# Amicus Brief — Department of Transportation v. Pile

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2266%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1981
- **Citation:** 453 U.S. 922

## Text

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. ?

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2266%3A4. Public record. Not legal advice.