Petition — City of Marietta v. Dills

_ |

Office - Supreme Cour, U.

FILED

DEC 28 1982

82-1089

No.

ALEXANDER L. STEVAS.

IN THE CLERK

Supreme Court of the United States

October Term 1982

THE CITY OF MARIETTA, GEORGIA

and MAYOR AND COUNCIL OF THE

CITY OF MARIETTA, GEORGIA

Petitioners

v.

ED DILLS, d/b/a MID-GEORGIA

SUPPLY and JAMES M. TUCKER,

Respondents

ON WRIT OF CERTIORARI

TO THE ELEVENTH CIRCUIT

UNITED STATES COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

ROY E. BARNES

THOMAS J. CASURELLA

166 Anderson Street

Marietta, Georgia 30060

(404) 424-1500

Attorneys for Petitioners

IN THE

Supreme Court Of Che United States

THE CITY OF MARIETTA, GEORGIA

and MAYOR AND COUNCIL OF THE

CITY OF MARIETTA, GEORGIA,

Petitioners

.

ED DILLS, d/b/a MID- GEORGIA

SUPPLY and JAMES M. TUCKER,

Respondents !

PETITION FOR A WRIT OF CERTIORARI

TO THE ELEVENTH CIRCUIT

UNITED STATES COURT OF APPEALS

ROY E. BARNES

THOMAS J. CASURELLA

166 Anderson Street

Marietta, Georgia 30060

Attorneys for Petitioners

' The caption contains the names of all parties.

QUESTIONS PRESENTED FOR REVIEW

Pe

Are time, place and manner restrictions on pure commercial speech

justified when weighed against the community need for safety regulation

and aesthetic and economic development?

1

(a) Does the decision of a state court of last resort, and thereafter the

denial of certiorari by the United States Supreme Court bind a federal

appeals court on the same federal constitutional issue which was fully

and fairly litigated in the state court?

(b) Does the doctrine of res judicata preclude similarly situated

plaintiffs from relitigating identical issues in separate actions and

separate forums?

LIST OF PARTIES

See footnote one (1).

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW...........+++0000: 2

LIST OF DART ss 2

TABLE OF CONTENTS 2

TABLE OF AUTHORITIES ...cccccsicccccccccascccscvesese 3

REFERENCE TO OPINIONS BELOW TVWGWLwLwe 3

GROUNDS FOR JURISDICTIoTTIſI ll... 4

CONSTITUTIONAL PROVISIONS AND ORDINANCES. ...... 4

STATEMENT OF THE CASE ꝶ sst. q x̃ !g 5

REASONS FOR ALLOWANCE OF WRITTTtktkkk 8

2

, oS cG cds ec COV ib ewelen Cede 46 15

1. Dills v. City of Marietta,

--F.2d--, No. 81-7294 (11 Cir., 1982)...... 15

2. Thomas v. City of Marietta,

245 Ga. 485, 265 SE2d 775 (1980)...... 22

3. Dills v. City of Marietta, ORDER J.

MOYE, USDC, N.D. Ga. Civil Action

„„ stecenccghestwracescedes 24

4. Dills v. City of Marietta, id,

DENIAL OF REHEARING,

. ⅛ ͤ• BAA on er eee er eee 54

5. First Amendmeet, U.S. Constitution 55

6. Marietta Sign Ordinance 3315 ............. 55

7. Marietta Sign Ordinance 3479 ůů 777779 10

TABLE OF AUTHORITIES

Central Hudson Gas v. Public Service Commission

ee TL OST AI, , cccesceeccae 10

Chicago, R. I., and Peoria Rwy. Co.,

e ˙ . chooks 13

Dills v. City of Marietta, -F. 2d—, No. 81-7294,

A ch didn as op vdaeweeds oe bpie cs deve seceesanes 10

Heckman v. United States, 224 U.S. 413 (1917ĩ7ꝶ ꝶ-ͤ„⸗ůhhn22 13

Metromedia, Inc. v. City of San Diego,

et Tw hed ndinedvcecedéewes 8.9.10

Thomas v. City of Marietta, 245 Ga. 485, 265

, ˙ vr Kk „e: 6

REFERENCES TO OPINIONS BELOW

Dills v. City of Marietta, --F.2d--, No. 81-7294

r ͥ TTC (ccc. 15

Thomas v. City of Marietta, 245 Ga. 485, 265

, K ee 22

GROUNDS FOR JURISDICTION

(i) The Petition for Writ of Certiorari arises from the opinion of

the United States Court of Appeals for the Eleventh Circuit in

the case of Ed Dills, d/b/a Mid-Georgia Supply and James M.

Tucker v. The City of Marietta, Georgia and Mayor and

Council of the City of Marietta, Georgia, -F2d-- (1982) which

was decided on May 6, 1982.

(ii) A Petition for Rehearing and Suggestion for Rehearing En

Banc was denied on September 30, 1982.

(iii) The statutory provision believed to confer jurisdiction on the

United States Supreme Court is 28 U.S.C. 1254 (1).

CONSTITUTIONAL PROVISIONS AND

ORDINANCES INVOLVED

First Amendment, United States Constitution ....... See Appendix

City of Marietta Sign Ordinance 331555. See Appendix

City of Marietta Sign Ordinance 3479 ͥ .m. See Appendix

STATEMENT OF THE CASE

With the stated purpose “to provide standards to safeguard life, public

health, property and welfare by regulating the location, size,

illumination, erection, maintenance and quality of materials of all signs,

and all signs and outdoor advertising structures, the Mayor and City

Council of the City of Marietta, Georgia enacted Two (2) ordinances !

restricting, but not completely banning, the use of “portable display

signs” within the corporate limits. A “portable display sign” was defined

as a mobile/temporary electrical or non-electrical sign that is mounted

on a trailer type frame with wheels or skids or portable wood or metal

frame and not permanently attached to the ground”. ?

A group of signmakers and businessmen banded together to challenge

the ordinances on the ground that they amounted to “an abuse of police

' City of Marietta Ordinance No. 3315 (enacted August 10, 1977) and No. 3479 (enacted

March 14, 1979). The regulations of portable signs contained in Ordinance No. 3315

(designated as Article II. Section 7 in the “Marietta Sign Ordinance”) included

restrictions on the placement, size, illumination and transportation of portable signs, but

plaintiffs only challenged that portion of the ordinance which provided as follows:

A permit shall not be valid for longer than a period of one

hundred twenty (120) consecutive days after which time

the portable display shall be removed from the building

set back lines of the premises. A permit cannot be

renewed nor can a permit be obtained for the same

premises within a period of thirty (30) days after the

removal of a portable display from the building set back

area of the premises.

This provision was effectively amended (but remains in the “City Sign Ordinance”) by

Ordinance No. 3479 adding Article V. paragraph 9. That addition reads as follows:

9. Portable Display Signs are to be permitted only in

the following conditions:

a. Opening or closing of a business, not to exceed thirty

(30) days.

b. Special sale, promotional event, or change of

ownership or management, not to exceed twice in any

twelve (12) month period, for a maximum of fifteen (15)

days.

c. Civic, public, charitable, educational or religious

events for a maximum of fifteen (15) days, not to exceed

twice in any twelve (12) month period.

d. For traffic direction during road construction or

emergency situations.

e. For political campaigns, for a maximum of thirty

(30) days before any election.

2 City of Marietta Ordinance No. 3315, Art. II. Para. 30, as amended.

5

power of the City of Marietta, deprived them of their property without

just compensation, and without due process of law, denied them freedom

of speech and constituted an impairment of contracts.” Despite this

seemingly comprehensive challenge to the city sign ordinances, the

challengers only addressed one issue in the various ensuing litigations:

The city was impermissibly attempting to regulate aesthetics through

police power, and this had the effect of denying the right to commercial

speech.

The legal challenge to the ordinances was first made in the Superior

Court of Cobb County, Georgia. The trial court upheld the

constitutionality of the ordinance, and the decision was appealed to the

Georgia Supreme Court.“

The supreme court of Georgia upheld the trial Court based on both

aesthetic and public safety reasons. They held:

“Although aesthetics are an important

incidental effect of regulations, Berman v.

Parker, 348 U.S. 26 (1954), aesthetics, being

merely a question of subjective taste, would

not alone be enough to support the legislation

here under the police power. See City of

Smyrna v. Parks, 240 Ga. 699 (242 SE2d 73)

(1978). This ordinance, however, is clearly

reasonable meant to regulate signs which are,

in their very nature, temporary. The

regulations are designed to prevent the use of

these temporary signs where a permanent one

would be more conducive to the safety and

welfare of the public. We do not find these

ordinances arbitrary or discriminatory.

Having held that the regulation of these

temporary signs is reasonable and within the

police power, and noting that, although their

} Thomas v. City of Marietta. 245 Ga. 485, 265 SE2d 775 (1980). Dills v. City of Marietta,

No. 81-7294 (11th Cir., 1982). These enumerations of error show the basis for federal

jurisdiction as is required by Rule 21 (1) ( of the Supreme Court.

¢ Thomas, et al. v. City of Marietta, Superior Court of Cobb County, Civil Action No. 79-

1603 (1979).

5 Thomas, et al. v. City of Marietta, 245 Ga. 485 (1980).

6

use is restricted, it is not prohibited, it follows

that there is no merit to appellants’ due

process, inverse condemnatiion, freedom of

speech, or impairment of contracts claims.

Linmark Assoc., Inc. v. Township of

Willingboro, 431 U.S. 85 (1977), is

distinguishable for this reason.”

Thereafter, the aggrieved signmakers filed a Petition for Writ of

Certiorari to this Court. Certiorari was denied at 449 U.S. 838 (1980).

Contemporaneously with the filing of certiorari, the Plaintiffs filed an

original action in the United States District Court for the Northern

District of Georgia alleging the same constitutional violations as in the

state court action. “ The action was dismissed on the ground of res

judicata. Notice of Appeal was filed with the Fifth Circuit U.S. Court of

Appeals, but was later dismissed. ’

Once certiorari was denied by the United States Supreme Court, and

the District Court dismissed the second action on res judicata grounds,

the signmakers regrouped and refiled the instant action in the United

States District Court, Northern District of Georgia. * This time, however,

two new city signmakers were substituted as Plaintiffs, who are now the

present respondents, and none of the old Plaintiffs were made parties. No

new grounds were lodged, nor were any new theories explored. The same

lawyer represented both groups of Plaintiffs.

A new evidentiary hearing was held and the matter was taken under

advisement by the District Court. On March 20, 1981, Charles A. Moye,

Jr., District Judge, entered a 38 page Order in favor of the signmakers

holding that res judicata did not apply, and that the ordinances were

impermissible limitations on the signmakers right to commercial speech.

in this Order, Judge Moye noted as follows:

* Thomas, et al. v. City of Marietta, Civil Action No. CR0-4344, United States District

Court, Northern District of Georgia (1980).

1 Thomas v. City of Marietta, Docket No. 80-7753 (Sth Circuit, 1980)

* Ed Dills, James Tucker v. City of Marietta, United States District Court, Northern

District of Georgia, Civil Action File No. C80-2001A, (1981).

* Dills v. City of Marietta, (Order, J. Moye, p. 37)

7

“In reaching this conclusion, the Court has

reluctantly reached a decision that is somewhat

at odds with the rulings of the State Courts in

Thomas. it should be noted, however, in

reaching this decision, the Court has

considered several legal theories which the

plaintiffs apparently failed to present to the

Georgia courts. This Court reached the merits

only after deciding that Thomas has no

preclusive effect here. Under the United States

Constitution the State courts are, of course, as

competent as federal courts to rule on federal

constitutional issues. If we were writing on a

clean slate, we might well conclude that

principles of federalism and preclusion by

prior judgements makes Thomas binding here.

For the reasons set forth in Part | of this Order,

however, we do not reach that conclusion.

Regrettably we have had to do the same work

done by the judges in the State court system,

even though there is not a hint or suggestion, in

or outside of the record, that the Thomas

plaintiffs received anything other than the

fairest, most competent treatment at the hands

of the State courts. Even more regrettably we

have reached a decision that is different from

that reached by the State courts in Thomas.”

The City of Marietta appealed this decision to the Fifth Circuit United

States Court of Appeals. The case was subsequently transferred to the

new Eleventh Circuit. In a much shorter opinion than that of the District

Court, the Eleventh Circuit upheld the Order of the District Court. The

Court summarily held that res judicata did not apply since the parties in

the Thomas litigation were not the same as those in the Dills litigation.

The Eleventh Circuit also affirmed the lower Court decision concerning

the commercial specch issue relying on the recently decided case of

Metromedia, Inc. v. City of San Diego.“

© Hills v. City of Marietta, (Order, J. Moye, p. 38).

453 U.S. 490, 101 S. Ct. 2882, 69 L. Ed. 2d 800 (1981).

In determining the validity of governmental restriction on commercial

speech, the Circuit Court held that a partial ban on portable signs, as

contemplated by the Marietta Ordinance, does not directly advance the

stated governmental interest in traffic safety. The Court also held that the

piecemeal attempt to regulate portable display signs is impermissible.

Furthermore, the Court held that aesthetics would not be a proper

consideration in support of a partial ban on portable display signs.

From this long and tortured history, the Petitioner offers two

questions, one procedural and one substantive, for this Court's

consideration.

REASONS FOR ALLOWANCE OF THE WRIT

The statement of the case suggests two timely issues which are sipe for

review. First, substantively, is the issue of pure commercial speech and iis

regulation. Second, is the proper relationship of the states and federa)

courts in deciding federal constitutional issues.

I. COMMERCIAL SPEECH

Petitioner enacted two ordinances which admittedly restrict the way

that commercial speech can be disseminated. The ordinances materially

restrict the use of a particular type of sign, a portable display sign.

The City, in enacting these restrictions, employed a generalized

statement of purpose: “to provide standards to safeguard life, public

health, property and welfare...” Throughout the entire litigation the City

has maintained two arguments in support of these restrictions, First, that

the public health and safety considerations override an advertiser's right

to use this type of sign.'? Secondly, the City contends that it can enforce

aesthetics through the police power.

Initially, the twin arguments of the city were persuasive: they were

upheld throughout the entire state court litigation. Indeed, once this

court's decision in Metromedia, supra, was published, the City’s position

appeared to be vindicated.

"Petitioners presented uncontroverted evidence at the District Court evidentiary

hearing, by a City of Marietta police officer who testified that he has seen portable signs

blow over into the street and short circuit, creating a traffic hazard. Dills v. City of

Marietta, CAF C80-2001A, United States District Court, Northern District of (Ja., 1-77.

9

In the Eleventh Circuit, the Court properly focused on the four-part

test set forth in Central Hudson Gas v. Public Service Commission of

New York, 447 U.S. 557 (1980). The Court ruled that (1) the Marietta

ordinances clearly encompass speech that is not misleading and that

concerns lawful activity; (2) substantial governmental interests exist in

the promotion of traffic safety and aesthetics; (3) the ordinances do wot

directly advance the claimed interest in traffic safety because the ban is

not complete; and (4) the ordinances reach farther than necessary to

accomplish the given objective since the purpose of the ordinance

(traffic safety and aesthetics) could be accomplished by merely requiring

the signs to be anchored. Thus the ordinance was held over inclusive.!“

There are certain exceptions to the ordinances, Temporary signs may

be displayed for certain activities for certain times and conditions. See:

Ordinances 3315, 3479, cited in Appendix. Thus, the Eleventh Circuit

was correct in noting that the ordinances are piecemeal in attempting to

regulate portable signs. Nevertheless, the Court noted that: “... While a

governmental entity may legitimately decide to remedy a problem ona

piecemeal basis, at some point exceptions can become so inconsistent

with the claimed statutory purpose as to render unreasonable any

assertion that the measure furthers the claimed governmental interest.“

For this particular reason the ordinance was declared invalid."

Petitioner contends that a major error of the Eleventh Circuit opinion

is the direct contravention to the holding of this Court in Metromedia,

supra. In Metromedia, this Court stated that:

“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 farther than necessary in seeking

to meet its ends. Indeed, it has stopped short of fully

' Petitioner does agree that the same sign contemplated by the portable sign ordinance, if

permanently attached to the ground would not be regulated by the ordinances in

question. Only portable signs are contemplated by these ordinances.

Hilla, supra at 1129.

'S It is interesting to note that the conclusion of the 38 page Order of the District Court

was invalid because it did not leave open ample alternatives for other communication.

Order, p. 37.

accomplishing its ends: It has not prohibited all billboards,

but allows on-site advertising and some other specifically

exempted signs.”

“In the first place, whether on-site advertising is

permitted or not, the prohibition of off-site advertising is

directly related to the stated objectives of traffic safety and

esthetics. This is not altered by the fact that the ordinance is

underinclusive because it permits on-site advertising.

Second, the city may believe that off-site advertising with its

periodically changing content, presents a more acute

problem than does on-site advertising. (Citation omitted).

Third, San Diego has obviously chosen to value one kind of

commercial speech -- on-site advertising -- more than

another kind of commercial specch -- off-site 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 -- on-site 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.

(Citations omitted.) 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,

off-site commercial billboards may be prohibited while on-

site commercial billboards are permitted.”

Thus, while this Court directly states that a municipality need not fully

prohibit signs, the Eleventh Circuit says that it must, or the ordinance is

unconstitutional. As such, petitioner contends that the Eleventh Circuit

has failed to properly apply the rules set down by this Court for

determining the validity of commercial speech.

Petitioner further contends that this case is sufficiently distinguished

from Metromedia such that a new question is presented concerning the

commercial speech doctrine. The Court will recall, Metromedia was

challenged on the ground that the ordinances in question restricted non-

commercial, as well as commercial speech. Ultimately, because the San

Diego authorities did not accord the same protection to non-commercial

speech as they did to commercial speech, the San Diego ordinances were

held to be unconstitutional.

The case sub judice does not contain the non-commercial

considerations that beset Metromedia. This Court is asked to decide a

relatively narrow question: Are restrictions on the use of portable display

signs justified for public health and safety reasons when matched against

a businessman's right to disseminate commercial speech? The ordinances

are not challenged on non-commercial speech grounds. “

The significance of this difficult constitutional issue is readily seen by

the fact that the answer thus far has been decided antithetically by a state

court of last resort, the supreme court of Georgia, and the United States

Court of Appeals for the Eleventh Circuit. Both decisions are appended

to this petition.

Finally, the commercial speech question here is one that has the

interest of every municipality in the nation. The Eleventh Circuit has now

set forth new restrictions upon the power of municipalities to regulate the

health and safety of its citizens. The City of Marietta does not wish to

allow portable signs next to the road which are distvacting to motorists,

and unsafe, in that they easily blow over into the roudway and break up.

These signs are also unsightly and destructive of property values

according to the judgment of the City Council of Marietia. These, in the

past, have been valid reasons for enacting restrictions on such signs.

Now, they are not. Every city, at least within the Eleventh circuit, is now

unsure of what power they have to regulate these type signs. For this

rcason, Supreme Court guidance is requested.

II. RES JUDICATA

A second issue arises from the facts of this case concerning federal civil

procedure. As previously stated, the petitioner originally had the

substantive issue enumerated above, decided in its favor, by the supreme

court of Georgia. Indeed, when that opinion was filed, the respondent

apriied for certiorari to this Court. It was denied.

Respondent's attorney undauntedly refiled in the District Court. He

presented two new signmakers and thereafter dropped all those plaintiffs

who were in the state court action. Although the petitioner plead res

judicata, the District Court held that the principle was inapplicable. The

District Court observed that:

„See Dills v. City of Marietta, opinion of District Court, Footnote 3.

12

“Here the same attorney has represented the plaintif’s in

all cases. All cases involve the same claims and defenses

based upon the same facts. All cases involve plaintiffs who

are similarly situated. There is no aspect of the state court

litigation which can be deemed unfair or less than fully

litigated.” Order, Judge Moye, p. 10.

Nevertheless, since the parties were not identical to those in Dills and

Thomas res judicata did not apply.

Petitioner suggests and contends that the matter was originally res

judicata, under the doctrine of “virtual representation” set forth in

Chicago, Rock Island A Peoria Rwy. Co. v. Schendel. 270 U.S. 611

(1926) and Heckman v. United States, 224 U.S. 413 (1912). Petitioner

suggests pursuant to the cases cited above that the principles of res

judicata cannot be subverted by the mere substitution of similarly

situated parties, as plaintiffs below sought to do.

More importantly, petitioner contends that the District Court was

bound by the decision of the supreme court of Georgia, regarding the

federal constitutional question,

The District Court politely noted that in overruling the supreme court

of Georgia, “. .. the Court has reluctantly reached a decision somewhat at

odds with the rulings of the state courts in Thomas. . . Regrettably we

have had to do the same work done by the Judges in the state court

system, even though there is not a thing or suggestion, in or outside of the

record, that the Thomas plaintiffs received anything other than the

fairest, most competent treatment at the hands of the state courts. . .”

Order, Judge Moye, p. 38.

Nevertheless, the District Court justified its reversal of the Georgia

supreme court on the ground that “. . (this) Court has considered

several legal theories which the plaintiffs apparently failed to present to

the Georgia courts.” Order, Judge Moye, p. 38.

In point of fact, the plaintiffs presented no new legal theory to the District

Court either. The pleadings and arguments were the same.

The Georgia supreme court is a court empowered to decide questions

concerning the Federal Constitut 'n just as a federal appeals court does.

The proper recourse for a party who wishes to appeal from a state

supreme court is to apply for certiorari to this court. That, indeed, is

exactly what was done here. The denial of certiorari should have been the

end of this matter.

13

The explosion in litigation that courts have seen could be materially

curtailed by adopting a clear rule barring the unnecessary relitigation of

cases already fully and fairly decided.

Petitioner suggests that where a state court of last resort gives full and

fair consideration to a question of federal constitutional law, and

certiorari to the United States Supreme Court is denied, all other courts

should be barred from relitigating the matter unless some new and

compelling consideration arises.

This issue is undoubtedly ripe for the Court's consideration in that it

offers a chance for the Court to reduce unnecessary and expensive

litigation.

CONCLUSION

This petition presents an opportunity for the Court to decide two

issues of significant interest. First is the opportunity for further definition

of the interplay of the First Amendment on the commercial speech

doctrine. Secondly, is the opportunity to enunciate a clear rule of law

regarding the res judicata effect of a federal constitutional issue decided

by a state court of last resort and a United States District Court. It is

respectfully requested that the Court grant this petition.

BARNES AND BROWNING, F.C.

GINAL SIGNED BY

NOT E. BARNES

By:

ROY E. BARNES

Original signed by

By: Thomas J. Casurella

THOMAS J. CASURELLA

166 Anderson Street

Marietta, Georgia 30060

(404) 424-1500

14

ED DILLS, d/b/a Mid-Georgia Supply,

Plaintiff - Appellee,

V.

The CITY OF MARIETTA, GEORGIA

and Mayor and council of the City of

Marietta, Georgia, Defendants - Appellants

No. 81-7924

United States Court of Appeals,

Eleventh Circuit,

May 6, 1982

Before MORGAN, KRAVITCH and HENDERSON,

Circuit Judges.

LEWIS R. MORGAN, Circuit Judge

On this appeal we are primarily concerned with the constitutionality of

restrictions imposed by defendants - appellants, the City of Marietta,

Georgia, the city’s Mayor and the City Council (hereinafter defendants)

on the use of portable display signs. ' Plaintiff - Appellee Ed dills, who

leases and sells portable trailer signs wiihin the Marietta city limits, filed

this action on November 18, 1980 in the Northern District of Georgia. He

was later joined as a party pleintiff by James Tucker, a Marietta

businessman using portable signs to promote sales of his merchandise.

Dills and Tucker (hereinafter plaintiffs) sougitt declaratory and

injunctive relief to prevent defendants from enforcing two provisions of

the “Marietta Sign Ordinance” which required the removal of portable

' A “portable display sign” is defined in Marietta’: sign ordinances as “(a) mobile,

temporary electrical or non-electrical sign that is mounted on skids or portable wood or

metal frame and not permanently attached to the ground.” City of Marietta Ordinance

No. 3479 (enacted March 14, 1979).

15

display signs after a specified number of days. ? Plaintiffs challenged the

ordinances on grounds that they constituted an unlawful impairment of

contract, resulted in deprivation of property without just compensation

and otherwise violated their rights of due process, equal protection and

free speech. Defendants answered that the suit was precluded under

principles of res judicata or collateral estopel and that the ordinances

constituted a lawful exercise of the city’s police power. After a hearing,

oral arguments by counsel and submission of briefs, the district court

granted permanent injunctive relief. The court held that under

controlling precedent in this circuit the doctrines of res judicata and

collateral estoppel were inapplicable and that the ordinances denied

plaintiffs equal protection of the law. For the reasons stated belor, we

affirm.

Initially, we consider defendants’ argument that the instant action should

be barred under the doctrine of res judicata. On April 12, 1979 several

portable sign manufacturers and users filed suit in the Superior court of

Cobb County, CA No. 79-1603, challenging on state and federal

constitutional grounds the same tow Marietta ordinances attacked here.

Cuy of Marietta Ordinance No. 3479 (enacted March 14, 1979). The regulations of

portable signs contained in Ordinance No. 3315 (designated as Article Il. section 7 inthe

“Marietta Sign Ordinance”) include restrictions on the placement, size, illumination and

transportation of portable signs, but plaintiffs only challenge that portion of the

ordinance which provides that

A permit shall not be valid for longer than a perion of one hundred twenty

(120) consecutive days after which time the portable display shall be

removed from the building setback lines of the premises. A permit cannot

be renewed nor can a permit be obtained for the same premises within a

period of thirty (30) days after the removal of a portable display from the

building setback area of the premises.

This provision was effectively amended (but remains in the “ City Sign Ordinance”) by

Ordinance No. 3479 adding Article V, paragraph 9. That addition reads as follows:

9. Portable Display Signs are to be permitted only in the following

conditions:

a. Opening or closing of a business, not to exceed thirty (30) days.

b. Special sale, promotional event, or change of ownership or

management, not to exceed twice in any twelve (12) month period, fora

maximum of fifteen (15) days.

c. Civic, public, charitable, educational or religious events for a

maximum of ſiſicen (15) days, not to exceed twice in any twelve (12)

month period.

d. For traffic direction during road construction or emergency

situations.

e. For political campaigns, for a maximum of thirty (30) days before any

election.

16

The state court upheld the constitutionality of the ordinances and that

decision was affirmed by the Georgia Supreme Court in Thomas v. City

of Marietta, 245 Ga. 485, 265 S.E.2d 775 (1980), cert. denied, 449 U.S.

839, 101 S.Ct. 115, 66 L.Ed.2s 45 (1981).

(1,2) Under the doctrine of res judicata a prior valid judgment on the

merits operates to bar a subsequent suit on the same cause of action if

brought by the same parties or their privies. Blonder-Tongue

Laboratories, Inc. v. University of Illinois Foundation ,402 U.S. 313,91

S.Ct. 1434, 28 L.Ed.2d 788 (1971). Admitting that plaintiffs Dills and

Tucker were not partics to the state court action, defendants argue that

we should nevertheless find privity under an expanded view of the

doctrine of virtual representation. That doctrine provides that “a person

may be bound by a judgment even though not a party if one of the parties

to the suit is so closely aligned with his interests as to be his virtual

representative.” Aerojet General Corp. v. Askew, 511 F.2d 710, 717 (Sth

Cir. 1975), cert. denied, 423 U.S. 908, 96 S.Ct 210, 46 L.Ed.2d 137 (1975).

In Pollard v. Cockrell, 578 F.2d 1002 (Sth Cir. 1978), a panel of the

former Fifth Circuit held that the doctrine of virtual representation

required “an express or implied legal relationship in which parties to the

first suit are accountable to non-parties who file a suit raising identical

issues.” Id. at 1008. The court below found that such a legal relationship

did not exist between the plaintiffs in the instant litigation and those in

the state court proceedings, and defendants concede that, as limited in

Pollard, the doctrine of virtual representation cannot be applied here.

Defendants therefore ask us to reconsider the principics of privity as

articulated in Pollard. This avenue is foreclosed to us even should we

desire to take it. The decisions of the former Fifth Circuit handed down

by that court prior to October l. 1981 have been adopted as precedent in

this circuit. Bonner v. City of Prichard, Alabama, 661 F2d 1206, 1209

Gun Cir. 1981). The Eleventh Circuit has further decided that it should

follow “the absolute rule that a prior decision of the circuit (panel or en

banc) (can) not be overruled by a panel but only by the court sitting en

banc.” Id. Accordingly, we agree with the district court's conclusion that

the doctrine of res judicata does not apply to this action.

Having resolved the procedural issue we turn now to the question of

whether the challenged provisions of the Marietta Sign Ordinance

violate federal constitutional guarantees. although plaintiffs assert

several constitutional bases for relief, we focus, as did the district court,

17

on plaintiffs’ claims based on the First and Fourteenth Amendments.

The starting point of our inquiry is to examine the character of the

ordinances as they affect constutionally protected communication.

Both regulations attacked by plaintiffs restrict the time period for use

of portable signs: Ordinance No. 3315 permits us of portable signs for up

to 120 consecutive days but then requires removal of the sign for 30 days

before it may again be displayed, and Ordinance No. 3479 allows use of

portable signs only twice a year for a maximum period of 30 days. Ata

hearing before the district court, plaintiffs presented evidence that

portable display signs offered the most economically efficient means of

adv ertising available — i. e. less expensive in relation to effectiveness

than any other advertising method. Testimony was introduced to the

effect that for a small business with low starting capital permanent signs

were not affordable. Plaintiff Dills testified that both ordinances, but

especially Ordinance No. 3479, sharply limited the use of portable

advertising because short term leases of portable sigus were not

profitable. The court below therefore concluded that the challenged

ordinanced impeded plaintiffs’ commercial speech.’ On appeal

defendants do not challenge this conclusion, but instead argue that the

burdens imposed on commercial speech by the portable sign ordinances

were sufficiently justified by the municipality's interests in controlling

etain noncommunicative aspects of the medium.

The district court dedicated a major portion of its lengthy written

order to a discussion of the proper test to be applied in determining the

validity of governmental restrictions on commercial speech. That

discussion has largely bewen rendered obsolete by the subsequent

decision of the Supreme Court in Metromedia, Inc. v. San Diego, — U.S.

, 101 S.Ct., 2882, 69 L. Ed. 2d 800 (1981). In Metromedia seven justices

* Ordinances 3315 and 3479 also apply to portable signs carrying noncommercial

advertising. Plaintiffs do not, however, challenge the constitutionality of the provisions

on this basis.

expressed approval of that portion of a San Diego ordinance which

proscribed use of off-site commercial billboard advertising.“ In so doing

five justices applied the following four part test originally set forth in

Central Hudson Gas v. Public Service Commission of New York, 447

U.S. 557, 566, 100 S.Ct. 2343, 65, L.Ed.2d 341 (1980):

(1) The First Amendment protects commercial speech only

if that speech concern 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) reached no further than necessary to accomplish the

given objective.

— U.S. at —, 101 S.Ct. at 2892, 69 L.Ed.2d at 815.

Employing this test in our review of the challenged Marietta

ordinances, it is undisputed that the initial, requisite inquiry is fulfilled.

The Marietta ordinances clearly encompass speech that is not misleading

and that concerns lawful activity. The remaining questions are, however,

not so simply answered under the record before us.

(3) On appeal, and before the court below, counsel for defendants

argues that the two challenged provisions of the Marietta Sign Ordinance

were enacted to further the municipality's interests in traffic safety and

esthetics. Although it is well settled that substantial governmental

interest exists in the promotion of both these concerns, — U.S. at —, 101

S.Ct. at 2892, 69 L.Ed.2d at 815; Railway Express Agency, Inc. v. New

Your, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949): see Penn Central

* In Metromedia five separate opinions were entered by members of the Court. Six

justices agreed that a San Diego ordinance, which sharply restricted billboard advertising

contravened First Amendment guarantees. The ordinance permitted on-site commercial

advertising but forbade all other billboard advertising including on-site noncommercial

advertising. The four justice plurality (Justices White, Steware, Marshall and Powell)

bifurcated its examination of the ordinance between the provision’s impact on

commercial and noncommercial speech. As to its discussion of the regulation of

commercial speech, in which the Central Hudson test was employed, the plurality was

joined by Justice Stevens, who dissented from the resolution of the noncommercial

speech issue. Chief Justice Burger and Justice Rehnquist, like Justice Stevens, expressed

views that the San Diego ordinance was constitutional as to both the commercial and

noncommercial speech aspects. Hence a total of seven justices agreed that San Diego had

sufficiently justified a total ban of off-site commercial advertising.

19

Transportation Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57

L.Ed. 631 (1978); E. B. Elliott Advertising Co. v. Metropolitan Date

County, 425 F.2d 1141, 1152 (Sth Cir. 1970), there is no support for the

claims that city officials were concerned about esthetics when enacting

time restrictions on the use of portable signs. The Marietta Sign

Ordinance is prefaced by a statement that the purpose of the various sign

regulations is “to safeguard life, public health, property and welfare...”

Marietta Ordinance No. 3315 (Article | of the Marietta Sign Ordinance).

Such broad, all encompassing statements tend to frustrate judicial

inquiry into the real purposed of a gevernmental entity in instituting a

restriction on protected activity. They permit after the fact

rationalizations for regulations thereby allowing circumvention of the

mandate that such measures be defended only on the basis of

considerations actually contributing to their enactment. See Weinberger

v. Wiesenfield, 420 U.S. 636, 648, 95 S.Ct. 1225, 1233, 43 L.Ed.2d 514

(1975); see also Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51

L. Ed. 2d 270 (1977); Hampton v. Mow Sun Wong, 426 U.S. 88, 115, 96

S.Ct. 1895, 1910, 48 J. Ed. 2d 495 (1976); Deerfield Medical Center v. City

of Deerfield Beach, 661 F.2d 328 (Sth Cir. 1981) (former Fifth Circuit

opinion). When all-inclusive statements of purpose are used we are

forced to look in the record for evidence of the interest underlying a

measure. Yet the district court found, and our review of the record

confirms, an absence of any evidence that Marietta officials considered

portable signs esthetically displeasing. We therefore decline to accept

counsel's mere incantation of esthetics as a proper state purpose in

evaluating the challenged provisions. Sce Trimble v. Gordon, 430 U.S.

762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977).

(4) Unlike the asserted concern for esthetics, a narrow reading of the

gencral statement of purpose prefacing the Marietta Sign Ordinance as

well as the obvious aim of most of the measures contained therein

support defendants’ arguments that concerns for traffic safety at least

partially provoked the restrictions on portable signs. But even accepting

that then enacting ordinances 3315 and 3479 city officials sought to

implement a substantial governmental interest, we are still unable to

conclude that the remaining to requirements of the Central Hudson test

are met. The time restrictions imposed on the use of portable signs do not

directly advance the claimed interest in traffic safety. Defendants

introduced testimony by an officer with the City of Marietta Police

Department that portable signs constitute a greater distraction to

motorists than permanent signs. The officer explained that passersby

become accustomed to permanent signs and ignore them while a portable

sign indicated “something — probably a special” and drew attention.

Under this reasoning Marietta’s time restrictions on the use of portable

20

signs do not directly further the claimed interest in traffic safety. In fact

the ordinances’ effect would be to exacerbate the distracting quality of

portable signs by insuring that when a portable sign was used it indeed

advertised something special. Citing Metromedia and B. Elliott v.

Metropolitan Dade County, 425 F.2d 1141 (Sth Cir. 1970), defendants

argue that its allowance of “exceptions” to a total ban on portable sign

use does not denigrate the city’s interest in traffic safety. While a

governmental entity may legitimately decide to remedy a problem ona

piecemeal basis, Williamson v. Lee Optical of Oklahoma, 348 U.S. 483,

75 S.Ct. 461,99 L.Ed. 565 (1954), at some point exceptions can become so

inconsistent with the claimed statutory purpose as to render

unreasonable any assertion that the measure furthers the claimed

governmental interest. See, ¢.g.. Eisenstadt v. Baird, 405 U.S. 438, 92

S.Ct. 1029, 31 L.Ed2d 349 (1972). That point has been reached here.

The Marietta police officer also testified that temporary signs could

blow over in severe weather and create an electrical hazard. We again

question whether time restrictions on portable sign use address this

concern. These doubts are encouraged and the statute at least rendered

overinclusive by the application of time restrictions to both electrical and

non electrical temporary signs. Finally, even as to electrical signs the

problem can be solved through measures less restrictive of commercial

speech, such as requiring anchoring of the signs (a requirement which the

record indicated is imposed by other Atlanta area municipalities). Hence

we conclude that under the record before us the time restrictions

contained in ordinances 3315 and 3479 have not been shown to directly

further, or to be narrowly tailored to mect, a claimed substantial

governmental interest. The decision of the district court enjoining

enforcement of these provisions is AFFIRMED.

21

35879 THOMAS et al. v. CITY OF MARIETTA et al.

UNDERCOFLER, Presiding Justice.

Appellants here challenge the constitutionality of two sections of the

Marietta Sign Ordinance restricting the use of portable display signs. !

One of the challenged sections sets out the conditions under which sucha

sign may be used. Marietta Sign Ordinance, Art. V. par. 9: “Portable

display signs are to be permitted only in the following conditions: a.

Ohening or closing of a business, not to exceed thirty (30) days. b. special

sale promotional event, or change of ownership or management, not tw

exceed twice in any twelve (12) month period, for a maximum of fifteen

(15) days. c. Civic, public, charitable, educational or religious events for a

maximum of fifteen (15) days, not to exceed twice in any twelve (12)

month period. d. For traffic direction during road construction or

emergency situations. e. For political campaigns, for a maximum of

thirty (30) days before any election. 9.1. Portable display signs are to be

removed from the permitted premises within three (3) days of end of the

event or expiration of permit, whichever comes first.”

The other challenged ordinance related to the premit requirements.

Marietta Sign Ordinance, Art. VI. par. 7(b): “a permit shall not be valid

for longer than a period of one hundred twenty (120) consecutive days

after which time the portable display shall be removed from the building

setback lines of (sic)? the premises. A permit cannot be renewed nor cana

permit be obtained for the same premises within a period of thirty (30)

days after the removal of a portable display from the building setback

area or the premises.” (Footnote added).

Appellants claim that these sections amount to an abuse of the police

power of the City of Marietta, deprive them of their property without just

compensation without due process of law, deny them freedom of speech,

and constitute an impairment of contracts, The trial court upheld the

constitutionality of the ordinance. We affirm.

1. In City of Doraville v. Turner Communications Corp., 236 Ga. 385

(223 SE2d 798) (1976), we held that a municipality may validly regulate

the erection and maintenance of signs. The validity of a particular sign

' “Portable Display Sign: A mobile/temporary electrical or non-electrical sign that is

mounted on a trailer type frame with wheels or skids ot portable wood ot metal frame and

not permanently attached to the ground.” sign Ordinance No. 3315, Art. II. par. 30, as

amended.

Although the Ordinance in the record says “of,” we think “or” must have been intended.

22

ordinance, however, depends on the reasonableness of its purpose,

operation and effect, The general purposes of the ordinance are spelled

out in Article I: “The purpose of this Ordinance is to provide standards to

safeguard life, public health, property and welfare by regulating the

location, size, illumination, erection, maintenance and quality of

materials of all signs, and all signs and outdoor advertising structures.”

Appellants argue that this is an attempt to regulate aesthetics through the

police power, We disagree.

Although aesthetics are an important incidental effect of regulations,

Berman v. Parker, 348 U.S. 26 (1954), aesthetics, being merely a question

of subjective taste, would not alone be enough to support the legislation

here under the police power. See City of Smyrna v. Parks, 240 Ga. 699

(242 SE2d 73) (1978). This ordinance, however, is clearly reasonably

meant to regulate signs which are, in their very nature, temporary. See

difinition in footnote 1, supra. The regulations are designed to prevent

the use of these temporary signs where a permanent one would be more

conducive to the safety and welfare of the public. We do not find these

ordinances arbitrary or discriminatory.

2. Having held that the regulation of these temporary signs is

reasonable and within the police power, and noting that, although their

use is restricted, it is not prohibited, it follows that there is no merit to

appellants’ due process, inverse condemnation, freedom of speech, or

impairment of contracts claims, Linmark Assoc., Inc. v. Township of

Willingboro, 431 U.S. 85 (1977), is distinguishable for this reason.

Judgement affirmed. All the Justices concur, except Marshall, J., who

dissents.

SUBMITTED JANUARY 25, 1980 — DECIDED

FEBRUARY 26, 1980 —

REHEARING DENIED MARCH 18, 1980.

Constitutionality of ordinance; vacating of temporary restraining

order, Cobb Superior Court. Before Judge Hames.

Charles N. Field, William V. Robinson, for appellants.

Roy E. Barnes, for appellees.

23

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

ED DILLS, d/b/a MID-GEORGIA SUPPLY

Plaintiff,

THE CITY OF MARIETTA, GEORGIA,

AND MAYOR AND COUNCIL OF THE

CITY OF MARIETTA, GEORGIA,

Defendants.

CIVIL ACTION FILE

NO. C80-2001A

ORDER OF COURT

Plaintiff Ed Dills, d/b/a Mid-Georgia Supply, filed this action on

November 18, 1980, seeking declaratory and injunctive relief against the

City of Marietta. He contends that the Citys Ordinance No. 3315

(enacted August 10, 1977) and the amendment thereto by Ordinance No.

3478 (enacted March 14, 1979) are unconstitutional. Those ordinances

restrict the times and locations for displaying portable advertising signs.'

On April 12, 1979, Gerald E. Thomas, d/b/a J. & J. Exxon and others,

including Buddy Cobb, d/b/a/AAA Mobile Ads & Signs, Inc., filed

suit in the Superior Court of Cobb County, CA No. 79-1603, contesting

the constitutionality of the ordinances involved here. The Superior Court

granted a temporary restraining order which it later dissolved after

holding a hearing. The Supreme Court of Georgia affirmed, holding that

“there is no merit to appellants’ due process, inverse condemnation,

freedom of speech, or impairment of contracts claims.“ Thomas v. City

of Marietta, 245 Ga. 48)5, 487 (1980). Neither the Thomas opinion, nor

anything presented to this Court, reflects any consideration by the

supreme Court of an equal protection challenge to the ordinances. On

October 6, 1980, the United States Supreme Court denied the Thomas

plaintiffs’ petition for certiorari, 49 U.S. I. W. 3247.

On March 13, 1980, Buddy Cobb and others filed suit in this Court,

C80-434A, challenging the Marietta ordinance. The Court dismissed the

Cobb case for lack of subject matter jurisdiction, reasoning that the

24

' No. 3478 (Article V. Sections 9-9.1 of the City’s Sign Ordinance provides:

Portable Display Signs are to be permitted only in the following conditions:

a. Opening or closing of a business, not to exceed thirty (30) days.

b. Special sale, promotional event, or change of ownership or management, not to

exceed twice in any twelve (12) month period, for a maximum of fifteen (15) days.

c. Civic, public, charitable, educational or religious events for a maximum of fifteen

(15) days, not to exceed twice in any twelve (12) month period.

d. For traffic direction during road construction or emergency situations,

e. For political campaigns, for a maximum of thirty (30) days before any election.

Portable display signs are to be removed from the permitted premises within three (3)

days of end of the event or expiration of permit, whichever comes first,

No. 3315 (Article VI. § 7 of the City's sign Ordinance) provides:

a. Portable displays may be located within the building setback area provided they

are no closer than twelve (12) feet from the curb line and in no case on the street right-

of-way.

b. A permit shall not be valid for longer than a period of one hundred twenty (120)

consecutive days after which time the portable display shall be removed from the

building setback lines of the premises. A permit cannot be renewed nor can a permit be

obtained for the same premises within a period of thirty (30) days after the removal of a

portable display from the building setback area or the premises.

c. Illuminated portable displays shall be properly grounded.

d. Portable displays using transportation mechanism shall be properly licensed as

required by law.

e. The sign area of portable displays shall not excced 75 square feet. (Amended by

Ordinance No. 3342, 11-14-77).

f. The placement of a trailer sign in a parking space which is required to meet the

minimum parking requirements of the city shall be prohibited.

g. Each portable trailer display shall have its wheels locked so that only the person

renting, leasing, owning or providing the signs shall have the capability of unlocking the

wheels.

h. All incadescent bulbs in, or attached to any portable display shall be rated at no

more than one hundred (100) watts. Colors of white, red and blue shall be prohibited. No

more than ten (10) spot-flood bulbs per face of each trailer sign shall be permitted.

25

plaintiffs were attempting to obtain federal review of a state court

decision. This suit, as previously noted, was filed November 18, 1980.

Dills is in the business of leasing and selling portable signs. His signs

are made portable by virtue of the fact that they are affixed to trailers that

can be towed by car or truck. Dills leases the trailers to businesses which

use them as on-site advertising designed to attract the business of

travelers on public roads. He testified at the hearing that his leasing of

signs in Marietta has been substantially diminished by the ordinances in

question. A witness, Ellison Wheeler, stated that portable signs are the

most effective and least expensive ſorm of advertising available and that

his business is better when he uses the signs.

The plaintiff has moved to add as a party plaintiff James M. Tucker.

Tucker used portable trailer signs to promote his business in Marietta

until ordinance No. 3478 was enacted. His business is better when he uses

the signs. Other forms of advertising are more costly and less effective for

him. The motion to add Tucker is GRANTED as it is meritorious and

unopposed.

At the hearing, the City produced evidence that portable signs can

blow over and that when they do so they may cause traffic hazards or

electrical shortages. Also, the City appears to argue in its brief that

portable signs are aesthetically displeasing. There is no evidence in the

record directly supporting this position, although a picture of one of

Dills’ signs appears in plaintiiſs exhibit 4. The ordinance itself states that

its purpose is “to safeguard life, public health, property and welfare . . .”

Ordinance No. 3315 (Article I of the City’s Sign Ordinance).

Dills’ complaint alleges violations of his rights to due process of law

and to freedom of speech. He also contends in nis complaint that the

ordinances constitute an unlawful impairment of contract and that they

deprive him of property without just compensation. Count two of his

complaint alleges that Ordinance No. 3315 is unccnstitutional in “that

there is no rational basis or reason for requiring that at the end of a 120-

day period, of display, a sign be removed for at least a 30-day period.”

The City contends (1) that the ordinances are lawful exercises of its police

power and (2) that this suit is precluded under principles of res judicata

and/or collateral estoppel because of the Thomas case in the state courts.

At the hearing in the case, the Court observed that, if the case reached

the merits, plaintiff's best cause of action might be for a denial of equal

protection. The Court did not limit the constitutional considerations to

equal protection es the defendant states in its brief of December l. 1980 at

p.4. The Court has considered the brief filed by the City of January 16,

26

1980 with the Supreme Court of Georgia in Thomas v. City of Marietta,

discussing the other issues. Because defendant has briefed the equal

protection issue, and because the evidence relevant to the issue is virtually

identical to that relevant to other claims, the Court believes that the

complaint should be amended to include a claim for denial of equal

protection to conform the complaint to the evidence, and it is SO

ORDERED. Sce Fed. R. Civ. P'. 15(b).

The case is not presently before the Court on any written motion.

Judge Evans signed a temporary restraining order in the case on

November 18, 1980, and it is the Court's understanding that the case is

presently before the Court on plaintiffs motion for preliminary

injunction and defendant's motion to dissolve the TRO. As the parties

have had an opportunity to present evidence, oral argument, and written

briefs, the Court ORDERS that this order will be the final order in the

case unless someone shows cause within fifteen (15) days why it should

not be.

I. Preclusive effect of Thomas

Defendant argues that these plaintiffs are precluded from asserting

their claims here under the doctrines of res judicata or collateral estoppel.

Res judicata acts to preclude relitigation of causes of action by the same

parties, and collateral estoppel to preclude relitigation of issues usually

by different parties. 1B Moore's Federal Practice 0.44 (1) (2d ed. 1974).

The fundamental issue of preclusion here is whether Dills and Tucker,

non-parties to the Thomas and Cobb cases, are prevented from asserting

claims in this case. It is not disputed that the claims raised here are the

same as those raised in Thomas and Cobb; it is also beyond dispute that

the equal protection claim raised here could have been raised in the prior

cases and thus would be precluded here if res judicata were otherwise

appropriate.

Res judicata and collateral estoppel are, of course, difficult concepts in

their own right. They are arguably more difficult in a situation like this

where the earlier judgment which purportedly has a preclusive effect is

the judgment of a state court and where the later action has been filed in

federal court. Thus, the question arises whether this federal court, in a

“federal question” case, should apply federal or state principles of res

judicata and collateral estoppel. Not surprisingly there are cases which

quickly conclude that federal principles of res judicata or collateral

estoppel govern in such a situation. E.g., Blonder- Tongue Lab's, Inc. v.

University of Ill. Found., 402 U.S. 313, J24 n. 12(1971); Maher v. City of

New Orleans, 516 F.2d 1051, 1055-56 (Sth Cir. 1975), Pve v. Department

of Transportation of the State of Georgia, 513 F.2d 290, 291-92 (Sth Cir.

?7

1975). Other cases, however, acknowledge at least some limited deference

to state law, as a matter of federal law, because of 28 U.S.C. § 1738

(which requires federal courts to give full, faith and credit to state court

judgments or as a matter of comity. E.g., Chapman v. Aetna Finance

Co., 615 F.2d 361 (Sth Cir. 1980); American Mannex Corp. v. Rozands,

462 F.2d 688 (Sth Cir. 1972). See also Parker v. McKeithen, 488 F.2d

553, 558 n.7 (Sth Cir. 1974) (noting confusion over difference between

collateral estoppel and full, faith and credit). The policies underlying

section 1738 may be overridden by strong federal constitutional or

statutory policies. American Mannex, 462 F. 2d at 690. For example, the

courts often accord state principles of res judicata less deference where

plaintiffs seek to vindicate their civil rights. See e.g. Winters v. Lavine,

574 F.2d 46, 55 (2d Cir. 1978). Also, a different analysis may be required

depending on whether collateral estoppel or res judicata is at issue.

Aeorjet-General Corp. v. Askew, 511 F.2d 710, 717 0.8 (Sth Cir, 1975).

Fortunately, the Court need not determine whether state or federal

principles govern, because both provide the same result. The plaintiffs

maintain that res judicata and collateral estoppel are inapplicable

because the plaintiffs in this case were not parties to the previous cases.

The defendant argues that the plaintiffs are precluded from maintaining

this suit anyway.

In Battle v. Cherry, 339 F. Supp. 186 (N. D. Ga. 1972), Judge Edenſield

held the defense of res judicata applicable against non-parties to prior

state court litigation. In Bai le the plaintiffs in the prior case had the same

interests and same attoryneys as did the plaintiffs in the federal case, and

since the plaintiffs were attacking a statewide funding scheme, the Court

and since the plaintiffs were attacking a statewide funding scheme, the

Court found that “If the present plaintiffs prevail, the benefits of this

action would insure to the (plaintiffs in the prior case) and would in effect

render the 1966 decision of the Georgia Supreme Court null and void.”

Asa result, Judge Edenſield concluded there was privity between the tub

sets of plaintiffs. /d. at 192. Here, the plaintiffs are a lessor and lessee of

signs as was the case in Thomas and Cobb. The same causes of action and

defenses have been raised in all cases. One plaintiff in this case, Dills,

testified that he knew of the previous litigation. Unlike in Battle,

however, here the benefit of a ruling favorable to the plaintiffs would not

necessarily inure to the benefit of anyone other than the plaintiffs in this

case. Battle is further distinguishable in that Judge Edenfield ruled

against the plaintiffs on at least two other alternative grounds. Finally, in

Battle the first plaintiffs were acting in both their individual capacities

and as school board members, and “the proposition that governments

may represent private interests in litigation, precluding relitigation, is

28

clear.” Southwest Airlines Co. v. Texas Int'l. Airlines, Inc., 546 F.2d 84,

98 (5th Cir. 1977), citing Battle with apparent approval.

In Pollard v. Cockrell, 578 F 2d 1002 (Sth Cir, 1978), one group of

plaintiffs lost in the state courts in an attempt to have an ordinance

declared unconstitutional. When identically situated plaintiffs sought the

same relief on the same grounds in federal court, the defendant rraised

the defense of res judicata. The Fifth Circuit, following E. B. Elliott Adv.

Co. v. Metropolitan Dade County, 425 F.2d 1141, 1148. (Sth Cir.), cert.

dismissed, 400 U.S. 805 (1970), held that res judicata did not apply

because the plaintiffs in the federal case were not involved in the previous

case “ ‘either as named parties or as members of a class being represented .

„ Pollard, 578 F.2d at 1008, quoting E. H. Elliott, 425 F.2d at 1148.

Pollard also addressed the question whether the plaintiffs, though not

parties to the earlier litigation, might be deemed to be in privity with the

plaintiffs in the prior case under the virtual representation doctrine. That

principle provides that “ ‘a person may be bound by a judgment even

though not a party if one of the parties to the suit is so closely aligned with

his interests as to be his virtual representative.“ Pollard, 578 F. ad at

1008, quoting Aerojet-General, 511 F.2d at 710.

The following quotation of the analysis used in Pollard amply

demonstrates why the plaintiffs in this case are not the virtual

representatives of the Thomas plaintiffs:

In this case, the appellees argue, the instant plaintiffs and

the Holt plaintiffs are massage parlor owners and masseuses

having identical interests in a determination of the

constitutionality of the ordinance. Furthermore, the

plaintiffs in each case are represented by the same attorneys

and the complaints are identical except for their

jurisdictional averments and the state constitutional points

raised in Holt. On the other hand, the instant plaintiffs

alleged in their complaint — and the defendants do not

dispute — that they are not associated with any party to the

state court proceeding in terms of ownership, control or

management,

We hold that the relationship between the instant

plaintiffs and the Holt plaintiffs does not amount to the

close alignment of interests necessary under the virtual

representation doctrine, Virtual representation demands

the existence of an express or implied legal relationship in

which parties to the first suit are accountable to non-parties

29

who file a subsequent suit raising identical issues. \n

reviewing cases decided under the doctrine, we have

described the types of relationships contemplated: “estate

beneficiaries bound by administrators, presidents and sole

stockholders by their companies, parent corporations by

their subsidiaries, and a trust beneficiary by the trustee”.

Southwest Airlines Co., v. Texas Intern. Airlines, 546 F.2d

84, 97 (Sth Cir. 1977) (Citations omitted) Ona similar basis,

we have held that, in some contexts, the relationship

between a governmental authority as public enforcer of an

ordinance and private parties suing for enforcement as

private attorneys general “is close enough to preclude

relitigation”. /d. at 98. In the instant case, however, the state

court plaintiffs were in no sense legally accountable to the

federal court plaintiffs; they shared only an abstract interest

in enjoining enforcement of the ordinance. The Holt

plaintiffs sued in their individual capacities and not as

representatives of a judicially certified class. Representation

by the same attorneys cannot furnish the requisite

alignment of interests in the light of the well established

ethical rule that, in areas affecting the merits of the cause or

substantially affecting the rights of the client, “the authority

to make decisions is exclusively that of the client and, if

made within the framework of the law, such decisions are

binding on his lawyer”. American Bar Association, Code of

Professional Responsibility, EC 7-7 (1971).

578 F.2d at 1008-09 (emphasis added). The Court thus concludes that the

defense of res judicata must fail.

Likewise, the defense of collateral estoppel must fail because the

plaintiffs in this case were neither parties to the previous litigation nor did

they have a full and fair opportunity to litigate their rights. Eg.,

Montana v. United States, 440 U.S. 147, 164 (1979); Parklane Hosiery

Co. v. Shore, 349 U.S.322, 330 (1979) (non-party “will not be bound by

(previous) judgment. — dicta); Blonder- Tongue, 402 U.S. at 329;

Hansberry v. Lee, 311 U.S. 32, 40 (1940); In re Nissan Motor Corp.,

Antitrust Litigation, 471 F. Supp. 754 (S.D. Fla. 1979).

Even if Georgia law were deemed applicable, neither res judicata nor

collateral estoppel would be applicable because the present plaintiffs

were not parties to the prior suits. Eg. Porterfield v. Gilmer, 132 Ga.

App. 463, 466 (1974) (“strangers can neither take advantage of, nor be

bound by an estoppel.”) The Porterfield case refused to abandon even the

requirement that the party asserting the defense must have been bound

30

by the previous suit. This latter requirement is an old judge-made rule,

which was criticized by Justice Traynor in Bernhard v. Bank America

Nat. Trust & Savings Assn., 122 p. 2d 892 (1942). Later, the United States

supreme Court adopted Bernhardt in Blonder-Tongue, supra, and

Parklane Hosiery, supra, but the Georgia courts have not even adopted

the Bernhardt rule. See Porterfield, 132 Ga. App. at 467-69 (Stolz, J.,

dissenting).

The policy behind res judicata and collateral estoppel is to encourage

reliance upon judicial decisions, to bar vexatious litigation, and to free

the courts from resolving disputes already resolved by competent

tribunals. See Brown v. Felsen, 442 U.S. 127, 131 (1979). Those policies

would be greatly served here by accepting the defense offered by the City.

Here the same attorney has represented the plaintiffs in all cases. all cases

involve the same claims and defenses based upon the same facts. All cases

involve plaintiffs who are similarly situated. There is no aspect of the

state court litigation which can be deemed unfair or less than fully

litigated; the ſact that this Court has reached a contrary decision on the

merits is just a result of our having a federal system wherein state and

federal courts are given concurrent jurisdiction to hear federal

constitutional claims.

The only thing these plaintiffs have done differently from the Thomas

plaintiffs is to choose a different forum. Thus, a rule which allows

relitigation in a situation like the one presented here seems to attach a

great deal of significance to giving the second plaintiff a choice of forum.

Moreover, these plaintiffs would not only be able to engage in forum-

shopping, which in itself has been often criticized, but they would be able

to do so with the knowledge that one of the potential forums had already

ruled adversely to identically situated plaintiffs.

This Court is aware of only one policy that would be promoted by

permitting relitigation ina situation like that now confronting this Court.

To allow relitigation would serve the prophylactic purpose of making it

unnecessary to inquire into the nature of the previous litigation — i.e.

such matters as the motives of the parties, the quality of representation,

and the fairness of the proceedings. A desire to avoid such difficult

questions did not, however, prevent the Supreme Court in Blonder-

Tongue from abandoning the mutuality requirement; the Court simply

decided to resolve those problems on a case-by-case bases. 402 U.S. at

333-34. But Blonder- Tongue and Parklane Hosiery only involved use of

collateral estoppel against a party to the previous litigation. Here, the

City attempts to preclude a non-party to the Thomas case, and a

previously pointed out, (see pp. 9-10) both Blonder-Tongue and

Parklane Hosiery rejected, albeit in dicta, such an application of

3

collateral estoppel.

The court is thus unaware of any policy relating either to a litigant’s

right to be heard or to efficient administration of justice that requires the

relitigation here of the matters already litigated in the Georgia courts.

Nevertheless, the overwhelming precedent discussed above with respect

to both res judicata (see PP. 7-10) and collateral estoppel (see pp. 9-10)

requires the Court to hold that plaintiffs are not precluded by res judicata

or collateral estoppel from relitigating their claims before this Court.

II. Constitutional Claims

The precise nature of the plaintiffs’ claims is not made clear by the

pleadings, by the evidence and argument produced at the hearing, or by

the post-hearing briefs. The best the Court can descern is that plaintiffs

contend that the City’s ordinance violates any one or more of several of

their constitutional rights in that (1) the ordinance permits the use of

portable signs only for short periods of time, and (2) the ordinance does

not require similar time limitations for permanent signs. The City

contends that it has acted pursuant to its legitimate police power to

eradicate the evils of traffic hazards and aesthetic distractions and that in

doing so, it is not required to eliminate all similar evils.

The essence of this controversy is a dispute over the extent to which

government may regulate advertising that (1) is purely commercial, (2) is

used at the advertiser's business location, (3) is designed to attract the

business of travelers on public roads, and (4) is the most economically

efficient means of advertising available and thus more economically

efficient than a similar but less-restricted means of advertising. The legal

issues invoke both equal protection and free speech values inasmuch as

the City has both impeded plaintiff's speech and done so in a manner that

differentiates between types of speech.

A. Equal Protection

Equal protection analysis is prima iy two-tiered, applying very strict

scrutiny to classification on the basis of “suspect clasifications” and

“fundamental rights” and virtually no scrutiny to other legislative

classifications. L. Tribe, American Constitutional Law, §§16-2, 16-6

(1978). The Supreme Court has phrased this stricter test for judicial

scrutiny of legislation in terms of whether the legislation is “necessary to

promote a compelling governmental interest.. Shapiro v. Thompson,

394 U.S. 618, 634 (1969) (emphasis in original).

By comparison, however,

32

When local economic regulation is challenged solely as

violating the Equal Protection Clause, this Court

consistently defers to legislative determinations as to the

desirability of particular statutory discriminations. See,

e.g., Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S.

356 (1973). Unless a classification trammels fundamental

personal rights or is drawn upon inherently suspect

distinctions such as race, religion, or alienage, our decisions

presume the constitutionality of the — statutory

discriminations and require only that the classification

challenged be rationally related toa legitimate state interest.

States are accorded wide latitude in the regulation of their

local economies under their police powers, and rational

distinctions may be made with substantially less than

mathematical exactitude. Legislatures may implement their

program step by step, Katzenbach v. Morgan, 384 U.S. 641

(1966), in such economic areas, adopting regulations that

only partially ameliorate a perceived evil and deferring

complete elimination of the evil to future regulations. Sce,

e.g., Williamson v. Lee Optical Co., 348 U.S. 483, 488-489

(1955). In short, the judiciary may not sit as a

superlegislatute to judge the wisdom or desirability of

legislative policy determinations made in areas that neither

affect fundamental rights nor proceed along suspect lines,

see e.g., Da- Brite Lighting, Inc. v. Missouri, 342 U.S. 421,

423 (1952); in the local economic sphere, it is only the

invidious discrimination, the wholly arbitrary act, which

cannot stand consistently with the Fourteenth Amendment.

See, e.g., Ferguson v. Skrupa, 372 U.S. 726, 732 (1963).

New Orleans v. Dukes, 427 U.S. 297, 303-04 (1976)

The equal protection standards are result-oriented; under the stricter

scrutiny, the government has prevailed only once in the Supreme Court,

in Korematsu v. United States, 323 U.S. 457 (1957), “the only case in the

last half century to invalidate a wholly economic regulation solely on

equal protection grounds. . . 427 U.S. at 306.

Under the “mere rationality” test stated in Dukes, the ordinances at

issue here are probably constitutional. The ordinances serve the

legitimate state interests of safety and aesthetics ? and they do so ina

2 The court need not determine whether aesthetics alone is a legitimate governmental

interest. See 21 A.L.R. Id 1222.

33

rational way. Evidence in the record supports the City’s position that

portable signs can be unsafe, and any sign is arguably aesthetically

displeasing. Although the City has not explained why it differentiated

between portable and permanent signs, under Dukes it need not do so.

the City apparently chose to eliminate the traffic hazards and aesthetic

distractions posed by signs a little at a time and it need not eliminate the

entire evil at once. The Dukes standard is not appropriate in this case,

however, because it fails to give any significance to the speech values

involved.

The higher level of equal protection scrutiny is likewise not called for

here per se. The classification employed here is not based on a suspect

clasification, and commercial speech, though partially protected under

free speech analysis, is probably not a “fundamental right.” To hold that

commercial speech is a fundamental right would allow the Supreme

Courts careful attempts, discussed at length below, to define the

protection to be accorded commercial speech under the first amendment

to be circumvented by the simple expedient of claiming a violation of

equal protection rather than an abridgement of free speech.

Thus, neither of the traditional modes of equal protection analysis

should be directly applied here. The Fifth Circuithas observed, however,

that “every first amendment claim can be transformed into an equal

protection claim merely by focusing upon the classification...” Morial v.

Judiciary Commission of the State of Louisiana, 565 F.2d 295, 304 (Sth

Cir. 1977), cert. denied, 435 U.S. 1013 (1978). As a result of the equal

protection standard of review used must be the same as that which would

be accorded the underlying free speech claim. /d. The Supreme Court

seems to have adopted essentially the same view. See Police Dep't. of

Chicage v. Mosley, 408 U.S. 92, 95-102. The purpose of using both equal

protection and free speech analysis when both are so very similar is that

the method of equal protection analysis allows the Court to look beyond

the goals and means of the legislation as a whole to the specific interest of

the state in classifying between two types of speech and the need for doing

so in order to effectuate that interest. Morial, 565 F.2d at 304.

B. FREE SPEECH

The focus of the discussion will now turn to free speech analysis, but it

is important to remember that the discussion is not intended just to build

a framework for free speech analysis. In addition, the free speech values

discussed below and the level of protection given them may be utilized as

a basis for equal protection analysis.

34

1. Traditional Principles

Generally, free speech analysis requires very strict judicial scrutiny of

the ends and means of any legislation regulating the contents of speech

and less strict scrutiny of legislation regulating only the time, place and

manner of speech. See generally L. Tribe, supra §§ 12-2, 12-20.

Regulation on the basis of content is virtually prohibited, but the

plaintiffs here could not feasibly argue that the City has regulated their

signs on the basis of the content of their message. Rather, the regulation

at issue restricts the time, place and manner in which portable signs may

be used. Further, the City has differentiated between portable and

permanent signs with respect to the time, place, and manner of their use.

Generally, in analyzing time, place, and manner regulation, the courts

employ a balancing test, weighing the extent to which expression is

restricted against the interests served by the regulation, id. § 12-20 at pp.

682-83, and when regulating speech in a public forum, legislative bodies

must draft their statutes narrowly. See e.g., Grayned v. City of Rockford,

408 U.S. 104, 115, (1972); Hague v. C. O., 307 U.S. 496, 515-16 (1939)

(opinion of Roberts, J.): Reeves v. Me Conn, Slip op. No. 78-3570, p.

1479, 1484-85 (Sth Cir. Nov. 24, 1980); International Society for Krishna

Consciousness of Atlanta v. Eaves, 601 F.2d 809, 828 (Sth Cir. 1979),

Westfall v. Board of Comm'rs. of Clayton Co., 477 F. Supp. 862, 870-71

(N.D. Ga. 1979); Tribe, supra, §§ 12-20, 12-21.

2. Commercial Speech — Supreme Court Cases

This case involves speech that is purely commercial in nature, and

commercial speech has only recently been accorded constitutional

protection. As a result it is not clear to what extent the principles

described above, which have been employed in analyzing restrictions on

traditionally protected, non-commercial speech, are applicable here. The

Supreme Couirt first accorded first amendment protection to

commercial speech in Virginia State Board of Pharmacy v. Virginia

Citizens Consumer Council, Inc. (Virginia Pharmacy), 425 U.S. 748

(1976). At issue in Virginia Pharmacy was the validity of a Virginia law

prohibiting public advertising of prices for prescription drugs. The Court

struck down the law, but very carefully limited its holding by noting:

There is no claim, for example, that the prohibition on

prescription drug price advertising is a mere time, place, and

manner restriction. We have often approved restrictions of

that kind provided that they are justified without reference

to the content of the regulated speech, that they serve a

significant governmental interest, and that in so doing they

leave open ample alternative channels for communication

of the information. compare Grayned v. City of Rockford,

35

408 U.S. 104, 116 (1972); United States v. O'Brien, 391 U.S.

367, 377 (1968); and Kovacs v. Cooper, 336 U.S. 77, 85-87

(1949) with Buckley v. Valeo, 424 U.S. I: Erznoznik v. City

of Jacksonville, 422 U.S. 205, 209 (1975); Cantwell v.

Connecticut, 310 U.S., at 304-308; and Saia v. New York,

334 U.S. 558, 562 (1948). Whatever may be the proper

bounds of time, place, and manner restrictions on

commercial speech, they are plainly excceded by this

Virginia Statute, which singles out speech of a particular

content and seeks to prevent its dissemination completely.

Id. at 771. although the Court recited a rather strict test for analyzing

time, place, and manner regulations, it concluded that “the proper

bounds of time, place, and manner restrictions on commercial speech”

had been exceeded whatever those proper bounds) may be.” d.

The Court in Virginia Pharmacy also recited several “common sense

differences” between commercial and non-commercial speech. Id. at 771-

72 and n.24. The discussion relates primarily to the low level of

protection accorded commercial speech against regulation “to insure

that the flow of truthful and legitimate commercial information is

unimpaired.” /d. at 772. Commercial speech is subject to such regulation

because the typical commercial speaker has better knowledge of the truth

or falsity of that about which he speaks than does the typical non-

commercial speaker. Id. at 772 n.24. For the same reason, the

overbreadth doctrine and the prohibition against prior restraints may

not be necessary for the protection of commercial speech. /d. The Court

gave no indication, either expressly or by implication, that time, place,

and manner regulation of commercial speech should be accorded

different treatment than similar regulation of non-commercial speech.

In subsequent cases, the Court has made several additional statements

about time, place, and manner regulation of commercial speech. Also, it

has reiterated the distinctions between commercial and non-commercial

speech.

In the next commercial speech case, a 5-4 majority of the court upheld

against free speech and equal protection attacks an ordinance regulating

the location of adult movie theatres. Young v. American Mini-Theaters,

427 U.S. 50 (1976). With respect to the first amendment claim, Justice

Stevens wrote in Part II of his opinion:

Petitioners acknowledge that the ordinances prohibit

theaters which are not licensed as “adult motion picture

theaters” from exhibiting films which are protected by the

36

First Amendment. Respondents argue that the ordinances

are therefore invalid as prior restraints on free speech.

The ordinances are not challenged on the ground that

they impose a limit on the total number of adult theaters

which may operate in the city of Detroit. There is no claim

that distributors or exhibitors of adult films are denied

access to the market or, conversely, that the viewing public

is unable to satisfy its appetite for sexually explicit fare.

Viewed as an entity, the market for this commodity is

essentially unrestrained,

It is true, however, that adult films may only be exhibited

commercially in licensed theaters, But that is also true of all

motion pictures. The city’s general zoning laws require all

motion picture theaters to satisfy certain locational as well

as other requirements; we have no doubt that the

municipality may control the location of theaters as well as

the location of other commercial establishments, cither by

confining them to certain specified commercial zones or by

requiring that they be dispersed throughout the city. The

mere fact that the commercial exploitation of material

subject to zoning and other licensing requirments is not a

sufficient reason for invalidating these ordinances.

Putting to one side for the moment the fact that adult

motion picture theaters must satisfy a locational restriction

not applicable to other theaters, we are also persuaded that

the 1,000-foot restriction does not, in itself, create an

impermissible restraint on protected communication, The

city’s interest in planning and regulating the use of property

for commercial purposes is clearly adequate to support that

kind of restriction applicable to all theaters within the city

limits. In short, apart from the fact that the ordinances treat

adult theaters differently from other theaters and the fact

that the classification is predicated on the content of

material shown in the respective theaters, the regulation of

the place where such films may be exhibited does not offend

the First Amendment. We turn, therefore, to the question

whether the classification is consistent with the Equal

Protection Clause,

Id. at 62-63. Although the close of Part II signals a turn to equal

protection analysis, the focus of Part III is largely upon free speech

principles, and Justice Stevens concluded that “Even though the First

37

Amendment protects communication in this area from total suppression,

we hold that the state may legitimately use the content of these materials

as the basis for placing them in a different classification from other

motion pictures.” Id. at 70-71. Apparently discussing the equal

protection claim, he wrote:

The remaining question is whether the line drawn by these

ordinances is justified by the city’s interest in preserving the

character of its neighborhoods. On this question we agree

with the views expressed by district Judges Kennedy and

Gubow. The record discloses a factual basisd for the

Common Council's conclusion that this kind of restriction

will have the desired effect. It is not our function to appraise

the wisdom of its decision to require adult theaters to be

separated rather than concentrated in the same areas. In

either event, the city’s interest ‘> attempting to preserve the

quality of urban life is one hat must be accorded high

respect. Moreover, the city must be allowed a reasonable

opportunity to experiment with solutions to admittedly

serious problems.

Id. at 71.

Parts II and Il appear to give government very wide latitude in

zoning-type, land use legislation, the protections for commercial speech

notwithstanding. Several factors weaken this appearance however. First,

Justice Stevens’ discussion in Part HI was joined by only three other

Justices. Second a footnote in part Il says “Reasonable regulations of the

time, place, and manner of protected speech, where those regulations are

necessary to further significant governmental interests, are permitted by

the First Amendment.“ Id. at 63 n.18 (emphasis added). This statement

is not followed by the “Whatever may be the proper bounds”

qualification used in Virginia Pharmacy, and the statement is directly

instrumental to the holding that the “regulation of the place...does not

offend the First Amendment.” Id. at 63 (see p. 19, supra.) Third, the

plurality in Part Ill also qualified its equal protection analysis as follows:

The situation would be quite different if the ordinance

had the effect of suppressing, or greatly restricting access to,

lawful speech. Here, however, the District Court specifically

found that “the Ordinances do not affect the operation of

existing establishments but only the location of new ones.”

Id. at 71 n. 35.

From footnotes 18 and 35, it appears that time, place, and manner

38

classifications of commercial speech must pass some test stricter than a

mere rational relationship test. Footnote 18 in Part II requires that the

means of regulation be “necessary” to the accomplishment of the state's

goal. footnote 35 in Part III requires that the regulation leave available

alternative means of communication. The purpose of the two inquiries is

the same — to look beyond the governmental purpose to the means

chosen for effecting that purpose in order to determine whether the

legislature can accomplish the same goal with less restrictive regulation

that results in leaving open more means of expression. Each footnote is

similar in certain ways to the standard for evaluating time, place, and

manner restrictions set out in Virginia Pharmacy in the sentence

preceding the “whatever” qualification. See supra. Footnote 18 and

Virginia Pharmacy both require the government to show a “significant

interest.” Footnote 35 and Virginia Pharmacy focus on alternative means

of communication, and as previously discussed, that aspect of the

footnote 35 analysis is an essential aspect of an examination of the means

by which the government regulates.

The next commercial speech case, Linmark Assoc’s v. Township of

Willingboro, 431 U.S. 85 (1977), involved an ordinance prohibiting the

posting of “For Sale” and “Sold” signs on residential property as a means

of preventing “white flight” from racially integrated communities. The

Court invalidated the ordinance, holding first that the ordinance was not

a proper time, place, and manner regulation because it did not “ ‘leave

open ample alternative channels for communication.“ " /d. at93, quoting

Virginia Pharmacy, 425 U.S. at 771, The Court reasoned:

First, serious questions exist as to whether the ordinance

“leave(s) open ample alternative channels for

communication,” Virginia Pharmacy Bad., supra, at 771.

Although in theory sellers remain free to employ a number

of different alternatives, in practice realty is not marketed

through leaflets, sound trucks, demonstrations, or the like.

The options to which sellers realistically are relegated —

primarily newspaper advertising and listing with real estate

agents — involve more cost and less autonomy than “For

Sale“ signs; cf. Martin v. City of Struthers, 319 U.S. 141

(1943); Kovacs v. Cooper, supra, at 102-103 (Black, J.,

dissenting); are less likely to reach persons not deliberately

secking sales information, cf. United States v. O'Brien,

391 U.S. 367, 388-389 (1968) (Harlan, J., concurring); and

may be less effective media for communicating the message

that is conveyed by a “For Sale” sign in front of the house to

be sold, cf. Cohen v. California, 403 U.S. 15, 25-26 (1971).

39

The alternatives, then, are far from satisfactory.

431 U.S. at 93.

Just as the standard employed by the majority in footnote 18 in Young

was instrumental to a holding, so was the test used in Linmark. Linmark

is further significant because the Court reaffirmed, albeit in dicta, that

there are “common sense differences” between commercial and non-

commercial speech. /d. at 98. As in Virginia Pharmacy, the differences

noted related only to prevention of deception and not to time, place, and

manner restriction.

In Bates v. State Bar of Arizona, 433 U.S. 350, 380-8 1 (1977), the Court

again noted the “common sense differences” between commercial and

non-commercial speech. As in Virginia Pharmacy and Linmark, the

difference was explained in terms of the speaker's knowledge of that

about which he spoke and the need for prevention of deception. Because

of that difference, the Court held that the overbreadth docrine does not

apply to commercial speech. /d. at 381. Again, as in Virginia Pharmacy,

the Court pointed out no differences between commercial and non-

commercial speech relevant to an understanding of how to analyze time,

place, and manner regulation of commercial speech. Indeed, the Court

made only a limited reference to such regulation in the context of

pointing out “certain permissible limitations on advertising.” “As with

other varieties of speech, it follows as well there may be reasonable

limitations restrictions on the time, place, and manner of advertising. See

Virginia Pharmacy, 425 U.S. at 771.” 433 U.S. at 383-84. On the one

hand, it is arguable that the language “As with other varieties of speech.

.” tends to indicate that traditional principles dealing with the time, place,

and manner restriction apply equally to commercial and non-

commercial speech. On the other hand, the general citation to page 77! of

Virginia Pharmacy seemingly invokes the qualification, “Whatever may

be the proper bounds. . .”

In Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978), Justice Powell

with the concurrence of five other Justices, described the differences

between commercial and non-commercial speech in broader language

than the Court had previously used in making such a comparison:

Expression concerning purely commercial transactions

has come within the ambit of the Amendment's protection

only recently. In rejecting the notion that such speech “is

wholly outside the protection of the First Amendment,”

Virginia Pharmacy, supra, at 761, we were careful not to

hold “that it is wholly undifferentiable from other forms” of

40

speech. 425 U.S., at 771 n.24. We have not discarded the

“common-sense” distinction between speech proposing a

commercial transaction, which occurs in an area

traditionally subject to government regulation, and other

varieties of speech. /bid. To require a parity of

constitutional protection for commercial and

noncommercial speech alike could invite dilution, simply by

a leveling process, of the force of the Amendment's

guarantee with respect to the latter kind of speech. Rather

than subject the First Amendment to such a devitalization,

we instead have afforded commercial speech a limited

measure of protection, commensurate with its subordinate

position in the scale of First Amendment values, while

allowing modes of regulation that might be impermissible in

the realm of noncommercial expression.

436 U.S. at 455-56.

He pointed out several contexts in which speech is a component of

illegal conduct, and then stated:

In-person solicitation by a lawyer of remunerative

employment is a business transaction in which speech is an

essential but subordinate component. While this does not

remove the speech from the protection of the First

Amendment, as was held in Bates and Virginia Pharmacy, it

lowers the level of appropriate judicial scrutiny.

Id. at 457. As in the previous cases, the court thought the overbreadth

doctrine inapplicable, but unlike in Ohralik, the Court did discuss the

merits of an overbreadth argument. /d. at 462--63 n. 20.

In Friedman v. Rogers, 440 U.S. 1 (1979), Justice Powell cited Virginia

Pharmacy for the proposition that “restrictions on time, place, or

manner of expression are permissible provided that ‘they are justified

without reference to the content of the regulated speech, that they serve a

significant governmental interest, and that in so doing they leave open

ample alternative channels for communication of the inſormation.“ 440

U.S. 1, 9 (1979), quoting Virginia Pharmacy, 425 U.S. at 771. Use of the

quote from Virginia Pharmacy without the disturbing “whatever”

qualification suggests agreement with the quoted test. The suggestion is

strengthened when it is recalled that the same quote was used in Linmark,

431 U.S. at 93, and that a similar analysis was mentioned by the plurality

in Young, 247 U.S. at 71 0.35. In the paragraph and accompanying

footnote following the quoted language, however, Justice Powell

41

emphasized, as he did in Ohralik, the differences between commercial

and non-commercial speech. Id. at IO and n.11. The discussion in the text

related primarily to the need for and propriety of preventing deception in

commercial speech; the footnote, however, used broader language,

reminiscent of that used by Justice Powell in Ohralik.

Because of the special character of commercial speech

and the relative novelty of first Amendment protection for

such speech, we act with caution in confronting First

Amendment challenges to economic legislation that serves

legitimate regulatory interests. Our decisions dealing with

more traditional First Amendment problems do not extend

automatically to this as yet uncharted area. See, e. g., id, at

462 n.20 (overbreadth analysis not applicable to

commercial speech). When dealing with restrictions on

commercial speech we frame our decisions narrowly,

“allowing modes of regulation (of commercial speech) that

might be impermissible in the realm of non-commercial

expression.” Id., at 456.

440 U.S. at 11 n.9.

In neither Ohralik nor Friedman did Justice Powell specifically

mention time, place, and manner regulation as an area where commercial

and non-commercial speech are distinguishable. In both cases, however,

he distinguished commercial and non-commercial speech. Prior cases

had based this distinction primarily upon the nature of commercial

speech which allows the speaker readily to verify the truth of what he says

before he says it. This characteristic of commercial speech makes the

overbreadth and prior restraint doctrines inappropriate for analyzing

commercial speech restraints. See e. g., Bates, 433 U.S. at 380-81; Virginia

Pharmacy, 425 U.S. at 771 & n. 24. To the extent that Justice Powell's

opinions in Ohralik and Friedman may reflect the view that there are

other, perhaps as yet undefined, distinctions between the two forms of

speech, then those opinions might be read to suggest that time, place, and

manner restrictions on commercial speech must be analyzed differently

from such restraints on non-commercial speech.

In Consolidated Edison Co. v. Public Svc. Comm'n, 100 S. Ct. 2326

(1980), a case involving non-commercial speech, Justice Powell

observed, citing Linmark and Virginia Pharmacy, that “(t)his Court has

recognized the validity of reasonable time, place, or manner regulations

that serve a significant governmental interest and leave ample alternative

channels for communication.” /d. at 2332. This statement is a non-

commercial speech case is identical to the test used to formulate one of

42

the holdings in Linmark and to the test mentioned in dicta in Virginia

Pharmacy and Friedman, and it is very similar to the analysis employed

by the Young plurality in footnote 35. Justice Powell's reference in

Consolidated Edison to Virginia Pharmacy and Linmark and his use of

the “ample alternative channels” test is also significant because it was he

who wrote the opinions in Ohralik and Friedman which so broadly

differentiated commercial and non-commercial speech.

The most recent Supreme Court case dealing with commercial speech

appears to be Central Hudson Gas & Elec. Corp. v. Public Service

Commission, 100 S.Ct. 2343 (1980). The question presented was whether

the state could ban promotional advertising by an electrical utility

company. Justice Powell established the following standard for

analyzing regulations of commercial speech:

If the communication is neither misleading nor related to

unlawful activity, the government's power is more

circumscribed. The State must assert a substantial interest

to be achieved by restrictions on commercial speech.

Moreover, the regulatory technique must be in proportion

to that interest. The limitation on expression must be

designed carefully to achieve the State’s goal. Compliance

with this requirement may be measured by two criteria.

First, the restriction must directly advance the state interest

involved; the regulation may not be sustained if it provides

only ineffective or remote support for the government's

purpose. Second, if the governmental interest could be

served as well by a more limited restriction on commercial

speech, the excessive restrictions cannot survive.

Id. at 2350.

It is unclear how, if at all, the test applies to time, place, and manner

regulation. It may be significant that just before the quoted paragraph,

the Court set forth several varieties of permissible speech regulation

without mentioning time, place and manner. In prior cases the Court has

usually listed time, place and manner regulation among those permissible

restrictions. E.g., Bates, 433 U.S. at 384; Virginia Pharmacy, 425 U.S. at

771-730. Perhaps by not including time, place and manner regulation in

the list, the Court intended that it would be comprehended by the general

standard quoted above. 425 U.S. at 771-73.

Moreover, the test announced is similar to all of those previously

mentioned or used in formulating holdings. Like all the tests, it mandates

inquiry into the validity of the state's interest to be achieved. The interest,

43

according to the Central Hudson test, must be “substantial”; the previous

statements in reference to time, place and manner regulation required

that the state’s interest be “significant.” In addition, “the regulatory

technique (the means) must be in proportion to” the state's interest.

Justice Powell defined the proportionality inquiry in terms more similar

to the “necessity” standard found in footnote 18 of Young than to the

“alternative channels” approach found in other cases and in footnote 35

of Young.

Although there are good reasons supporting the proposition that the

Central Hudson standard applies to time, place, and manner regulation

of commercial speech, other factors convince this Court that the test does

not apply. Mainly, the Court is persuaded by the fact that on its facts the

Central Hudson case deals with regulation of the content of speech.

although heretofore content-based regulation of speech has been

virtually prohibited, Justice Blackman only concurred in Central

Hudson precisely because he believed that Justice Powell's test dealt with

content-based regulation. 100 S.Ct. at 2355-56.

After reviewing the Supreme Court cases involving commercial

speech, the Court concludes that there is not yet a clearly defined

standard for analyzing time, place, and manner restrictions on

commercial speech. Two major factors contribute to the uncertainty.

First, the Supreme court has repeatedly observed that commercial and

non-commercial speech are different. The difference lies primarily in

their respective susceptibility to regulation to prevent deception. In

addition, however, there is a strong suggestion in Justice Powell's

opinions in Friedman and Ohralik that the distinction may run deeper.

At present, however, the court has not yet clearly defined any such

difference, and it is thus unclear whether principles traditionally

employed in analyzing time, place, and manner restrictions on non-

commercial speech apply to commercial speech. The only apparent

reason for treating the two forms of speech differently across the board is

the traditional subjection of commercial speech to complete regulation,

see Ohralik, 436 U.S. at 456, and the resultant novelty of first amendment

protection for commercial speech, see Friedman, 440 U.S. at 11, n.9.

The other factor creating confusion over the test to be applied is the

failure of the Supreme Court to state consistently how time, place, and

manner regulations should be analyzed. The cases that mention time,

place, and manner restrictions, either in dicta or holding, all require that

the governmental interest to be implemented be “significant.” Central

Hudson requires that it be “substantial,” but there could not be any real

difference between a “substantial” interest and a “significant” one. The

real difficulty lies in analyzing the means of achieving the state's goal.

44

Central Hudson and footnote 18 of Young focus on the necd for the

particular regulation in question. Other cases and footnote 35 in Young

focus on the availability of alternative means of communication, As

previously pointed out, the two inquiried readily coalesce into a single

inquiry into whether the legislature could find another way to achieve its

goal while imposing less restraint on speech, thus ameliorating somewhat

the problem of choosing between standards.

J. Commercial Speech — Lower Court Case

In addition to reviewing the Supreme Court opinions on commercial

speech, the Court has examined numerous other cases in an attempt to

determine the standards appropriate for analyzing time, place, and

manner regulation of commercial speech. The case closest to the instant

case factually among the cases of which this Court is aware, appears to be

Hilton v. City of Toledo, 405 N. E. 2d 1047 (Ohio 1980). At issue in Hilton

were provisions of the Toledo municipal code prohibiting “flashing

portable advertising signs.” The Supreme Court of Ohio held first that

the regulation in question was within the City’s police power. Jd. at 1049.

The court then turned to the argument made here — i.e. that the City

unlawfully differentiated between portable and permanent signs:

Appellees argue in essence, however, that the provisions

of the sign code, insofar as they prohibit Mashing portable

signs, but allow permanent electric signs, are unreasonable

and arbitrary, as this differentiation is not, on its face,

rationally related to the public health, safety, morals or

general welfare.

Numerous authorities have recognized the validity of

regulations which permit “on premise advertising,” such

signs for the most part being of a permanent nature, but

which at the same time restrict or prohibit other forms of

commercial advertising. State v. National Advi. Co. (La.

App. 1978), 356 So.2d d 557; E.B. Elliott Advt. Co. v.

Metropolitan Dade County (C.A.5, 1970), 425 F.2d 1141,

1152, certiorari denied 400 U.S. 805, 91 S.Ct. 12, 27,

I.. Ed. 2d 35; Schloss v. Jamison (1964), 262 N.C. 108, 136,

S.E.2d 691.

Moreover, appellant's evidence demonstrates that the

diffenentiation between permanent and portable signs is

predicated upon, inter alia, the difference in the degree to

which the signs distract motorist(s) and potentially interfere

with the safe operation of motor vehicles. Appellant's

45

expert witnesses testified that portable signs are generally

positioned at a lower level than permanent signs and offer

more of a distraction to motorists. Appellees complain also

that is arbitrary to permit these devices to be displayed for

15 days, but prohibit their use thereafter. A legislative body,

however, is not constitutionally required, in the exercise of

its police powers, to legislate with respect to an entire field of

possible abuse. Instead, it may recognize varying degrees of

the inequity, New Orleans v. Dukes (1976), 427 U.S. 297,

96 S.Ct. 2518, 49 L.Ed. 2d 511; Packer Corp. v. Utah (1932)

285 U.S. 105, 52S.Ct. 273, 76 L.Ed. 643; Longhrake v. State

(1925), 112 Ohio St. 18, 146 N.E. 417, and choose to

eliminate or reasonably regulate the area step by step, only

partially ameliorating a perceived problem, and deferring

its complete elimination to future legislative action. See,

e.g., Williamson v. Lee Optical (1955), 348 U.S. 483, 489, 75

S.Ct. 461, 465, 99 L.Ed. 563.

Appellant has chosen to partially limit the extent to which

portable signs may be displayed. In our view, such action

rationally furthers a legitimate purpose and is not arbitrary

merely because the enactment failed to reach as far as it

could have. Cf. Katzenbach v. Morgan (1966), 384 U.S. 641,

657j, 86 S.Ct. 1717, 1727, 16) L. Ed. 2d 828.

Id. at 1050. The opinion fails to deal with two points this Court considers

important. first, there is no mention of any claimed abridgement of free

speech. Second, the Hilton court assumed without discussion that the

Dukes rational relationship test would apply.

The E. B. Elliott case cited in the above quote from Hilton is relied upon

by the defendant in its brief. (This is the same case discussed above, p.8, in

connection with res judicata.) In that case, the Fifth Circuit upheld a

Dade County, Florida ordinance which banned, with certain exceptions,

all highway billboards within 600 feet of highways; on-site advertising

signs were among the exceptions. The plaintiffs attacked the ordinance

on several bases including the ground that the ordinance denied them

equal protection. The argued that the ordinance illegally differentiated

between on-site and off-site advertising. In analyzing the classification,

the Court employed the lowest level of scrutiny. Judge Morgan, writing

for then-Chief Judge Brown and Judge Tuttle, borrowed the analysis of

Justice Brennan written while he was a judge on the Supreme Court of

New Jersey:

The business sign is in actuality a part of the business itself,

46

just as the structure housing the business is a part of it, and

the authority to conduct the business in a district carries

with it the right to maintain a business sign on the premises

subject to reasonable regulations in that regard as in the case

of this ordinance. Plaintiffs placements of its advertising

signs, on the other hand, are made pursuant to the conduct

of the business of outdoor advertising itself, and in effect

what the ordinance provides is that this business shall not to

that extent be allowed in the borough. It has long been

settled that the unique nature of outdoor advertising and the

nuisances fostered by billboards and similar outdoor

structures located by persons in the business of outdoor

advertising, justify the separate classification of such

structures for the purposes of governmental regulation and

restriction.

425 F.2d at 1153 quoting United Advertising Corp. v. Borough of

Raritan, 93 A.2d 362, 365(N.J. 1952). Judge Morgan further pointed out

that “there is a real difference between the outdoor advertising activity

that must necessarily be carried out on the premises where a business is

located in order that it may identify itself and attract customers and

outdoor advertising which is carried out as a business in itself and which

conveys commercial messages unrelated to the other useds to which the

premises may be devoted.” 425 F.2d at 1154. Accord, Hiway-Ads, Inc. v.

State, 356 So.2d 501, 504 (La. App. 1977); Donnelly Advertising Corp.

v. City of Baltimore, 370 A. 2d 1127, 1133 (Md. 1977), Newman Signs,

Inc. v. Hjelle, 268 N.W.2d 741, 758-59 (N. Dak. 1978), appeal dismissed,

440 U.S. 901 (1979); State v. Lotze, 593 P.2d 811, 815 (Wash.), appeal

dismissed, 444 U.S. 921 (1979); Markham Advig. Co. v. State, 439 P.2d

248, 256, 262 (1968), appeal dismissed, 393 U.S. 316 (1969). But see

Markham, 439 P. 2d at 264 (Hill, J. diss.).

This case, of course, involves no challenge to any differentiation

between on-site and off-site signs. The Court does believe, however, that

E.B. Elliott and the other authorities above support stricter judicial

scrutiny of restrictions on on-site advertising because of its traditional

function of identifying the advertiser's business and because of its

location on the advertiser's own property. In any event, the discussion in

E B. Elliott serves to distinguish this case from E. H. Elliott, Hi- Way Ads,

donelly Advertising, Newman, Lotze, and Markham as weil as many

other cases upholding bans on off-site billboards. E.g., Metromedia, Inc.

v. City of San Diego, 610 P.2d 407 (Cal. 1980), probable jurisdiction

noted, 49 U.S.L.W. 3270 (10/ 14/80); appeal dismissed, 100 S.Ct. 2145

(1980); Suffolk Outdoor Advertising co. v. Hulse, 373 N. E. 2d 263(N.Y.

47

1977), appeal dismissed, 439 U.S. 808 (1978). It is important to

distinguish not only E. H. Elliott, which is a Fifth Circuit case, but also the

numerous state cases in which the United States Supreme Court has

dismissed appeals for want of a substantial federal question. Stuckey'’s

supra; Suffolk, supra; Newman, supra; Lotze, supra; Markham, supra.

Not only is such a dismissal a ruling on the merits, Hicks v. Miranda, 422

U.S. 332, 343-45 (1975), But Markham was cited with approval by the

plurality in Young, 427 U.S. at 68.

As the Court pointed out earlier, the courts have especially rigouously

scrutinized restraints on free speech in a public forum. The public forum

doctrine has been applied in commercial speech cases. E.g., American

Future Systems, Inc. v. Pennsylvania State University, 618 F.2d 252,

255-56 (3rd Cir. 1980); Newman, 268 N. W. 2d at 760-61; State ex rel

Dep of Transp. v. Pile, 603 P. 2d 337,341 (Okla. 1979); appeal pending,

100 S.Ct. 2960. See also Daugherty v. City of East Point, 447 F. Supp.

290, 295 (N.D. Ga. 1978) (citing public forum cases in commercial speech

case). Newman and Pile involved state laws banning certain highway

billboards; in both cases the respective state supreme courts considered

the public forum doctrine to encompass advertising addressed to

travelers on public roads. Newman, 268 N. W. 2d at 760-61; Pile, 603 P. 2d

at 341. But see, Metromedia, 610 P. 2d at 419. According to Professor

Tribe, the public forum doctrine is derived from a policy of protecting

traditional forums and preserving free speech even for those who cannot

afford access to more sophisticated means of communication. L. Tribe,

supra, §12-20 at 683-84. The rationale applies most forcefully here

because the portable signs at issue are used precisely because of their cost-

efficiency to attract travelers passing by the business at which the signs

are located. This Court believes that the public forum characteristic of

the signs involved here, like their on-site characteristic, requires added

scrutiny by the courts to ensure that the ordinance does not abridge

plaintiffs’ free speech or deny them equal protection.

The cases which the Court has found have not formulated a precise

standard to be employed in evaluating time, place, and manner

restrictions on commercial speech. Chief Judge Keady has construed

Justice Powell's opinions in Ohralik and Friedman, see pp. 21-23 supra,

to mean that the standard for ascertaining what is “ ‘proper’ time, place

and manner regulation . . is less restrictive than that which government

must meet to regulate noncommercial speech.” Dunagin v. City of

* But compare Washington v. Yakima Indian Nation, 349 U.S. 463, 477 n.20(1979) (such

ruling has limited precedential value).

48

Oxford, 489 F. Supp. 763(N.D. Miss. 1980). Unfortunately for us, Judge

Keady’s ultimate holding turned on other issues, id. at 769, and he thus

did not reach the issue of precisely what standard should be used.

Several cases have employed the criteria set out by the Supreme Court

in Virginia Pharmacy and Linmark without discussing the standard

found in footnote 18 in Young. E.g., John Donnelly & Sons v. Mallar,

453 F. Supp. 1272, 1277(S.D. Me. 1978), Metromedia, 610 P. 2d at 417-

18; Commonwealth v. Sterlace, 391 A.2d 1066, 1068 (Pa. 1978). Sterlace

is somewhat significant because the court observed that the government

need not use the least restrictive alternative means for accomplishing its

goal. /d. at 1068, 1070. But see id. at 1072 (Mandrino, J., diss.). The other

two cases mentioned, Jolin Donnelly & Sons (and Metromedia followed

his reasoning) that a ban on off-site billboards “leaves open ample

alternative channels for communication.” Among the alternatives he

mentioned was on-site advertising, but other possibilities noted were

“official business directional signs,. . . tourist information centers and

publications (and) other forms of print media, which, like outdoor

advertising, enjoy the advantage of being relatively low in cost, such as

pamphleteering and leafleting. . . .” 453 F. Supp. at 1280, quoted in

Metromedia, 610 P. 2d at 418. Although these cases are distinguishable

from Linmark insofar as Linmard involved “on-premises” signs, it seems

to us that John Donnelly & Sons views alternative channels more

broadly than did the Linmark court.

Other courts have also indicated a sort of general reluctance, of the

type suggested by Justice Powell opinions in Ohralik and Friedman, to

g0 too far too fast in according free speech protection to commercial

speech. See Dunagin, 489 F. Supp. at 770, Florida Canners Assn v. State

Dept. of Citrus, 371 So. 2d 503, 519 (Fla. App. 1979). The Florida

Canners case perhaps best reflects Justice Powell's view in the following

passage:

The protection afforded commercial speech under the Ist

Amendment is not commensurate with that afforded

personal speech. The Supreme Court recently pointed out

that it has not discarded the distinction between speech

proposing a commercial transaction, which occurs in an

area traditionally subject to government regulation, and

other varieties of speech. The Court said that commercial

speech is afforded a limited measure of protection,

commensurate with its subordinate position in the sacal of

ist Amendment values, while allowing modes of regulation

that might be impermissible in the realm of noncommercial

49

expression. Ohralik v. Ohio State Bar Association, 436 U.S.

447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978).

The content of commercial speech is indeed regulated

extensively in this country, both in terms of matters

prohibited and in terms of information required to be

shown. For example, Section 600.11, Florida Statutes

(1977), requires specific information on labels of all food

products. The Florida Citrus Code directs Respondent to

prescribe rules and regulations governing labeling for the

purpose of showing specified information. The validity of

regulations pertaining to the content of commercial speech

has been traditionally tested on due process and commerce

clause grounds, not on Ist Amendment guarantees of

freedom of speech.

371 So. 2d at 518-19. The problem, simply put, is that commercial speech

has long been subject to extensive regulation which was only minimally

scrutinized by the courts.

C. Summary of Equal Protection and Free Speech Principles

The ordinances at issue here have two alleged defects. First, they

impose a near-total ban on the use of portable signs. Second, they impose

different regulations on portable and temporary signs. The defects result

in unlawful time, plane, and manner restrictions on plaintiffs’ freedom of

speech and denial of equal protection.

Equal protection analysis is primarily two-tiered. The lower, mere

rationality, test does not apply here because it fails to accord any

significance to the plaintiffs’ speech values at stake. The upper level of

scrutiny is likewise not applicable per se because commercial specch is

apparently not a fundamental right. The applicable equal protection

standard must be attuned to the level of judicial scrutiny reuired by

freedom of speech analysis. The method of equal protection analysis is

significant nevertheless, because it allows the inquiry to focus upon

whether the state needs to differentiate between permanent and portbic

signs in order to accomplish its goal.

Turning to speech analysis, it is clear that we are dealing with

commercial speech, and it is clear that we are not dealing with an attempt

to regulate the content of anyone's speech. The Court thus must ascertain

what standard governs judicial review of government action that

regulates the time, place and manner of commercial speech.

As is apparent from the lengthy discussion above, the Court is not

aware of any controlling case clearly setting forth such a standard, When

dealing with time, place, manner regulation of non-commercial speech,

the courts have employed a balancing analysis. It is unclear how much

weight such precedent has where commercial speech is involved.

Commercial speech and non-commercial speech are thought to be

different — primarily because with commercial speech, the speaker can

more easily ascertain the truth or falsity of the speech. As a result,

commercial speech is more readily subjected to regulation designed to

promote truth. There also is some suggestion in Supreme Court and

lower court opinions that there may be other differences between

commercial and non-commercial speech, perhaps because regulation of

commercial speech has traditionally been extensive and subject to very

limited judicial review.

The Supreme court has set forth two similar standards (one in footnote

18 in Young and the other in Virginia Pharmacy, Linmark and

Friedman ſor evaluating time, place, and manner regulation of

commercial speech. Those standards require the Court closely to

examine the means employed by the state to achieve its goal, and they

seemingly permit or even invite a balancing analysis. In applying those

tests, cither in free speech or equal protection analysis, the Court must be

mindful that the signs at issue are on-site signs which are a part, albeit a

temporary part, of the lessee-plaintiff's business. Also, the Court must

consider the fact that the signs at issue convey a message in a public

forum, The speech involved here is a traditional form of speech

advertising — delivered from a traditional location — the advertiser's

business location —- to a traditional audience — passersby — in a

traditional forum for speech — the public streets. Finally, however, the

Court must also bear in mind the long tradition of strict regulation of

commercial speech. Each of these factors can be recognized in the

context of the standards set out by the Supreme Court for evaluating

time, place, and manner restrictions on commercial speech.

The first issue under either of the Supreme Court standards is whether

the ordinances serve a “significant” government interest. Traffic safety

and aesthetics are among the most significant interests of loca

governments, and those interests become even more significant if

considered in light of the long tradition of municipal interest in those

matters,

The real difficulty lies in analyzing the means employed by the City to

effect its purpose. First, because the signs are used on-site and ina public

forum, they are the most cost-effective means of advertising available.

Thus, the Court concludes that cither a complete ban on portable signs or

51

a ban such as the one at issue here, with limited time exceptions, does not

leave open ample alternative channels for communication, Also, it

cannot be said that a complete ban on portable signs or a ban with limited

exceptions as to time is “necessary” to the achievement of the chosen

goals of safety and aesthetics, because the City has at its disposal

numerous alternative means of achieving its goals. Its disposal numerous

alternative means of achieving its goals. Regulations concerning signs’

size, distance from the street, stability, and electrical safety are necessary

to the goal of eliminating traffic hazards, and likewise, regulations

concerning size, illumination, and color bear a necessary relationship to

the goal of promoting aesthetics. Such regulations would also far less

severly infringe the available avenues for expression than would a

complete or partial ban on portable signs.

Because the City’s differential treatment of portable and permanent

signs with respect to the times they may be used is not “necessary” to the

achievement of its goal and because such a classification does not leave

open ample alternative channels of communication, the ordinances are

an unlawful restraint on the time, place, and manner of plaintiffs’ speech

and deny plaintiffs equal protection of the law. Article VI, 7, (a),(c)4h)

(p. 2 n. i supra) contains provisions which are necessary to the promotion

of aesthetics and safety and which do not impose a significant burden on

the availability of means of expression; accordingly those provisions are

not unconstitutional.

III. Summary

Thus, The Court GRANTS plaintiffs’ motion for injunctive relief asto

Article V. §§9-1.1 and Article VI. 57 (bh and DENIES the City’s motion

to dissolve the Temporary Restraining Order. As previously set forth, the

Court GRANTS plaintiff's motion to add Mr. Tucker, and ORDERS

the amended complaint filed. This order shall be the final order in this

case, unless any party shows cause within ten (10) days why it should not

be.

In reaching this conclusion, the Court has reluctantly reached a

decision that is somewhat at odds with the rulings of the State courts in

Thomas. Iii should be noted, however, in reaching this decision, the Court

has considered several legal theories which the plaintiffs apparently

failed to present to the Georgia courts. This Court reached the merits

only after deciding that Thomas has no preclusive effect here. Under the

United States Constitution the State courts are, of course, as competent

as federal courts to rule on federal constitutional issues. If we were

writing on a clean slate, we might well conclude that principles of

federalism and preclusion by prior conclude that principles of federalism

52

and preclusion by prior judgments makes Thomas binding here. For the

reasons set forth in Part | of this order, however, we do not reach that

conclusion. Regrettably we have had to do the same work done by the

judges in the State court system, even though there is not a hint or

suggestion, in or outside of the record, that the Thomas plaintiffs

received anything other than the fairest, most competent treatment at the

hands of the State courts. Even more regrettably we have reached a

decision that is different from that reached by the State courts in

Thomas.

SO ORDERED, this 20th day of March, 1981.

Charles A. Moye, Jr.

UNITED STATES DISTRICT JUDGE

53

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No, 81-7294

ED DILLS d/b/a MID-GEORGIA SUPPLY,

Plaintiff - Appellee

versus

THE CITY OF MARIETTA, GEORGIA, and

MAYOR and COUNCIL OF THE CITY OF

MARIETTA, GEORGIA

Defendants - Appellants

Appeal from the United States District Court for the

Northern District of Georgia

ON PETITION FOR REHEARING AND SUGGESTION FOR

REHEARING EN BANC

(Opinion May 6, 11 Cir., 1982, 5. 2d).

Before MORGAN, KRAVITCH, and HENDERSON, Circuit Judges

PER CURIAM:

The Petition for Rehearing is DENIED and no member of

this panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing en

banc (Rule 35, Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 26), the suggestion for Rehearing En

Banc is DENIED.

ENTERED FOR THE COURT:

Phyllis Kravitch

United States Circuit Judge

Dated: September 30, 1982

AMENDMENT (1)

CONSTITUTION OF UNITED STATES

Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances.

CITY OF MARIETTA SIGN ORDINANCES

City of Marietta Ordinance No. 3315 (enacted August 10, 1977) and No.

3479 (enacted March 14, 1979).

A permit shall not be valid for longer than a period of one

hundred twenty (120) consecutive days after which time the

portable display shall be removed from the building set back

lines of the premises. A permit cannot be renewed nor cana

permit be obtained for the same premises within a period of

thirty (30) days after the removal of a portable display from

the building set back area of the premises.

This provision was effectively amended (but remains in the “City Sign

Ordinance” by Ordinance No. 3479 adding Article V. paragraph 9. That

addition reads as follows:

9. Portable Display Signs are to be permitted only in the

following conditions:

a. Opening or closing of a business, not to exceed thirty

(30 days.

b. Special sale, promotional event, or change of

ownership or management, not to exceed twice in any

twelve (12) month period, for a maximum of fifteen (15)

days.

c. Civic, public, charitable, educational or religious events

for a maximum of fifteen (15) days, not to exceed twice in

any twelve (12) month period.

d. For traffic direction during road construction or

emergency situations.

e. For political campaigns, for a maximum of thirty (30)

days before any election.

55

CERTIFICATE OF SERVICE

This is to certify that | have served counsel for the Appellees with two

copies of the foregoing Petition for Certiorari by depositing said copies in

the U.S. Mail with adequate postage affixed thereon, to: Charles W.

Field, Esquire, Suite 180, 2022 Powers Ferry Road, Atlanta, Georgia

30339.

This

day of December, 1982/

ORIGINAL SIGNED BY

ROY E. BARNES

ROY E. BARNES