Amicus Curiae Brief — City of Ladue v. Gilleo

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QUESTION PRESENTED

May a city’s anti-sign ordinance qualify as a valid

content-neutral "place, time, or manner" restriction on

protected speech where the ordinance prohibits most signs

in residential zones but nonetheless permits signs whose

contents fall into any one of nine relatively broad cate-

gories -- including signs advertising the sale or rental of

real property?

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............... iv

INTERESTS OF AMICI CURIAE ............ l

STATEMENT OF THECASE ............. 2

SUMMARY OF ARGUMENT ............. 4

DT Cha eed ee dees es eaeeescess 5

I. THE ORDINANCE MAY NOT BE DE-

FENDED AS A “TIME, PLACE, OR

MANNER" RESTRICTION ON SPEECH,

BECAUSE IT IS NOT CONTENT-

A. The “Time, Place, or Manner"

Doctrine Is of Limited Applicability

in Cases Where, as Here, the

Government is Attempting to

Restrict Speech on Private Property ... 7

B. Ladue’s Differentiation Between

Signs Based on Their "Tendency to

Proliferate"” Is Not a Content-Neutral

C. Signs on Residential Homes Are Not

Comparable to the “Billboards”

Being Regulated in Metromedia ..... 16

Il. THE "SECONDARY EFFECTS" TEST IS

INAPPLICABLE TO THIS CASE ...... 20

DE chbseedecsecessesseccones 23

iV

TABLE OF AUTHORITIES

Page

Cases:

Arkansas Writers’ Project, Inc. v.

Ragland, 481 U.S. 221 (1987) ........+.. 12

Barnes v. Glen Theatre, Inc.,

Tie S- STi. ) ee 7

Boos v. Barry, 485 U.S. 312 (1988) .......... 22

Burson v. Freeman,

112 S. CR. 1666 (1DBA) wwe were 12, 14

Carey v. Brown, 447 U.S. 455 (1980) ....... 8, 13

City of Cincinnati v. Discovery Network,

Inc., 113 S. Ct. 1505 (1993) ...... 1, 15, 21-22

Clark v. Community for Creative Non-

violence, 468 U.S. 288 (1984) ......... 6, 10

Frisby v. Schultz, 487 U.S. 474 (1988) ........ 8

Gregory v. Chicago, 394 U.S. 111 (1969) ...... 8

Kovacs v. Cooper, 336 U.S. 77 (1949) ........ 16

Linmark Assoc., Inc. v. Township of

Willingboro, 431 U.S. 85 .. 2... 6-6 eee 8

Members of City Council of City of

Los Angeles v. Taxpayers for Vincent,

466 U.S. 789 (1984) ......... 9, 11-12, 18-19

Metromedia, Inc. v. City of San Diego,

453 U.S. 490 (1981) ........... 5, 12, 15-19

Minneapolis Star & Tribune Co. v.

Minnesota Comm’r of Revenue,

GP es DU wc cece cc cceseces 12

R.A.V. v. City of St. Paul, Minnesota,

ire @. | |e 6, 20-22

Renton v. Playtime Theatres, Inc.,

FLY Ff = eee 7, 20-22

Simon & Schuster, Inc. v. Members of

N.Y. State Crime Victims Bd.,

jr) &. 3 © | Se 6, 12-13

Ward v. Rock Against Racism,

109 S. Ct. 2746 (1989) .......... 6-8, 10-11

Young v. American Mini Theatres, Inc.,

Gee Ge SP a wc cect ececeeesecss 21

SUPREME CouRT oO

F THE UNITED STATES

October Term 1993

No. 92-1856

CITY OF LADUE, er ai.,

Petitioners,

Vv.

MARGARET P. GILLEO,

Respondent.

On Writ of Certiorari to

United States Court of —

for the Eighth Circu

BRIEF OF WASHINGTON LEGAL FOUND

AND ALLIED EDUCATIONAL FOUNDATION AS

AMICI CURIAE IN SUPPORT OF RESPONDENT

INTERESTS OF AMICI CURIAE

, . Ct. lv. Attorney Registration

and Disciplinary Comm'n of Illinois, 11

(1990); Pacific’ Gas and Bhewie Co. ’. Pablic ic Utility

2

Comm'n of California, 475 U.S. 1 (1986); and Consoli-

dated Edison Co. v. Public Service Comm'n, 447 U.S. 530

(1980).

The Allied Educational Foundation (AEF) is a non-

profit charitable and educational foundation based in

Englewood, New Jersey. Founded in 1964, AEF is dedi-

cated to promoting education in diverse areas of study,

such as law and public policy, and has appeared as amicus

curiae in the f courts on a number of occasions.

WLF and AEF recognize that state and local govern-

ments have a strong interest in regulating usage of their

streets and sidewalks, in order to protect the public health

and safety and to promote a clean and aestheticall

pleasing environment. They further recognize that suc

regulation is not rendered illegitimate simply because it

should not be singled out for regulation simply because

government officials deem its subject matter to be of lesser

Amici submit this brief in support of Respondent with

the written consent of all parties. The written consents

are on file with the Clerk of the Court.

STATEMENT OF THE CASE

In the interests of judicial economy, amici hereby

adopt by reference the Statement of the Case set forth in

Respondent's brief.

In brief, Petitioner City of Ladue, Missouri on

February 25, 1991 adopted an amended ordinance (the

Ordinance") designed to restrict severely the placement of

- within the city. See Joint Appendix ("J.A.") 116-

131. cence Henits placement of commercial signs

to commercially zoned industrial zoned areas of the

city (which comprise about 3% of Ladue’s total area).

The Ordinance bans noncommercial signs throughout the

| (even in 1 + zones where commercial signs

permitted), ex nine categories of si

explicitly exempted fom the ban — based on the Content

of such signs.’

_ During American involvement in the Persian Gulf War

in early 1 1, Respondent Margaret Gilleo placed an 8.5"

x 11” sign on the inside of a second- window of her

house that read, “For Peace in the Gulf ” In response,

City of Ladue officials informed her that the sign violated

yy - _ ares mo, provisions. Ms. Gilleo thereafter

court inju i

— , yunction against enforcement of

driveway signs for danger, direction, or identification; health inspection

signs; church, religious institution, snd echool signe anaounci names

services, activities, or function (limited by )

for nonprofit organizations; signs identifying the location of public

A "sign" is defined by the Ordinance as *

a oe by as "[a] name, word, letter,

On October 1, 1991, the United States District Court

for the Eastern District of Missouri granted Ms. Gilleo’s

motion for sum judgment and permanently enjoined

Petitioners (hereinafter "Ladue") from enforcing significant

portions of the Ordinance. Petition Appendix ("Pet.

App.") 20a-21a. The United States Court of Appeals for

the Eighth Circuit affirmed the injunction in a decision

issued on February 22, 1993. Pet. App. la-8a. This

Court granted Ladue’s petition for a writ of certiorari on

October 5, 1993.

SUMMARY OF ARGUMENT

Ladue’s anti-sign Ordinance cannot qualify as a

reasonable "time, place, or manner” restriction on h,

because it is not content-neutral. It is uncontestable that

Ladue distinguishes between permissible and impermissible

signs based solely on sign content. Although Ladue

contends that prohibited signs are banned solely because of

their tendency to proliferate and not because of their

content, speech regulation does not qualify as content-

neutral simply because the regulator claims to have a pure

heart. The Ordinance cannot qualify as content-neutral

because it cannot be justified “without reference” to the

content of the signs that it purports to regulate.

Moreover, the evidence is overwhelming that Ladue’s

desire to ban political signs such as Ms. Gilleo’s is

directly related to the content of such signs: Ladue

dislikes political signs because of their “tendency to

proliferate," and it is their content that gives them

whatever tendency they may have to proliferate.

The Ordinance cannot be upheld under a Banag) my

or manner" analysis for the additional reason it

purports to regulate speech by a homeowner on her own

property. The “time, place, or manner" doctrine is

enerally invoked to justify regulation of speech in public

orums only. An individual's compelling interest in being

permitted to speak freely on his own property counsels

against upholding the Ordinance under any sort of time,

5

place, or manner rationale. That interest should be

sufficient to trump any interest that a city may claim in

promoting aesthetics, at least in the absence of evidence

that the sign ordinance is se of an overriding scheme to

— historically significant properties in their original

; The Ordinance also cannot be upheld under the

secondary effects" doctrine, which can be invoked to

uphold content-based regulation of speech where the

regulated speech has undesirable secondary effects. The

effects" doctrine may not be invoked where, as

here, the secondary effects of the regulated h are

virtually identical to the secondary effects similarly

situated unregulated ays Here, prohibited signs and

= signs contribute to "visual clutter" to the same

gree.

K Because the “time, place, or manner" doctrine and the

secondary effects" doctrine are i licable to this case,

Ladue can prevail in this action only by demonstrating a

compelling intevest in its sign regulations. Ladue cannot

make such a showing. Indeed, Ladue’s interest in

continuation of its content-based sign restrictions is

minimal, given that a content-neutral alternative is readily

at hand: Ladue could adopt a content-neutral limitation on

the total number of signs that may be posted at any

residence or subdivision.

ARGUMENT

I, THE ORDINANCE MAY NOT BE DEFENDED

AS A "TIME, PLACE, OR MANNER" RESTRIC-

TION ON SPEECH, BECAUSE IT IS NOT

CONTENT-NEUTRAL

_ This Court has repeatedly recognized that signs are

an important medium of expression. ngs

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

(1981)(plurality) ("[t}he outdoor sign or symbol is a

venerable medium for expressing political, social and

6

commerciai ideas"). As such, they are entitled to

substantial protection under the First Amendment, which

severely restricts the power of governments to regulate

"protected" speech (i.e., all speech that does not fall into

those few categories of expression -- such as obscenity or

defamation -- deemed unworthy of significant First

Amendment protection).

One limited category of permissible speech restriction

which the Court has recognized is the “time, place, or

manner" restriction:

[T]he government may impose reasonable restric-

tions on the time, place, or manner of protected

speech, provided the restrictions “are justified

without reference to the content of the regulated

speech, that they are narrowly tailored to serve a

significant governmental interest, and that they

leave open ample alternative channels for

communication of the information."

Ward v. Rock Against Racism, 109 S. Ct. 2746, 2753

(1989)(quoting Clark v. Community for Creative Nonvio-

lence, 468 U.S. 288, 293 (1984)).

Regardless whether Ladue could demonstrate that it

can meet the second and third requirements of a valid

"time, place, or manner" restriction on speech (narrow

tailoring and alternative channels for communication),

Ladue clearly cannot meet the content-neutrality

requirement. The Ordinance is not content-neutral under

any commonsense definition of that term: it prohibits

some signs and permits others based solely on their

content. Accordingly, the Ordinance cannot be upheld as

a valid “time, place, or manner" speech restriction.

Indeed, this Court has held repeatedly that content-based

restrictions on speech are "presumptively invalid."

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

2542 (1992); Simon & Schuster, Inc. v. Members of N.Y.

State Crime Victims Bd., 112 S. Ct. 501, 508 (1991).

7

A. The "Time, Place, or Manner" Doctrine Is

of Limited Applicability in Cases Where, as

Here, the Government is Attempting to

Restrict Speech on Private Property

Before addressing Ladue’s contention that _ its

Ordinance really is content-neutral, amici wish to question

the extent to which the "time, place, or manner" doctrine

is applicable to speech restrictions of this type. Amici

submit that when, as here, the government is seeking to

restrict speech on the speaker’s own residential property,

courts should be extremely reluctant to uphold the

restriction under a "time, place, or manner" rationale.

The “time, place, or manner" doctrine traditionally

has been applied to government restrictions on speech

taking place on public property that has been dedicated as

a “public forum." Ward, 109 S. Ct. at 2753. While it

has on occasion been applied to uphold restrictions on

speech on private property (see, e.g., Barnes v. Glen

Theatre, Inc., 111 S. Ct. 2456 (1991)), such application

has generally been limited to cases in which the expression

being restricted was sexually explicit "adult" entertain-

ment. The Court has recognized that the expressive

content of “adult” entertainment such as nude dancing is

sufficiently minimal that it is only "marginally" within the

“outer perimeters of the First Amendment." Jd. at 2460.’

Outside of the realm of "adult" entertainment, there is

good reason to exercise extreme caution before applying

the "time, place, or manner" doctrine to restrictions on

speech on private property -- particularly where the

property in question is the speaker’s residence. The right

’ Indeed, in support of its assertion that the doctrine was applicable

to restrictions on expression on private property, the Court in Glen

Theatre stated that the doctrine had been applied to such restrictions

on at least one occasion" and cited as its precedent Renton v. Playtime

Theatres, Inc., 475 U.S. 41 (1986). Glen Theatre, 111 S. Ct. at 2460

(plurality opinion). Both Glen Theatre and Renton involved

government attempts to regulate “adult” entertainment.

8

of an individual to act freely in conducting affairs at his

own residence is one of the most cherished rights in our

society. The Court has “often remarked on the unique

nature of the home, ‘the last citadel of the tired, the

weary, and the sick.’" Frisby v. Schultz, 487 U.S. 474,

484 (1988)(quoting Gregory v. Chicago, 394 U.S. 111,

125 (1969)(Black, J., concurring). See Carey v. Brown,

447 U.S. 455, 472 (1980) ("The State’s interest in

protecting the well-being, tranquility, and privacy of the

home is certainly of the highest order in a free and

civilized society."). If it is to mean anything, protecting

the "well-being . . . of the home" must include the right

to speak freely from one’s home.

Indeed, “time, place, or manner" restrictions on

speech have most often been upheld on the grounds that

they are designed to protect homeowners from intrusions

on their property rights. See, e.g., Ward, 109 S. Ct. at

2756 (regulation of noise from rock concerts in a public

forum upheld where designed to protect adjacent residents

from unwelcome noise; the government’s interest in noise

abatement is at its "greatest" when designed to protect the

“privacy of the home"); Frisby v. Schultz, 487 U.S. at

484-485. Where, as here, there is no record evidence that

the sign displayed on one residence is visible from any

other residence, the "privacy of the home" argument tilts

decidedly against upholding a speech restriction based on

a “time, place, or manner" argument.’

Nor do many of the arguments favoring application of

the "time, place, or manner" doctrine to regulation of

speech in public forums have any relevance to regulation

of speech at one’s home. For example, in upholding

(under a "time, place, or manner" rationale) the right of a

* In Linmark Assoc., Inc. v. Township of Willingboro, 431 U.S. 85

(1977), the Court held that an ordinance prohibiting the display of "for

sale" signs on private residences could not be d based on a desire

to protect_residents from exposure to signs, because there was no

evidence that such signs “intrude{d] on the privacy of the home."

Linmark, 431 U.S. at 94.

9

city to ban the posting of signs on public , the

Court noted that such signs are sentinted fm pam 2 -

- and the deterioration of signs that inevitably accompanies

such inattention is a particular source of urban blight.

Members of City Council of City of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789, 809 (1984). In

contrast, one can be reasonably confident that a sign

posted on a personal residence will be posted in a tasteful

manner and will be well maintained, because no one has

a greater interest than the homeowner in maintaining the

attractiveness of her property in order to maximize its

value.” See i at 8 va ("private property owners’ esthetic

concerns will keep sting of signs on their rt

within reasonable bounds"). , ” eta’

In sum, when content-neutral restrictions on protected

speech are aimed at speech on personal residences, there

is little reason to show deference to such restrictions by

testing them under the relatively inexacting requirements

reserved for "time, place, or manner" speech restrictions.

Rather, such restrictions on protected speech should be

upheld only if their sponsor can demonstrate a compelling

interest in the restrictions. In any event, the Court need

not reach the issue of the applicability of the "time, place,

or manner" doctrine to this case, since (as demonstrated

below) the Ordinance so clearly is not content-neutral.

B. Ladue’s Differentiation Between Signs Based on

Their "Tendency to Proliferate" Is Not a

Content-Neutral Approach

Even though the Ordinance on its face distinguishes

between permissible and impermissible signs based on sign

4

Indeed, in December 1990, when Respondent Gilleo discovered

that signs she placed on her lawn had been vandalized, she not only

righted the signs but also took the trouble to report the vandalism to

the police in order to prevent its recurrence. See Pet. App. 22a-23a.

10

content,’ Ladue argues that the Ordinance nonetheless

qualifies as content-neutral for purposes of "time, place, or

manner" analysis. Ladue argues that its sole concern is

limiting the aggregate number of signs in the city, and that

it distinguishes between permissible and impermissible

signs based on whether they tend to proliferate -- with

those having that tendency being totally banned. Pet. Br.

18-19. Ladue bases its content-neutrality claim on Ward,

which stated:

A regulation that serves purposes unrelated to the

content of expression is deemed neutral, even if it

has a. incidental effect on some speakers or

messages but not others. . . Government

regulation of expressive activity is content-neutral

so long as it is “justified without reference to the

content of the regulated speech."

Ward, 109 S. Ct. at 2754 (quoting Community for Creative

Non-Violence, 468 U.S. at 293). Ladue argues that the

Ordinance’s distinction between permissible and

impermissible signs is "justified" based not the content of

the signs in question but rather on whether those signs tend

to proliferate. _

Ladue has misconstrued Ward. Ladue interprets Ward

as though the critical language read: "[A] justification

based on some attribute of the regulated speech other than

the message it conveys." That reading of Ward totally

ignores the words “without reference"; Ward limits

content-neutral status to those speech limitations that make

absolutely no reference to the subject matter of the speech

being regulated. Since the Ordinance undeniably makes

* The Ordinance allows posting of signs that address any one of

ten enumerated subject matters but prohibits all others. J.A. 121-122.

Ladue does not contend that the ten categories of signs excepted from

the general sign prohibition are so insignificant as to amount to a de

minimis deviation from content neutrality. Rather, it argues that signs

addressing the ten enumerated subject matters have been excepted for

reasons unrelated to their content.

11

reference to subject-matter content of signs in

distinguishing permissible from impermissible signs, it

cannot qualify as “content-neutral" under Ward.

Certainly, the facts in Ward are readily distinguishable

from this case. Ward involved an attempt by New York

City to regulate sound amplification by all users of a

bandshell located in Central Park. The regulations applied

without regard to the content of the sound being amplified.

The Court held that the regulations qualified as “content-

neutral" for purposes of "time, place, or manner” analysis

even though ihey may have had greater incidental effects

on some bandshell users than on others. Jd.° In contrast,

Ladue does not apply the Ordinance to all signs, but rather

only to those that do not fall within one of the ten

enumerated subject-matter exceptions.’ Taxpayers for

Vincent is similarly distinguishable; the public-property

Sign-posting prohibition upheld in that case applied to all

signs without regard to content.’ The plaintiffs had not

claimed that the challenged ordinance had singled out for

prohibition the signs they wished to post based on their

* Indeed, even the dissenting justices agreed that the sound

amplification regulations “indisputably are content-neutral as they apply

to all Bandshell users i tive of the message of their music."

Ward, 109 S. Ct. at 2761 (Marshall. J., dissenting).

” Ward would have been analogous to the present case if New

York City had responded to citizen complaints regarding loud rock-

and-roll concerts by regulating sound amplification at rock-and-roll

concerts but not at other musical performances at the bandshell. Such

a regulation would not have met the Court’s requirements for content-

neutrality, because even though it would have been directed at the only

type of performances shown to have elicited complaints, it could not

be said to be justified “without reference” to the content of the

regulated speech.

outy om amas pointedly in 7. for Vincent that the relief

sought | plaintiffs (an exception from the sign-posting prohibition

for political signs posted dusing the period immediately preceding an

election) could constitute “constitutionally forbidden content

aor ee 1 “oan other types of signs. Taxpayers for Vincent,

-». at ,

12

content, but merely that the prohibition had had an adverse

effect on their ability to communicate. Taxpayers for

Vincent, 466 U.S. at 808-817.

Ladue argues that the Ordinance should be considered

“content neutral" because there is no evidence to suggest

that the city is in any way basing its actions on a

disagreement with what Respondent Gilleo has to say;

Ladue states that it would object just as — to a sign

that read, “Wage War in the Gulf -- Kill Saddam

Hussein." Pet. Br. 2. Ladue’s argument is without merit,

for at least four reasons.

First, attempts to suppress discussion of entire topics

violate content-neutrality principles just as surely as do

attempts to suppress a particular viewpoint. Burson v.

Freeman, 112 S. Ct. 1846, 1850 (1992); Metromedia, 453

U.S. at 518-519 (plurality).

Second, this Court has explicitly rejected the notion

that regulation of speech on a specified topic is not suspect

under the First Amendment if the regulation is not based

on hostility toward discussion of the topic. In Simon &

Schuster, the Court held:

The Board next argues that discriminatory

financial treatment is suspect under the First

Amendment only when the legislature intends to

suppress certain ideas. This assertion is incorrect;

our cases have consistently held that "[iJllicit

legislative intent is not the sine qua non of «

violation of the First Amendment." Minneapolis

Star & Tribune Co. v. Minnesota Comm’r of

Revenue, 460 U.S. 575, 592 (1983). Simon &

Schuster need adduce "no evidence of an improper

censorial motive." Arkansas Writers’ Project{,

Inc. v. Ragland], 481 U.S. [221,] 228 [1987].

As we concluded in Minneapolis Star, "[wje have

long recognized that even regulations aimed at

proper governmental concerns can restrict unduly

13

the exercise of rights protected by the First

Amendment." 460 U.S., at 592.

Simon & Schuster, 112 S. Ct. at 509.

__ Third, content neutrality requires not only that

disfavored speech not be suppressed but also that favored

speech not be given ial advantages. It matters not that

Ladue views Ms. Gilleo’s sign as no worse than the vast

majority of signs that might be displayed in the city; so

long as Ladue has chosen to provide special advantages to

signs discussing certain topics (e.g., real estate “for sale"

and “for rent" signs),” Ladue is not exercising content

neutrality unless it gives the same advantages to identical

Signs discussing other topics.

Carey v. Brown well illustrates that point. In Carey,

the Court struck down a law that prohibited residential

picketing but that made an exception for labor picketing.

There was no indication that the state legislature harbored

hostility toward the subject matter of nonlabor picketing;

yadeed the mere idea of such a broad-based hostility is

absurd, since the vast majority of topics of public

discussion concern nonlabor issues. Nonetheless, the

Court held that the state impermissibly deviated from

content-neutral ideals when it decided to permit picketing

on one favored topic without permitting picketing on other

topics. Carey, 447 U.S. at 465-469.

* Ladue suggests that the only reason that it permits “for sale" and

“for rent" signs is that it is required to do so under Missouri law.

That argument cannot excuse *s deviation from content-neutrality

in its suppression of signs; Missouri certainly never required Ladue to

impose a ban on residential signs. If Ladue is serious about adopting

a ban on residential signs that can qualify as “content-neutral,” its

proper course is to begin by petitioning the Missouri legislature to

repeal the law in question.

_ This is not to say that Ladue must choose between banning all

signs or lifting all sign restrictions. To the contrary, Ladue is free to

content regulations, such as limitations on the number of

(continued...)

14

Fourth, Ladue is simply wrong in claiming that there

is no evidence that it seeks to prohibit Ms. Gilleo’s sign

and other political signs due to an animus against them.

To the contrary, the evidence is overwhelming that

Ladue’s desire to ban political signs is directly related to

the content of such signs. Ladue has adduced evidence

that political signs tend to proliferate more than other types

of signs in the absence of restrictions. See, e.g., J.A.

154-155. But signs tend to proliferate precisely because of

their content: proliferation is a sure indication that the

ideas being expressed through such signs are popular ideas

that many people wish to express. Accordingly, a ban on

signs that “tend to proliferate"’ is another name for a ban

on signs expressing popular ideas. In other words, Ladue

is openly admitting that it dislikes political signs because

of their subject matter -- not because of a dislike of things

political but because it fears that political signs (due to the

© (...continued)

signs per lot. Moreover, Ladue is free to adopt non-content-neutral

regulations to the extent that it can articulate compelling reasons for

doing so. Burson demonstrates that the Court is receptive to

arguments that a state actor has a compelling reason for ing in

content-based speech restrictions. Burson, 112 S. Ct. at 1851-1858

(Court applies strict scrutiny but nonetheless upholds content-based

restriction on speech near polling places). Ladue might well be able

to demonstrate that safety concerns provide it with a compelling

interest in permitting road signs as an exception to a general sign ban.

We find somewhat comical Ladue’s repeated reference to signs

that “do not proliferate” or “tend to proliferate." Such

nen Gn apes E> ene ee Se

unchecked, will reproduce of their own volition. The Court should not

permit such phrasing to obscure the fact that no sign is posted unless

an individual wishing to convey an idea chooses to post it. Thus, signs

that can be said to “tend to proliferate” are precisely those types of

age Ge ene kee Om Ge Gaeee ee Ge aes

about. It makes no sense to that lesser degrees of First

Amendment protection should be afforded to discussion of precisely

those issues that are of greatest public interest.

15

popularity of their subject matter) will proliferate and

thereby offend aesthetic sensi 2

2 We note in that Ladue has produced virtually no

evidence that signs tend to proliferate on residential property

if left unrestricted. Ladue’s experts who of proliferation of

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16

favor of commercial speech on the basis of its content -- as

Ladue has done in this case.

In sum, Ladue cannot escape the fact that in banning

most signs but excepting signs that address any one of ten

enumerated subject matters, the Ordinance is engaging in

content-based discrimination. As such, it may not be

defended as a reasonable “time, place, or manner”

restriction on speech.

C. Signs on Residential Houses Are Not

Comparable to the "Billboards" Being

Regulated in Metromedia

Ladue and its supporting amici have analyzed the

Ordinance as though it were governed by the law of

"billboards" as established in Metromedia and elsewhere.

In fact, the 8.5" x 11" window sign at issue in this case

bears scant resemblance to the billboards at issue in

Metromedia. Amici WLF and AEF respectfully submit

that the absence of content-neutrality in the Ordinance

becomes significantly clearer if one focuses on the unique

aspects of residential window signs as a medium of

expression.

The Court emphasized in Metromedia that its

constitutional analysis of the extent to which a government

may regulate expressive activity varies considerably

ing on the medium of expression sought to be

employed. The Court said:

Each method of communicating ideas is "a law

unto itself’ and that law must reflect the

“differing natures, values, abuses, and dangers"

of each method. We deal here with the law of

billboards.

Metromedia, 453 U.S. at 501 (plurality)(quoting Kovacs v.

Cooper, 336 U.S. 77, 97 (1949).

17

Moreover, the Court had a very narrowly defined

concept in mind when it was discussing “billboards” in

Metromedia. The San Diego ordinance at issue in that

case sought to regulate "outdoor advertising display signs,”

defined by the ordinance as “rigidly assembled sign{s],

display[s], or device[s] crt affixed to the nd

or permanently attac t0 a building or other inherently

permanent structure constituting, or used for the display

of, a commercial or other advertisement to the publi -

Id. at 541 n.3 (Stevens, J., dissenting). Not included

within the definition were signs “such as . . . a small sign

a Se 2 proclaiming a political or

religious - d. at 545 n.11 (Stevens, J.,

dissenting). In other words, signs such as the sign placed

by Ms. Gilleo in her window -- which was neither

permanently attached" to her house nor “rigidly

assembled" -- were not at issue when the Court addressed

the “law of billboards” (id. at 501) in Metromedia.

Placing a sign directly on one’s personal residence has

much more in common (as a medium of expression ) with

building a house with a distinctive architectural design than

with erecting a permanent billboard structure that abuts a

major road. A sign placed on one’s personal residence is

no more intrusive on the aesthetic sensibilities of passersby

than the personal residence itself (because it cannot be

larger ' than the residence), and is likely to be far less

than a sign erected in the form of a free-standing

It is incontestable that numerous design features of

every house have expressive content. For example,

virtually every homebuilder designs his or her homes with

18

differently from other expressive features of the residence

that are visible to passersby.

Accordingly, a city is not abiding by concepts of

content-neutrality if it prohibits placement of signs on

personal residences, unless it also closely regulates all

design." There is no evidence in this

case that Ladue attempts to exert any such control of

architectural design in the city. Landowners in Ladue

apparently are free to express themselves as they choose

when it comes to designing their personal resi --

provided only that such expression not be in the form of

written words. For all practical purposes, such discrimi-

nation against the written word amounts to content-based

discrimination, because so many ideas cannot adequately

be expressed nonverbally.

Ladue’s most likely would respond along the following

lines: it finds a Tudor house design to be more

aesthetically pleasing than the same house design

interrupted by a sign containing several words -- and it

ought to be permitted to ine and pursue its own

aesthetic goals. But any such response serves to highlight

the dangers of granting communities the unfettered right to

regulate expressive activities based solely on aesthetic

goals. As Justice Brennan noted, "[T]jhe inherent

subjectivity of aesthetic judgments makes it all too easy for

the government to fashion its a for a law in a

manner that impairs the ability of a reviewing court

meaningfully to . . . determinfe] whether the actual

objective is related to the suppression of speech.”

Taxpayers for Vincent, 466 U.S. at 822 (Brennan, J.,

dissenting). See also Metromedia, 453 U.S. at 510

(plurality)("esthetic judgments are necessarily subjective,

defying objective evaluation, and for that reason must be

‘ Thus, a community such as Williamsburg, Vir might be

said to be acting in a content-neutral fashion if (lor reasons of

historical accuracy) it were to ban placement of signs on personal

houses, provided that it closely regulated all home construction in

order to preserve historical accuracy in architectural design.

19

carefully scrutinized to determine if they are only a public

rationalization of an impermissible purpose"). A

Sr against signs on personal residences would not

acoed A ; ;

apeech-if ¢ were based on 0 desire to elim inate "visual

clutter,” but it would amount to content-based

__ The Court said in Metromedia that freestanding

billboards as defined in that case raised sufficient "visual

clutter" concerns, that it would assume that San Diego’s

1

<E

8

Ss

=

S

e

billboards. Similarly, in Taxpayers for

, the court recognized that the “visual clutter"

problems arising from permitting a of

commitment to regulating all aspects of residential housi

cocign, tao Cont aautl deems oh eothaaep eased efforts

to ban signs on residential housing to constitute content-

20

based discrimination against the messages conveyed by

such signs.

In sum, amici respectfully suggest that aesthetic

considerations can virtually never constitute a content-

neutral ground for prohibiting placement of a sign directly

on one’s personal residence. Accordingly, the Ordinance

would not qualify as content-neutral (for purposes of

"time, place, or manner" analysis) even if Ladue had not

included ten broad exceptions to the general ban on signs.

ll. THE "SECONDARY EFFECTS" TEST IS

INAPPLICABLE TO THIS CASE

Ladue argues alternatively that even if the Ordinance

is found not to be content-neutral, it can be sustained

under the "secondary effects" test -- a test that accepts a

seemingly content-based regulation as content-neutral

provided that the regulation was adopted solely for the

purpose of eliminating an undesired “secondary effect" of

the speech being regulated. Pet. Br. 34-35. Ladue argues

that the Ordinance survives the "secondary effects" test

because it was adopted not for the purpose of suppressing

the subject matter of signs, but rather solely for the

purpose of eliminating the "visual blight" caused by the

proliferation of signs. /d.

Ladue’s resort to the “secondary effects" doctrine is

unavailing, for several reasons. First, this “rarely used”

doctrine (R.A.V., 112 S. Ct. at 2557 n.11 (White, J.,

concurring)) has never been invoked to uphold a regulation

of expressive activity outside of the area of "adult"

entertainment. See Renton, 475 U.S. at 49-50. In light of

the lesser degree of First Amendment protection normally

afforded to "adult" entertainment, there is little warrant for

extending the fiction underlying the "secondary effects"

doctrine (that content-based regulation should be deemed

content-neutral when the principal justification for

regulating speech is to curb some seco effect of the

speech) to other forms of speech that are fully protected

under the First Amendment. In any event, R.A.V. held

21

that the secondary effects doctrine is inapplicable when, as

here, the alleged "secondary effects" consist of the reaction

rs the = to the speech in question. R.A.V., 112 S.

t. at J

Second, in those cases in which the Court has invoked

the "secondary effects" doctrine to uphold a regulation of

a category of speech on the basis of content, the regulation

did not amount to a total ban on that category of speech.

Thus, in both Renton and Young v. American Mini

Theatres, Inc., 427 U.S. 50 (1976), the Court took great

pains to note that the regulations at issue (both of which

involved controls on the siting of "adult" movie theaters)

still allowed for the operation of such theaters. In

contrast, Ladue’s Ordinance mandates an absolute, city-

wide ban on signs conveying specified messages. There is

serious question whether the "secondary effects" doctrine

is properly invoked in order to ban altogether certain

modes of expressing views on disfavored topics. See,

e.g., R.A.V., 112 S. Ct. at 2549 (questioning whether "an

ordinance that completely proscribes, rather than merely

regulates, a specified category of speech can ever be

considered to be directed only to the secondary effects of

such speech").

Third and most importantly, the Court has limited

application of the "secondary effects" doctrine to those

cases in which the expression being regulated has

“markedly different effects upon_{its] surroundings" than

does similarly situated unregulated speech. Renton, 475

U.S. at 49. Thus, in Discovery Network, the Court

refused to invoke the "secondary effects" doctrine in order

to uphold a Cincinnati ordinance that banned commercial

newsracks from city sidewalks but permitted the newsracks

' There is no basis for contending that a proliferation of signs

creates some objectively verifiable aesthetic concerns. Beauty is solely

in the eye of the beholder. There is no justification for aesthetic

concern over sign proliferation unless Ladue residents who view the

signs find them distasteful -- and R.A. V. teaches that such reactions are

not the type of “secondary effects" referred to in Renton.

22

of general-circulation newspapers to remain in place --

because "[i]n contrast to the speech at issue in Renton,

there are no secondary effects attributable to respondent

publishers’ newsracks that distinguish them from the

newsracks Cincinnati permits to remain on its sidewalks."

Discovery Network, 113 §. Ct. at 1517.

Ladue cannot seriously contend that the secondary

effects of a political sign such as Ms. Gilleo’s are more

severe than the secondary effects of a "for sale" sign or

any other type of sign permitted under the Ordinance.

Clearly, one "for sale" sign causes the same amount of

"visual clutter" as one "For Peace in the Gulf” sign.

Ladue argues that in the absence of sign regulation,

political signs posted on private residences would far

outnumber "for sale" signs. But such a “tendency to

proliferate” is not an effect of political signs themselves -

- since, unlike an “adult” movie theater (which attracts

unsavory elements), the posting of a political sign does not

attract other signs. Rather, if repeal of all sign regulation

were to lead to the posting of a large number of political

signs, that would merely be an indication of the

preferences of Ladue’s citizens. Moreover, since Ladue

can so easily avoid having to resort to content-based

regulation and still achieve its desired aesthetic objectives

(by, e.g., adopting a content-neutral limitation on the total

number of signs that may be posted at any residence or

subdivision), there is considerable reason to question

Ladue’s protestations that its ban on political signs is

designed solely to control the secondary effects of such

signs. See R.A.V., 112 S. Ct. at 2550 ("The existence of

adequate content-neutral alternatives thus ‘undercuts

significantly’ any defense of such a statute [that

discriminates against speech on the basis of content]")

(quoting Boos v. Barry, 485 U.S. 312, 329 (1988)).

In sum, the “secondary effects" test is wholly

inapplicable to this case. Accordingly, the Ordinance

cannot withstand First Amendment analysis, because it is

defensible under neither the “time, place, or manner"

doctrine nor the "secondary effects" doctrine, and Ladue

23

has not asserted any compelling interest in regulating signs

in a content-based anne. ’ ides

CONCLUSION

- —— Washington Legal Foundation and Allied

Educa oundation ll vest that the

judgment below be —” _™

Respectfully submitted,

DANIEL J. POPEO

RICHARD A. SAMP

WASHINGTON LEGAL

FOUNDATION

2009 Massachusetts

Ave., NW

Washington, DC 20036

(202) 588-0302

Counsel for amici

December 14, 1993