Amicus Curiae Brief — City of Ladue v. Gilleo

: Supreme Court of the United States

Ocroper Term, 1993

Crry oF LADUE, ef ai., ;

> Petitioners,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

"BRIEF AMICI CURIAE OF

“ADVERTISING

— —_—

JOHN F. KAMP

DAviD'S. VERSFELT

AMERICAN ASSOCIATION OF

ADVERTISING AGENCIES

1899 L Street, N.W.

Washington, D.C. 20086

KENNETH M. VITTOR

SLADE METCALF

MAGAZINE PUBLISHERS OF

AMERICA

919 Third Avenue, 22nd Floor

New York, N.Y. 10022

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TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ..0...222..-1..0cec-cessosee-nenses

SUMMARY OF ARGUMENT. ..00..................ecececceceseeseoens

ARGUMENT ciedideiiariteineimneceeamisemmcesesnneenmmescene

I, THE CITY’S CONTENT-BASED ORDINANCE

II.

CANNOT WITHSTAND STRICT SCRUTINY..

A. The City of Ladue’s Ordinance is Overtly

EEE

. The exceptions to the bar on signs dis-

criminate based on the speaker and mes-

. The ordinance dictates the content of the

TT

B. The City of Ladue Cannot Evade the Con-

tent-Based Nature of the Ordinance Ry Con-

tending That It is “Justified Without Refer-

ence to the Content” of the Restricted

. The “secondary effects” rationale is inap-

SE

. A regulation cannot be justified as pre-

venting “secondary effects” where the

permitted communications create the

same effects as those that are barred........

. Assessing regulations on speech objec-

tively would avoid inappropriate inquiries

into legislative motives 2.000.000.0000.

C. The City’s Ordinance Cannot Survive Strict

ESE Te

TRUTHFUL MESSAGES ABOUT LAWFUL

PRODUCTS AND SERVICES SHOULD BE

ACCORDED FULL FIRST AMENDMENT

nee

10

11

14

18

ii iii

TABLE OF CONTENTS—Continued TABLE OF AUTHORITIES

Page Cases Page

A. According Full Constitutional Protection to Arkansas Writers’ Project v. Ragland, 481 U.S.

Truthful Commercial Speech Would Avoid ee MITE cockinhsicestpiataciiiaitticiinnamtiniaiaittiiiaaaatiniadiaiaaal 8, 12, 14)

the Otherwise Inevitable Dilemmas Created Barnes v. Glen Theater, Inc., 111 S. Ct. 2456

by Municipal Regulation of Signs 19 (1991) . ; 10

B. The Original Understanding of the First pe tego 488 US. 350 (1977) ‘weueen -

Amendment Was That Truthful Commercial — ‘9 v. Virginie, ( ) nnennnenneeneee

ted 99 Board of Trustees v. Fox, 492 U.S. 469 (1989)... 27

Messages Are Fully Protected ... Bolger v. Youngs Drug Products Corp., 463 U.S.

C. The Results of This Court’s Commercial 60 (1983) ie selinaaidis 27

Speech Decisions Generally Have Protected Boos v. Barry, 485 U.S. 312 (1988) ........... 9, 11, 13-14

Truthful Commercial Messages ...................-- 25 Burson v. Freeman, 112 S. Ct. 1846 (1992) _...5, 11, 14, 15

>. tite a Sa = Cary v. Population Serva. Intl, 431 US. 67

Noncommercial Messages a -

- , : Se an ee a ee 27

cult, if Not Futile, Exercise = Central Hudson Gas & Electric Corp. v. Public

29 Service Comm'n, 447 U.S. 557 (1980) ....000..... 26, 27, 28

CONCLUSION City Council of City of Los Angeles v. Taxpayers

for Vincent, 466 U.S. 789 (1984) 00 15, 16

City of Cincinnati v. Discovery Network, Inc., 113

S. Ct. 1505 (1998) ...................... passim

Conroy v. Aniskoff, 113 S. Ct. 1562 (1993) 12

Edenfield v. Fane, 113 8. Ct. 1792 (1993) 26

Edwards v. Aguillard, 482 U.S. 578 (1987) ............ 13,14

FCC v. League of Women Voters, 468 U.S. 364

SE isieneniencneictntninen erin tnsataedattpmaasnieti tai taaia lind es 8

First National Bank of Boston v. Bellotti, 435 U.S.

ee ee 6, 23

Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810)... 12

Friedman v. Rogers, 440 U.S. 1 (1979) 0.000. 25, 26

Gilleo v. City of Ladue, 986 F.2d 1180 (8th Cir.),

cert. granted, 114 S. Ct. 55 (1993) 0 passim

Heffron v. International Society of Krishna Con-

sciousness, 452 U.S. 640 (1981) - —_ 27

Kleindeinst v. Mandel, 408 U.S. 753 (1977) _.......... 15

Lamont v. Postmaster General, 381 U.S. 301

ictal lactate ntaiarincitninn 15

Linmark Associates, Inc. v. Township of Willing-

Ss I I passim

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

I ata a alien ila passim

iv

TABLE OF AUTHORITIES—Continued

Page

Miami Herald v. Tornillo, 418 U.S. 241 (1974)... 15

Minneapolis Star of Tribune Co. v. Minnesota

Comm’ r of Revenue, 460 U.S. 575 (1983) .......... 6, 12,14

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

RE EE ae ee 28

Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447

TTT ciesnicceteeeth ieee biaanieentiiaielinaeieelin haha lla ata iaaiineniiainiies 26

Palmer v. Thompson, 403 U.S. 217 (1971) ............... 12

Peel v. Attorney Registration & Disciplinary

Comm’n, 496 U.S. 91 (1990) 0.0.00... eee eeeeeeee 26

Police Dep’t v. Mosley, 408 U.S. 92 (1972) .............. 7

Posadas de Puerto Rico Associates v. Tourism Co.,

Rey Ie GI igi nastetciieeitahicnnarnaepaentiians 27

R.A.V. v. City of St. Paul, 112 S. Ct. 2538 (1992) _ 8, 9, 14,

16

In re R.M_J., 455 U.S. 191 (1982) ............................. 27

Renton v. Playtimes Theaters, Inc., 475 U.S. 41

SII ccuinisehiasiesihecinainnuiiltanttpreatteaniasaiiiiiadill aD nabatitnies 10

Shapero v. Kentucky Bar Ass’n, 486 U.S. 466

RE TETEEERET Sem reise tony es Se 27

Simon & Schuster, Inc. v. New York State Crime

Victims Bd., 112 S. Ct. 501 (1991) —.................... passim

United States R.R. v. Fritz, 449 U.S. 166 (1980)... 13

United States v. Edge Broadcasting Co., 113 S. Ct.

EF re CN 27

Virginia Pharmacy Bd. v. Virginia Citizens Con-

sumer Council, 425 U.S. 748 (1976) —............... 25, 26, 28

Wooley v. Maynard, 430 U.S. 705 (1977) -............... 15

Zauderer v. Off. of Disciplinary Counsel, 471 U.S.

SETI CEIIIIIIIEN ‘csccchasidciadcaneeenshhintepbariabihaescaianiebi dei teantimietiaiiniibage 26

Miscellaneous

William Blackstone, 3 Commentaries on the Laws

EE areca 25

Stephen Botein, Printers and the American Revolu-

tion, printed in The Press and the American

Revolution (Bernard Bailyn & John B. Hench

ER RC ES nee 24

Vv

TABLE OF AUTHORITIES—Continued

Continental Congress, Address to the Inhabitants

of Quebec (1774), reprinted in Bernard

Schwartz, 1 The Bill of Rights: A Documentary

I LE SA ee

Benjamin Franklin, An Apology for Printers, Pa.

Gazette, June 10, 1731, reprinted in 2 Writings

of Benjamin Franklin (1907) 0000000000000

Alex Kozinski & Stuart Banner, Who’s Afraid of

Commercial Speech?, 76 Va. L. Rev. 627 (1990)..

Alfred M. Lee, The Daily Newspaper in America

EES EL NE eee = Se cE

Richard H. Lee, Letter XVI, January 20, 1788, re-

printed in An Additional Number of Letters

from the Federal Farmer to the Republican

(1962), reprinted in Freedom of the Press from

Zenger to Jefferson: Early American Liber-

tarian Theories (Leonard Levy ed., 1966) ..........

Leonard Levy, Legacy of Suppression (1960) ........

John Lofton, The Press as Guardian of the First

FP TTR AE AS

James Madison, Papers, March 29, 1792, revrinted

in 1 The Founders’ Constitution (Philip B.

Kurland & Ralph Lerner eds., 1987) —........0000.......

Kent R. Middleton, Commercial Speech in the

Eighteenth Century, printed in Newsletters to

Newspapers: Eighteenth-Century Journalism

(Donovan H. Bond & W. Reynolds McLeod eds.,

RE ESTAR SISSY SIE acs ae Oe Se PR ae

Frank Presbrey, The History and Development of

Advertising (1929) ....... Ra a Son naa

Arthur M. Schlesinger, Prelude to Independence:

The Newspaper War on Britain 1764-1776

EARLE SETTERS Kae onsen DS Ree ee

Jeffery A. Smith, Printers and Press Freedom:

The Ideology of Early American Journalism

SSR Ne ee a ne aa ee

Geoffrey R. Stone, Content-Neutral Restrictions,

54 U. Chi. L. Rev. 46 (1987) ............- 11,

Joseph Story, Equity Jurisprudence (1836) ...........

Page

S &

ws

83 8

25

12, 14

vi

TABLE OF AUTHORITIES—Continued

John Trenchard & Thomas Gordon, Cato’s Letters,

eG OO)

Va. Declaration of Rights, art. 1 reprinted in Helen

H. Miller, George Mason: Gentleman Revolu-

|, an

William F. Walsh, A History of Anglo-American

TS GED = ccccncersssinssiisienesicsntiiaetieaidaeiadbianiniiainbhdiiibiiameanes

Lawrence C. Wroth, The Colonial Printer (1938) ..

R

22

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

No. 92-1856

City OF LADUE, et al.,

7 Petitioners,

MARGARET GILLEO,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF AMICI CURIAE OF

AMERICAN ADVERTISING FEDERATION,

AMERICAN ASSOCIATION OF ADVERTISING

AGENCIES, MAGAZINE PUBLISHERS OF AMERICA,

AND THE MEDIA INSTITUTE

IN SUPPORT OF RESPONDENT

The City of Ladue’s sign ordinance impermissibly dis-

criminates in favor of certain messages and speakers over

other protected communications and is unconstitutional

under the First and Fourteenth Amendments to the Con-

stitution of the United States. The decision of the United

States Court of Appeals for the Eighth Circuit invalidat-

ing the ban should be affirmed.’

INTEREST OF AMICI CURIAE

Amici represent thousands of advertising agencies, ad-

vertisers, broadcasters, publishers, and others who partici-

pate in the advertising industry nationwide, as well as

1 Both parties have consented to the participation of amici in

this case pursuant to Supreme Court Rule 37, as evidenced in letters

filed with the Court.

2

individuals interested in preserving freedom of speech. It

is from this broad-based, national perspective that the

amici present their views to the Court. They have joined

in this brief to ensure that the right to disseminate, and

the public’s right to receive, truthful commercial speech

about lawful products and services is protected. Amici,

who are described below, are:

* The American Advertising Federation (“AAF”)

is a national trade association representing virtu-

ally all elements of the advertising industry.

Among AAF’s members are companies that pro-

duce and advertise consumer products, advertising

agencies, magazine and newspaper publishers, ra-

dio and television broadcasters, outdoor advertis-

ing organizations, and other media. AAF mem-

bers also include 21 national trade associations;

more than 200 local professional advertising asso-

ciations with 52,000 members; and more than 200

college chapters, with more than 6,000 student

members. AAF members use almost all forms of

media to advertise and communicate with con-

sumers throughout the United States.

The American Association of Advertising Agen-

cies (“AAAA”), the national trade association of

the advertising agency industry, represents approx-

imately 650 advertising agencies located through-

out the United States. Members of the AAAA

create and place approximately 80 percent of all

national advertisements, as well as significant por-

tions of local and regional advertising. Most cli-

ents of AAAA members are businesses selling

goods or services to the public. AAAA is dedi-

cated to advancing the interests of the advertising

industry and has actively represented its members

in connection with governmental efforts to restrict

speech.

* The Magazine Publishers of America (“MPA”),

the industry association for consumer magazines,

has since 1919 represented the interests of maga-

zines distributed in the United States and issued

3

at least quarterly. MPA’s roster includes 205 pub-

lishers who produce more than 738 magazines,

plus 74 associate members, and 58 international

publishing members.

* The Media Institute (the “Institute”) is an inde-

pendent, non-profit research organization that ad-

vocates a strong First Amendment. The Institute

has participated in select cases in federal circuit

courts and the U.S. Supreme Court. In addition,

it conducts research projects and sponsors publi-

cations relating to the First Amendment and other

aspects of the communications media. The ad-

vocacy of the Institute here is unrelated to the

financial or proprietary interests of any private-

party participant.

SUMMARY OF ARGUMENT

The City of Ladue’s sign ordinance is unconstitutional

not because it “favor[s] commercial speech over noncom-

mercial speech,” Gilleo v. City of Ladue, 986 F.2d 1180,

1184 (8th Cir.), cert. granted, 114 S. Ct. 55 (1993),

but because it is overtly content-based and unjustifiably

favors certain messages by specified speakers over other

constitutionally protected communications. Ladue’s at-

tempt to characterize Chapter 35 of its city ordinances

(hereinafter “the ordinance”) as “content-neutral” on the

grounds that it is “justified without reference to the con-

tent” of the restricted speech must be rejected because:

(1) this Court’s caselaw makes clear that the so-called

“secondary effects” rationale does not excuse a severe

limitation on fully protected speech; (2) the “secondary

effects” of the signs prohibited by the City are no more

harmful than the effects of the signs the City permits;

and (3) the effect of an ordinance, and not the reasons

used to explain it, should determine whether strict scru-

tiny is appropriate. Only such an “objective” approach

can avoid inquiries into the legislative motivation and leg-

islative history that would be necessary to gauge the gov-

ernment’s true intentions when adopting a measure that

limits speech. In any event, whether assessed under strict

4

or immediate scrutiny, Ladue’s ordinance fails because

the City could have easily accomplished its objectives by

adopting numerous less restrictive regulations.

Ladue’s ordinance recognized that commercial activity

within its borders necessitated certain commercial mes-

sages. It also sought to accommodate the rule of Linmark

Associates, Inc. v. Township of Willingboro, 431 U.S. 85

(1977), which prohibits limitations on for-sale signs. In

the process, the City has run headlong into the Court’s

commercial speech doctrine, which accords commercial

speech a lower level of constitutional protection than non-

commercial speech. That doctrine can be construed—as

the lower courts here held—to render constitutionally

problematic any ordinance that seeks to place commercial

messages on a different or equal (but not clearly lower)

plane. Such an outcome hamstrings municipalities. The

Court can escape these difficulties by making clear that

commercial speech and noncommercial speech should be

accorded the same measure of constitutional protection.

Such a rule would be consistent with the original under-

standing of the First Amendment, which extended to com-

mercial speech as well as core political speech, and the

results of this Court’s caselaw. It would also avoid hav-

ing government officials make the delicate and content-

based judgments needed to define the limits of commercial

and noncommercial messages. Most importantly, equaliz-

ing the level of protection of commercial and noncom-

mercial speech would enable cities to adopt sign ordi-

nances that balance the rights of commercial and non-

commercial speakers, as well as the interests of the gov-

ernment in avoiding visual blight.

ARGUMENT

I. THE CITY’S CONTENT-BASED ORDINANCE CAN-

NOT WITHSTAND STRICT SCRUTINY.

The ordinance at issue in this case is unquestionably

content-based in its effect. Although it authorizes “for

sale” or “for lease” signs on residential property, it other-

wise prohibits residents from displaying all but small iden-

tification signs on their property. In contrast, churches,

ee

5

schools, and commercial establishments, among others,

are permitted to erect signs that inform the public about

the activities on their premises. Even these organizations,

however, are prohibited from displaying signs dealing with

other topics. Furthermore, Ladue dictates in considerable

detail what may and may not be said on the signs it does

allow. Such an obviously content-based ordinance is un-

constitutional unless it serves a compelling state interest

by the least restrictive means and leaves open alternative

channels of communication.

Ladue defends its ordinance as content-neutral because

it is said to be “justified without reference to the content”

of the signs. This rationale is inapplicable where, as here,

the government discriminates against some fully protected

communications in favor of other such messages. It is

also irrelevant to this case because the signs banned by

the City would cause no more “visual blight” than the

signs that are allowed. Most important, however, this

Court should make clear that the effect of a law, and not

the legislature’s intentions in adopting it, determines

whether a law is content-based and therefore subject to

strict scrutiny.

A. The City of Ladue’s Ordinance is Overtly Content-

Based.

Unless they serve a compelling state interest, regulations

of speech based on content are prohibited. See, e.g.,

Burson v. Freeman, 112 S. Ct. 1846, 1855 (1992) (plu-

rality opinion) (“[D]istinguishing among types of speech

requires that the statute be subjected to strict scrutiny.”).

The City’s ban on all signs, subject to scme exceptions, is

content-based for at least two reasons. First, it excepts

certain messages by selected speakers, thus creating dis-

tinctions on the basis of subject matter. Second, the ordi-

nance dictates the content of specified permitted signs.

Thus, “by any commonsense understanding of the term,

the [ordinance] in this case is ‘content-based.’” City of

Cincinnati v. Discovery Network, Inc., 113 §. Ct. 1505,

1516-17 (1993).

6

1. The exceptions to the bar on signs discriminate

based on the speaker and message.

Like the statute invalidated in First National Bank of

Boston v. Bellotti, 435 U.S. 765, 785 (1978), Ladue’s

ordinance regulates “the subjects about which persons

may speak and the speakers who may address a public

issue.” The ordinance does so by excepting from the ban

not only traffic and safety-related signs, but also (1) signs

identifying residences and subdivisions; (2) identification

signs and bulletin board-type signs for churches, religious

institutions, schools, and other not-for-profit institutions;

(3) real estate rental or for-sale signs; and (4) specified

signs on commercial establishments. City of Ladue Peti-

tion for Certiorari App. 40a-45a. These distinctions are

content-based in that they, for example, permit a resident

to post a for-sale sign in front of her house but not a sign

that says “Peace in the Gulf” or “Welcome Home, Joe.”

They amount to a choice by the City as to the “appropri-

ate subjects for public discourse.” Metromedia, Inc. v.

City of San Diego, 453 U.S. 490, 514 (1981). As such,

they warrant strict scrutiny. /d.

The City’s ordinance should also be subject to strict

scrutiny because it favors certain messages communicated

by particular speakers over the speech of others. Per-

mitting religious institutions and commercial establish-

ments to post information about their activities while

denying that same right to Ladue residents is plainly

problematic. Minneapolis Star of Tribune Co. v. Minne-

sota Comm’r of Revenue, 460 U.S. 575, 585 (1983)

(“[D]ifferential treatment . . . suggests that the goal of

the regulation is not unrelated to suppression of expres-

sion, and such a goal is presumptively unconstitutional.”’).’

Absent a compelling reason, the government may not de-

termine that a church’s notice of its presence and the time

of its worship services is more valuable “speech” than an

2 See also, e.g., Simon & Schuster, Inc. v. New York State Crime

Victims Bd., 112 S. Ct. 501, 509 (1991) (“The Government’s power

to impose content-based [burdens] on speech surely does not vary

with the identity of the speaker.”).

~~ =

7

individual’s views about the Gulf War. Allowing the

former and prohibiting the latter is unquestionably content-

based.

2. The ordinance dictates the content of the signs

it does permit.

This Court has often said that “above all else, the First

Amendment means that government has no power to

restrict expression because of its message, its ideas, its

subject matter, or its content.” Police Dep’t v. Mosley,

408 U.S. 92, 95 (1972). Ladue’s ordinance does pre-

cisely that. The signs tolerated by the City are not limited

to those needed for identification, health, or safety. Ladue

allows churches and schools to erect bulletin board-type

signs and commercial establishments to place message-

bearing signs * in their windows. However, the City then

seeks to control what those entities may say on such signs.

Section 35-5 limits church “bulletin boards” “to announce-

ments relating to the name of such church, . . . its serv-

ices, activities, or other functions.” Ladue Pet. Cert. App.

4la (emphasis added). Signs in the windows of commer-

cial establishments may inform the public about activities

conducted on the premises. Brief of Petitioner at 28;

Ladue Pet. Cert. App. 38a, 42-43a (quoting Sections

35-1, 35-7). Thus, a church’s bulletin board may say

“Church Bazaar Sunday,” but it may not state “Free

South Africa” or proclaim that “The Bible Values Life:

Don’t Drink and Drive.” A sign in a commercial estab-

lishment may say “Clearance Sale,” but may not say “Save

Our Jobs: No On NAFTA.” Whatever else may be said

about such distinctions, they are undeniably content-

based.*

3’ By “message-bearing signs,” amici are referring to signs—either

commercial or noncommercial—used for purposes other than iden-

tification.

* Similarly, the Ladue ordinance dictates the contents of for-sale

and for-lease signs. Section 35-10 provides that such signs “may

only state: (a) that the property is for sale, lease or exchange by

the owner or his agent; (b) the owner's or agent’s name; and (c)

the owner’s or agent’s address or telephone number.” Ladue Pet.

Cert. App. 45a. Adding the phrase “Eager to Sel]” would, thus,

presumably render the signs impermissible.

8

Once the City has made a determination to allow a

church to erect a bulletin board or a resident to post a

for-sale type sign of designated sizes, it may not dictate

the contents of those signs. For Ladue to ensure that its

rules have been complied with, “enforcement authorities

must necessarily examine the content of the message that

is conveyed.” Arkansas Writers’ Project v. Ragland, 481

U.S. 221, 230 (1987) (quoting FCC v. League of

Women Voters, 468 U.S. 364, 383 (1984)). But such

“official scrutiny of the content of [a message]” is “en-

tirely incompatible with” First Amendment guarantees.

Arkansas Writers, 481 U.S. at 230.

Under any definition of the term, the City’s ordi-

nance is “content-based.” Accordingly, strict scrutiny is

warranted.

B. The City of Ladue Cannot Evade the Content-Based

Nature of the Ordinance By Contending That It is

“Justified Without Reference to the Content” of the

Restricted Speech

Ladue does not defend its ordinance as content-neutral

in effect. Nor could it. Instead, it seeks refuge in this

Court’s occasional suggestion that certain laws should be

treated as content-based if the justifications advanced for

them are not tied to the subject matter or viewpoint of

the restricted speech. This argument fails for three rea-

sons. First, this Court has never employed the so-called

“secondary effects” rationale ° to uphold a restriction that

favored one fully protected message over another equally

protected message. Second, as this Court made clear in

Discovery Network, 113 S. Ct. at 1514-15, a regulation

may not turn on content where the effects associated with

the speech are irrelevant to the message. Put another

way, a for-sale sign and a political sign of like size both

arguably create “visual blight.” Distinguishing between

5 Amici follow the practice of the Court in R.A.V. v. City of

St. Paul, 112 S. Ct. 2538, 2546 (1992), and refer herein to the notion

that an ordinance is content-neutral if it is “justified without refer-

ence to the content” of the restricted speech as the “secondary

effects” rationale.

9

the two is a suspect content-based distinction. Finally,

this Court should make clear that the operation of a regu-

lation, not the purported justification for it, determines the

level of scrutiny accorded a restriction on communication.

1. The “secondary effects” rationale is inapplicable

here.

Ladue’s entire argument depends on its contention that

this overtly content-based ordinance is content-neutral be-

cause it is “justified without reference to the content” of

the messages contained on the signs. See, e.g., Pet. Brief

at 34-35. Its contention fails because the “secondary

effects” rationale is inapplicable here. That rationale may

be “a valid basis for according differential treatment to

. . « & content-defined subclass of proscribable speech.”

R,A.V., 112 S. Ct. at 2546 (emphasis added). This case,

however, does not involve such “proscribable speech.” As

the R.A.V. court recognized, “the prohibition against con-

tent discrimination . . . applies differently in the context

of proscribable speech than in the area of fully protected

speech,” id. at 2545, which is at issue here.

The City’s ordinance makes illegitimate distinctions be-

tweet, categories of fully protected speech. It permits

notices of church activities but forbids Ms. Gilleo from

expressing her political opinions—or a notice of an Alco-

holics Anonymous meeting at her house. A _ for-sale

sign is allowed if its contents strictly conform with the

ordinance, but not if it adds a word or a phrase. Such

content-based distinctions are prohibited absent a com-

pelling justification because this type of discrimination

“raises the specter that the Government may effectively

drive certain ideas or viewpoints from the marketplace,”

Simon & Schuster, 112 S. Ct. at 508, if only because

severe restrictions on communication inevitably reinforce

the status quo.*

*In addition, the “secondary effects” the Ladue ordinance seeks

to avoid are not the type the Court has relied on in lowering the

scrutiny of restrictions on speech. As the Court made clear in

Boos v. Barry, 485 U.S. 312, 321 (1988), “[llisteners’ reactions to

speech are not the type of ‘secondary effects’ we referred to in

10

Thus, under this Cour.s caselaw, the “secondary ef-

fects” rationale cannot be eviployed to lessen the level of

scrutiny accorded this manifestly content-based ordinance.

2. A regulation cannot be justified as preventing

“secondary effects” where the permitted commu-

nications create the same effects as those that

are barred.

In Discovery Network, 113 S. Ct. at 1511, the City of

Cincinnati contended that its bar on the distribution of

commercial newspapers via newsracks was justified by its

interests in “safety and esthetics.” “[B]Jecause every de-

crease in the number of such dispensing devices neces-

sarily effects an increase in the safety and improvement

of the cityscape,” the City maintained that its prohibition

was “entirely related to its legitimate interests in safety

and esthetics.” Jd. This Court rejected the City’s claim,

believing it “an insufficient justification for the discrim-

ination against respondents’ use of newsracks that are no

more harmful than the permitted newsracks.” Id. (em-

phasis added).

Similarly, as the Eighth Circuit found, “Ladue has not

shown that the prohibited signs cause more aesthetic,

safety, and property value problems than the permitted

signs.” 986 F.2d at 1183. To illustrate, the esthetic

effect on the City of Ladue is the same whether a sign in

front of the church declares “Jesus Saves” or “Bazaar

Next Saturday.” The City’s discrimination in favor of

certain signs and messages thus “does not correlate with

Ladue’s interest in eliminating the secondary effects” it

purportedly fears. Jd. This “undermines Ladue’s com-

Renton.” Here, the only “secondary effect” of the speech about

which the City of Ladue is concerned is the emotional state of those

who see the signs and are, presumably, less happy because of the

“visual blight” they are forced to endure. Jd. The psychological

effect of a sign is a far cry from the increase in crime, prostitution,

decrease in property values, destruction of residential neighbor-

hoods, and the other “secondary effects” identified in cases like

Renton v. Playtimes Theaters, Inc., 475 U.S. 41 (1986), and Barnes

v. Glen Theater, Inc., 111 S. Ct. 2456 (1991).

11

mitment to its secondary-effects justification and supports

the contention that the ordinance is aimed at the content

of the signs.” /d.

As was the case in Carey v. Brown, 447 U.S. 457, 465

(1980), nothing in the content-based distinctions drawn

by the City “has any bearing whatsoever on” visual blight.

See also Discovery Network, 113 S. Ct. at 1514 (“[{T]he

distinction bears no relationship whatsoever to the par-

ticular interests that the City has asserted.”); cf. Simon

& Schuster, 112 §. Ct. at 510. Although Petitioners strain

mightily to characterize certain signs as prone to prolifer-

ation, this is simply a pretext for permitting signs the

City deems vital and restricting those it considers un-

important. This Court has repeatedly held that regula-

tions that rely unnecessarily on content-based destinctions

must be closely scrutinized. Accordingly, strict scrutiny

is appropriate here.’

3. Assessing regulations on speech objectively

would avoid inappropriate inquiries into legisla-

tive motives.

Petitioners’ contention that the intentions of lawmakers

should define the level of scrutiny invites difficult in-

quiries into legislative motivation and legislative history.

The Court should reject this invitation and make clear

that the actual effect of a regulation determines whether

it is content-based—not the justifications advanced for it.

The City in effect contends that, absent a demonstrably

evil intention on its part, any restriction it imposes on

speech, no matter how severe, must be tested against the

more deferential standard applied to content-neutral_re-

strictions. Taken to its logical conclusion, the City’s ar-

gument would “undermine the very foundation of the

7 Nor can the City of Ladue defend the ordinance as content-

neutral merely because it is arguably not viewpoint-based. See, e.g.,

Boos, 485 U.S. at 318-319 (finding that a statute was content-based,

but not viewpoint-based) ; Burson, 112 S. Ct. at 1850 (“This Court

has held that the First Amendment’s hostility to content-based reg-

ulation extends not only to a restriction on a particular viewpoint,

but also to a prohibition of public discussion of an entire topic.”).

12

content-based content-neutral distinction.” Geoffrey R.

Stone, Content-Neutral Restrictions, 54 U. Chi. L. Rev.

46, 116-17 (1987). It would all but eliminate strict

scrutiny for restrictions on speech, as legislatures concoct

multiple “content-neutral” reasons to mask their true

agendas.

Acceptance of the City’s argument would essentially

force putative speakers to show that the legislature sub-

jectively intended to censor speech. Yet this Court has

“consistently held that ‘[iJllicit legislative intent is not

the sine qua non of a violation of the First Amendment.’ ”

Simon & Schuster, 112 §. Ct. at 509 (quoting Minneap-

olis Star, 460 U.S. at 592). To prevail, Ms. Gilleo should

not be forced to show “evidence of an improper censorial

motive.” Arkansas Writers, 481 U.S. at 228.

Adopting the City’s position would have dire implica-

tions for free speech. Where legislators set forth content-

neutral reasons for content-based restrictions on speech,

as Ladue seeks to do here, the only way for the courts

to police against government attempts to disguise such

limits as content-neutral would be to examine the subjec-

tive motivations of the legislators, an enterprise this Court

has eschewed in a variety of other contexts." As Justice

Scalia recently observed, “[w]le are governed by laws, not

by the intentions of legislators.” Conroy v. Aniskoff, 113

S. Ct. 1562, 1567 (1993) (Scalia, J., concurring).

To illustrate, assume that an unpopular municipal ad-

ministration is the subject of numerous newspaper at-

tacks. In an attempt to diminish the circulation of these

hostile newspapers, the city council bars the distribution

8 See, e.g., Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 130 (1810)

(“It may well be doubted, how far the validity of a law depends upon

the motives of its framers, and how far the particular inducements,

operating on members of the supreme sovereign power of a state,

to the formation of a contract by that power, are examinable in a

court of justice.”); Palmer v. Thompson, 403 U.S. 217, 224-25

(1971) (“{I]t is extremely difficult for a court to ascertain the

motivation, or collection of different motivations, that lie behind a

legislative enactment.” ).

13

via newsracks of newspapers that address municipal issues.

The council contends that such newspapers are more pop-

ular than others, which leads to a greater number of

unattractive newsracks and an increased likelihood of

litter. This justification is set forth in the statute, together

with statistics demonstrating that newspapers addressing

municipal issues are in fact more popular and therefore

give rise to a large percentage of the city’s litter. Would

such a regulation be constitutional? If so, the government

will almost always be able to achieve its censorial ends

by designing a class that includes the speakers it is seek-

ing to shut down, and manufacturing content-neutral jus-

tifications for its classification. How would the Court

guard against such a tactic, other than by examining the

subjective intentions of the legislators? Yet this Court

has properly recognized that “determining the subjective

intent of legislators is a perilous enterprise.” Edwards

v. Aguillard, 482 U.S. 578, 638 (1987) (Scalia, J., dis-

senting); see supra note 8.

Legislation is often “the product of multiple and some-

what inconsistent purposes that led to certain compro-

mises.” United States R.R. v. Fritz, 449 U.S. 166, 181

(1980) (Stevens, J., concurring). Certainly the subjec-

tive motivation of legislators may not be divined without

extensive reliance on legislative history. See Edwards,

482 U.S. at 636 (Scalia J., dissenting) (describing the

difficulties of such an analysis). In addition, “undue

emphasis on actual motivation may result in identically

worded statutes being held valid in one State and invalid

in a neighboring State.” Fritz, 449 U.S. at 180.

Subjecting all regulations that turn on content-based

distinctions to strict scrutiny has the advantage of avoid-

ing any inquiry into legislative purpose, objective or sub-

jective. Such an approach recognizes that “the best pro-

tection against governmental attempts to squelch opposi-

tion has never lain in [the Court’s] ability to assess the

purity of legislative motive but rather in the requirement

that the government act through content-neutral means

that restrict expression the government favors as well as

14

expression it disfavors.” Boos, 485 U.S. at 336-337

(Brennan, J., concurring).”

“[E]ven regulations aimed at proper governmental con-

cerns can restrict unduly the exercise of rights protected

by the First Amendment.” Minneapolis Star, 460 U.S. at

592. Expressly content-based restrictions—whatever their

justification—distort public debate in a content-differential

manner and pose an especially high risk of improper

motivation. Stone, supra, at 116. Particularly when

dealing with high-value speech, this Court ought to ex-

amine the operation of a restriction on speech instead of

the justifications advanced therefor. Under that test, La-

due’s ordinance is unquestionably subject to strict

scrutiny.”

C. The City’s Ordinance Cannot Survive Strict Scru-

tiny.

“Content-based regulations are presumptively invalid.”

R.A.V., 112 S. Ct. at 2542. A content-based regulation

can only survive if the government “show(s] that its reg-

ulation is necessary to serve a compelling state interest

and is narrowly drawn to achieve that end.’” Simon &

Schuster, Inc., 112 S. Ct. at 509 (quoting Arkansas Writ-

ers, 481 U.S. at 231). A law that is subject to strict

® See aleo Burson, 112 S. Ct. at 1858-59 (Kennedy, J., concur-

ring) (“Discerning the justification for a restriction of expression

is not always... straightforward .... In some cases, a censorial

justification will not be apparent from the face of a regulation

which draws distinctions based on content, and the government will

tender a plausible justification unrelated to the suppression of

speech or ideas.”’).

1° At a minimum, the Court should clarify that the objective pur-

pose of a statute is controlling, not the subjective motivations of

the legislators or the post hoc rationalizations of government litiga-

tors. “For while it is possible to discern the objective ‘purpose’ of

a statute (i.e., the public good at which its provisions appear to be

directed), or even the formal motivation for a statute where that

is explicitly set forth ..., discerning the subjective motivation of

those enacting the statute is, to be honest, almost always an im-

possible task.” Edwards, 482 U.S. at 636 (Scalia, J., dissenting).

15

scrutiny “rarely survives such scrutiny.” Burson, 112 S. Ct.

at 1852.

In this case, although the City’s interest in combatting

visual blight may be substantial, it is far from compelling.

This case is not like Burson, where the Court was pre-

sented with the “particularly difficult reconciliation” of

balancing “the accommodation of the right to engage in

political discourse with the right to vote—a right at the

heart of our democracy.” 7d. at 1851. Unlike the right

to vote, there is no constitutional right to live in a totally

sign-free neighborhood. The ordinance therefore does not

vindicate a “compelling interest.”

On the other hand, there is a constitutional right to

speak. At least two free speech interests are at issue here

—that of the homeowner and those of the readers. The

right to use one’s property for communicative purposes

lies at the heart of the First Amendment. A homeowner’s

interest in communicating a message from his or her own

property is a deeply felt and vital one, for which there are

few substitutes. See City Council of City of Los Angeles

v. Taxpayers for Vincent, 466 U.S. 789, 811 (1984):

(recognizing “[t]he private citizen’s interest in controlling

the use of his own property”). In fact, this Court has

often held that the government may not compel property

owners to devote their property to messages With which

they disagree.”

Moreover, the interests of rec’pients of the information

are also substantial, particularly with respect to for-sale

signs. Linmark, 431 U.S. 85." Although the interests of

11 Miami Herald v. Tornillo, 418 U.S. 241 (1974) (publisher has

right to use its own newspaper space as it sees fit); Wooley v.

Maynard, 430 U.S. 705, 715 (1977) (citizens may not be required

to “use their private property as ... a ‘mobile billboard’ for the

State’s ideological message”).

12 See also Kleindeinst v. Mandel, 408 U.S. 753, 762-63 (1977)

(recognizing the right to “receive information and ideas”) ; Lamont

v. Postmaster General, 381 U.S. 301, 308 (1965) (Brennan, J., con-

curring) (“{T)|he right to receive publications is such a fundamen-

tal right. The dissemination of ideas can accomplish nothing if

16

the homeowner and the listener do not completely over-

ride all other interests, the government’s interests in esthet-

ics is not compelling when measured against the First

Amendment interests in disseminating and receiving

speech.

The City has also utterly failed to demonstrate the

existence of any problem that would necessitate the regu-

lation. “[T)he danger of censorship presented by a fa-

cially content-based statute requires that that weapon be

employed only where it is necessary to serve the asserted

compelling interest.” R.A.V., 112 S. Ct. at 2549 (in-

ternal quotation marks, citations, and brackets omitted )

(emphasis in original). Certainly Ms. Gilleo’s small,

single sign does not present a serious threat to the beauty

of Ladue. Moreover, as this Court noted in Vincent,

“private property owners’ esthetic concerns will keep the

posting of signs on their property within -reasonable

bounds.” 466 U.S. at 811."* Because the City could

plainly have promoted its interests through other, less

restrictive means than a total ban on signs, its ordinance

is unconstitutional.

In addition, the numerous, less-restrictive content-

neutral alternatives available to the City that still would

accomplish its goal would cause this restriction to fail

even intermediate scrutiny. See Discovery Network, 113

S. Ct. at 1510 n.13 (“[I}f there are numerous and obvious

less-burdensome alternatives to the restriction on com-

mercial speech, that is certainly a relevant consideration

in determining whether the ‘fit’ between the ends and

means is reasonable.”)."* As such, it is unquestionably

unconstitutional under strict scrutiny.

otherwise willing addresses are not free to receive and consider

them.”).

13 Although the City argues that the aggregate effect of signs

displayed in homeowners’ windows would create “visual blight,” it

fails to show that most or even many homeowners would place signs

in their windows or on their lawns.

14 For example, a rule limiting the number and size of signs per

home or establishment would be permissibly content-neutral. A

17

Finally, the restriction does not leave open “ample

alternative channels for communication.” Linmark, 431

U.S. at 93. As noted, the ability to communicate a mes-

sage from one’s own property is a vital one. There is no

substitute for an on-site sign to identify a commercial

establishment, a house for sale, or the activities of a

church.” Nor were there many practical alternatives for

Ms. Gilleo’s message."

In sum, the Ladue ordinance fails to meet any part

of the strict scrutiny test applicable to content-based reg-

ulations. Accordingly, it should be invalidated as un-

constitutional.

first-come, first-served restriction limiting the total number of signs

permissible in any subdivision could also satisfy the City’s esthetic

concerns without a content-based restriction. Similarly, limiting the

amount of time a sign could be displayed might limit the prolifera-

tion of signs. See Opposition of Respondent to Petition for Cer-

tiorari at 9.

15 See Metromedia, 453 U.S. at 516 (“ ‘Many businesses and poli-

ticians and other persons rely upon outdoor advertising because

other forms of advertising are insufficient, inappropriate, and pro-

hibitively expensive.’” (quoting Joint Stipulation of Fagts) ) ;

Linmark, 431 U.S. at 93 (media other than signs “may be less

effective . . . for communicating the message that is conveyed ... .

The alternatives, then, are far from satisfactory.”).

16 Indeed, the ordinance’s bar on all signs amounts to a complete

proscription on a mode of communication. Such bans pose significant

dangers to the freedom of speech. “{S]Jomething is lost in transi-

tion” when a speaker is denied the ability to speak in his or her

preferred medium. Stone, supra, at 65. Certain means of com-

munication may be “used disproportionately by certain types of

speakers or by speakers associated with particular points of view.”

Id. at 66. Foreclosing that mode can harm the proponents of one

viewpoint over others. Moreover, a sign is an inexpensive and easy

mode of communication. Were Ms. Gilleo required to purchase time

on a radio or television station or an ad in a newspaper to express

her views, she might well stay silent.

18

Il. TRUTHEUL-MESSAGES ABOUT LAWFUL PROD-

UCTS AND SERVICES SHOULD BE ACCORDED

FULL FIRST AMENDMENT PROTECTION.

Ladue excepted certain commercial communications

from its ban because it recognized that a total ban on

commercial signs would essentially exile from within its

borders all entities offering goods or services for sale to

the public. Commercial activity is basically impossible if

a seller is unable to advertise on-site, at a minimum, its

presence and what is offered on the premises. Yielding to

this fact of life, the City made the eminently reasonable

determination that all commercial signs could not be

banned. Arguably, this judgment was constitutionally

compelled by this Court’s decision in Linmark, at least

with respect to for-sale and for-lease signs.

Yet, so long as the Court adheres to its rule that com-

mercial speech should be accorded a lower level of con-

stitutional protection than noncommercial speech, any

determination by a city seeking to restrict residential signs

while preserving commercial activity will inevitably—and

apparently impermissibly—“favor[] commercial speech

over noncommercial speech.” 986 F.2d at 1184. The

only way to accommodate fully the compelling needs of

municipalities for commercial activity, and of commer-

cial actors to advertise, is for the law to treat commercial

speech and noncommercial speech equally.

To be clear, amici do not suggest that commercial

speech in general is somehow more important, or deserv-

ing of more protection, than political speech—which lies

at the heart of the First Amendment. Amici maintain,

however, that there are occasionally compelling needs for

commercial messages, and that fully accommodating those

interests may be doctrinally feasible only if commercial

and noncommercial speech are accorded the same con-

stitutional protections. If commercial messages continue

to be considered “lower value” speech, then any attempt

by the government to allow commercial speech where

noncommercial speech is restricted will almost inevitably

be considered unconstitutional. A rule according com-

19

mercial and noncommercial messages equal treatment

would avoid the numerous other doctrinal difficulties

created by the Court’s current commercial speech juris-

prudence and be consistent with the original understand-

ing of the First Amendment, as well as the results of most

of this Court’s cases.

A. According Full Constitutional Protection to Truth-

ful Commercial Speech Would Avoid the Otherwise

Inevitable Dilemmas Created by Municipal Regula-

tion of Signs.

As this case illustrates, according diminished consti-

tutional protection to commercial speech creates severe

doctrinal difficulties. Only by treating commercial and

noncommercial communications equally can this Court

avoid such problems, enable municipal governments to

enact reasonable limits on signs, and still protect the con-

stitutional rights of speakers and listeners alike.

A municipality that contains within it both commercial

and residential areas has five basic alternatives in seeking

to restrict signs. It can: (1) prohibit all signs, (2) allow

all signs without restriction, (3) favor noncommercial

signs over commercial signs, (4) favor commercial signs

over noncommercial signs, or (5) allow equal access to

commercial as well as noncommercial signs. Each of

these alternatives, except the last, is either impractical

or constitutionally problematic. Accordingly, this Court

should make clear that, absent compelling reasons for

differential treatment, commercial and noncommercial

signs should be treated alike.

1. Barring all signs. Barring all signs is impossible

as a practical and, arguably, as a legal matter. At a min-

imum, traffic signs are necessary. Other signs, such as

public safety signs and hospital identification signs, serve

compelling state interests. In addition, as noted, certain

commercial signs must be tolerated if a city wishes to

have commercial activity within its énvirons. This Court

has recognized that advertising signs serve vital interests,

See Linmark, 431 U.S. 85,

20

2. No limit on signs. Conversely, preventing munici-

palities from placing any limits ou the signs that may be

displayed on one’s own property may well accord insuffi-

cient leeway to a municipality concerned about “visual

blight.”

3. Favoring noncommercial signs over commercial

ones. Permitting a municipality to bar all commercial

signs, for example, but requiring it to allow noncommer-

cial signs forces government officials to make difficult and

dangerous content-based determinations as to what is and

is not commercial. Discovery Network, 113 S. Ct. at

1514 n.19 (“{T]he responsibility for distinguishing be-

tween [commercial and noncommercial speech] carries

with it the potential for invidious discrimination of dis-

favored subjects.”). Such an outcome would also accord

insufficient respect to the needs of commercial speakers to

communicate, and of listeners to receive, valuable infor-

mation. And an ordinance of this type might well be

inconsistent with the rule of Linmark. Finally, as noted

above, commercial signs are frequently necessary to the

existence of commercial activity.

4. Favoring commercial signs over noncommercial

ones. As the Eighth Circuit recognized, under current

doctrine, this option is constitutionally problematic be-

cause it elevates so-called “lower value” speech over

“higher value” messages. See, e.g., Metromedia, 453 U.S.

at 513 (“[T]he city may not conclude that the communi-

cation of commercial information concerning goods and

services connected with a particular site is of greater value

than the communication of noncommercial messages.” ).

Moreover, it requires delicate content-based judgments

that are inappropriate for government officials. Discovery

Network, 113 S. Ct. at 1513 and n.19.

On occasion, however, it may be that a governmental

entity can adduce compelling reasons for permitting com-

mercial signs but not noncommercial ones, or for allow-

ing institutions, but not residences, to display on-site

21

signs.’ This should be permissible, but such a result

would be doctrinally problematic unless this Court were

to determine that commercial and noncommercial speech

should be treated equally. Failure by the Court to adopt

such a rule would, thus, undermine every attempt by a

municipality to accommodate the needs of commercial

speakers and to limit signs to the extent possible. Adher-

ence to a lower level of protection for commercial speech

would also continue to make it difficult for the govern-

ment to permit institutions that need to comunicate with

the public to fulfill their functions—such as hospitals,

churches, non-profit institutions, and commercial estab-

lishments—to have on-site signs and at the same time

prevent residences from displaying signs as well. If the

Court fails to equalize the treatment of commercial and

noncommercial speech, ordinances of this type will almost

inevitably be struck down by lower courts on the grounds

that they “favor[] commercial speech over noncommercial

speech.” 986 F.2d at 1184.

5. According equal treatment to commercial and non-

commercial signs. Amici urge the Court to adopt a rule

of equa! treatment for commercial and noncommercial

speech. Such a rule would preserve this Court’s decision

in Linmark, avoid elevating commercial over noncommer-

cial speech, accommodate the interests of commercial and

noncommercial speakers, and permit the City a great deal

of control over “visual blight.” This rule thus permits

reconsideration of potential doctrinal difficulties. As dem-

onstrated below, it is also consistent with the original

understanding of the First Amendment, the outcome of

most of this Court’s cases, and common sense.

17 To illustrate, the historic city of Charleston, South Carolina

might well determine that stores need signs in order to attract

customers, but could demonstrate a compelling interest in barring

all residential signs. Cf. Metromedia, 453 U.S. at 534 (Brennan, J.,

concurring) ; see supra pp. 18-19.

22

B. The Original Understanding of the First Amend-

ment Was That Truthful Commercial Messages Are

Fully Protected.

The generation of the Framers accorded property

rights the same status as other liberties."" The Framers

accepted the vital importance of freedom of expression

and its inextricable link with property rights, which Cato

had articulated as follows: “This sacred Privilege is so

essential to free Government that the Security of Property,

and the Freedom of Speech, always go together.” John

Trenchard & Thomas Gordon, 1 Cato’s Letters 95-103

(1733) (Essay No. 15, Of Freedom of Speech: That the

Same is Inseparable From Publick Libesty (Feb. 4,

1720)).° Given their outlook, the currert distinction

between so-called “commercial speech” and speech about

other matters would never have occurred to the Framers.

Their practical concern for business and property was

mirrored in the vibrant colonial press. The standard

colonial newspaper was almost half-filled with local ad-

vertising.” Interest in advertising was intense,” and, for

18 For example, George Mason’s Virginia Declaration of Rights

stated that the purpose of the Revolution was to secure “the Enjoy-

ment of Life and Liberty, with the Means of acquiring and possess-

ing Property, and pursuing Happiness and Safety.” Va. Declaration

of Rights, art. 1 reprinted in Helen H. Miller, George Mason:

Gentleman Revolutionary 340 (1975) (emphasis added). As James

Madison put it, “[w]here an excess of power prevails, property of no

sort is duly respected. No man is safe in his opinions, his person,

his faculties, or his possessions.” James Madison, Papers, March 29,

1792, reprinted in 1 The Founders’ Constitution 598 (Philip B.

Kurland & Ralph Lerner eds., 1987).

19 Cato’s articulation of the tie between property rights and free

speech was enormously influential in colonial America. Jeffery A.

Smith, Printers and Press Freedom: The Ideology of Early Ameri-

can Journalism 25 (1988).

20 Lawrence C. Wroth, The Colonial Printer 234 (1938). To

illustrate, in 1766, Hugh Gaine’s New York Mercury was seventy

percent advertising, and fifty-five percent of the Royal Gazette was

commercial matter. Alfred M. Lee, The Daily Newspaper in Amer-

ica 32 (1937).

21 During the colonial era, “{a]dvertisements had as much interest

as the news columns, perhaps greater interest .... Arrival of a

« Oe ee ee ree a

23

much of that era, newspapers did not differentiate com-

mercial and editorial material by layout or typeface.”

The full integration of editorial and commercial mat-

ters in the press reflected the colonial view that the bene-

fits of freedom of expression extended to the entire spec-

trum of human endeavors. Thus, the Continental Congress

urged settlers in Quebec to recognize that a free press

was crucial to “the advancement of truth, science, moral-

ity, and arts in general.” Address to the Inhabitants of

Quebec (1774), reprinted in Bernard Schwartz, 1 The

Bill of Rights: A Documentary History 223 (1971 ). This

view encompassed commercial communications as well.

For example, Richard Henry Lee of Virginia—perhaps

the leading Anti-Federalist—said in his demand for a

bill of rights that “a free press is the channel of com-

munication to mercantile and public affairs.” ™

new cargo ... likely was what the man, home from a reading at the

coffee house or tavern, talked about at his fireside rather than the

reception of a new envoy at some court in Europe.” Frank Presbrey,

The History and Development of Advertising 154 (1929). See also

Discovery Network, 113 8. Ct. at 1512-13 n.17 (quoting Revolution-

ary-era printer Isaiah Thomas).

22 Kent R. Middleton, Commercial Speech in the Eighteenth Cen-

tury, printed in Newsletters to Newspapers: Eighteenth-Century

—" 281 (Donovan H. Bond & W. Reynolds McLeod eds.,

*8 Letter XVI, January 20, 1788, in An Additional Number of

Letters from the Federal Farmer to the Republican 151-53 (1962)

(emphasis added), reprinted in Freedom of the Press from Zenger

to Jefferson: Early American Libertarian Theories 144 (Leonard

Levy ed., 1966). The twin concepts of freedom of speech and of

the press were considered as two sides of the same coin, serving the

Same purposes, and were often referred to interchangeably. See,

e.g., Leonard Levy, Legacy of Suppression 174 (1960) ( “(F )reedom

of speech and freedom of the press, being subject to the same re-

straints of subsequent punishment were rarely distinguished. Most

writers, including Addison, Cato, and Alexander, who employed the

term ‘freedom of speech’ with great frequency, used it synony-

mously with freedom of the press.”). Thus, this Court has always

treated the freedom of speech and press as coterminous. See é.g.

Bellotti, 435 U.S. at 781-83.

24

Given the prevalence and importance of commercial

messages in colonial America, it is not surprising that the

very idea of “the freedom of speech, or of the press”

evolved in close connection with the development of ad-

vertising. In fact, one of the best-known statements in

defense of the freedom of expression was written in re-

sponse to an attack on a commercial message printed by

Benjamin Franklin. In 1731, Franklin printed an ad-

vertising handbill for a ship’s captain, who sought addi-

tional freight and passengers for his ship. At the bottom

of the ad was the note, “No Sea Hens nor Black Gowns

will be admitted on any Terms.” An Apology for Printers,

Pa. Gazette, June 10, 1731, reprinted in 2 Writings of

Benjamin Franklin 172, 176 (1907).

This handbill prompted criticism from the local clergy

(the “Black Gowns”), although it is unclear whether they

were more offended by their exclusion from the pool of

desirable passengers or from their placement in the same

category as women of ill repute (“Sea Hens”). In re-

sponse, Franklin published his Apology for Printe, s which

is considered “[b]y far the best known and most sustained

colonial argument for an impartial press.” Stephen

Botein, Printers and the American Revolution, printed in

The Press and the American Revolution 20 (Bernard

Bailyn & John B. Hench eds., 1980). Franklin’s Apology

contended that “Printers are educated in the Belief that

when Men differ in Opinion, both Sides ought equally to

have the Advantage of being heard by the Publick.” An

Apology for Printers, supra.* Thus, America’s first sus-

tained defense of freedom of expression, and of the very

notion of a “marketplace of ideas,” came in response to

an attack on commercial speech.”

24 This echoed the sentiment in the libertarian Cato’s Letters

that “Whilst all Opinions are equally indulged, and all Parties

equally allowed to speak their Minds, the Truth will come out.”

Trenchard & Gordon, 3 Cato’s Letters 295 (1733).

25 In addition, one of the major precipitating events of the Ameri-

can Revolution also involved a defense of commercial messages. The

Stamp Act of 1765 taxed each newspaper—and imposed an additional

25

The First Amendment came from this background. Its

authors were accustomed to the idea that commercial

speech had important practical value. Their regard for

free expression had been critically shaped by the ideas

embodied in Franklin’s defense of a commercial handbill.

Thus, the First Amendment's categorical protection for

freedom of expression must be understood to have meant

what it said: full protection extends to truthful com-

mercial discourse.”

C. The Results of This Court’s Commercial Speech

Decisions Generally Have Protected Truthful Com-

mercial Messages.

Granting equal protection to commercial speech is not

inconsistent with this Court’s jurisprudence. Since Vir-

ginia Pharmacy Bd. v. Virginia Citizens Consumer Coun-

cil, this Court has recognized that “the free flow of com-

mercial information is indispensable . . . to the proper

allocation of resources in a free enterprise system” and

to “the formation of intelligent decisions as to how that

system ought to be regulated.” 425 U.S. 748, 765 (1976).

two-shilling tax on each advertisement. “This was a heavy tax in

proportion to the value of the item being taxed,” and galvanized the

colonial press against the British government. John Lofton, The

Press as Guardian of the First Amendment 2 (1980). The opposi-

tion of newspapers to the Stamp Act of 1765 was in large part, if

not primarily, based on their concern that it encroached on the

freedom of expression. Arthur M. Schlesinger, Prelude to Inde-

pendence: The Newspaper War on Britain 1764-1776 70-82 (1966).

26 Of course, the government may ban the dissemination of false

or misleading commercial messages. See, e.g., Friedman v. Rogers,

440 U.S. 1 (1979). This may be true either because, by definition,

such messages are excluded from the First Amendment or because

the government is always presumed to have a compelling interest in

preventing deception. In any event, such a view comports with the

oriignal understanding of the First Amendment, which was adopted

against the background of a venerable common-law tradition pro-

hibiting commercial misrepresentation. See William Blackstone, 3

Commentaries on the Laws of England 431 (1768); Joseph Story,

Equity Jurisprudence § 191 (1836); William F. Walsh, A History

of Anglo-American Law 328-29 (1932) (tracing development of

action of deceit from mid-fourteenth century).

26

Moreover, the decision observed that “the particular con-

sumer’s interest in the free flow of commercial informa-

tion . . . may be as keen, if not keener by far, than his

interest in the day’s most urgent political debate.” /d. at

763.

Although the Court has said that commercial speech is

entitled to less protection than noncommercial speech and

has applied the “balancing” test established in Central

Hudson Gas & Electric Corp. v. Public Service Comm'n,

447 U.S. 557 (1980), it has, in almost every case, de-

cided its cases in a manner consistent with a grant of full

First Amendment protection to truthful advertising of

lawful products. This Court’s commercial speech deci-

sions have generally upheld restrictions only where con-

sumers were likely to be misled in the absence of regu-

lation, or where illegal or relatively unique products or

services were being advertised.*’ On the other hand, the

Court has struck down numerous regulations on com-

mercial communications which were designed to advance

other purported government interests. Accordingly,

27 See, e.g., Friedman, 440 U.S. at 13 (ban on optometrists’ use of

trade names justified by “significant possibility” of mislead[ing)

the public.”); Zauderer v. Off. of Disciplinary Counsel, 471 U.S.

626, 651 (1985) (notice of client responsibility for certain costs

required in contingent fee messages because “reasonably related to

the State’s interest in preventing deception of consumers”) (footnote

omitted) ; Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 464 (1978)

(ban on attorney solicitation permitted in situation “inherently

conducive to overreaching and other forms of misconduct”).

28 See, e.g., Discovery Network, 113 S. Ct. at 1511 (rejecting

contention that “low value” of commercial speech justified ban on

distribution of commercial newsracks to promote safety and es-

thetics) ; Edenfield v. Fane, 113 S. Ct. 1792, 1798 (1993) (striking

ban on personal solicitation by certified public accountants and

recognizing that “the general rule is that the speaker and the au-

dience, not the government, assess the value of the information

presented”) ; Peel v. Attorney Registration & Disciplinary Comm'n,

496 U.S. 91, 108 (1990) (plurality opinion) (overturning attorney

censure and reaffirming “the principle that disclosure of truthful,

relevant information is more likely to make a positive contribution

to decisionmaking than is concealment of such information”) ;

27

equalizing the protection afforded to commercial speech

and noncommercial speech would not require substantial

modification of governmental policies previously approved

by the Court.”

Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 479-80 (1988) (truth-

ful, non-deceptive letters sent to individuals known to face particular

legal problems were constitutionally protected) ; Bolger v. Youngs

Drug Products Corp., 463 U.S. 60, 80 (1983) (Rehnquist, J., con-

curring) (striking down ban on truthful unsolicited advertise-

ments) ; Jn re R.M.J., 455 U.S. 191 (1982) (rule limiting dissemina-

tion of truthful advertising violated First Amendment); Central

Hudson, 447 U.S. at 571-72 (regulation restricting non-deceptive

advertisements promoting use of electricity violated First Amend-

ment); Bates v. State Bar, 433 U.S. 350, 384 (1977) (truthful

attorney advertising constitutionally protected) ; Cary v. Population

Servs. Int’l., 431 U.S, 678, 701-02 (1977) (restriction on contracep-

tives ads invalidated because it did more than limit misleading

or deceptive speech) ; Linmark, 431 U.S. at 98 (striking ordinance

prohibiting for-sale signs because it inhibited free flow of truth-

ful information) ; Bigelow v. Virginia, 421 U.S. 809, 828-29 (1975)

(barring prosecution for running non-deceptive advertisement for

legal service).

*” The Court has found against a commercial speaker disseminat-

ing a truthful and non-misleading message in only three cases. The

first, Posadas de Puerto Rico Associates v. Tourism Co., 478 U.S.

328 (1986), involved a regulation limiting the advertising of casino

gambling—an activity long subjected to special regulation by the

state—to residents of Puerto Rico. The second, Board of Trustees

v. Fox, 492 U.S. 469 (1989), is best understood, and should have

been analyzed, as a right of access case involving a rule of general

applicability affecting many business activities in addition to com-

mercial speech. See Heffron v. International Society of Krishna

Consciousness, 452 U.S. 640 (1981) (state fair may require that

sale or distribution of any merchandise on state fair grounds be

licensed). The third, United States v. Edge Broadcasting Co., 113

S. Ct. 2696 (1993), involved advertising messages about a service—

lotteries—that are traditionally subject to intensive state regula-

tion. Moreover, the type of services that the broadcaster in Edge

Broadcasting sought to advertise was illegal in the state in which

the broadcaster was located.

28

D. Distinguishing Between Commercial and Noncom-

mercial Messages Is Often a Difficult, if Not Futile,

Exercise.

This Court has made clear “that speech does not lose

its First Amendment protection because money is spent

to project it, as in a paid advertisement of one form or

another. Speech likewise is protected even though it is

carried in a form that is ‘sold’ for profit... , and even

though it may involve a solicitation to purchase or other-

wise pay or contribute money.” Virginia Pharmacy, 425

U.S. at 761-62 (citations omitted) (giving examples of

books, motion pictures, and religious literature).*° On

the other hand, this Court has classified as “commercial”

those messages that propose a commercial transaction or

that “relate[] solely to the economic interests of [the]

audience,” Central Hudson, 447 U.S. at 561. The dis-

tinction between these categories, however, is elusive at

best. The difficulty of differentiating between commercial

and noncommercial speech provides additional support for

treating them equally.

It is often difficult “in the first instance [to] decid[e]

whether the proposed speech is commercial or noncom-

mercial. In individual cases, this distinction is anything

but clear.” Metromedia, 453 U.S. at 536 (Brennan, J.,

concurring). Recently, in Discovery Network, the Court

acknowledged “the difficulty of drawing bright lines that

will clearly cabin commercial speech in a distinct cate-

gory.” 113 S. Ct. at 1511. This problem exists not only

in seeking to distinguish between “newspapers” and “com-

mercial handbills,” as was the issue in Discovery Network,

but also in seeking to determine whether an advertise-

ment is “proposing a commercial transaction” or express-

ing a political opinion.™

30 See also New York Times Co. v. Sullivan, 376 U.S. 254, 266

(1964) (“To avoid placirg such a handicap upon the freedoms of

expression, [statements] do not forfeit [First Amendment] protec-

tion because they were published in the form of a paid advertise-

ment.”’) . .

81 For example, as Justice Brennan famously posed the problem,

it is essentially impossible to distinguish among billboards that say

29

Moreover, the Court’s highly artificial and forced dis-

tinction between commercial and noncommercial speech

encourages “those who seek to convey commercial mes-

sages [to] engage in the most imaginative of exercises to

place themselves within the safe haven for noncommercial

speech, while at the same time conveying their commer-

cial message.” Metromedia, 453 U.S. at 540. Conversely,

a government may attempt to discriminate against a par-

ticular viewpoint by regulating its preferred mode of com-

mercial dissemination and justifying that ordinance as

merely a restriction on commercial speech. Discovery

Network, 113 S. Ct. at 1513-14 n.19.”

Indeed, the examples described above demonstrate “the

absurdity of treating all commercial speech as less valu-

able than all noncommercial speech.” Jd. at 1520 (Black-

mun, J., concurring). It is a futile enterprise with dan-

gerous consequences that should be abandoned.

CONCLUSION

For the reasons set forth herein, amici submit that the

City of Ladue’s ordinance is unconstitutionally content-

based. Accordingly, the Court should affirm the Eighth

Circuit’s decision, not on the grounds that the ordinance

elevates commercial speech over noncommercial speech,

but based on the illegitimate distinctions the ordinance

makes between protected communications. In the proc-

“Visit Joe’s Ice Cream Shoppe,” “Because Joe thinks that dairy

products are good for you, please shop at Joe’s Shoppe,” and

“Joe says to support dairy price supports: they mean lower prices

for you at his Shoppe.” Metromedia, 453 U.S. at 538-539. See also

Alex Kozinski & Stuart Banner, Who’s Afraid of Commercial

Speech?, 76 Va. L. Rev. 627, 638-48 (1990) (listing numerous exist-

ing advetrising examples and judicial decisions which demonstrate

the difficulty in defining commercial] speech).

82 See also Metromedia, 453 U.S. at 536-37 (Brennan, J., con-

curring) (allowing a government to determine whether speech is

commercial or noncommercial “entail[s] a substantial exercise of

discretion by a city’s official” and thus “presents a real danger of

curtailing noncommercial speech in the guise of regulating com-

mercial speech’’).

30

ess, the Court should make clear that commercial speech

is to be accorded the same level of constitutional protec-

tion as noncommercial speech.

Respectfully submitted,

Of Counsel: RICHARD E. WILEY

WALLACE S. SYNDER Counsel of Record

President LAWRENCE W. SECREST, III

JEFFREY L. PERLMAN Howarb H. BELL

Vice President DANIEL E. TRoy

Government Affairs WILEY, REIN & FIELDING

AMERICAN ADVERTISING 1776 K Street, N.W.

FEDERATION Washington, D.C. 20006

1101 Vermont Avenue, N.W. (202) 429-7000

Suite 500 Attorneys for Amici Curiae

Washington, D.C. 20005

JOHN F,. KAMP

DAVID S. VERSFELT

AMERICAN ASSOCIATION OF

ADVERTISING AGENCIES

1899 L Street, N.W.

Washington, D.C. 20036

KENNETH M. VITTOR

SLADE METCALF

MAGAZINE PUBLISHERS OF

AMERICA

919 Third Avenue, 22nd Floor

New York, N.Y. 10022

December 14, 1993