Amicus Curiae Brief — City of Ladue v. Gilleo

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9) FILED &@

| | DEC 14 1993

No. 92-1856

ae |

IN THE |

Supreme Court of the United States

OCTOBER TERM, 1993

CITY OF LADUE, et ai.,

Petitioners,

MARGARET P. GILLEO,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF OF PEOPLE FOR THE AMERICAN WAY

AND AMERICAN JEWISH CONGRESS AS

AMICI CURIAE IN SUPPORT OF THE RESPONDENT

Of Counsel: TIMOTHY B. DYK

ELLIOT M. MINCBERG (Counsel of Record)

PEOPLE FOR THE BARBARA McDOWELL

AMERICAN WAY DAVID J. SCHENCK

2000 M Street, N.W.

Washington, D.C. 20036 JONES, DAY, REAVIS

(202) 467-4999 & POGUE

1450 G Street, N.W.

MARC D. STERN ———-

AMERICAN JEWISH nn

CONGRESS Counsel for the Amici

15 East 84th Street :

New York, New York 10028

(212) 879-4500

| BEST AVAILABLE COPY;

QUESTION PRESENTED

Whether a city ordinance that prohibits citizens from displaying

political and ideological signs on their residential property, while

permitting them to display other commercial and non-commercial

signs, violates the First Amendment?

(i)

(iii)

TABLE OF CONTENTS

Page

ie . ks béu sHededcseeessa cs i

EE + osvecccceesotosecses V

TT UME oscccccccccceccccees 1

SUMMARY OF THE ARGUMENT ............... 2

DT ieee h Rene saceatessccecececes +

THE LADUE SIGN ORDINANCE VIOLATES THE FIRST

AMENDMENT BY PROHIBITING CITIZENS FROM

EXPRESSING THEIR OWN POLITICAL AND

IDEOLOGICAL VIEWS ON THEIR OWN PROPERTY ... 4

A. This Case Implicates Core First Amendment

a ek ta oc 4

1. The Ladue Sign Ordinance Strikes At Political And

Ideological Speech At The Heart Of The First

Amendment’s Protections ................. 5

2. The Ladue Sign Ordinance Prohibits Citizens From

Engaging In Political And Ideological Speech On

Their Own Residential Property ............. 7

B. The Ladue Sign Ordinance Cannot Withstand First

Amendment Scrutiny As A Content-Neutral "Time,

Place And Manner" Regulation ................ 13

1. The Ladue Sign Ordinance Is Not Content-Neutral,

But Instead Discriminates Against Political And

ST Te 12

(iv)

TABLE OF CONTENTS (Cont’d.)

Page

2. The Ladue Sign Ordinance Is Not N

‘ arrow!

Tailored To Address The City’s Aesthetic And

a , But Instead Imposes An Absolute

| On Political And Ideological Signs On

Residential Property.................. 17

(v)

TABLE OF AUTHORITIES

Page

Cases

Arlington County Republican Comm. v. Arlington

County, 983 F.2d 587 (4th Cir. 1993) .......... passim

Baldwin v. Redwood City, 540 F.2d 1360 (9th Cir. 1976),

cert. denied, 431 U.S. 913 (1977) ......... 4, 10, 23, 24

Barnes v. Glen Theatre, Inc..,

eed tee ecko secceses 2

Bolger v. Youngs Drug Prods. Corp.,

TT TPE EET TTT 9

Boos v. Barry, 485 U.S. 312 (1988) .......... 5, 13, 27

Burson v. Freeman, 112 S. Ct. 1846 (1992) ....... 27, 28

Carey v. Brown, 447 U.S. 455 (1980) ............ 4, 28

Church of Lukwmi Babalu Aye, Inc. v. City of

EE EE ns cece ccc cc cece 2

City of Antioch v. Candidates’ Outdoor Graphic

Serv., 557 F. Supp. 52 (N.D. Cal. 1982) .......... 26

City of Cincinnati v. Discovery Network, Inc. ,

Pees Oke vee cceeces passim

City of Euclid v. Mabel, 484 N.E.2d 249 (Ohio App. 1984),

cert. denied, 474 U.S. 826 (1985)... .........54.6. 27

Cohen v. California, 403 U.S. 15 (1971) .......... 9, 21

Collier v. City of Tacoma,

854 P.2d 1046 (Wash. 1993) ........... 11, 24, 26, 27

Consolidated Edison Co. v. Public Serv. Comm'n,

SE en cnet. celcce ese e 5, 7, 8, 13

Edwards v. Aguillard, 482 U.S. 578 (1987) ........... 2

Frisby v. Schultz,

nT oe. ocd edb eeeeecs 7, 12, 17, 22

Garrison v. Louisiana, 379 U.S. 64 (1964) ........... 5

Gilleo v. City of Ladue,

EE ee eee 13

Heffron v. International Soc’y for Krishna

Consciousness, Inc., 452 U.S. 640 (1981)... ....... 20

(vi)

TABLE OF AUTHORITIES (Cont’d.)

Page

International Soc’y for Krishna Consciousness,

Inc. v. Lee, 112 §. Ct. 2711 (1992) ......... 21, 22, 26

Lamont v. Postmaster General,

vee cetdaeescesocececes ee 9

Linmark Assocs. v. Township of Willingboro,

eee s Veneueeesuecceeé e's passim

Loftus v. Township of Lawrence Park,

764 F. Supp. 354 (W.D. Pa. 1991) ............ 11, 27

Martin v. City of Struthers,

Tc ieee eee ee be ews 8, 9, 23, 26

Martin v. Wray, 473 F. Supp. 1131 (E.D. Wis. 1979) ... 11

Matthews v. Town of Needham,

Ce SE soc cic eeeesnceese§s 10

Members of City Council of City of Los Angeles

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

Metromedia, Inc. v. City of San Diego,

GPT ceeucaebseccocccoescece passim

Metromedia, Inc. v. City of San Diego,

610 P.2d 407 (Cal. 1980), rev'd,

GP PEED Ge She eébecceezccecs 10, 12, 20

Metromedia, Inc. v. Mayor and City Council of

Baltimore, 538 F. Supp. 1183 (D. Md. 1982) ....... 11

Milk Wagon Drivers Union Local 753 v. Meadowmoor

Dairies, Inc., 312 U.S. 287 (1941) .............. 23

NAACP v. Claiborne Hardware Co..,

CT <heveccenecs cer ecsecseccen 5

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) .... 5

Orazio v. Town of North Hempstead,

426 F. Supp. 1144 (E.D.N.Y. 1977) ............. 11

Outdoor Sys., Inc. v. City of Mesa,

I sw co cccceceseesaws 5

Pace v. Village of Walton Hills,

238 N.E.2d S42 (Obio 1968) ............2 eee 11

(vii)

TABLE OF AUTHORITIES (Cont’d.)

Page

People v. Middlemark, 420 N.Y .S.2d 151

i hth nab bo 6's 6b 6 86.60.6060 6.00 27

Perry Educ. Ass’n v. Perry Local Educators’ Ass'n,

PTT TCE TET ETTT TTT passim

Renton v. Playtime Theatres, Inc. ,

DP cc ccc upeGeebeseeerecceos 17

Ross v. Goshi, 351 F. Supp. 949 (D. Haw. 1972) ...... 27

Runyon v. Fasi, 762 F. Supp. 280 (D. Haw. 1991) ... 11, 20

Schad v. Borough of Mount Ephraim,

EE ee 7,17

Simon & Schuster, Inc. v. Members of New York State

Crime Victims Bd., 112 S. Ct. 501 (1991) .......... 16

Spence v. Washington, 418 U.S. 405 (1974)

PPG Bese sebeweessebedcccocccceccs 4,8

Stanley v. Georgia, 394 U.S. 557 (1969) ............ 9

State v. Hodgkiss, S65 A.2d 1059 (N.H. 1989) ....... 10

State v. Miller, 416 A.2d 821 (N.J. 1980) ...... 10, 24, 25

Tauber v. Town of Longmeadow,

695 F. Supp. 1358 (D. Mass. 1988) ............. 11

Tinker v. Des Moines Indep. Comm. School Dist.,

Pek e eh hice bese cceceees 9

United States v. Eichman, 496 U.S. 310 (1990) ........ 2

United States v. Grace, 461 U.S. 171 (1983) ......... 12

Village of Schaumburg v. Citizens for a Better Env’t,

i eee nce eee ee eee eee 6 7

Ward v. Rock Against Racism, 491 U.S. 781 (1989) .... 16

Whitton v. City of Gladstone, 1993 U.S. Dist.

LEXIS 13026 (W.D. Mo. Sept. 17, 1993)..... 11, 20, 27

Wooley v. Maynard, 430 U.S. 705 (1977) ............ 8

Young v. American Mini Theatres, Inc. ,

i nine dos a6 6566s 6600808 17

(viii)

TABLE OF AUTHORITIES (Cont’d.)

Page

Statutes and Ordinances

Highway Beautification Act of 1965,

ED ono 6 cb 6c eee ev bab eee 11, 12

ne 14

Ladue, Mo., Ordinances, ch. 35 ............... passim

Miscellaneous

R. Douglass Bond, Note, Making Sense of Billboard Law:

Justifying Prohibitions and Exemptions,

88 Mich. L. Rev. 2482 (1990) ................. 23

Geoffrey R. Stone, Fora Americana: Speech in

Public Places, 1974 Sup. Ct. Rev. 233.......... 26, 27

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

No. 92-1856

CITY OF LADUE, et ai.,

Petitioners,

Vv.

MARGARET P. GILLEO,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF OF PEOPLE FOR THE AMERICAN WAY

AND AMERICAN JEWISH CONGRESS AS

AMICI CURIAE IN SUPPORT OF THE RESPONDENT

INTEREST OF THE AMICT

People for the American Way is a nonpartisan, education-

oriented citizens’ organization established to promote and protect

civil and constitutional rights, including First Amendment

freedoms. Founded in 1980 by a group of religious, civic and

educational leaders devoted to our nation’s heritage of tolerance,

pluralism and liberty, People for the American Way now numbers

more than 300,000 members nationwide.

* Counsel for both petitioners and respondent have consented to the filing

of this brief amici curiae. Their consents are on file with the Clerk of

the Court.

The American Jewish Congress is an organization of American

Jews founded in 1918. It is dedicated to the preservation of the

civil, political, economic and religious rights of American Jews

and all Americans.

These amici have filed briefs in this Court in other cases that

implicated their members’ concerns for protecting First

Amendment freedoms. See, e.g., Church of Lukumi Babalu Aye,

Inc. v. City of Hialeah, 113 S.Ct. 2217 (1993); Barnes v. Glen

Theatre, Inc., 111 S. Ct. 2456 (1991); United States v. Eichman,

496 U.S. 310 (1990); Edwards y. Aguillard, 482 U.S. 578

(1987). The amici’s concern in this case is to assure that

Americans remain free to engage in political and ideological

speech by displaying signs, posters, banners and other such

materials in their yards, on their homes and in their windows.

While a city reasonably may regulate the size, number and

placement of these signs in order to promote safety and aesthetics,

the city cannot, consistent with the First Amendment, impose an

absolute ban on these signs, as did the City of Ladue. It is

particularly impermissible for a city to prohibit political or

ideological signs while, as here, permitting certain commercial

Signs as well as non-commercial signs that are not political or

ideological.

SUMMARY OF THE ARGUMENT

In early 1991, Margaret Gilleo posted a single 8-1/2-by-11-inch

that read "FOR PEACE IN THE GULF." Ms. Gilleo thereby

violated the City of Ladue’s newly enacted sign ordinance, which

prohibits the display of any “sign,” “insignia” or "banner" on any

residential property that "publicizes an .. . activity, opinion,

person, institution [or] organization." The City had earlier

construed a predecessor ordinance to bar Ms. Gilleo from placing

a sign in her yard that urged persons to "CALL CONGRESS

NOW" about the Persian Gulf situation.

The Ladue Sign ordinance does not, however, ban all signs

from the residential property of Ladue. Citizens are free to

display “residence identification signs" as well as "For Sale" and

"For Rent" signs in their yards and windows. Moreover, while

citizens cannot display signs at their homes concerning any

political, religious or social activities (or many commercial

activities) that may be taking place there, no such prohibition

applies to schools or churches, or to businesses in the commercial

and industrial areas of Ladue. The ordinance thus expressly

discriminates on the basis of content against political and

ideological speech. It also discriminates against the speech of

individual citizens, and in favor of the speech of educational,

religious and business institutions.

The sign ordinance violates the First Amendment right of Ms.

Gilleo and other citizens of Ladue to engage in a venerable form

of political speech on their own residential property. The ordi-

nance cannot, as petitioners suggest, be justified as a valid time,

place or manner regulation. The ordinance is not content-neutral,

but instead by its terms favors certain speech on the basis of its

content. Nor is the ordinance narrowly tailored to serve the

City’s asserted interests in preventing the aesthetic and safety

problems that may be caused by sign proliferation. Those

interests can be adequately served merely by regulating the

number, size and placement of signs on residential property,

rather than by banning political, ideological and many other types

of signs entirely. Furthermore, because the ordinance eliminates

a medium of expression that is singularly inexpensive, efficient

and effective for conveying political and ideological views, the

ordinance does not leave open ample alternative channels of

communication.

As a facially content-based restriction on political speech,

therefore, the Ladue sign ordinance is subject to the most exacting

scrutiny. It is not among those rare laws that can survive such

scrutiny. The aesthetic and safety interests that purportedly

motivated the sign ordinance, while more than trivial, are not the

sorts of interests that this Court has ever suggested are

compelling. An absolute prohibition against most categories of

signs on residential property is not, moreover, essential to serve

those aesthetic and safety interests. The Court of Appeals thus

correctly held that the sign ordinance violates the First

Amendment.

ARGUMENT

THE LADUE SIGN ORDINANCE VIOLATES THE FIRST

AMENDMENT BY PROHIBITING CITIZENS FROM

EXPRESSING THEIR OWN POLITICAL AND

IDEOLOGICAL VIEWS ON THEIR OWN PROPERTY

A. This Case Implicates Core First Amendment Concerns

This is a case in which the individual’s claim to First

Amendment protection is at its zenith. The City of Ladue is

seeking to prohibit its citizens from engaging in speech on public

issues, which “has always rested on the highest rung of the

hierarchy of First Amendment values." Carey v. Brown, 447

U.S. 455, 467 (1980). The prohibition is directed at a time-

honored form of communication — outdoor Signs, posters and

banners - that is “virtually pure speech,” rather than speech

combined with conduct. Arlington County Republican Comm. y.

Arlington County, 983 F.2d 587, 593 (4th Cir. 1993) (quoting

Baldwin v. Redwood City, 540 F.2d 1360, 1366 (9th Cir. 1976),

cert. denied, 431 U.S. 913 (1977)). Moreover, citizens are being

barred from engaging in this pure political speech on their own

residential property — where, as this Court and the lower courts

have recognized, the government’s authority to interfere with a

citizen's exercise of First Amendment rights is exceedingly

limited. See, e.g., Linmark Assocs. y. Township of Willingboro,

431 US. 85 (1977); Spence v. Washington, 418 U.S. 405 (1974)

(per curiam); cf. Members of City Council of City of Los Angeles

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

the significance under the First Amendment of "[t}he private

citizen’s interest in controlling the use of his own property").

1. The Ladue Sign Ordinance Strikes At Political And

Ideological Speech At The Heart Of The First

Amendment’s Protections

This Court has repeatedly observed that "the First Amendment

reflects a ‘profound national commitment’ to the principle that

‘debate on public issues should be uninhibited, robust, and wide

open,’ and hafs] consistently commented on the central

importance of protecting speech on public issues." Boos v. Barry,

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

Sullivan, 376 U.S. 254, 270 (1964)). This is because "[s]peech

concerning public affairs is more than self expression; it is the

essence of self-government." NAACP v. Claiborne Hardware

Co., 458 U.S. 886, 913 (1982) (quoting Garrison v. Louisiana,

379 U.S. 64, 74-75 (1964)). The Court has thus emphasized that,

by “limit[ing] the means by which [persons] may participate in the

public debate on . . . controversial issues of national interest and

importance,” the government “strikes at the heart of the freedom

to speak." Consolidated Edison Co. v. Public Serv. Comm’n, 447

U.S. 530, 535 (1980).'

' Contrary to petitioners’ suggestion (e.g., Br. for Pet’rs at 33), the

Court's recent decision in City of Cincinnati v. Discovery Network, Inc..

113 S.Ct. 1505 (1993), does not even suggest that political and

ideological speech is not still entitled to the highest degree of First

Amendment protection. Indeed, the Court in Discovery Network

reaffirmed the primacy of noncommercial speech, while acknowledging

that commercial speech also has considerable value. See 113 S. Ct. at

1511-14; see also id. at 1521 (Blackmun, J., concurring) (expressing

hope that “the Court ultimately will . . . afford{] full protection for

truthful, noncoercive commercial speech about lawful activities")

(emphasis added). Nothing in Discovery Network suggests that a city

can discriminate, as Ladue has here, against political and ideological

speech, and in favor of commercial speech, without some truly

compelling justification. See Outdoor Sys., Inc. v. City of Mesa, 997

F.2d 604, 610 (9th Cir. 1993) (Discovery Network did not alter

“commercial-non-commercial analytical distinction" with respect to

billboard regulation).

The Ladue sign ordinance does precisely that. The ordinance

expressly prohibits citizens from displaying any "sign,"

"banne[r]," “insignia” or similar object on their residential

Property that “publicizes an... . activity, opinion, person,

institution [or] organization." Chapter 35, § 35-1 (J.A. 120).

The ordinance also forbids all political and ideological signs,

while allowing certain commercial Signs, in the commercial and

industrial districts of Ladue. The City of Ladue has construed the

ordinance as prohibiting Ms. Gilleo from expressing her views on

the Persian Gulf War by placing an 8-1/2-by-11-inch sign stating

"FOR PEACE IN THE GULF" in a second-story window of her

home. (J.A. 188). The City construed a similar predecessor

ordinance to bar Ms. Gilleo from maintaining a yard sign that

read "SAY NO TO WAR IN THE PERSIAN GULF/CALL

CONGRESS NOW." (J.A. 23-24).

A citizen of Ladue is, therefore, absolutely prohibited from

engaging in political or ideological expression on his residential

property by means of “'[tJhe outdoor sign or symbol'" — "'a

venerable medium for expressing political, social and commercial

ideas'" that has "'played a prominent role throughout American

history, rallying support for political and social causes.'"

Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 501 (1981)

(plurality opinion) (quoting lower court dissenting opinion). A

variety of outdoor signs and symbols, many of which would be at

risk under the Ladue ordinance, confirm the enduring vitality of

this medium of expression: the broadsides that called upon

Americans of an earlier era to join the cause of liberty; the red,

white and blue banners and bunting that Americans have long

utilized both to endorse and to condemn our nation’s policies; the

gold and blue stars that families of U.S. military personnel

proudly displayed in the front windows of their homes during

World War II; the yellow ribbons and “Welcome Home" signs

that have more recently celebrated the release of Americans held

hostage in foreign lands; the colorful yard signs that spring up

during election season, belying assertions that we are a politically

apathetic people.

eT OO lim A evil 4.

Yet, the City of Ladue would seem to tolerate little, if any, of

this political discourse, just as the City would not tolerate Ms.

Gilleo’s "FOR PEACE IN THE GULF" sign. The City’s ban on

this vital means of political and ideological expression thus

"strikes at the heart of [its citizens’] freedom to speak."

Consolidated Edison, 447 U.S. at 535.

The Ladue sign ordinance does not, of course, suppress only

political and ideological speech. The ordinance also reaches many

other signs that are common in modern suburbia, such as "It’s a

Girl," “Happy Holidays," "Go Cardinals," "Garage Sale

Saturday" and “Neighborhood Crime Watch." The ordinance

appears to prohibit a homeowner even from attempting to protect

his privacy by posting a "No Solicitors" or "Do Not Disturb” sign

on his front door.”

2. The Ladue Sign Ordinance Prohibits Citizens From

Engaging In Political And Ideological Speech On

Their Own Residential Property

This Court has often explained that "the standards by which

limitations on speech must be evaluated ‘differ depending on the

character of the property at issue.'" Frisby v. Schultz, 487 U.S.

474, 479 (1988) (quoting Perry Educ. Ass’n v. Perry Local

Educators’ Ass’n, 460 U.S. 37, 44 (1983)); accord Schad v.

Borough of Mount Ephraim, 452 U.S. 61, 75 (1981). A restric-

tion that, like the Ladue sign ordinance, prevents persons from

engaging in First Amendment activity on their own property must

meet a particularly exacting standard.

* The Court has recognized that such signs are a particularly appropriate

means of reconciling the homeowner’s privacy interests with the First

Amendment rights of door-to-door canvassers, leafletters and solicitors.

E.g., Village of Schaumburg v. Citizens for a Better Env't, 444 U.S.

620, 639 (1980). Yet, while contending that Ms. Gilleo should

personally confront her neighbors at their homes rather than post a sign

in her own yard or window (Br. for Pet’rs at 40-41), the City would

deny those neighbors the most effective means of avoiding such an

encounter.

In Consolidated Edison, for example, the Court held that the

New York Public Services Commission could not bar a utility

company from enctosing materials in its billing envelopes that

expressed its views on nuclear power and other public

controversies. 447 U.S. at 533-44. The Court emphasized that

"Consolidated Edison has not asked to use the offices of the

[Public Services] Commission as a forum from which to

promulgate its views," but instead "seeks merely to utilize its own

billing envelopes to promulgate its views on controversial issues

of public policy." Jd. at 539-40. Accordingly, said the Court,

"the Commission’s attempt to restrict the free expression of a

private party cannot be upheld by reliance upon precedent that

rests on the special interests of a government in overseeing the

use of its property." Jd. at 540.

Similarly, in overturning an individual’s conviction in Spence

for hanging an American flag decorated with a peace symbol from

the window of his apartment, the Court noted no fewer than three

times that the activity occurred on private property, 418 U.S. at

406, 409, 411, rather than "in an environment over which the

State by necessity must have certain supervisory powers unrelated

to expression." Jd. at 411. Indeed, the Court specifically

observed that the fact that the decorated flag had been displayed

on private property was one of "[a] number of factors [that] are

important in the instant case.” Jd. at 408. It was therefore not

"a case that might be‘analyzed in terms of reasonable time, place,

or manner restraints on access to a public area." Jd. at 409; cf

Wooley v. Maynard, 430 U.S. 705, 713 (1977) (a citizen has a

First Amendment right not to be compelled to display the state’s

ideological message “on his private property").°

* Other cases have also concluded that the individual's right to engage

in First Amendment activity applies with particular force at his own

home. In invalidating an ordinance barring door-to-door leafletting in

Martin v. City of Struthers, 318 U.S. 141 (1943), the Court considered

the First Amendment rights of both homeowners and leafletters. The

Court explained that the ordinance improperly “substitute[d] the

judgment of the community for the judgment of the individual

te —

The decisions of this Court and the lower courts in cases

involving First Amendment challenges to municipal sign

regulations evince a particular concern with allowing individuals

to express themselves on their own residential property. In

Linmark Associates, the Court invalidated an ordinance that

prohibited homeowners from posting real estate "For Sale" and

"Sold" signs. 431 U.S. at 91-98. The Court explained that an

individual’s other alternatives for selling his property, such as

newspaper advertising, involved “less autonomy” than “a ‘For

Sale’ sign in front of the house to be sold." Jd. at 93.

In Vincent, while upholding a Los Angeles ordinance that

prohibited the posting of signs on public property, the Court

indicated that a ban against signs on private property would

present more significant constitutional issues, given “(t]he private

citizen’s interest in controlling the use of his own property." 466

U.S. at 811. Moreover, in concluding that the ordinance did not

unduly interfere with citizens’ right to engage in political speech,

the Court emphasized that citizens remained free to display their

signs on private property. Jd. at 795, 812. As the Court

observed, “by not extending the ban to [private property], a

significant opportunity to communicate by means of temporary

signs is preserved." Jd. at 811.

householder," because the leafletter would be subject “to criminal

punishment for annoying the person on whom he calls, even though the

recipient of the literature distributed is in fact glad to receive it." Jd. at

144. The Court emphasized that the government should “leav[e) the

decision as to whether distributors of literature may lawfully call at a

home where it belongs -- with the homeowner himself." /d. at 148; see

also, e.g., Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 74-75

(1983); Lamont v. Postmaster General, 381 U.S. 301 (1965); Stanley v.

Georgia, 394 U.S. 557 (1969). An individual's right to express his

views on his own property is, moreover, analogous to an individual's

right to express his views on his own person. See, ¢.g., Cohen v.

California, 403 U.S. 15 (1971); Tinker v. Des Moines Indep. Comm.

School Dist. , 393 U.S. 503 (1969).

The lower courts have consistently held that, whatever a city’s

authority may be to regulate signs on public property, a city

cannot prevent its citizens from displaying signs on their own

residential property. For example, while this Court did not have

occasion in Metromedia to address the constitutionality of an

in their own yards, the California Supreme Court did consider the

issue in the opinion ultimately reviewed by this Court.

Metromedia, Inc. v. City of San Diego, 610 P.2d 407 (Cal.

1980), rev'd, 453 U.S. 490 (1981). The California Supreme

Court construed the San Diego ordinance at issue as permitting "a

small sign placed in one’s front yard proclaiming a political or

necessary in order “to avoid the risk of unconstitutional

overbreadth which a broad construction of the ordinance might

entail.” Id. at 410 n.2; see also Metromedia, 453 U.S. at 494 n.2

(noting California Supreme Court's limiting constructioa).

ordinances that restrict an individual’s right to display a political

or ideological sign on his own residential property. E.g.,

Arlington County Republican Comm. , 983 F.2d at 595 (explaining

that a restriction on political yard signs "infringes i on the rights of

two groups: the candidates and the homeowners,” because

“[hlomeowners also express their views by posting political signs

in their yard"); Matthews v. Town of Needham, 764 F.2d 58, 61

(Ist Cir. 1985) (emphasizing that the sign ordinance at issue,

unlike the ordinance in Vincent, “touches on private property” and

thus was invalid); Baldwin, 540 F.2d at 1373 (recognizing “the

right of residents to express their own views" on political issues

by displaying signs in their yards); State v. Miller, 416 A.2d 821,

827 (N.J. 1980) ("ordinances which exclude political signs from

residential districts have uniformly been held unconstitutional"):

of. State v. Hodgkiss, 565 A.2d 1059, 1062 (N.H. 1989) (Souter,

J.) (observing that restrictions on posting signs on trees and poles

located on private property could present “constitutional

problems”").‘

This is not, therefore, a case involving “the law of billboards,"

and the “unique set of problems" presented by such “large,

immobile, and permanent structure[s]" on commercial property.

Metromedia, 453 U.S. at 501-02. Nor is it a case involving a

municipality’s management of its own property. See Vincent, 466

U.S. at 813-15. It is, imstead, a case about an individual

homeowner’s right to place a single sign in her own yard or in

her own window to express her views on a controversial public

issue. None of this Court’s authorities suggest that the City of

Ladue’s absolute prohibition against such signs can be squared

with the First Amendment.°

* See also, e.g., Whitton v. City of Gladstone, 1993 U.S. Dist. LEXIS

13026, *17, *20 (W.D. Mo. Sept. 17, 1993) ("that Gladstone attempts

to regulate a resident’s exercise of speech in his or her own yard

demands that the court apply more exacting, not less scrutiny than it

would in analyzing a content-based regulation in public forum cases");

Loftus v. Township of Lawrence Park, 764 F. Supp. 354 (W.D. Pa.

1991); Runyon v. Fasi, 762 F. Supp. 280 (D. Haw. 1991); Tauber v.

Town of Longmeadow, 695 F. Supp. 1358 (D. Mass. 1988);

Metromedia, Inc. v. Mayor and City Council of Baltimore, 538 F . Supp.

1183 (D. Md. 1982); Martin v. Wray, 473 F. Supp. 1131 (E.D. Wis.

1979); Orazio v. Town of North Hempstead, 426 F. Supp. 1144

(E.D.N.Y. 1977); Pace v. Village of Walton Hills, 238 N.E.2d 542

(Ohio 1968); of. Collier v. City of Tacoma, 854 P.2d 1046 (Wash. 1993)

(invalidating restrictions on political signs under free speech provision

of Washington Constitution).

* The petitioners and their amici suggest that, if the Ladue sign

ordinance is held to be unconstitutional, then the Highway Beautification

Act of 1965, 23 U.S.C. § 131 (1988), must also be presumed to be

unconstitutional. See Br. for Pet’rs at 48-50; Br. Amicus Curiae of

Hawaii et al. at 3-14. These concerns are, at best, premature. It is

questionable whether the Act’s restrictions on “outdoor advertising signs,

displays, and devices," 23 U.S.C. § 131(a) (1988), encompass the small

political and ideological signs on residential property that are at issue in

B. The Ladue Sign Ordinance Cannot Withstand First

Amendment Scrutiny As A Content-Neutral "Time, Place

And Manner" Regulation

The petitioners attempt to justify the Ladue sign ordinance as

a valid “time, place and manner" regulation notwithstanding that

the ordinance prohibits citizens from posting political or

ideological signs at amy time, in any place on their residential

property, and in amy manner within the City of Ladue. Cf

United States v. Grace, 461 U.S. 171, 178 (1983) (contrasting

“reasonable time, place, and manner regulations” with "an

absolute prohibition on a particular type of expression").

However, even applying the standard that petitioners agree is

applicable to the analysis of time, place and manner regulations,

the ordinance cannot be sustained.

This Court has stated that a time, place and manner regulation

can withstand First Amendment scrutiny only if three criteria are

satisfied: the regulation must be "'content-neutral,'” the regula-

tion must be "'narrowly tailored to serve a significant government

interest,'" and the regulation must "'leave open ample alternative

channels of communication.'" Frisby, 487 U.S. at 481 (quoting

Perry Educ. Ass'n, 460 U.S. at 45). The Ladue sign ordinance

fails each of these requirements.

this case.

Moreover, the Act prohibits only “outdoor advertising” that is outside

an area Zoned for business or industrial use, visible from the highway

and, except in rural areas, within 660 feet of the right-of-way. 23

U.S.C. § 131(6), (d) (1988). No evidence has been presented in this

case as to whether the Act would, like the Ladue sign ordinance, entirely

publicly displaying signs anywhere on their residential property. Of

course, as Justice White observed in Metromedia, "[wJhether, in fact,

the distinction [between the Act and a local sign ordinance] is

constitutionally significant can only be determined on the basis of a

record establishing the actual effect of the Act on [signs] conveying

noncommercial messages.” 453 U.S. at 515 n.20.

- 1. The Ladue Sign Ordinance Is Not Content-Neutral,

But Instead Discriminates Against Political And

Ideological Speech

"The ‘First Amendment’s hostility to content-based regulation

extends . . . to prohibition of public discussion of an entire

topic.'" Boos v. Barry, 485 U.S. 312, 319 (1988) (quoting

Consolidated Edison, 447 U.S. at 537). The Ladue sign

ordinance is content-based because citizens are prohibited from

engaging in speech on multiple “entire topic[s]" -- including any

conceivable political or ideological issue - through the medium

of signs in their yards, on their houses and in their windows. At

the same time, the City permits signs on certain favored

commercial and non-commercial topics. Indeed, the sign

also against particular speakers, because the speech of schools,

churches and other institutions is favored over the speech of

The Ladue sign ordinance, while generally prohibiting a

homeowner from displaying any “signs,” “insignias,” “banners,”

"pennants" and other such materials on his residential property,

contains two express exceptions: "residence identification signs"

and “[gjround signs advertising the sale or rental of real

property.” Chapter 35, §§ 35-4 to 35-10 (J.A. 121-22, 126).

Nothing in the ordinance appears to preclude a homeowner from

posting a “residence identification sign” that identifies his

residence as that of a physician, a lawyer, a certified public

accountant or other professional, and thereby advertising the

occupation that he pursues either at the residence or elsewhere.

The ordinance thus permits a citizen to display certain categories

* Real estate signs may be up to six square feet in size, which appears

to have been approximately the size of Ms. Gilleo’s yard sign (see J.A.

194). Residence identification signs may be up to one square foot in

size, and thus larger than Ms. Gilleo’s window sign (see Gilleo v. City

of Ladue, 986 F.2d 1180, 1182 (8th Cir. 1993)). Chapter 35, §§ 35-4

to 35-10 (J.A. 121-22, 126).

of commercial and non-commercial signs on his residential

property -- ¢.g., “House for Sale," “House for Rent,” "Bill Jones,

C.P.A.," "The Smith Residence" -- while absolutely prohibiting

a citizen from displaying any political or ideological signs, or

signs on other commercial or non-commercial topics.’

The Ladue sign ordinance also favors certain speech of

businesses and others enterprises located in commercial or

industrial areas over the speech of individual homeowners. Those

who own or rent property in areas zoned for commercial or

industrial use may display signs that “directly relate[] to the

activity taking place on the property." Br. for Pet’rs at 28. But

citizens cannot display signs on their residential property that

relate to political, religious, social or certain commercial activity

taking place on the property - activity such as “meet the

candidate" coffees, meetings of neighborhood improvement

associations, block parties or garage sales. Accordingly, if Ms.

Gilleo were to coordinate a "Peace in the Gulf" Committee out of

her residence in Ladue, she could not display a sign in her yard

announcing the Committee’s activities. In contrast, if the U.S.

Army were to operate a recruiting office in the business district

of Ladue, it could post signs urging young people to sign up to

wage war in the Gulf. Chapter 35, § 35-4 (J.A. 121-22).

Moreover, the Ladue sign ordinance permits churches, other

religious institutions and schools located in residential districts to

make more extensive use of signs than can individual home-

owners. Each church, religious institution or school is allowed

” It makes no difference that the City of Ladue was foreclosed by

Missouri law from banning real estate signs, see Mo. Rev. Stat.

§ 67.317 - a result that may well have been compelled in any event by

this Court’s decision in Linmark Associates, 431 U.S. at 94-97. The

City of Ladue still had the choice whether to treat political and

ideological signs more favorably, as favorably or less favorably than real

estate signs. The City chose to discriminate against political and

ideological speech, not only in favor of real estate signs, but also in

favor of any commercial or non-commercial message that might be

displayed on a “residence identification sign."

one "identification sign," one permanent bulletin board or ground

sign, and one “temporary sign” that can remain in place for up to

sixty days. Chapter 35, § 35-5 (J.A. 122-23). These signs may

contain "the name of such church, religious institution, or school,

its services, activities or other functions.” Jd. There is nothing

in the ordinance to preclude a church or other religious institution

from displaying a sign announcing, and thereby endorsing,

political and ideological activities. It would hardly be

unprecedented for a church or religious institution to advertise,

for example, "Mass for the Unborn," "Prayer Vigil for Peace in

the Gulf," “Sunday’s Sermon: Restoring God to Our Schools,” or

an appearance by a political candidate favored by parishioners.

To be sure, religious and educational institutions are constrained

in their ability to engage in political and ideological speech,

because that speech must to some extent relate to their "services,

activities or other functions." But they still have considerably

greater freedom to convey political and ideological messages than

do ordinary citizens. Of course, these institutions are also

allowed to post signs on other topics - ¢.g., rummage sales,

potluck dinners and casino nights -- while homeowners are barred

from posting signs announcing their own social activities and most

commercial activities.

The petitioners contend that the ordinance is content neutral --

even though it discriminates by its terms in favor of particular

topics of speech -- because this discrimination has a "content-

neutral explanation." Br. for Pet’rs at 24. But the Court

squarely rejected such an argument just last Term in City of

Cincinnati v. Discovery Network, Inc., 113 §. Ct. 1505, 1516-17

(1993). The City of Cincinnati in that case, much like the City

of Ladue here, sought to sustain a newsrack ordinance that

expressly accorded different treatment to different categories of

speech, arguing that "the justification for the regulation is content

neutral” because "the interests in safety and esthetics that it serves

are entirely unrelated to the content of respondents’ publications."

Id. at 1516. The Court concluded, however, that the Cincinnati

ordinance was plainly content-based, whether or not its drafters

had intended to suppress discussion of particular topics or ideas.

As the Court explained:

Regardless of the mens rea of the city, it has enacted a

sweeping ban on the use of newsracks that distribute

“commercial handbills," but not "newspapers." Under the

city’s newsrack policy, whether any particular newsrack falls

within the ban is determined by the content of the publication

resting inside that newsrack. Thus by any commonsense

understanding of the term, the ban in this case is “content-

based."

Id. at 1516-17; see also Simon & Schuster, Inc. v. Members of

New York State Crime Victims Bd., 112 S. Ct. 501, 509 (1991).*

So, too, whether or not any particular sign falls within the City

of Ladue’s ban is determined by the content of that sign. If a

sign carries a political or ideological message, then the sign is

absolutely forbidden. If, however, the sign concerns the sale or

rental of real estate, or the identity of the residents of the house,

or the activities of a church or school, or the products or services

offered on-site by a business in a commercial or industrial zone,

then the sign may be permitted. It would be contrary to "any

commonsense understanding," therefore, to treat the Ladue sign

ordinance as anything other than content-based.°

* This case, like Discovery Network and Simon & Schuster and unlike

Ward v. Rock Against Racism, 491 U.S. 781 (1989), concerns a

regulation that expressly treats speech on certain topics differently from

speech on other topics. In contrast, Ward involved an ordinance that

was neutral on its face, applying to all speakers who used the Central

Park Bandshell, and that, at most, may have incidentally affected some

speech (e.g., rock concerts) more than others (e.g., operas).

* The petitioners suggest that, if the Ladue sign ordinance cannot be

upheld as a time, place and manner regulation because it is content-

based, then the ordinance might still be upheld under the “secondary .

effects" doctrine. See Br. for Pet’rs at 42-44. But the Court has applied

2. The Ladue Sign Ordinance Is Not Narrowly Tailored

To Address The City’s Aesthetic And Safety

Interests, But Instead Imposes An Absolute Ban On

Political And Ideological Signs On Residential

Property

The Ladue sign ordinance fails to satisfy the standard for a

valid time, place and manner regulation for a second reason: The

ordinance is not “narrowly tailored" to advance a “significant

government interest" in aesthetics and safety. Frisby, 487 U.S.

at 481 (quoting Perry Educ. Ass’n, #60 U.S. at 45).

In order to assess whether the Ladue sign ordinance is

sufficiently “narrowly tailored," one must first ascertain the

interest that it is designed to serve. The petitioners assert that the

ordinance is intended to address the aesthetic and safety concerns

speech only in one narrow category of cases: cases challenging

municipal zoning ordinances governing the location of businesses

purveying sexually explicit materials. See Renton v. Playtime Theatres,

Inc. , 475 U.S. 41 (1986); Young v. American Mini Theatres, Inc., 427

U.S. 50 (1976). The Court has not applied this doctrine to uphold

content-based regulations of other types of expression.

Moreover, the Court has allowed the secondary effects doctrine to be

used only to channel a particular medium of speech to a particular

location, not to ban the medium entirely. Cf. Shad, 452 U.S. at 73-74

(declining to apply secondary effects doctrine to citywide prohibition of

live entertainment). The Ladue sign ordinance, however, imposes an

absolute prohibition on the display of political and ideological signs on

residential property throughout the City.

Finally, as the Court made clear in Renton, a content-based regulation

can pass constitutional muster under the secondary effects doctrine only

if the regulation is “narrowly tailored" to reach only speech that

produces the unwanted secondary effect and “allows for reasonable

alternative avenues of communication." 475 U.S. at 52-53. As

explained in the text, the Ladue sign ordinance is not narrowly tailored

to serve the City’s interest in preventing sign proliferation and “visual

blight." See infra pp. 17-22. Nor does the ordinance leave open

sufficient “alternative avenues of communication." See infra pp. 22-26.

ordinance is intended to address the aesthetic and safety concerns

that might be posed by “the proliferation of signs in Ladue and

the resulting blight." Br. for Pet’rs at 3. They do not appear to

suggest, therefore, that allowing citizens to display a single small

They appear, instead, to be concerned with the uncontrolled

multiplication of signs on a given piece of property — the sort of

visual blight that motivated the prohibition against signs on public

property in Vincent. However, when the property on which the

signs would be displayed is private residential property rather than

public property, there is no reason to conclude that visual blight

cannot be prevented by limiting the number, size or placement of

signs, rather than by prohibiting them.

Indeed, the City of Ladue has implicitly conceded as much in

its regulation of other sorts of signs. The City did not address the

aesthetic and safety concerns posed by commercial signs in its

business and industrial districts by banning these signs entirely.

Instead, the City chose to regulate the number of signs on any

piece of commercial property, the size and location of those signs,

and even the type of lighting used on the signs. See Chapter 35,

§§ 35-6 to 35-9, 35-11 (J.A. 123-27). An accommodation was

thus achieved among the City’s interest in preventing the

unchecked proliferation of commercial signs, local business

owners’ interest in publicizing their goods and services, and

consumers’ interest in receiving that information.

prohibits all "banners" and “pennants” on residential property, citizens

are free to display an unlimited number of "flags" on their homes and

in their yards, so long as "they are made of fabric and are not in the

shape of a banner or pennant." Br. for Pet’rs at 40. No such

distinction is contained in the ordinance itself. The petitioners’ litigating

position suggests, at least, that the City’s concept of "blight" is

somewhat limited, and requires something more than a single colorful

foreign object on every residential lot in Ladue. Petitioners have not

explained why “flags” could be assumed to pose any lesser aesthetic or

safety threat than "banners," “pennants” or "signs."

The City of Ladue abandoned this regulatory approach,

however, with respect to political and ideological signs. The City

did not seek to advance its aesthetic and safety interests by

limiting the number of signs that a citizen could display on his

residential property. Nor did the City regulate the size of the

signs, the distance of the signs from the street, or the duration

that the signs could remain in place. Accordingly, rather than

adopting a regulatory scheme that sought to accommodate the

First Amendment interests of its citizens in engaging in public

debate through political and ideological signs on their residential

property, the City simply banned all such signs. This prohibition

is far more extensive than necessary to address any significant

aesthetic and safety interests of the City. See Discovery Network,

113 S$. Ct. at 1510, 1517 (Cincinnati’s failure to address its

aesthetic and safety concerns about newsracks by “regulating their

size, shape, appearance, or number" bore on whether its ban on

commercial newsracks was narrowly tailored).

The petitioners erroneously suggest that Vincent compels the

conclusion that the sign ordinance is narrowly tailored. See Br.

for Pet’rs at 38. They invoke the Court’s statement in Vincent

that banning all signs on public property "responds precisely to

the substantive problem which legitimately concerns the City,"

because “the substantive evil -- visual blight - is not merely a

possible byproduct of the activity, but is created by the medium

of expression itself." 466 U.S. at 810. But petitioners are

attempting to extend the Court’s statement in Vincent to

circumstances entirely unlike those presented in that case.

The district court in Vincent had made a specific finding that

"the large number of illegally posted signs ‘constitute a clutter and

visual blight.'" Jd. at 794 (quoting district court finding). No

such finding has been made here. Nor can the district court’s

finding in Vincent be assumed to apply to this case, which

involves signs on private residential property, not on public

property. The Court recognized in Vincent that no effective

means existed to control the number of signs on public property

- short of imposing an outright ban -- because all speakers could

claim an equal right to post signs on the property. Jd. at 816; cf.

Heffron v. International Soc’y for Krishna Consciousness, Inc..,

452 U.S. 640, 652-54 (1981).

A different situation exists as to signs on private residential

property. As the Vincent Court observed, "private property

owners’ esthetic concerns will keep the posting of signs on their

property within reasonable bounds." Jd. at 811; see Metromedia,

610 P.2d at 410 n.2 (construing San Diego sign ordinance to

permit "noncommercial signs that present no significant aesthetic

blight or traffic hazard," such as “a small sign placed in one’s

front yard proclaiming a political or religious message"). A city

can ensure that these "reasonable bounds" are maintained,

moreover, by limiting the number of signs that a homeowner may

display, the size of the signs, or where on the property the signs

may be placed. A number of lower courts have thus recognized

since Vincent that efforts to ban all political and ideological signs

on private residential property are not narrowly tailored, because

the city’s aesthetic interest can be fully satisfied by relying on

homeowners’ own interest in maintaining the appearance of their

property, coupled with reasonable regulations as to the number,

size or placement of signs at any particular residence."

This case is not, therefore, like Vincent, where “the medium of

expression itself" was found to constitute "visual blight" because

of the uncontrollable proliferation of signs on public property.

466 U.S. at 810. Instead, given that signs on private residential

property can be adequately controlled in number and size to

satisfy aesthetic concerns (or so this Court assumed in Vincent,

and no court has found to the contrary), “visual blight" is, at

most, “merely'a possible byproduct" of such signs. /d. It

therefore cannot be said that the Ladue sign ordinance, as opposed

to the ordinance in Vincent, is a precisely tailored means of

'! See, e.g., Arlington County Republican Comm. , 983 F.2d at 594;

Whitton, 1993 U.S. Dist. LEXIS 13026, at *18-20; Runyon, 762 F.

Supp. at 284.

addressing "the substantive evil" of sign proliferation and visual

blight. Id.”

To be sure, to the extent that the City’s interest is not to

prevent what could legitimately be considered "visual blight," but

instead is simply to prevent any sign (except approved signs, such

as real estate signs) from being displayed on the residential

property of Ladue, then only an absolute prohibition could

suffice. However, while the City may have a substantial aesthetic

interest in preventing visual blight, the City has no similarly

substantial interest in preventing citizens from posting a single

small sign in their yards or in their windows, especially given the

citizens’ countervailing First Amendment interest in expressing

their political and ideological views. The City would then be

encroaching too far into those "matters of taste and style" that the

Constitution properly leaves "so largely to the individual." Cohen

v. California, 403 U.S. 15, 25 (1971). For just as “one man’s

vulgarity is another’s lyric," id., one homeowner’s eyesore is

' Nothing in the affidavit of petitioners’ expert, Malcolm C.

Drummond, suggests that sign regulation, rather than prohibition, would

not adequately address the City’s aesthetic interests. Rather, Mr.

Drummond stated:

[MJany municipalities in St. Louis County which do not strictly limit

the erection of signs frequently experience a proliferation of yard

signs and placards and temporary and permanent signs in the public

rights-of-way[.]

Drummond Aff. ¢ 81 (J.A. 154). Mr. Drummond does not, therefore,

state that a municipality could not control sign proliferation by "strictly

limit[ing]" to one or two the number of signs on a residential lot and by

prohibiting signs in “public rights-of-way." Mr. Drummond does not

even suggest, moreover, that any “visual blight" is caused by window

signs like the one posted by Ms. Gilleo. Cf. International Soc'y for

Krishna Consciousness, Inc. v. Lee, 112 S. Ct. 2711, 2714 (1992)

(opinion of O’Connor, J.) (noting that the government had offered no

record evidence to support prohibition on leafletting alone, but instead

had focused only on problems of leafletting in connection with

solicitation).

another’s Guernica. Cf. International Soc’y for Krishna

Consciousness, Inc. v. Lee, 112 §S. Ct. 2711, 2719 (1992)

(opinion of Kennedy, J.) ("The First Amendment is often

inconvenient. But that is besides the point. Inconvenience does

not absolve the government of its obligation to tolerate

speech.").”

3. The Ladue Sign Ordinance Does Not Leave Citizens

Ample Alternatives To Engage In Political And

Ideological Speech

The Ladue sign ordinance is not a permissible time, place and

manner regulation for the further reason that it does not leave

citizens with "ample alternative channels of communication" for

expressing their political and ideological views. Frisby, 487 U.S.

at 481 (quoting Perry Educ. Ass’n, 460 U.S. at 45).

This Court and the lower courts have recognized the singular

communicative value of a sign on one’s residential property. In

Linmark Associates, 431 U.S. at 93, the Court noted that "serious

questions exist" as to whether an ordinance prohibiting "For Sale"

and "Sold" signs from being posted on residential property left

open sufficient alternative means of communication. The Court

explained:

'? The petitioners do not seriously press their asserted "safety" interest

before this Court. Of course, if any real risk exists that yard or window

signs could impair traffic safety, the City may regulate the number, size

or position of such signs to minimize any such risk. It appears that the

City has found these more narrowly tailored measures to be sufficient to

address the presumably similar safety concerns posed by commercial

signs, signs at churches, religious institutions and schools, and

residential "For Sale" and “For Rent" signs. See, e.g., International

Soc’y for Krishna Consciousness, 112 S. Ct. at 2720 (opinion of

Kennedy, J.) (rejecting Port Authority’s "half-hearted" argument that

ban on expressive activity was justified by security concerns, where

persons engaged in expressive activity were not shown to pose any

greater security threat than other persons allowed in airports).

The options to which sellers realistically are relegated —

primarily newspaper advertising and listing with real estate

agents — involve more cost and less autonomy than "For Sale”

signs; are less likely to reach persons not deliberately seeking

sales information; and may be less effective media for

communicating the message that is conveyed by a "For Sale”

are far from satisfactory.

Id. at 93 (citations omitted).

In Vincent, in order to conclude that banning signs on public

property would not leave speakers without alternative channels of

communication, the Court relied on the district court's finding

that candidates may “'post their signs and handbills . . . on

private property with the permission of the owners thereof.'" 466

U.S. at 795, 812. The Court explained that “a significant

opportunity to communicate by means of temporary signs is

preserved" by allowing signs to be displayed on private property.

Id. at 811.

The lower courts have consistently recognized that “occupants

who are prohibited from displaying political signs on their

residential premises do not have adequate alternative channels for

communicating the messages on these signs." R. Douglass Bond,

Note, Making Sense of Billboard Law: Justifying Prohibitions and

Exemptions, 88 Mich. L. Rev. 2482, 2507 (1990) (citing cases).

These decisions suggest a number of reasons why yard and

window signs are a particularly effective means of expressing

one’s political and ideological views.

day yard and window signs are among the least expensive

means of communicating one’s opinion on a public issue to

astetihess ond Gham gusting Guveth Ge comanaiy. See, ¢.2.,

Arlington County Republican Comm. , 983 F .2d at 595; Baldwin,

540 F.2d at 1368. This Court has traditionally expressed

particular solicitude for means of expression that are “essential to

the poorly financed causes of little people." Martin v. City of

Struthers, 318 U.S. 141, 146 (1943); of. Milk Wagon Drivers

Union Local 753 v. Meadowmoor Dairies, Inc., 312 U.S. 287,

293 (1941) ("[pJeaceful picketing is the workingman’s means of

communication").

Second, yard and window signs are a significantly less time-

consuming means of political or ideological expression than, for

example, distributing handbills at the town center or canvassing

door-to-door throughout the community. See, ¢.g., Arlington

County Republican Comm. , 983 F.2d at 595. As Justice Brennan

has explained:

[A] message on a sign will typically reach far more people

than one on a handbill. The message on a posted sign remains

to be seen by passersby as long as it is posted, while a handbill

is typically read by a single reader and discarded. Thus, not

only must handbills be printed in large quantity, but many

hours must be spent distributing them.

Vincent, 466 U.S. at 820 (Brennan, J., dissenting).

As a practical matter, other means of communication, such as

leafletting and canvassing, may be foreclosed to many citizens

whose time is consumed by work or family obligations. It

also be difficult for many citizens who are elderly or physically

disabled to engage in these other means of communication.

Third, a yard or window sign is a particularly effective means

of calling attention to local issues and candidates. See, ¢.g.,

Baldwin, 540 F.2d at 1368; Collier v. City of Tacoma, 854 P.2d

1046, 1058 (Wash. 1993). In State v. Miller, for example, the

New Jersey Supreme Court reversed a homeowner’s conviction

for violating a municipal sign ordinance. 416 A.2d at 826-27.

The defendant had posted a sign in his front yard that read:

WELCOME!!

PROSPECTIVE RESIDENTS OF LAWRENCE

BROOK GLEN THIS RESIDENT

AND OTHERS OF RIVA AVE.

WANT TO WELCOME YOU TO THIS

FLOOD HAZARD AREA

GOOD LUCK!!

INFORMATION AVAILABLE

Id. at 823. The court explained that the defendant’s yard sign

was “the most effective and least expensive way to reach [the

defendant’s] intended audience — prospective Riva Avenue home

purchasers and his neighbors." /d. at 827. The court added that,

while the defendant might have been able to communicate in

person with his neighbors about the issue, “even that would not

be a realistic alternative for reaching prospective purchasers of

homes in the affected area.” Id.

The association between the sign, the house and the

neighborhood often has communicative value, moreover,

regardless of whether the issue under debate is of local, statewide

or national interest. It may have special significance that an

individual who has a certain kind of house in a certain kind of

neighborhood takes a certain political position. For example, if

the owner of a large house in an affluent community were to post

a sign supporting higher taxes on the wealthy, or if a resident of

a historically segregated neighborhood were to post a sign

endorsing an African-American candidate, the sign would have

meaning beyond the words or graphics within its four corners.

Fourth, yard and window signs are a uniquely non-

confrontational means of expressing one’s political and ideological

views, without intruding upon the privacy of one’s neighbors by

knocking at their doors, or contacting them by telephone or mail.

A sign invites neighbors to engage in debate on public issues,

without insisting that they do so. Accordingly, contrary to the

petitioners’ position, yard and window signs actually promote the

~ 26

City of Ladue’s professed interest in “protect[ing] the privacy

interests of its residents." Br. for Pet’rs at 43.

Finally, yard and window signs have special value for the

proponents of unpopular opinions and unknown candidates that

cannot expect to command the attention of the mass media. As

the Washington Supreme Court recently observed, a ban on

political signs “inevitably favors certain groups of candidates over

others," because “[t}he incumbent, for example, has already

acquired name familiarity," while "[t}he underfunded challenger"

has not. Collier, 854 P.2d at 1053; see also City of Antioch v.

Candidates’ Outdoor Graphic Serv., 557 F. Supp. 52, 59 (N.D.

Cal. 1982); Geoffrey R. Stone, Fora Americana: Speech in Public

Places, 1974 Sup. Ct. Rev. 233, 257 (signs on public issues are

a means for “persdhs Who do not themselves have access to more

traditional media facilities" to promulgate their ideas). The

members of this Court have recognized that restrictions on a

traditional medium of expressions -- such as the yard and window

signs in this case -- threaten to silence “more marginal voices"

who “lack access to more sophisticated media." International

Soc’y for Krishna Consciousness, 112 S. Ct. at 2720, 2723

(opinion of Kennedy, J.); see also id. at 2727 (opinion of Souter,

J.).

In sum, the Ladue sign ordinance fails this Court’s standard for

permissible time, place and manner regulations on three distinct

counts: The sign ordinance is not content-neutral, but instead

discriminates against political and ideological speech. The sign

ordinance is not narrowly tailored to prevent sign proliferation

and visual blight, but instead broadly prohibits any political or

ideological sign on any residential property within Ladue. And

the sign ordinance does not leave open ample alternative channels

of expression, especially for “the poorly financed causes of little

people.” Martin, 318 U.S. at 146.

C. The Ladue Sign Ordinance Cannot Withstand The Strict

Scrutiny Mandated Of Content-Based Prohibitions Of

Political And Ideological Speech

The Ladue sign ordinance, like the restrictions on political signs

near polling places in Burson v. Freeman, 112 S. Ct. 1846

(1992), is a “facially content-based restriction on political

speech.” Jd. at 1851. The City of Ladue thus “must show that

the ‘regulation is necessary to serve a compelling state interest

and that it is narrowly drawn to achieve that end.”" Jd. (quoting

Perry Educ. Ass'n, 460 U.S. at 45); accord Boos, 485 U.S. at

321. As this Court has observed, “a law rarely survives such

scrutiny.” Burson, 112 S. Ct. at 1852.

The aesthetic and safety interests that the City advances in

support of the sign ordinance, while arguably substantial, see

Metromedia, 453 U.S. at 507, have never been held by this Court

to be “compelling.” These interests cannot, for example, be

equated with the Tennessee’s interest in preserving “the right to

vote -- a right at the heart of our democracy," which was found

sufficiently compelling to justify the far more limited restrictions

in Burson on political signs in the immediate vicinity of polling

places on Election Day. 112 S. Ct. at 1851; see Geoffrey R.

Stone, Fora Americana, 1974 Sup. Ct. Rev. at 258 (explaining

that “an absolute ban on [political signs on private property]

would be constitutionally impermissible"). Indeed, while the

petitioners baldly assert that the sign ordinance serves “compelling

State interests" (Br. for Pet’rs at 47), they do not offer amy case

from amy court that supports that assertion. The lower courts

have consistently held that aesthetics and safety are not compelling

interests that could justify prohibitions on political and ideological

signs on residential property.*

'* See, e.g., Whitton, 1993 U.S. Dist. LEXIS 13026, at *18; Loftus, 764

F. Supp. at 361; Ross v. Goshi, 351 F. Supp. 949, 953 (D. Haw. 1972);

Collier, 854 P.2d at 1054-55; City of Euclid v. Mabel, 484 N.E.2d 249,

253-54 (Ohio App. 1984), cert. denied, 474 U.S. 826 (1985); People v.

Middlemark, 420 N.Y .S.2d 151, 153-54 (Dist. Ct. 1979).

Moreover, even in circumstances where the government can

assert a compelling interest in regulating speech, the govermment.

still “must demonstrate that its law is necessary to serve the

asserted interest" and is “narrowly drawn." Burson, 112 S. Ct.

at 1851, 1852. The City of Ladue cannot make suck: « showing

here for the reasons explained above. See supra pp. i /-22. This

Court recognized in Discovery Network that’ city’s failure to

address its aesthetic and safety concerns about newsracks "by

regulating their size, shape, appearance, or number,” rather than

by banning commercial newsracks entirely, demonstrated that the

ban was not sufficiently narrowly tailored to withstand scrutiny

even under the intermediate standard of review applicable to

commercial speech. 113 S. Ct. at 1510 & n.13. Clearly, then,

the City of Ladue’s ordinance prohibiting all political signs, rather

than regulating their number, size or location, is not tailored with

the precision required of regulations of speech "on the highest

rung of the hierarchy of First Amendment values." Carey, 447

U.S. at 467.

CONCLUSION

For the foregoing reasons, the judgment of the Court of

Appeals should be affirmed.

Of Counsel:

ELLIOT M. MINCBERG

PEOPLE FOR THE

AMERICAN WAY

2000 M Street, N.W.

Washington, D.C. 20036

(202) 467-4999

MARC D. STERN

AMERICAN JEWISH

“CONGRESS

15 East 84th Street

New York, New York 10028

(212) 879-4500

December 1993

Respectfully submitted,

TIMOTPY B. DYK

(Counsel of Record)

BARBARA McDOWELL

DAVID J. SCHENCK

JONES, DAY, REAVIS

& POGUE

1450 G Street, N.W.

Washington, D.C. 20005

(202) 879-3939

Counsel for the Amici

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