnssuncectesecnionts 13, 15

Zacchini v. Scripps-Howard Broadcasting Co.,

Se UE, UE: GANA a ck pdadinasebsucnndsersccsevecnysseecesnenenes 6

Constitutions, statutes and regulations:

United States Constitution:

Pig PIE, siississs scces ccs psscscessnsegsseceese passim

Fourteenth Amendment .................ccececseeeseeeeeees 9

California Constitution, Article 1,

SE GE fe ONS AER EAITATO NE PIE ST 7

Oklahoma Constitution, Article 2,

I Be tii, eA cca ath bake isttidenesranioonens 3, 7

Highway Beautification Act of 1965, 23 U.S.C.

(& Supp. Il) 131 ef seq.:

Be es BEE GN. = vrcsesssncnscivddarenwonsdinns 3, 10

Be Can, RIAD siccospsinensnsnscasescdgnecieunagnaes a: 8

Vi

Page

Constitutions, statutes and regulations—Continued:

BE ALB. TSTD . ciccccsevenccesccsvceieascocstseveneveeeses 3

23 U.S.C. (Supp. LL) 131(C) ...ccececeseseeneees 3, la

23 U.S.C. (& Supp. 11) 131(g) ...ceeeeeeeeeeeees 12

BE ELTA, SOIT ccceccsccscvarascesnecccicusecesssccesese 12

Oklahoma Outdoor Advertising Control Act,

Okla. Stat. tit. 69, § 1271 et seq. (West

1969 & Cum. Supp. 1979-1980) .......cccceeeeeeeeeees l

§ 1271 (Cum. Supp. 1979-1980) .........6 ix. 25

§ 1273(a) (Cum. Supp. 1979-1980) ...... eee 5

§ 1273(m) (1969) .......cccceccssrrrrreeesessssssessreneees |

§ 1273(m) (Cum. Supp. 1979-1980)... l

§ 1274 (1969) ......ccrcrrcccssrscsececesssstsvscerecssonooers |

S$ 1274(D) (1969) .......ccccccscccereccssssrrerescees 10, 16

§ 1275 (Cum. Supp. 1979-1980)... eeeeeees 2

§ 1277 (Cum. Supp. 1979-1980)... ceeeeeee 2

§ 1280(d) (Cum. Supp. 1979-1980) .......... 12

23 C.F.R. 470. 10S(a)4D) .......ccceccrccccorcccrceessevseesess 3

2d GFR, CPOE vcnicesicescccsccssnssaiicocesscocscsenepoesses 3

BS EF AR, FRI eipcicpteesdcsiisonccrscncssesegenio genes 3, 2a

ee as, PTD Vatkeruscanvepinasisccsscesqvuccuinsnsocccense 16

Oklahoma Transportation Commission Rules,

Regulations, Policies, and Procedures

Adopted Dec. 6, 1976 (Revised Feb. 6,

1980), Art. IX<C, § 4(D) ............eerrscccoveeeens 2, 16

Vil

Page

Miscellaneous:

Federal Highway Administration, U.S.

Department of Transportation, Highway

ECR ee PFE CEG TON ~ vivcitisticesesscssuvctvcosdcesscdests 3

(his brief is filed in response to the Court’s invitation

of June 2, 1980, to the Solicitor General to express the

views of the United States.

STATEMENT

|. [he Oklahoma Outdoor Advertising Control Act

(Okla. Stat. tit. 69, § 1271 et seg. (West 1969 & Cum.

Supp. 1979-1980)) was enacted to protect the public

investment in public highways, to preserve the scenic

beauty of lands bordering public highways, and to

promote public safety, health, and welfare, and the

convenience and enjoyment of the traveling public.

§ 1271 (West Cum. Supp. 1979-1980). When this action

was brought, the Act regulated outdoor advertising visible

trom the “main-traveled” way and within 660 teet of the

nearest edge of the right-of-way on any interstate or

primary highway. § 1273(m) (West 1969).' Under the Act,

no signs may be erected or maintained in a control area

except for (§ 1274 (West 1969)):

(a) Informational and other official signs, in-

cluding, but not limited to, signs pertaining to

natural wonders, scenic and historical attractions,

which are required or authorized by law, and which

comply with regulations which shall be promulgated

by the Department relative to their lighting, size,

number, spacing, and such other requirements as

may be appropriate to implement this Ac, provided,

!As amended in 1978, the Act has expanded control io include both

those areas within 660 feet of the nearest edge within urban areas and

those areas visible from the main traveled way outside of urban areas.

§ 1273(m) (West Cum. Supp. 1979-1980). The title of the statute as

first enacted was the “Highway Advertising Control Act of 1968”; a

comprehensive set of 1972 amendments was called the “Highway

Advertising Control Act of 1972.” We reter to the statute by the name

used by petitioner (Pet. 5).

2

however, that such regulations shall not be inconsis-

tent with, nor more restrictive than, such national

standards as may be promulgated trom time to time

by the Secretary of the Department of Iransporta-

tion of the United States pursuant to federal law.

(b) On-premise activities signs advertising ac-»

tivities conducted on the property on which they are

located, including but not limited to, goods sold,

stored, manufactured, processed or mined thereon;

services rendered thereon; and entertainment provid-

ed thereon.

(c) On-premise sale or lease signs advertising the

sale or lease of property upon Which they are tocated.

(d) Signs in existence in business areas on the

effective date of this Act and signs erected within six

(6) months thereafter upon property in business areas

leased prior to said effective date, subject to the

conditions set forth in Section [1278].

(e) Signs which are to be erected in business areas

and which will comply when erected with the

provisions of Section [1275] of this Act, and after the

applicable provisions of Section |1277] are met.

[he statute provides standards tor signs allowed in

business areas, regulating type, size, spacing, and lighting.

§ 1275 (West Cum. Supp. 1979-1980). Licenses and

permits are required for all outdoor advertising structures

other than “on-premise” signs. § 1277 (West Cum. Supp.

1979-1980).2

*“On-premise sign” is defined as tollows in Oklahoma's regulations

(Oklahoma I[ransportation Commission Rules, Regulations, Policies,

and Procedures Adopted Dec. 6, 1976 (Revised Feb. 6, 1980), Art.

IX-C, § 4(b)):

Signs consisting solely of the name oi the establishment or

which identify the establishment's principal or accessory

3

the Oklahoma Act was designed to satisfy re-

quirements of the Highway Beautification Act of 1965, 23

U.S.C. 131 et seg., which Congress enacted to control

outdoor advertising signs in areas adjacent to highways in

the nation’s “Interstate System and * * * primary

systems.” 23 U.S.C. 131(a).2 The Beautification Act has

safety and scenic preservation goals similar to those of the

Oklahoma statute. /bid. Under the Beautification Act, the

federal government may reduce by 10% the federal

highway funds allotted to any state that does not provide

“effective control” of highway signs. 23 U.S.C. 131(b).

“Effective control” is defined by the Act (23 U.S.C.

(Supp. Il) 131(c)) and by the United States Department of

lransportation’s implementing regulations (23 C.F.R.

750.705).4 Notwithstanding its role in triggering the

enactment of the Oklahoma statute, the Beautification

Act was not directly involved in the decisions of the

courts below.

2. On April 30, 1973, respondent applied tor a permit

to register an outdoor advertising structure she had

products or services offered on the property, and signs

advertising the sale or lease of property on which they are

located, are considered on-premise signs. Signs located on

narrow strips of land contiguous to the advertised activity when

the purpose clearly is to circumvent the Oklahoma Highway

Advertising Control Act shall not qualily as on-premise signs.

“Interstate and primary system highways” are detined at 23 C.F.R.

470.105(a){b). See also 23 C.F.R. 470.107. We are advised by the

Department of Transportation that these two systems constitute

about eight percent of all highways in the United States and most of

the major interstate highways. Federal Highway Administration,

U.S. Department of Transportation, Highway Statistics—-1978, at

133, 149 (1979). All 50 states have enacted outdoor advertising laws

similar to the one at issue here in order to receive tull tederal high-

way lunding.

4| hese’ provisions are set out in an Appendix to this briet.

4

erected (Exh. A to Plaintiff's Brief in Opposition to

Detendant’s Demurrer). According to the permit applica-

tion, respondent had erected the structure in October

1972; it is 414 feet from U.S. Highway 270 and rises to a

height of about nine feet above the ground, with two

panels (V-type), each four feet high and eight feet wide.

[he message on each panel, according to the application,

is “GET US OUT OF THE UNITED NATIONS.” On

January 14, 1976, the Oklahoma State Highway Commis-

sion notified respondent that the sign was unlawful under

the Outdoor Advertising Control Act and that she had 90

days to remove it (Attachment to Plaintiffs Petition for |

Mandatory Injunction). Respondent took no action.

3. On December 21, 1976, the Oklahoma Department

of Iransportation filed in the District Court in and for

Harper County a petition for mandatory injunction. [he

petition alleged that the sign was erected after the effective

date of the Act, and is unlawful under its terms since the

Structure is within 660 feet of a highway within the

tederal-aid primary highway system and is not in a

“business area” as defined by the statute. Ihe petition

requested the district court to order the removal of

respondent’s advertising structure.

On February 11, 1977, respondent demurred to the

petition on the ground that it did not state a cause of

action. Respondent argued that the Oklahoma Outdoor

Advertising Control Act does not apply to noncommer-

cial messages. The trial court sustained respondent’s

demurrer on September 20, 1977, finding that the petition

did not state facts sufficient to constitute a cause of action

(Pet. App. B). In ruling from the bench, the trial judge

expressed his opinion (Pet. App. A4) that “if this statute

were to be applied to this particular defendant and this

particular sign * * * it would be an infringement upon

5

the first amendment rights of the defendant to express

herself on political issues.”

4. [he State appealed to the Oklahoma Supreme

Court, which, with one justice dissenting in tull and one

dissenting in part, affirmed the trial court et. App. Al-

A18).

The Oklahoma Supreme Court held (Pet. App. A10)

that the constitutionality of the Oklahoma Outdoor

Advertising Control Act would be subject to “serious”

doubt were the Act’s restrictions to be construed as

applicable to “non-commercial speech.” To avoid the

constitutional problem it perceived, the court concluded

(ibid.) that the statutory definitions of “ ‘sign,’ ‘outdoor

advertising,’ [and] ‘outdoor advertising device,’ ” which

detine the Act’s coverage (Okla. Stat. tit. 69, § 1273(a)

(West Cum. Supp. 1979-1980)), “[do] not cover non-

commercial speech.” The court found the statute “easily

susceptible” to this reading (Pet. App. A1Q).

In determining that without this narrowing construc-

tion the statute would be of doubtful constitutionality, the

court cited (Pet. App. A3, A4) both the First Amendment

to the United States Constitution and Article 2, Section

22 of the Constitution of Oklahoma, which provides, inter

alia, that “[e]very person may freely speak, write, or

publish his sentiments on all subjects, being responsible

for the abuse of that right * * *.” The court equated the

application of the Act’s location restrictions on outdoor

advertising to noncommercial signs with “prior restraints”

on free speech in a “public forum” (i.e., highways),

sustainable only on a showing of “clear and present

danger” to public interests (Pet. App. AS-A7, A9). The

court rejected (Pet. App. A8-Al0), as inadequate

justifications, the State’s interest in preserving scenic

beauty and promoting public safety, concluding that

Fe

6

aesthetic goals are not compelling state interests (id. at

A8) and that the Act’s exemptions for certain areas and

certain signs were inconsistent with its stated objective of

promoting safe driving (id. at A9-A10Q).

Each of the dissenting justices was of the view that

respondent’s demurrer should not be sustained because

the State was thereby deprived of an opportunity to prove

that the Act served governmental! interests that would

justify the place and manner restrictions it imposed on

billboards like the one erected by respondent (Pet. App.

A1I5).

DISCUSSION

We believe that the Oklahoma Supreme Court was

incorrect in suggesting that the place and manner.

restrictions specified by the Oklahoma Outdoor Adver-

tising Control Act would violate the First Amendment if

applied to billboards with noncommercial messages.

Because the court also rested its decision on a free speech

provision of the Oklahoma Constitution that is arguably

broader than the First Amendment, however, the holding

may be supported by an adequate and independent

nonfederal ground; a remand of the case for clarification

on that point would, accordingly, be appropriate. On

remand, the Oklahoma Supreme Court might also deem it

useful to remand the case to the trial court for the taking

of evidence that would provide a better basis for deciding

the federal constitutional issue, if the decision does not

rest independently on an adequate nontederal ground.

1. A jurisdictional question arises because the decision

of the Oklahoma Supreme Court may be supported by an

adequate and independent nonfederal ground. Zacchini v.

Scripps-Howard Broadcasting Co., 433 U.S. 562, 568

(1977). In our view, the problem is not that the court

merely construed, rather than invalidated, a state statute,

7

for that construction was evidently made under con-

stitutional compulsion and hence would not provide an

independent ground. Mental Hygiene Dep't v. Kirchner,

380 U.S. 194, 198 (1965); Minnesota v. National Tea Co.,

309 U.S. 551, 554-555 (1940). Thus, the court held (Pet.

- App. A8-A10) that the statute was a restriction on free

speech that could be justified only by a showing of clear

and present danger, and it rejected the State’s

justifications, It announced, moreover, that it was

“bound” to interpret the statute in a manner that “avoids

constitutional doubt” (id. at A110). The jurisdictional

question arises, we submit, because, in discussing the

constitutional issue, the court cited (Pet. App. A3-A4)

both the First Amendment to the federal Constitution and

Article 2, Section 22—the free speech guarantee—of the

Oklahoma Constitution.

While the court did not state that the Oklahoma

constitutional provision is broader than the First

Amendment and, while it has employed a single analysis

in previous decisions citing the two constitutional

guarantees (see, e.g., Hennessey v. Independent .School

Dist. No. 4, Lincoln County, Okla., 552 P.2d 1141

(1976)), the fact remains that the language of the

Oklahoma provision does not simply track that of the

First Amendment. Indeed, it is substantially similar to a

provision in the California Constitution (Art. |, § 2), that

the California Supreme Court has construed as providing

protections broader than the First Amendment.

Pruneyard Shopping Center v. Robins, No. 79-289 (June

9, 1980), slip op. 4.5 “While we might speculate from the

‘in Metromedia, Inc. v. City of San Diego, 26 Cal. 3d 848, 610

P.2d 407, 164 Cal. Rptr. 510 (1980), appeal pending, No. 80-195, and

cert. pending, No. 80-196, however, the California Supreme Court

held that a city ordinance banning off-site billboards did not violate

either the tederal or the Calitornia tree speech constitutional

8

choice of words used in the opinion, and the authorities

cited by the court, which provision was the basis for the

judgment” of the court below, it cannot be said “with any

degree of certainty” that the judgment “was not based on

an adequate and independent nontederal ground.” Mental

Hygiene Dep't v. Kirchner, supra, 380 U.S. at 196-197.°

Were the Court to assume that the First Amendment was

ultimately the sole basis for the judgment, the Oklahoma

Supreme Court could, “in another case presenting the

same issues{,]” announce that the decision had an

independent basis in the Oklahoma Constitution, leaving

“the result untouched by whatever conclusions this Court

might have reached on the merits of the tederal question.”

Id. at 197.

If the Court agrees that the substantial reliance of the

court below on this Court’s precedents is not sufficient to

resolve the ambiguity, we suggest that the Court, as it has

done on such occasions in the past, vacate the lower

court’s judgment and remand the case to the Oklahoma

Supreme Court for clarification. California v. Krivda, 409

U.S. 33 (1972);Mental Hygiene Dep't v. Kirchner, supra,

380 U.S. at 196-197; Minnesota v. National Tea Co.,

supra 309 U.S. at 555-557. See also Air Pollution

guarantees. 610 P.2d at 416-420, 164 Cal. Rptr. at 519-523. The court

construed the law as applying only to permanent signs used for the

display of “a commercial or other advertisement to the public.” 610

P.2d at 410 n.2, 164 Cal. Rptr. at $13 n.2. The court distinguished the

decision in the present case as one in which the holding “is limited to

a question of Oklahoma constitutional law.” 610 P.2d at 417 n.13,

164 Cal. Rptr. at 520 n.13.

¢fhe court below describes the First Amendment as a protection

that existed “in addition to” the Oklahoma tree speech guarantee

(Pet. App. A4), but we do not regard that as a sutficient indication

that the court regards its constitutional provision as having a

significance independent of the First Amendment.

9

Variance Board of Colorado v. Western Alfalfa Corp.,

416 U.S. 861, 866 (1974).

2. Of course, the court below was correct in stressing

(Pet. App. A5) that freedom of speech is a tundamental

liberty, protected by the First Amendment (through the

Fourteenth Amendment) from unreasonable or “dubious

intrusions” by the States. We believe, however, that the

state court’s conclusion that the Oklahoma Outdoor

Advertising Control Act would be of doubtful con-

stitutionality if applicable to billboards with noncommer-

cial messages is based at least in part on a serious

misapplication of this Court’s First Amendment

precedents.

It is settled that the exercise of free speech rights—

whether the message is commercial or noncommercial—

may be limited by reasonable time, place, and manner

regulation unrelated to the content of the message.

Consolidated Edison v. Public Service Comm'n, No. 79-

134 (June 20, 1980), slip op. 4-5; Erznoznik v. City of

Jacksonville, 422 U.S. 205, 209 (1975); Kovacs v. Cooper,

336 U.S. 77 (1949). Such regulation is permissible because

“various methods of speech, regardless of their content,

may frustrate legitimate governmental goals.” Con-

solidated Edison v. Public Service Comm'n, supra, slip

op. 5. “Independently of the message * * * conveyed], the

form of [a] communication may be offensive—perhaps

because it is too loud or too ugly in a particular setting.”

Slip op. 3 (Stevens, J., concurring) (footnotes omitted).

On the other hand, regulation of methods of speech is

reasonable only where it “serve[s] a_ significant

governmental interest and leave[s] ample alternative

channels for communication.” Slip op. 4-5.

The Oklahoma statute at issue regulates the location of

a particular form of mass communication—the billboard.

Respondent is free to express any views she wishes on any

10

subject matter, but she may not do so on a billboard

erected within specified areas adjacent to the highways

covered by the statute, including areas visible from the

main-traveled way of rural highways that are controlled

under the Act.’ This Court has long recognized that

outdoor advertising in general, and billboards in par-

ticular, pose problems that justify government regulation.

See Packer Corp. v. State of Utah, 285 U.S. 105, 110

(1932); St. Louis Poster Advertising Co. v. City of St.

Louis, 249 U.S. 269, 274 (1919); Thomas Cusack Co. v.

City of Chicago, 242 U.S. 526, 529-530 (1917). Cf. Fifth

Avenue Coach Co. v. City of New York, 221 U.S. 467,

482-483 (1911). Most notably, billboards are visually

intrusive, thrust “before the eyes of observers * * * to be

seen without the exercise of choice or volition on their

part[,]” since, unlike a radio, billboards cannot be “turned

off.” Packer Corp. v. State of Utah, supra, 285 U.S. at

110 (Brandeis, J.), quoted in Lehman v. City of Shaker

Heights, 418 U.S. 298, 302 (1974) (opinion of Blackmun,

J.). Where this Court has struck down regulation of visual

71t is possible that under the Oklahoma Act's exemption for on-

premise signs describing activities conducted on the property on

which such signs are located (Okla. Stat. tit. 69, § 1274(b) (West

1969)), respondent may erect a sign similar to the one concerned here

on a showing that the sign is on her residential premises and that

activities related to the message on the sign are conducted there. We

do not know that respondent’s sign, as described in the record, would

qualify for the exemption; but as explained below (pages 15-16 &

note 12, infra), respondent did not claim the exemption and the

factual record is deficient with respect to its applicability. Oklahoma’s

future construction of that exemption could be influenced by federal

policies to be determined in rulemaking proceedings by the United

States Department of Transportation (see pages 16-17, infra).

‘indeed, Mr. Justice Douglas took favorable note of the

restrictions on billboards imposed by the Highway Beautification Act

of 1965, 23 U.S.C. 131 et seqg., the statute that induced the enactment

of the Oklahoma Act. Lehman vy. City of Shaker Heights, 418 U.S.

298, 306 (1974) (concurring opinion).

|

distractions on the highways, it has done so only because

the regulation was based on content rather than on the

traffic hazards or the intrusions on privacy that the

general class of such distractions may impose. Erznoznik

v. City of Jacksonville, supra, 422 U.S. at 212 & n.9, 214-

215 (prohibition of the exhibition, by drive-in movie

theaters, of films featuring nudity where the screen is

visible from the street).

Both the Oklahoma Act and the tederal Highway

Beautification Act of 1965, on which the Oklahoma Act

and other state outdoor advertising statutes are modelled,

reflect legislative determinations that control of billboards

along highways is essential to the protection of public

saiety on the highways and, outside of commercial and

industrial zones, to the preservation of the natural beauty

of the adjoining lands. 23 U.S.C. 131(a); Okla. Stat. tit.

69, § 1271 (West Cum. Supp. 1979-1980). Whatever their

message—commercial or noncommercial—billboards

pose traffic safety hazards and blight the landscape.

‘Recognizing the legitimacy of these governmental objec-

tives, state supreme courts have almost uniformly rejected

First Amendment challenges to billboard regulation. See,

e.g., Metromedia, Inc. v. City of San Diego, 26 Cal. 3d

848, 610 P.2d 407, 164 Cal. Rptr. 510 (1980), appeal

pending, No. 80-195, and cert. pending, No. 80-196;

Washington v. Lotze, 92 Wash. 2d 52, 593 P.2d 811,

appeal dismissed for want of a substantial federal

question, 444 U.S. 921 (1979); Newman Signs, Inc. v.

Hjelle, 268 N.W. 2d 741 (N.D. 1978), appeal dismissed for

want of a substantial federal question, 440 U.S. 901

(1979); Lubbock Poster Co. v. City of Lubbock, 569

S.W.2d 935 (Tex. Ct. Civ. App. 1978), cert. denied, 444

U.S. 833 (1979); Stuckey’s Stores, Inc. v. O’Chesky, 93

N.M. 312, 600 P.2d 258 (1979), appeal dismissed for want

of a substantial federal question, No. 79-1233 (May 12,

1980); Veterans of Foreign Wars v. City of Steamboat

7%

>?

12

Springs, 195 Colo. 44, 575 P.2d 835, appeal dismissed for

want of a substantial federal question, 439 U.S. 809

(1978); Suffolk Outdoor Advertising Co. v. Hulse, 43

N.Y.2d 483, 373 N.E.2d 263, 402 N.Y.S.2d 368 (1977),

appeal dismissed for want of a substantial federal

question, 439 U.S. 808 (1978); Donnelly Advertising

Corp. v. Mayor and City Council of Baltimore, 279 Md.

660, 667-669, 370 A.2d 1127, 1131-1132 (1977); John

Donnelly & Sons, Inc. v. Outdoor Advertising Board, 369

Mass. 206, 339 N.E.2d 709, 721-722 (1975); Markham

Advertising Co. v. State, 73 Wash.2d 405, 428-429, 439

P.2d 248, 262-263 (1968), appeal dismissed for want of a

substantial federal question, 393 U.S. 316 (1969). See also

John Donnelly & Sons v. Mallar, 453 F. Supp. 1272 (D. |

Me. 1978), appeal pending, No. 79-1575 (I'st Cir.). But see

Baldwin v. Redwood City, 540 F. 2d 1360 (Yth Cir. 1976),

cert. denied, 431 U.S. 913 (1977) (city ordinance limiting

size and placement of temporary political campaign signs

and requiring prior permission to erect such signs violates

First Amendment).?

Contrary to respondent’s suggestion (Br. in Opp. 6),

some of the reported decisions rejecting First Amendment

%One of the features of the Redwood City ordinance deemed

unconstitutional by the Ninth Circuit was its provision for summary

seizure of temporary political campaign signs. Baldwin v. Redwood

City, supra, 540 F. 2d at 1373-1374. Under the Oklahoma Act,

however, removal of an unlawfully placed sign can occur only after

90 days’ notice to the owner of the sign or to the landowner, if the

sign owner cannot be identified. Okla. Stat. tit. 69, § 1280(d) (West

Cum. Supp. 1979-1980). Under the federal program in which

Oklahoma and other states participate, compensation must be paid

tor the removal of any sign that conformed to state law at the time it

was erected but that does not now conform to federal requirements.

23 U.S.C. (& Supp. Il) 131(g). The tederal government pays 75% of

the compensation (ibid.}, and removal is not mandated by the federal

Statute if the federal share of compensation is not available for

payment. 23 U.S.C. 131(n).

13

challenges to billboard regulation recognized that the

statute under consideration applied to stationary signs

generally, without distinction between commercial and

noncommercial messages. See, e.g., Washington v. Lotze,

supra; Veterans of Foreign Wars v. City of Steamboat

Springs, supra; Donnelly Advertising Corp. v. Mayor and

City Council of Baltimore, supra. Even more significantly,

in two cases which this Court has dismissed for want of a

substantial federal question, appellants attacking

billboard regulation laws raised the issue of political

speech in their jurisdictional statements. Washington v.

Lotze, supra; Suffolk Outdoor Advertising Co. v. Hulse,

supra.

3. [The Oklahoma Supreme Court reached a contrary

conclusion with respect to the Oklahoma statute, insofar

as it might be construed to apply to noncommercial

speech, by erroneously characterizing the regulation of

highway billboards as an unlawful “prior restraint” of

expression in an appropriate “public forum,” permissible

only on a showing of “clear and present danger of serious

and substantial evil” (Pet. App. A6).

The Oklahoma Act, of course, like any permit scheme,

can technically be labelled a prior restraint on free

expression, but it possesses none of the essential

characteristics of the schemes deemed by this Court to

warrant such a label. Unlike the statutes challenged in

prior restraint cases decided by this Court, the Oklahoma

Statute does not create a standardless program vesting

substantial discretion in a local official and thereby

creating the danger that the official will base his decision

on his personal evaluation of the content of a message.

See Southeastern Promotions, Lid. v. Conrad, 420 U.S.

546, 553, 555 (1975); Schneider v. State, 308 U.S. 147,

163-164 (1939). See also Young v. American Mini

Theatres, Inc., 427 U.S. 50, 62 (1976)(plurality opinion).

14

the Oklahoma statute makes it clear where billboards are

prohibited and where they are allowed; and the distinction

does not turn on subjective criteria.

[he state court’s ruling that the highway is a “public

forum” erroneously’ equates highways—on_ which

motorists may generally travel at the maximum speed

permissible in a state—with city streets, traditionally the

scene of picketing, leafleting, parades, and similar

activities not well adapted to an environment of high

speed vehicular traffic. See Lehman v. City of Shaker

Heights, supra, 418 U.S. at 306 (Douglas J., concurring)

(“[ A] streetcar or bus is plainly not a park or sidewalk or

other meeting place * * * any more than is a highway.”).'°

[he court’s erroneous conclusion that restricting the

right to erect billboards near highways constitutes a prior

restraint on free expression in a public forum is of more

than academic significance; for it led the court to reject

(Pet. App. A&) the idea that aesthetic purposes, such as a

concern for preserving scenic beauty trom the clutter of

signs, could serve as even a partial justification for the

Oklahoma statute, and it also accounts for the court’s

refusal (id. at A9 n.3) to consider the availability of other

channels of communication for respondent's message.

‘0 [his is not to say that reasonable restrictions on the location of

billboards within urban areas are unconstitutional. See Cox v. New

Hampshire, 312 U.S. 569, 574 (1941); Metromedia. Inc. v. City of

San Diego, supra.

15

4. While the court acknowledged (Pet. App. A8-A9)

the substantiality of traffic safety as a justification for a

law restricting particular forms of expression, it declined

to accept this rationale for the Oklahoma law because the

restriction on highway signs was not absolute. The court

thereby ignored the common-sense basis for the distinc-

tion between commercial or industrial zones, where signs

do not stand apart from the landscape and command

attention, and rural areas bordering highways, where the

impact of such signs is more substantial. It also ignored

the logic of the narrowly drawn distinction between on-

premise signs—those describing activities conducted on

the property on which the sign is located—and off-

premise signs. The former are essential to public

convenience and to the owners of establishments that

members of the public may have reason to visit. The latter

are not. [he distinction between on-premise signs and off-

premise signs has long been accepted by courts as a

reasonable basis for differential regulation.'! Thus, as Mr.

Justice Stevens has noted, “[a] state statute may permit

highway billboards to advertise businesses located in the

neighborhood but not elsewhere ** *.” Young v.

American Mini Theatres, Inc., supra, 427 U.S. at 68 &

n.30 (plurality opinion), citing Markham Advertising Co.

Vv. State, supra. .

''See, e.g., £.B. Elliott Advertising Co. y. Metropolitan Dade

County, 425 F. 2d 1141, 1152-1155 (Sth Cir.), cert. dismissed, 400

U.S. 805 (1970); Board of Adjustment v. Osage Oil & /ransportation,

Inc., 258 Ark. 91, 522 S.W.2d 836, 837-838, cert. denied and appeal

dismissed, 423 U.S. 941 (1975); Metromedia, Inc. v. City of San

Diego, supra, General Outdoor Advertising Cov. v. Department of

Public Works, 289 Mass. 149, 211-212, 193 N.E. 799, 828. appeals

dismissed, 296 U.S. 543 (1935), 297 U.S. 725 (1936); Opinion of the

Justices, 103 N.H. 268, 271, 169 A.2d 762, 764 (1961); United

Advertising Corp. v. Raritan, 11 N.J. 144, 150-151, 93 A.2d 362. 365

(1952) (Brennan, J.).

16

Perhaps because respondent had not contended that her

sign came within the Oklahoma Act’s exemption for on-

premise signs describing activities conducted on the

property where the sign is located, the Oklahoma

Supreme Court did not consider whether the exemption

Vitiates the content-neutral character of the statute.'- We

do not believe that the exemption necessarily creates such

problems, because it does not ditierentiate between types

of activities that may be described on signs or accord

broader rights to some types of activities. Compare Carey

v. Brown, No. 79-703 (June 20, 1980), slip op. 12-13 n.13.

In order to ensure that the exemption is applied in an

impartial manner, the United States Department of

{ransportation, as part of an on-going assessment of the

federal program, intends to conduct a rulemaking

i2{he Oklahoma statute exempts “[o|n-premise activities signs

advertising activities conducted on the property on which they are

located, including but not limited to, goods sold, stored, manufac-

tured, processed or mined thereon; services rendered thereon; and

entertainment provided thereon.” Okla. Stat. tit. 69, § 1274(b) (West

1969). Ihe regulations explaining the exemption (Oklahoma

lransportation Commission Rules, Regulations, Policies, and

Procedures Adopted Dec. 6, 1976 (Revised Feb. 6, 1980), Art. IX-C,

§ 4(b)) include provisions that substantially track those issued by the

United States Department of Transportation in defining the-

corresponding federal exemption. 23 C.F.R. 750.709. While the-

statute and the regulations seem primarily concerned with commer-

cial establishments, their language does not preclude application of

the exemption to activities in noncommercial establishments,

including residential premises.

lhe applicability of the exemption to respondent's sign is obscure

because the record does not show whether the sign is located on

respondent’s residential premises; her application tor registration of

the sign indicates only that the property is owned not by respondent

but by “Ross Pile” (Exh. A to Plaintiif's Briet in Opposition to

Detendant’s Demurrer). Similarly the record does not show whether

the sign relates to activities, e.g., meetings, conducted there,

17

concerning the need for regulations to make it clear that

the exemption applies to commercial and noncommercial

activities alike and that residential premises may be

considered noncommercial establishments. An advance

notice of proposed rulemaking will be published in

September 1980.

If this Court remands the case to the Oklahoma

Supreme Court for clarification of the constitutional basis

for its decision, the court below might, on an appropriate

motion by petitioner, remand the case to the trial court

for the submission of evidence bearing on the exemption

question and on the availability of alternative locations

for respondent’s signs or of other channels of communica-

tion. Additionally, the State might be given the oppor-

tunity to apply its exemption in the light of the

Department of Iransportation’s rulemaking proceedings.

{he case would then be appropriate tor plenary review by

this Court. That is not the situation today, however, both

.because of the uncertainty of the basis for the decision of

the court below and because of the deficiencies in the

record.

F%

18

CONCLUSION

For the foregoing reasons, the Court should grant the

petition for a writ of certiorari, vacate the judgment of the

Oklahoma Supreme Court, and remand the case for

clarification of the question whether the decision is

supported by an adequate and independent nonfederal

ground.

Respectfully submitted.

WADE H. McCREE, JR.

Solicitor General

JAMES W. MOORMAN

ALICE DANIEL

Assistant Attorneys General

Louis F. CLAIBORNE

Deputy Solicitor General

ELINOR HADLEY STILLMAN

Assistant to the Solicitor

General

Lois J. SCHIFFER

ROBERT L. KLARQUIST

RICHARD JAMES LAZARUS

Attorneys

Or COUNSEL

THOMAS G. ALLISON

General Counsel

EDWARD V. A. Kussy

Altorney

Department of Transportation

AUGUST 1980

DOJ. 1980-08

EEE OE Te ee

APPENDIX

[he current definition of “effective control” in the

Highway Beautification Act of 1965, 23 U.S.C. (Supp. II)

131(c), provides:

Effective control means that such signs, displays,

or devices after January 1, 1968, if located within six

hundred and sixty feet of the right-of-way and, on or

after July 1, 1975, or after the expiration of the next

regular session of the State legislature, whichever is

later, if located beyond six hundred and sixty feet of

the right-of-way located outside of urban areas,

visible from the main traveled way of the system, and

erected with the purpose of their message being read

trom such main traveled way, shall, pursuant to this

section, be limited to (1) directional and official signs

and notices, which signs and notices shall include,

but not be limited to, signs and notices pertaining to

natural wonders, scenic and historical attractions,

which are required or authorized by law, which shall

conform to national standards hereby authorized to

be promulgated by the Secretary hereunder, which

standards shall contain provisions concerning

lighting, size, number, and spacing ot signs, and such

other requirements as may be appropriate to

implement this section, (2) signs, displays, and

devices advertising the sale or lease of property upon

which they are located, (3) signs, displays, and

devices, including those which may be changed at

reasonable intervals by electronic process or by

remote control, advertising activities conducted on

the property on which they are located, (4) signs

lawfully in existence on October 22, 1965, determined

by the State subject to the approval! of the Secretary,

to be landmark signs, including signs on farm

structures or natural surfaces, or historic or artistic

la

2a

significance the preservation of which would be

consistent with the purposes of this section, and

signs, displays, and devices advertising the distribu-

tion of nonprofit organizations of free coffee to

individuals traveling on the Interstate System or the

primary system. For the purposes of this subsection,

the term “free coffee” shall include coftee for which a

donation may be made, but is not required.

The current definition of “effective control” in 23

C.F.R. 750.705 provides:

In order to provide effective control of outdoor

advertising, the State must:

(a) Prohibit the erection of new signs other than

those which fall under § 750.704(a)(1) through (6);

(b) Assure that signs erected under § 750.704(a)(4)

and (5) comply, at a minimum, with size, lighting,

and spacing criteria contained in the agreement

between the Secretary and the State;

(c) Assure that signs erected under § 750.704(a)(1)

comply with the national standards contained in

Subpart B, Part 750, Chapter 1, 23 CER;

(d) Remove illegal signs expeditiously;

(€) Remove nonconforming signs with just com-

pensation within the time period set by 23 U.S.C. 131

(Subpart D, Part 750, Chapter 1, 23 CFR, sets forth

policies for the acquisition and compensation for

such signs);

(f) Assure that signs erected under § 750.704(a)(6)

comply with § 750.710, Landmark Signs, if fandinark

signs are allowed;

3a

(g) Establish criteria for determining which signs

have been erected with the purpose of their message

being read from the main-traveled way of an

Interstate or primary highway, except where State

law makes such criteria unnecessary. Where a sign is

erected with the purpose of its message being read

from two or more highways, one or more of which is

a controlled highway, the more stringent of

applicable control requirements will apply;

(h) Develop laws, regulations, and procedures to

accomplish the requirements of this subpart,

(i) Establish enforcement procedures sufficient to

discover illegally erected or maintained signs shortly

atter such occurrence and cause their prompt

removal; and

(j) Submit reguiations and enforcement procedures

to FHWA for approval.