Amicus Curiae Brief — City of Ladue v. Gilleo

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IN THE HOV 19

Supreme Court of the United Staten e me ou

OCTOBER TERM, 1993

No. 92-1856

CITY OF LADUE, et al.,

. Petitioners,

MARGARET P. GILLEO,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF OF THE

NATIONAL INSTITUTE OF MUNICIPAL LAW

OFFICERS, INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION, U.S. CONFERENCE

OF MAYORS, NATIONAL LEAGUE OF CITIES, AND

NATIONAL ASSOCIATION OF COUNTIES

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

RICHARD RUDA *

Chief Counsel

JAMES I, CROWLEY

LEE FENNELL

STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W.

Suite 345

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

Amici Curiae

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QUESTION PRESENTED

Amici will address the following question:

Whether the court of appeals erred in concluding

that Ladue’s sign ordinance, the purpose of which is

to advance the City’s interests in aesthetics and safety,

is content-based and subject to strict scrutiny because

it contains a small number of essential exceptions that

do not reflect a governmental purpose to choose ap-

propriate subjects for public expression or debate.

(i)

TABLE OF CONTENTS

QUESTION PRESENTED ....0....2.2..0.20:-0cccceccecseesensecseceere

I CEPI crccrsnssacsennsuesesscenesnsscavenenere

THE COURT OF APPEALS’ FORMALISTIC AP-

PROACH TO CONTENT NEUTRALITY ER-

RONEOUSLY FAILS TO EXAMINE THE CITY’S

PURPOSES IN EXCEPTING CERTAIN SIGNS

AND IMPROPERLY IMPEDES EFFORTS BY

LOCAL GOVERNMENTS TO REGULATE SIGNS

TO PREVENT VISUAL BLIGHT AND OTHER

CC EEE

A. The Court Has Repeatedly Upheld the Power

of Municipalities to Place Content-Neutral Re-

strictions on Expression In Order to Ameliorate

B. Ladue’s Ordinance Is Content-Neutral Because

Its Regulation of Signs Is Justified Without

Meterence to Content .............................................

C. The Ordinance’s Exceptions For Commercial

And Church Signs Are Justified Because There

Are No Ample Alternatives To On-Site Identifi-

D. The Ordinance’s Exceptions for Signs Promot-

ing Public Safety and Convenience Do Not Ren-

der the Ordinance Content-Based .......

CONCLUSION

(iii)

TABLE OF AUTHORITIES

Cases Page

Berman v. Parker, 348 U.S. 26 (1954) —..0000 8

Boos v. Barry, 485 U.S. 312 (1988) 0.0000... 4, 14, 16, 22

Carey v. Brown, 447 U.S. 455 (1980) 000. 15

City of Renton v. Playtime Theatres, Inc., 475

STS Te 4, 20

Clark v. Community for Creative Non-Violence,

468 U.S. 288 (1984) ~............... passim

Consolidated Edison Co. v. Public Service Comm’n,

447 U.S. 530 (1980) ............. passim

County of Cumberland v. Eastern Federal Corp.,

269 S.E.2d 672 (N.C. App.), petition denied,

S78 S.ES6 468 (N.C. 1968) ................................. 2

Frisby v. Schultz, 487 U.S. 474 (1988) —......0000... 10

a, Properties, Inc. v. Preston, 200 N.E.2d

kg EEE ESE I eee 2

Gregory v. Chicago, 394 U.S. 111 (1969) sieiaddaistimidas 15

Joseph Burstyn, Inc. v. Wilson, 348 U.S. 495

ee sen ee Ne 5

Kovacs v. Cooper, 336 U.S. 77 (1949) 02. 4,5,9

Linmark Assoc., Inc. v. Township of Willingboro,

Oe aris res eeeteaaeieatall passim

Members of City Council v. Taxpayers for Vincent,

4 i Ep enenE passim

Metromedia, Inc. v. City of San Diego, 453 U.S.

I idiihicierinhinertinstaniittinataeeninaninn passim

National Advertising Co. v. Town of Niagara, 942

ff eee 15

National Advertising Co. v. City of Orange, 861

F.2d 246 (9th Cir. 1988) 15

New York Times Co. v. Sullivan, 376 U.S. 254

(1964) 4

Opinion of the Justices, 1038 N.H. 268 (1961)... 2

Penn Central Transp. Co. v. City of New York,

ESSERE, Sg ESE ER

Police Dep’t v. Mosley, 408 U.S. 92 (1972) ............ passim

Railway Express Agency, Inc. v. New York, 336

ER Ee ees ee 11

R.A.V. v. City of St. Paul, 112 S.Ct. 2588 (1992). 7,19

Schenck v. United States, 249 U.S. 47 (1919)... 5

TABLE OF AUTHORITIES—Continued

Page

Village of Belle Terre v. Boraas, 416 U.S. 1

(1974) 9

Village of Euclid v. Ambler Realty Co., 272 U.S.

365 (1926) 8, 20

Virginia Pharmacy Bd. v. Virginia Citizens Con-

sumer Council, 425 U.S. 748 (1976) 17, 21

Ward v. Rock Against Racism, 491 U.S. 781

(1989) passim

Statutes

Mo. Rev. Stat. § 67.317 (1992) . 22

Other Authorities

Edward T. McMahon, Regulating Signs, Main

Street News, No. 70 (National Trust for His-

toric Preservation, Aug. 1991) 2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

No. 92-1856

CITY OF LADUE, et al.,

Petitioners,

MARGARET P. GILLEO,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF OF THE

NATIONAL INSTITUTE OF MUNICIPAL LAW

OFFICERS, INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION, U.S. CONFERENCE

OF MAYORS, NATIONAL LEAGUE OF CITIES, AND

NATIONAL ASSOCIATION OF COUNTIES

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICI CURIAE

Amici, organizations whose members include city

and county governments and officials throughout the

United States, have a compelling interest in legal

issues that affect local governments. The issue pre-

sented in this case, concerning the devree to which

a local government can, consistent with the First

Amendment, regulate signs in the interest of avoid-

ing visual blight and other problems, is a recurring

one for jurisdictions throughout the country.

As evidenced by the Court’s opinions in such cases

as Members of City Council v. Taxpayers for Vincent,

466 U.S. 789 (1984), and Metromedia, Inc. v. City of

San Diego, 453 U.S. 490 (1981), the serious aesthetic

problems caused by signs and billboards are difficult

and ubiquitous. A commentator’s assessment of the

aesthetic and social costs of signage merely echoes the

perceptions of any observant citizen. “In many

cities, sign clutter dominates the streetscape, over-

shadowing buildings and trees, eroding cultural and

architectural diversity, ruining scenic views and his-

toric ambience and blighting whole neighborhoods.”

Edward T. McMahon, Regulating Signs, Main Street

News, No. 70 at 1, 2 (National Trust for Historic

Preservation, Aug. 1991). While aesthetic problems

may be most pronounced in architecturally significant

or unique planned communities like Ladue, they can

arise anywhere. The need to regulate signs and bill-

boards in the interest of traffic safety is likewise uni-

versal. See, e.g., County of Cumberland v. Eastern

Federal Corp., 269 S.E.2d 672, 677 (N.C. App.), peti-

tion denied, 273 S.E.2d 453 (N.C. 1980); Ghaster

Properties, Inc. v. Preston, 200 N.E.2d 328, 335-36

(Ohio 1964) (quoting Opinion of the Justices, 103

N.H. 268, 270 (1961) ).

The Court has repeatedly recognized that the broad

protections of the First Amendment do not render

cities powerless to address these problems in a mean-

ingful way. As the Court explained in Taxpayers For

Vincent in upholding an ordinance prohibiting the

posting of signs on public property:

The problem addressed by this ordinance—the

visual assault on the citizens of Los Angeles

presented by an accumulation of signs posted

on public property—constitutes a_ significant

- substantive evil within the City’s power to pro-

hibit. ‘{T]he city’s interest in attempting to

preserve [or improve] the quality of urban life

is one that must be accorded high respect.’

466 U.S. at 807 (citation omitted).

The Court has emphasized that in evaluating speech

regulations for content-neutrality, “[t]he govern-

ment’s purpose is the controlling consideration.”

Ward v. Rock Against Racism, 491 U.S. 781, 791

(1989). “Government regulation of expressive ac-

tivity is content-neutral so long as it is ‘justified

without reference to the content of the regulated

speech.’” Id. (collecting cases).

While acknowledging that the ordinance was view-

point neutral, the court of appeals nonetheless con-

cluded that it was content-based and subject to strict

scrutiny because the ordinance’s prohibition of signs

contains a small number of essential exceptions. The

net effect was to give no weight to the City’s purpose

of addressing the many problems resulting from vis-

ual blight. Contrary to the reasoning of the courts be-

low, these essential, benign exceptions have nothing

to do with controlling “ ‘the choice of permissible sub-

jects for public debate’” or “ ‘government control

over the search for political truth.’” Pet. App. 28a

(opinion of district court, quoting Consolidated Edi-

son v. Public Service Comm’n, 447 U.S. 530, 538

(1980)). Indeed, there is not a scintilla of evidence

that Ladue’s purpose was to suppress Gilleo’s sign

because of its message.

Like Ladue, many other jurisdictions have sought

to preserve the unique architectural, historic, or scenic

character of neighborhoods and districts by banning

or heavily regulating most signs. In doing so, how-

ever, they, like Ladue, have had to confront the reality

that a few discrete categories of signs, such as traffic

signs, are so essential to a city’s functioning that

they cannot realistically be prohibited. Under the

erroneous standard adopted by the court of appeals,

all such laws are content-based and subject to strict

scrutiny. Because the court of appeals’ rigid, for-

malistic analysis misapprehends the complexity of the

problems posed by sign proliferation, amici submit

this brief to assist the Court in its resolution of the

case."

INTRODUCTION AND SUMMARY OF ARGUMENT

Amici wholeheartedly agree with the core con-

stitutional tenet that “the First Amendment reflects

a ‘profound national commitment’ to the principle

that ‘debate on public issues should be uninhibited,

robust, and wide-open.’” Boos v. Barry, 485 U.S.

312, 318 (1988) (quoting New York Times Co. v.

Sullivan, 376 U.S. 254, 270 (1964) ). This Court has,

however, repeatedly recognized that the protection

afforded to speech is “not absolute.” Kovacs v. Cooper,

336 U.S. 77, 85 (1949). And while the “Court has

long held that regulations enacted for the purpose of

restraining speech on the basis of its content pre-

sumptively violate the First Amendment,” City of

Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-

47 (1986), “[i]t has [also] been clear since this

1The parties have consented to the filing of this brief

amicus curiae. Letters indicating their consent have been

filed with the Clerk of the Court.

Court’s earliest decisions concerning the freedom of

speech that the state may sometimes curtail speech

when necessary to advance a significant and legiti-

mate state interest.” Taxpayers for Vincent, 466

U.S. at 804 (citing Schenck v. United States, 249

U.S. 47, 52 (1919)); see also Metromedia, 453 U.S.

at 502 (plurality opinion) (citing Kovacs) (recog-

nizing government’s “legitimate interest[] in con-

trolling the noncommunicative aspects” of billboards).

In recognition of the fact that a particular medium

of communication can impose significant substantive

harms on the community, the Court has held that

“expression, whether oral or written . . . is subject

to reasonable time, place, or manner restrictions.”

Clark v. Community for Creative Non-Violence, 468

U.S. 288, 293 (1984). The Court has also long rec-

ognized that “[e]ach method [of expression] tends

to present its own peculiar problems.” Joseph

Burstyn, Inc. v. Wilson, 348 U.S. 495, 503 (1952) ;

see also Metromedia, 453 U.S. at 500-01 & n.8, 502

(plurality opinion). As Justice Jackson noted in

Kovacs, each medium of expression “ha[s] differing

natures, values, abuses and dangers.” 336 U.S. at

97 (Jackson, J., concurring).

Signs, notwithstanding their venerable use as a

“medium for expressing political, social and commer-

cial ideas,” Metromedia, 453 U.S. at 501 (plurality

opinion) (citation omitted), are no exception. As the

Court has recognized, the medium of signs imposes

unique and substantial harms on the community, in-

cluding visual blight, endangerment of traffic safety,

and diminished property values with the consequen-

tial loss of tax revenue.

Consistent with these precepts, many cities have a

strong interest in addressing the problems of visual

blight in architecturally significant, historic, or scenic

areas. The most effective means of doing so would,

of course, be a total ban on signs and billboards.

Cf. Taxpayers For Vincent, 466 U.S. at 806-07 (indi-

cating total ban is permissible). Yet, as Ladue recog-

nized, it is impossible to impose such a regulatory

scheme without creating a small group of essential,

benign exceptions for traffic safety signs, identifica-

tion signs, and the like. Under the rigid rule of

content-neutrality adopted by the court of appeals,

any such scheme is likely to be invalidated.

The exceptions which Ladue allows, however, do

not demonstrate that its purpose is either to “favor

some viewpoints or ideas at the expense of others,”

Taxpayers For Vincent, 466 U.S. at 804, or to “select

which issues are worth discussing or debating.”

Police Dep’t v. Mosley, 408 U.S. 92, 95 (1972). By

allowing commercial enterprises and churches to dis-

play on-site identification signs, the City is doing no

more than attempting to comply with the time, place

or manner test’s requirements that the ordinance be

“narrowly tailored” and “leave open ample alterna-

tive channels ior communication of the information.”

Community For Creative Non-Violence, 468 U.S. at

293.

Indeed, given this Court’s holding in Linmark As-

sociates, Inc. v. Township of Willingboro, 431 U.S.

85 (1977), which invalidated a ban on real estate

“For Sale” signs, in part because there were no ample

alternatives, city planners are placed in a veritable

“catch-22.” If a city prohibits too many signs, its or-

dinance may violate the time, place or manner test

and the principles articulated in Linmark. Yet under

the court of appeals’ approach, if a city attempts to

address this problem by excepting on-site commercial

and church identification signs, it has engaged in

content-based discrimination and its ordinance will

likely be invalidated under strict scrutiny review.

But allowing on-site identification signs—which are

linked to the particular zoning classification and per-

mitted use of the property—does not raise any “real-

istic possibility that official suppression of ideas is

afoot,” R.A.V. v. City of St. Paul, 112 S.Ct. 2538,

2547 (1992), or that the government’s_purpose is to

“select which issues are worth discussing or debat-

ing.” Mosley, 408 U.S. at 95.

Nor do the ordinance’s exceptions for various safety-

related signs, road and driveway signs, and public

transportation signs contravene the Court’s content-

neutrality jurisprudence. The governmental purposes

in allowing these important messages, the promotion

of the public safety and convenience, are too benign .

to raise any specter that the government’s purpose is

either to “favor some viewpoints or ideas at the ex-

pense of others,” Taxpayers For Vincent, 466 U.S.

at 804, or to “select which issues are worth -discus-

sing or debating.” Mosley, 408 U.S. at 95. Thus,

contrary to the holding of the court of appeals,

Ladue’s ordinance is fully “ ‘justified without refer-

ence to the content of the regulated speech’ ” and is

content-neutral. Rock Against Racism, 491 U.S. at

791 (citation omitted). Accordingly, the ordinance

should not be subjected to strict scrutiny, but should

instead be reviewed under the remaining prongs of

the Court’s test for reasonable time, place, or man-

ner regulations.’

2 Amici limit their presentation to a demonstration that the

court of appeals erred in treating Ladue’s ordinance as con-

tent-based. Amici do not address the complex issues involved

in assessing whether the ordinance satisfies the remaining

parts of the time, place, or manner test.

ARGUMENT

THE COURT OF APPEALS’ FORMALISTIC AP-

PROACH TO CONTENT NEUTRALITY ERRONE-

OUSLY FAILS TO EXAMINE THE CITY’S PURPOSES

IN EXCEPTING CERTAIN SIGNS AND IMPROPERLY

IMPEDES EFFORTS BY LOCAL GOVERNMENTS TO

REGULATE SIGNS TO PREVENT VISUAL BLIGHT

AND OTHER PROBLEMS

A. The Court Has Repeatedly Upheld the Power of Mu-

nicipalities to Place Content-Neutral Restrictions on

Expression In Order to Ameliorate Aesthetic Blight

As visual blight has come te be recognized as a

serious societal problem demanding an effective re-

sponse from government, the Court has often recog-

nized that government can take meaningful steps to

advance aesthetic and related values. This affirma-

tion of the power of government to act in the public

interest, initially made by the Court in zoning cases,

has more recently been reiterated in the First

Amendment context. The court of appeals’ decision

subverts this longstanding power of local govern-

ment by imposing a standard for content-neutrality

that no city can ever meet.

Beginning with Village of Euclid v. Ambler Realty

Co., 272 U.S. 365 (1926), the Court has repeatedly

affirmed the authority of municipalities to regulate

nuisances in order to advance aesthetic and related

goals. For example, in Berman v. Parker, 348 U.S.

26, 32-33 (1954), the Court reaffirmed the broad scope

of municipalities’ power to preserve the public wel-

fare, noting that the concept of public welfare “is

broad and inclusive” and “[t]he values it represents

are spiritual as well as physical, aesthetic as well as

monetary.” Id. at 33, quoted in Taxpayers For

Vincent, 466 U.S. at 805. The Berman Court held

that it was “within the power of the legislature to

determine that the community should be beautiful as

well as healthy, spacious as well as clean, well-

balanced as well as carefully patrolled.” Jd. at 33.

The Court accordingly upheld the condemnation of

blighted housing to advance aesthetic ends, because

such housing “may be an ‘ugly sore, a blight on the

community which robs it of charm, which makes it a

place from which men turn.’” Jd. at 32-33, quoted in

Taxpayers For Vincent, 466 U.S. at 805. See also

Village of Belle Terre v. Boraas, 416 U.S. 1, 9 (1974)

(city has legitimate interest in preserving places

where “the blessings of quiet seclusion and clean air

make the area a sanctuary for people”); Penn Cen-

tral Transp. Co. v. City of New York, 438 U.S. 104,

129 (1978) (“New York City’s objective of preserv-

ing structures and areas with special historic, archi-

tectural, or cultural significance is an entirely per-

missible governmental goal.”).

More recently, the Court has held that the First

Amendment does not preclude cities from undertak-

ing meaningful steps to advance aesthetic and related

interests. On the contrary, even in the context of

First Amendment challenges the Court has recognized

that “municipalities have a weighty, essentially es-

thetic interest in proscribing intrusive and unpleas-

ant formats for expression.” Taxpayers For Vincent,

466 U.S. at 806. For example, in Taxpayers for

Vincent the Court reaffirmed that a city is not power-

less “to protect its citizens from unwanted exposure

to certain methods of expression which may legiti-

mately be deemed a public nuisance.” Taxpayers For

Vincent, 466 U.S. at 806 (citing Kovacs).

Thus, the Court has upheld, in different contexts,

limitations directed at the noncommunicative aspects

of expression where those limitations are necessary to

address a public nuisance and restore tranquillity to

the community. Most recently, in Rock Against Rac-

ism the Court upheld a city law requiring performers

using a public amphitheater to use the sound system

and technician provided by the city, on the grounds

that the city had an interest in controlling noise levels

“in order to retain the character of the [nearby]

Sheep Meadow and its more sedate activities, and to

avoid undue intrusion into residential areas and other

areas of the park.” 491 U.S. at 792. Likewise, in

Frisby v. Schultz, 487 U.S. 474 (1988), the Court up-

held a municipality’s prohibition on picketing in

front of homes, citing the city’s power to ensure

“residential privacy” and protect “the unwilling lis-

tener.” Jd. at 484.

Billboards and signs, like these other modes of ex-

pression, frequently conflict with cities’ interests in

preserving the aesthetic quality of the community and

advancing safety and other concerns. See, e.g., Metro-

media, 453 U.S. at 502 (plurality opinion) (“[B]Je-

cause it is designed to stand out and apart from its

surroundings, the billboard creates a unique set of

problems for land-use planning and development.”).

It is unquestionably within the power of a city to ad-

dress both the safety and aesthetic problems such

signage presents. See id. at 506-07 (plurality opin-

ion) (collecting cases). Indeed, the Court has recog-

nized that municipalities’ strong interest in avoiding

“visual clutter” would justify a complete ban on bill-

boards. See Taxpayers For Vincent, 466 U.S. at 805-

07 (citing various opinions in Metromedia). And in

Taxpayers For Vincent the Court held that “the vis-

ual assault on the citizens of Los Angeles” created by

“an accumulation of signs” on public property “con-

stitutes a significant substantive evil within the

City’s power to prohibit.” Jd. at 807. See also Metro-

media, 453 U.S. at 510 (plurality opinion); id. at

552 (opinion of Stevens, J.); id. at 559-61 (Burger,

C.J., dissenting). The Court has also recognized that

legislatures may reasonably conclude that signs pose

a traffic safety hazard. Railway Express Agency, Inc.

v. New York, 336 U.S. 106, 109 (1949); see also

Metromedia, 453 U.S. at 509 (plurality opinion) ; id.

at 555, 560 (Burger, C.J., dissenting).

Contrary to these teachings, the decision below pre-

vents land use planners from ever being able to

adequately address the “visual assault . . . presented

by an accumulation of signs,” notwithstanding this

Court’s recognition that such signage “constitutes a

significant substantive evil within the City’s power to

prohibit.” Taxpayers For Vincent, 466 U.S. at 807.

Likewise, it prevents cities from adequately address-

ing the danger to traffic safety caused by sign pro-

liferation. Cf. Railway Express Agency, 336 U.S. at

109. Finally, it prevents cities from taking effective

steps to preserve property values and the tax base. See

Metromedia, 453 U.S. at 552 (opinion of Stevens, J.).

The First Amendment does not require the heavy

constraints which the court of appeals placed on the

ability of local governments to redress aesthetic and

other concerns through sign regulations. Rather, these

constraints result from the court of appeals’ failure

to examine Ladue’s underlying purposes in creating

the exceptions to the ordinance’s general prohibition

of signs.

B. Ladue’s Ordinance Is Content-Neutral Because Its

Regulation of Signs Is Justified Without Reference to

Content

As the court of appeals recognized, Ladue, in fur-

therance of its substantial interests in preserving the

aesthetics of the community, enhancing traffic safety,

and maintaining the value of real estate, enacted an

ordinance which generally prohibits the display of

signs within the city. Pet. App. 2a. The ordinance,

however, provides a small number of essential, benign

exceptions to this general prohibition. Jd.; see also

Pet. App. 40a-41a. The ordinance thus allows for the

display of the following signs: municipal signs; sub-

division and residence identification signs; road and

driveway signs; health inspection signs; school, church

and religious institution signs announcing the institu-

tions’ names, services, activities and functions; signs

identifying non-profit organizations, public transporta-

tion stops and safety hazards; on-site commercial

signs in districts zoned for commercial or industrial

use, and ground signs advertising the sale or rental

of real estate. Id.

Relying on the plurality opinion in Metromedia,

the court of appeals concluded that Ladue’s ordinance

discriminated on the basis of content for two reasons.

First, the court reasonéd that the ordinance “favors

commercial speech over noncommercial speech” be-

cause it “permits commercial signs in districts zoned

for commercial or industrial use [while] it prohibits

most noncommercial signs in those districts.” Pet.

App. 4a & n.4. Second, the court asserted, without

elaboration, that the ordinance “favors certain types

of noncommercial speech over others.” Jd. As the dis-

trict court held, the ordinance’s exceptions for “cer-

tain signs bearing noncommercial messages such as

municipal signs, subdivision identification signs, resi-

dence identification signs, certain road signs and

health inspection signs” demonstrate “content selec-

tivity with respect to noncommercial speech . . . allow-

[ing] the City to determine ‘which issues are worth

discussing or debating ....’” Pet. App. 28a (quoting

Mosley, 408 U.S. at 96). See also id. at 4a.

This formalistic rationale plainly fails to support

the court of appeals’ conclusion that Ladue’s ordi-

nance discriminates on the basis of content. As set

forth below, these various exceptions do not demon-

strate that Ladue’s purpose is to discriminate on the

basis of content. On the contrary, the purpose of

the City’s exceptions is to permit the minimum sign-

age possible consistent with the advancement of the

City’s interests in safety and aesthetics, as well as

with the Constitution.* It is thus clear that, under

this Court’s cases, the ordinance is content-neutral.

* The legislative record fully demonstrates that petitioners’

ordinance was enacted with the purpose of addressing the

harms caused by sign proliferation. As the findings accom-

panying the ordinance state:

the proliferation of an unlimited number of signs in pri-

vate, residential, commercial, industrial, and public areas

of the City of Ladue would create ugliness, visual biight

and clutter, tarnish the natural beauty of the landscape as

well as the residential and commercial architecture, im-

pair property values, substantially impinge upon the pri-

vacy and special ambience of the community, and may

cause safety and traffic hazards to motorists, pedestrians,

and children[.]

Pet. App. 36a. Moreover, the record on summary judgment

demonstrates that these findings are not simply camouflage

for an attempt to suppress speech on the basis of its content.

As the Court has explained, “[t]he principal in-

quiry in determining content neutrality ... is whether

the government has adopted a regulation of speech

because of its disagreement with the message it con-

veys.” Rock Against Racism, 491 U.S. at 791; see

also Community For Creative Non-Violence, 468 U.S.

at 295. The Court has also noted “that a regulation

that ‘does not favor either side of a political contro-

versy’ is nonetheless impermissible because the ‘First

Amendment’s hostility to content-based regulation ex-

tends . . . to prohibition of public discussion of an

entire topic.’” Boos, 485 U.S. at 319 (quoting Con-

solidated Edison Co., 447 U.S. at 537). In determin-

ing whether a regulation is content-neutral, “[t]he

government’s purpose is the controlling considera-

tion.” Rock Against Racism, 491 U.S. at 791. Ac-

cordingly, the Court has frequently stated that

“Tgjovernment regulation of expressive activity is

content-neutral so long as it is ‘justified without refer-

ence to the content of the regulated speech.’” Jd.

(emphasis in original) (quoting Community For Cre-

ative Non-Violence, 468 U.S. at 293).

The court of appeals expressly “recognize[d] that

the ordinance is viewpoint neutral.” Pet. App. 4a

The affidavit of Malcolm C. Drummond, a professional city

planner with more than forty years’ experience (including

nearly thirty years in the St. Louis, Missouri area), demon-

strates not only that Ladue has engaged in a longstanding

and comprehensive effort to maintain the aesthetics of the

community, but also that sign proliferation poses a substan-

tial safety hazard. J.A. 144-57. The Drummond affidavit

also demonstrates that, unlike Ladue, other cities in the St.

Louis area which do not limit signs experience visual blight.

id. at 154-56.

n.5. Therefore, the court of appeals’ conclusion that

the ordinance discriminates on the basis of content

must rest on the premise that the ordinance’s excep-

tions demonstrate that Ladue’s purpose is to choose

the subject matter of public debate. See Pet. App. 4a

(citing National Advertising Co. v. Town of Niag-

ara, 942 F.2d 145, 147 (2d Cir. 1991); National

Advertising Co. v. City of Orange, 861 F.2d 246,

248-49 (9th Cir. 1988)). This premise is erroneous.

As an initial matter, amici question the court of

appeals’ reliance on the City’s regulations regarding

signage in commercially zoned districts for assessing

the validity of its regulations for residential districts.

Notwithstanding the fact that the City allows com-

mercial signs in commercial districts, the City pro-

hibits both commercial and non-commercial signs in

residential areas. Respondent could no more have

displayed a sign advertising an auto repair shop than

one expressing opposition to the Persian Gulf war.

The Court has, of course, long recognized the unique

importance of residential neighborhoods as a refuge

from “ ‘the hurlyburly of the outside business and

political world.’” Carey v. Brown, 447 U.S. 455, 471

(1980) (quoting Gregory v. Chicago, 394 U.S. 111,

118 (1969) (Black, J., coneurring)). That the City

allows commercial premises to display on-site “com-

mercial signs” in its commercially zoned districts is

not probative of whether its purpose in prohibiting

signs in residential areas is “content-based.” The

differing characters and purposes of commercially

and residentially zoned districts justify the disparate

treatment.

In addition, there are two other reasons why the

court of appeals’ analysis is in error. First, as dis-

cussed infra at 17-21, the decision below fails to recog-

nize the considerable tension that exists between the

concept of content neutrality and the requirements

that a time, place or manner restriction be “narrowly

tailored to serve” the government’s significant inter-

ests and “leave open ample alternative channels for

communication.” Community For Creative Non-

Violence, 468 U.S. at 293. Ladue’s sign ordinance

has necessarily been tailored to the different per-

mitted uses under its zoning plan, as well as to the

holding of Linmark Associates, Inc. v. Township of

Willingboro, 431 U.S. 85 (1977). In accordance with

Ladue’s land use and zoning scheme and the char-

acter of the activity taking place on site in commer-

cial districts, the City allows certain types of signs

in commercially zoned areas which are not allowed in

residential areas. Thus, in allowing commercial signs

on commercially zoned properties, the ordinance

simply reflects the character of the activity taking

place on the premises, not an intent to suppress cer-

tain messages.

Second, as discussed infra at 21-23, the ordinance’s

remaining exceptions for municipal signs, road and

driveway signs, health inspection signs, public trans-

portation and stop signs, and safety hazard signs,

allow signs that indisputably convey important mes-

sages. Amici respectfully submit, however, that the

governmental purposes in allowing these messages—

the promotion of the public safety and convenience

—are too benign to raise any specter that the govern-

ment’s goal is to “select which issues are worth dis-

cussing or debating,” Mosley, 408 U.S. at 96, or to

“‘prohibit[] . . . public discussion of an entire

topic.’” Boos, 485 U.S. at 319 (quoting Consolidated

Edison Co., 447 U.S. at 537).

C. The Ordinance’s Exceptions For Commercial And

Church Signs Are Justified Because There Are No

Ample Alternatives To On-Site Identification Signs

The reasoning of the court of appeals places mu-

nicipal land use planners in a veritable “catch-22”

which greatly jeopardizes their ability to adequately

address such serious problems as visual blight, traffic

safety, and maintaining the property tax base. If, for

example, the City attempted to redress the purported

content-discrimination by extending its prohibition to

commercial signs and church signs, it woulc risk run-

ning afoul of the time, place or manner test’s require-

ments that the ordinance be “narrowly tailored” and

“leave open ample alternative channels for the com-

munication of the information.” See Community For

Creative Non-Violence, 468 U.S. at 293; see also Lin-

mark, 431 U.S. at 93. Yet, under the court of appeals’

approach, the City’s attempt to satisfy these constitu-

tional requirements by allowing businesses to have

commercial signs and churches to have announcement

signs renders its ordinance content-based and subject

to strict scrutiny.

The flaw in the court of appeals’ reasoning is

underscored by the analysis of Linmark. In Lin-

mark, the Court invalidated a municipal ordinance

prohibiting the posting of real estate “For Sale”

signs. 431 U.S. at 86. In doing so, the Court rejected

the municipality’s argument that the ordinance was

permissible as a time, place or manner regulation.

Id. at 93-94. In the Court’s view, “serious questions

exist{ed] as to whether the ordinance ‘le[ft] open

ample alternative channels for communication.’ ” Jd.

at 93 (quoting Virginia Pharmacy Bd. v. Virginia

Citizens Consumer Council, 425 U.S. 748, 771

(1976)). While recognizing that “in theory sellers

remain free to employ a number of different alter-

natives” in selling their homes, the Court deemed

“Tt}he options to which sellers realistically are rele-

gated—primarily newspaper advertising and listing

with real estate agents” not to be ample alternatives

for three reasons. Jd. First, these options “in-

volve{d] more cost and less autonomy than ‘For Sale’

signs.” Jd. (citations omitted). Second, they were

“Jess likely to reach persons not deliberately seeking

sales information.” /d. (citations omitted). Finally,

such options might “be-+ess-effective media for com-

municating the message that is conveyed by a ‘For

Sale’ sien in front of the house to be sold.” Jd. (cita-

tion omitted).

’

Amici respectfully submit that a sign ordinance

prohibiting commercial establishments from display-

ing on-site identification signs could be vulnerable to

the same criticisms which led to the invalidation of

the ordinance in JLinmeark. While commercial estab-

lishments could, of course, advertise their street loca-

tion through newspapers or other mediums such as

television or radio, those options would entail far

more cost. And without being able to display an on-

site identifiestion sien, a commercial establishment

would be unlikely to attract the patronage of those

individuals just passing through the town or unfamil-

iar with its location.

Accordingly, Linmark suggests that such an or-

dinance might not satisfy the test for time, place or

manner regulations because it would not “leave open

ample alternative channels for communication of the

information.” Community For Creative Non-Violence,

468 U.S. at 293. But under the court of appeals’

rationale, the city’s attempt to address this problem

hy excepting the on-site identification signs of com-

mercial establishments amounts to content-based dis-

crimination. See Pet. App. 4a & n.4 (concluding that

Ladue’s ordinance is “content-based” because it

“favors commercial speech over noncommercial

speech” by “permit[ting] commercial signs in dis-

tricts zoned for commercial or industrial use, but

... prohibit[ing] most noncommercial signs in those

districts’).

Amici respectfully submit that the court of appeals’

rationale is erroneous not only because it fails to

recognize the constitutional basis for the exception

for on-site identification signs, but also because it

fails to take into account the nexus between the par-

ticular sign and the zoning classification or permis-

sible use of the property. Under the court of appeals’

approach, any exceptions a city allows in a sign or-

dinance for the on-site identification of a premises

renders an ordinance content-based—no matter how

closely tied the exceptions are to the particular zon-

ing classification or permissible use of a property.

Yet allowing an exception for an on-site identifica-

tion sign plainly does not raise any “realistic possi-

bility that official suppression of ideas is afoot,”

R.A.V., 112 S.Ct. at 2547, or that the government’s

purpose is to “choose ‘which issues are worth dis-

cussing or debating.’”’ Consolidated Edison Co., 447

U.S. at 538 (quoting Mosley, 408 U.S. at 96). In-

deed, there is not a scintilla of evidence that Ladue’s

sign ordinance was enacted in order to suppress

speech based on its content. Cf. Linmark, 431 U.S. at

95-97 (prohibition of “For Sale” signs invalid because

directed at content of signs).

The court of appeals’ disregard of the nexus be-

tween the permitted on-site identification signs and

the underlying properties’ permitted uses has dis-

turbing ramifications for the ability of city planners

to regulate for the common good. Because under the

court of appeals’ rationale Ladue has engaged in

content-discrimination, the court of appeals’ holding

casts serious doubt on whether Ladue, or thousands

of other municipalities throughout the country, can

even ban commercial signs in residential neighbor-

hoods. But just as“‘a pig in the parlor instead of the

barnyard” can be a nuisance, Ambler Realty, 272

U.S. at 388, so too can be signs which have no nexus

to a property’s use. It can hardly be disputed that

if respondent had placed a sign on her property ad-

vertising a local pizza parlor, that sign would be an

eyesore. But under the court of appeals’ rationale,

Ladue’s ordinance is content-based and any attempt

to prohibit such signs would likely be invalidated

under strict scrutiny review. The court of appeals’

problematic approach to content-neutrality analysis

effectively denies municipal officials the authority to

take narrowly tailored measures to address the “the

substantive evil—visual blight—. . . created by the

medium of expression itself.” Taxpayers For Vin-

cent, 466 U.S. at 810; cf. City of Renton, 475 U.S.

at 48 (upholding zoning ordinance directed at adult

theaters because city’s “ ‘predominate’ intent” was to

“prevent crime, protect the city’s retail trade, main-

tain property values, and generally ‘protec[t] and

preserv[e] the quality of [the city’s] neighborhoods,

commercial districts, and the quality of urban

life.’”’) (citation omitted).

The court of appeals’ analysis is contrary to the

Court’s repeated admonition that “[t]he govern-

ment’s purpose is the controlling consideration” in

assessing content neutrality, Rock Against Racism,

491 U.S. at 791, and that “[e]overnment regulation

of expressive activity is content-neutral so long as

it is ‘justified without reference to the content of the

regulated speech.’” Jd. (quoting Community for

Creative Non-Violence, 468 U.S. at 293). Ladue’s

exceptions for on-site identification signs are linked

to the particular premise’s zoning classification and

character of use and are themselves designed to

ensure that the sign prohibition will not contravene

this Court’s requirement that the ordinance “leave

open ample alternative channels for communication.”

Linmark, 431 U.S. at 93 (quoting Virginia Phar-

macy Bd. v. Virginia Citizens Consumer Council, 425

U.S. 748, 771 (1976)). Accordingly, the ordinance

“is ‘justified without reference to the content of the

regulated speech’” and is content-neutral. Rock

Against Racism, 491 U.S. at 791 (quoting Commu-

nity For Creative Non-Violence, 468 U.S. at 293).

D. The Ordinance’s Exceptions for Signs Promoting Pub-

lic Safety and Convenience Do Not Render the Ordi-

nance Content-Based

In addition to on-site identification signs, the or-

dinance also permits municipal signs such as traffic

control -signs, no parking signs, and road signs;

health inspection signs; safety hazard signs; and signs

denoting public transportation stops. Pet. App. 40a-

dia. These signs can, of course, be characterized,

as the district court characterized them, as con-

veying “non-commercial” messages. See Pet. App.

28a. Amici submit, however, that these signs cannot

validly be the basis for the court of appeals’ unex-

plained conclusion that the ordinance “favors certain

types of noncommercial speech over others,” Pet.

App. 4a, or for the holding of the district court that

such signs demonstrate that Ladue’s purpose was “to

determine ‘which issues are worth discussing or de-

bating ....’” Pet. App. 28a (quoting Mosley,

408 U.S. at 96).

As the Court has frequently stated, “[t]he govern-

ment’s purpose is the controlling consideration” in

assessing content neutrality. Rock Against Racism,

491 U.S. at 791. The aforementioned signs, which

have long been indispensable to the nation’s cities and

towns, unquestionably convey important messages—

one need only imagine the result of removing stop

signs from a busy intersection. But to suggest, as

the district court did, that permitting such signs

demonstrates that Ladue’s purpose is “to deter-

mine ‘which issues are worth discussing or debat-

ing,’” or that it is attempting to gain “control over

the search for the political truth,” Pet. App. 28a,

trivializes the First Amendment. It is evident that

the government’s purpose in excepting such signs is

the promotion of the public safety and convenience,

not the “ ‘prohibition of public discussion of an entire

topic,’ ” Boos, 485 U.S. at 319 (quoting Consolidated

Edison Co., 447 U.S. at 537), or the choosing of the

‘“nermissible subjects for public debate.” Consoli-

dated Edison Co., 447 U.S. at 538.* Indeed, a prohibi-

tion of these signs would undermine the City’s stated

purpose of promoting public safety. To the extent

the court of appeals’ conclusion that Ladue’s ordi-

nance “favors certain types of noncommercial speech

* Amici acknowledge that the ordinance also excepts signs

advertising the sale or rental of real estate. Pet. App. 41a.

This exception, which is required by state law, see Mo. Rev.

Stat. § 67.317 (1992), does not demonstrate that the City’s

purpose is to choose the appropriate subject matter for pub-

lic debate. Cf. Linmark, 431 U.S. at 92-96 (invalidating

municipal prohibition of “For Sale” signs).

ttt

over others” rests on the ordinance’s exceptions for

signs promoting public safety and convenience, it is

erroneous because these exceptions are not indicative

of a governmental purpose to engage in content-

discrimination.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted,