Amicus Curiae Brief — City of Ladue v. Gilleo

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Supreme Court of the

OCTOBER TERM, 1993

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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 AMICUS CURIAE OF THE ASSOCIATION

OF NATIONAL ADVERTISERS, INC.,

IN SUPPORT OF RESPONDENT

—

—

Burt Neuborne

(Counsel of Record)

40 Washington Square South

New York, New York 10012

(212) 998-6172

Of Counsel

Gilbert H. Weil

60 East 42 Street

New York, New York 10165

(212) 687-8573

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................. iii

INTEREST OF AMICUS ..........c00c0eeee l

STATEMENT OF THE CASE ............... 2

SUMMARY OF ARGUMENT ............... 3

SEE kc cde hacen ches 6

I. LADUE’S ATTEMPT TO IMPOSE A

TOTAL BAN ON THE DISPLAY OF

VIRTUALLY ALL SIGNS AND SYM-

BOLS ON PRIVATE PROPERTY IN-

EVITABLY INVITES VIEWPOINT-

DRIVEN JUDGMENTS GOVERNING

ITS ADMINISTRATION AND EN-

POE 6a 0064 0b eC Cee e ere see 7

II. LADUE’S ASSERTED INTEREST IN

AESTHETICS AND THE MAINTEN-

ANCE OF PROPERTY VALUES

CANNOT JUSTIFY AN EFFORT TO

ELIMINATE THE DISPLAY OF VIR-

TUALLY ALL SIGNS AND SYM-

BOLS FROM THE LIFE OF A COM-

ts PETE PETC E TLC TTT TT Tee 12

A. Ladue’s Asserted Interest In Aes-

thetics Is Insufficient To Justify

Massive Censorship Aimed At Elim-

inating The Display Of Signs And

Symbols As A Significant Medium

Ce CE 6 oo kc 6s dedeeeee 13

B. Ladue’s Assertion That Permitting

Signs Similar To Respondent’s Poses

A Significant Risk Of Aesthetic

Degradation Through "Visual Clut-

ter" Is Wholly Unsubstantiated

C. Ladue’s Asserted Interest In Stem-

ming Visual Blight Does Not Re-

quire A Total Ban On Signs. Rea-

sonable Regulation Of The Number,

Format, Size And Duration Of Signs

Is An Obvious Less Drastic Means

Of Advancing Ladue’s Asserted

Aesthetic Interest

D. Ladue’s Effort To Impose A Total

Ban On Virtually All Private Signs

Cannot Be Defended As A "Time,

Place Or Manner" Regulation

III. LADUE’S ORDINANCE MAKES IM.-

PERMISSIBLE CONTENT-BASED

DISTINCTIONS BETWEEN COM.-

MERCIAL AND NON-COMMERCIAL

ME SU RTEAS Ed kbcscesseccecece

IV. LADUE’S EFFORT TO BAN THE

DISPLAY OF SIGNS AND SYMBOLS

ON PRIVATE PROPERTY VIO-

LATES THE RIGHT OF A PROP-

ERTY OWNER TO USE PRIVATE

PROPERTY FOR COMMUNICATIVE

PURPOSES

CONCLUSION

li

TABLE OF AUTHORITIES

Page

Cases

Abrams v. United States, ™

250 US. G16 (1D19) occ cccccccccccseccccens

Aiona v. Pai,

516 F.2d 892 (9th Cir. 1975) ...... 6c eee ee eens 14

Arlington County Rep. Comm. v.

Arlington, Va.,

983 F.2d 587 (4th Cir. 1993) ..... 62. c eee eens 14

Baldwin v. City of Redwood,

540 F.2d 1360 (9th Cir.),

cert. den. sub nom.

Leipig v. Baldwin,

431 US, GIS CISTI) nc ccc ccccccccccccvcccces 14

Board of Airport Comm'rs v.

Jews for Jesus, Inc.,

482 U.S. S69 (1987) 0 ccc ccc creer eeeeces 21

Board of Trustees v. Fox, ™

492 U.S. 469 (1989) 2... ccc eee cree cere eenes

Boos v. Barry, .

485 U.S. 312 (1987) 0... ccc cece eee eeececens

Brandenburg v. Ohio,

395 U.S. 444 (1969) ..... ccc ecceces 4, 12, 17, 19

Broadrick v. Oklahoma, ,

413 U.S. G01 (1973) 2. cc cece c cree e eee evees

Buckley v. Valeo,

424 US. 1 (1976) 2. cece ccccccescccccces 5, 27

Burson v. Freeman,

504 U.S. _,, 112 S.Ct. 1846 (1992) ... 2... 2c eens 27

iil

Page

Central Hudson Gas & Elec. Corp.

v. Public Service Comm’n,

a ek 13, 21

City of Antioch v. Candidates’

Outdoor Graphics Svc.,

557 F.Supp. 52 (N.D.Cal. 1982) ................ 14

City of Cincinnati v. Discovery

Network, Inc.,

507 U.S. __, 113 S.Ct. 1505 (1993) .. 2, 5, 19, 24, 25, 26

City of Ladue v. Joan K. Hon

and Terrence Jones,

720 S.W.2d 745 (Mo.Ct.App. 1986)

TrreTrTrreer 28

City of Los Angeles v. Taxpayers

for Vincent,

466 U.S. 789 (1984) ............. 15, 16, 20, 24, 26

Clark v. Community for

Creative Non-Violence,

468 U.S. 288 (1984) .................. 21, 24, 27

Cohen v. California,

GD UB. BS CIBTE) nw. ccc ccccccccccee 13, 17, 24

Cox v. New Hampshire,

cS) ) 23

Debs v. United States,

249 U.S. 211 (1919) ..................0.0.... 18

Edenfield v. Fane,

507 U.S. __, 113 S.Ct. 1792 (1993) .............. 18

Erznoznik v. Jacksonville,

422 U.S. 205 (1975) ................005.. 13, 17

FCC v. League of Women Voters,

468 U.S. 364 (1984) ........00...0......... 5, 27

iv

FCC v. Pacifica Foundation,

438 U.S. 726 (1978) 2... 6c cece eee eee teens 26

First Nat’l Bank of Boston v. Bellotti, -

435 U.S. 765 (1978) ... 2. eee cece eee ee eens

Frisby v. Schultz,

487 US. 474 (1988) 2... eee eee eee eens 27

Gitlow v. New York, i a

268 U.S. 652 (1925) ... 6. cece eee eee eens ‘

Grayned v. City of Rockford,

408 U.S. 104 (1972) 2... ce eee eee eee eters 23

Greer v. Spock,

424 U.S. 828 (1976) ... 2. e eee ee eee eee eens 26

Hi v. CIO,

307 US. 496 (1939) 2... cee eee eee eens 27

Houston v. Hill,

482 U.S. 451 (1987) .....--- eee eee 3, 8, 10, 11, 14

Lakewood v. Plain Dealer Publishing Co., re

486 U.S. 750 (1988) .....- cece e cere ee eeee ,

Lamont v. Postmaster General, -

381 U.S. 301 (1965) .....- ee eee ee eee eee eee

Lee v. International 4 for

Krishna Consciousness, Inc.,

505 U.S. _, 112 S.Ct. 2709 (1992) .......---- 21, 27

Linmark Associates, Inc. v.

Township of Willingboro, .

431 U.S. 85 (1977) 2.0... cece eee ee eee ees 5,2

Lloyd Corporation v. Tanner,

497 U.S. 551 (1972) 2... eee eee eee trees 28

Loftus v. Township of Lawrence Park,

7s Powe. 354 (W.D.Pa. 1991) ...... 00 eee eens 14

Vv

Lovell v. Griffin,

503 US. 466 CIGBE) 2. cece cc cccccccccccees 6, 7

Marsh v. Alabama,

.y SIE Fy.) eee 28

Martin v. Struthers,

319 US. 141 (IDES) once cccccscccccccccseess 20

Matthews v. Town of Needham,

764 F.2d 58 (1st Cir. 1985) ..... 2.2. eee eee ees 14

Metromedia, Inc. v. City of San Diego,

453 US. 490 (1961) own cc ccccccccces 15, 16, 24, 25

Miami Herald Pub. Co. v. Tornillo,

418 U.S. 241 (1974) 2... cc cece cece ee ecccees 27

Moore v. City of East Cleveland,

4391 UG. GRO CTOTT) wccccccccccccsccccess 27, 28

National Advertising Co. v.

City of Orange,

861 F.2d 246 (9th Cir. 1988) .... 2... 6 ee eee eee 14

National Advertising Co. v.

Town of Niagara,

942 F.2d 145 (2d Cir. 1991) .. 1... 2 eee eee ees 14

Niemotko v. Maryland,

340 U.S. 268 (1951)... cece creer cece cesvee 15

Orazio v. Town of Hempstead,

426 F.Supp. 1144 (E.D.N.Y. 1977) . 2... 6662s e es 14

Pacific Gas & Elec. v. Public

Utilities Comm’n,

47S US. 1 CIGES) nc ccccccccccccccvcccscccs 27

Peel v. Attorney Registration

and Disc. Comm'n,

496 US. 91 CIDID) onc cccccccccccccseseccess 20

Police Department v. Mosley,

ee ED hd enn wc a bckeeecidwciiaccnas 7

Pruneyard Shopping Center v. Robins,

Ee 28

RAV. v. City of St. Paul,

SOS U.S. __, 112 S.Ct. 2538 (1992) .... 2... 7

Renton v. Playtime Theaters, Inc..,

475 U.S. 41 (1986) ...............0.. 15, 16, 17, 24

Rust v. Sullivan,

500 U.S. __, 111 S.Ct. 1759 (1991)... ee, 27

Sable Communications v. FCC,

MS PE ccccccéccceccececce 4, 12, 20

Schacht v. United States,

SPB US. SB CIDTO) 2... ccc ccc cc ccc ccc ces 7

Schenck v. United States,

aa aS to a 18

Schneider v. New Jersey,

308 U.S. 147 (1939) ............ 4, 7, 12, 14, 15, 17

Shuttlesworth v. Birmingham,

ED Sea kcccb Wacko dkeceacenee 7

Simon & Schuster, Inc. v. Members

of the New York State Crime

Victims Board,

502 U.S. __, 112 S.Ct. 501 (1991)... 2... ....000. 7

Smith v. Goguen,

EE 6 on 6 6. 540.0050 06 06000%400' 8

Spence v. Washington,

CTE, oc cecsseccccaveveseceeas 27

Stanley v. Georgia,

ee 27, 28

Street Vv. New York,

394 U.S. 576 (1969) 20... cee eee eee enneeneees 13

Texas v. Johnson,

491 U.S. 397 (1989) 2... cc ccc cece cceees 9, 24, 27

Tinker v. Des Moines Indep.

Community School Board,

393 U.S. 503° (1969) 2... ccc ecvccccevvvees 18, 19

United States Postal Service v.

Greenburgh Civic Ass’ns,

453 U.S. 114 (1981) 0. wc wer r ccc ccesvevevvens 26

United States v. Grace,

461 U.S. 171 (1983) ow cece e cree eee eeenes 27

United States v. Kokinda,

497 U.S. 720 (1990) onc wcrc ccc crcvevecvvene 27

United States v. O’Brien,

391 U.S. 367 (19GB) on cc cc cc cccvvcees 13, 21, 26

United States v. Reese,

92 U.S. 214 (1876) .......... PPeTTeTTT TTT TY 11

Ward v. Rock Against Racism,

491 U.S. 781 (1989) .........-. 4, 21, 22, 23, 24, 27

Whitney v. California,

274 U.S. 357, 372 (1927) ow cece c cc eccevevenes 18

Whitton v. City of Gladstone,

832 F.Supp. 1329 (W.D.Mo. 1993) ......-+++555: 14

Wooley v. Maynard,

430 U.S. 705 (1977) 2... cece eee eee eens 27

Young v. American Mini Theaters,

427 US. SO CIDE) on ccccccccccsccveccees 17, 26

viii

Other Authorities

Amsterdam, "The Void-for-

Vagueness Doctrine in

the Supreme Court,"

109 U.Pa.L.Rev. 67 (1960)

Fallon, "Making Sense of

Overbreadth,"

100 Yale L.J. 853 (1991) .. 0... eee.

Karst, "Equality as a Central

Principle in the First

Amendment,"

43 U.Chi.L.Rev. 20 (1975) ... 0.0.0.0... ccc aee

Note, "The First Amendment

Overbreadth Doctrine,"

83 Harv.L.Rev. 844 (1970)

Stone, "Content Regulation

and the First Amendment,"

25 Wm. & Mary L.Rev. 189 (1983)

Strong, "Fifty Years of ‘Clear

and Present Danger’: From

Schenck to Brandenburg,"

1969 Sup.Ct.Rev. 41

. . .

"ewe eeoeee@eeeee ee 8&8 6 6 @

"VvTervroeooeo eeeoeseee 8 e080 @¢6 6 6 6 SO

No. 92-1856

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

CITY OF LADUE, et al.,

Petitioners,

-V.-

MARGARET P. GILLEO,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

INTEREST OF AMICUS

The Association of National Advertisers, Inc.,

(A.N.A.) respectfully submits this brief amicus curiae in

support of respondent. Letters of consent to its filing

have been lodged with the Clerk of the Court.

The Association of National Advertisers, Inc., the

advertising industry’s oldest trade association, is the only

organization exclusively dedicated to enhancing the abili-

ty of businesses to advertise on a national and regional

basis. With more than 2,000 subsidiaries, divisions and

operating units, ALN.A. members market a kaleidoscopic

array of goods and services and account for almost 80%

of the nation’s annual national and regional advertising

expenditures. As the nation’s principal community of

1

commercial speakers, A.N.A. has long been committed

to the advancement of commercial speech designed to

permit consumers to make informed and autonomous

choices in the marketplace.

Ordinarily, as in City of Cincinnati v. Discovery Net-

work, Inc., 507 U.S. __, 113 S.Ct. 1505 (1993), A.N.A.

has appeared as amicus curiae to urge that commercial

speech be accorded an appropriate level of free speech

protection. In this case, the City of Ladue has reversed

the usual order of speech regulation by treating commer-

cial speech more favorably than non-commercial commu-

nication. While A.N.A. applauds Ladue’s recognition of

the importance of commercial speech, A.N.A. continues

to believe that it is constitutionally impermissible for

government to differentiate among categories of speech

on the basis of content in the absence of an overwhelm-

ing social need. Moreover, where, as here, a municipali-

ty seeks to eliminate a long-established and pervasive

means of communication -- the display of signs and sym-

bols on private property -- in the name of aesthetics, the

municipality threatens both commercial and _ non-

commercial speech. Accordingly, A.N.A. respectfully

submits this brief amicus curiae in support of respondent.

STATEMENT OF THE CASE

On December 8, 1990, respondent, a resident of the

City of Ladue, placed a small sign on her front lawn

reading "Say No to War in the Persian Gulf/Call Con-

gress Now." Vandals immediately destroyed the sign.

On December 10, respondent placed an identical sign on

her lawn. (A picture of respondent’s second sign ap-

pears in the Joint Appendix, hereafter J.A., at 194.)

When her sign was again destroyed by vandals, respon-

dent sought assistance from the Ladue Police Depart-

ment. She was informed that her sign violated Ladue’s

anti-sign ordinance, which required a permit for the dis-

play of a sign. After unsuccessfully seeking a permit

2

from the Chief of Police and the Town Clerk, respon-

dent appeared before the Ladue City Council on Decem-

ber 17, 1990 to request a permit. The permit was

denied. On December 20, 1990, respondent commenced

this litigation, seeking injunctive relief against the Ladue

ordinance. On January 7, 1991, the district court grant-

ed preliminary injunctive relief. On January 21, 1991,

Ladue enacted its current anti-sign ordinance. J.A.116-

31. Respondent, who had replaced her lawn sign with

an 8.5 x 11 inch sign in her second floor window reading

"For Peace in the Gulf," was informed that her window

sign violated the current Ladue ordinance. (A picture of

the sign in respondent’s window appears at J.A. 195.)

After a hearing, the district court granted summary judg-

ment and injunctive relief, holding Ladue’s current ordi-

nance unconstitutional on its face. Géilleo v. City of

Ladue, 774 F.Supp. 1559-68 (E.D.Mo. 1991). The Eighth

Circuit affirmed. 986 F.2d 1180 (8th Cir. 1993). This

Court granted certiorari on October 4, 1993.

SUMMARY OF ARGUMENT

The display of posters, placards and symbols is

among the oldest and most pervasive forms of human

communication. }'evertheless, the City of Ladue, in the

name of aesthetics, seeks to ban virtually all non-

commercial signs and symbols, even when they are dis-

played on private residential property. Such an exercise

in mass censorship violates four fundamental constitu-

tional precepts. First, a quixotic effort to ban the display

of virtually all private signs and symbols from a commu-

nity inevitably invites viewpoint-driven judgments about

whether, when and how to enforce it. Houston v. Hill,

482 U.S. 451 (1987). Given the foibles of human nature,

the limits of municipal resources and the pervasive pres-

ence of written communication through signs and sym-

bols in our society, a purported ban on all signs and

symbols must inevitably degenerate into a viewpoint-

3

driven series of judgments over the administration and

enforcement of the ban. See infra, Point I at pp.7-11.

Second, Ladue’s asserted interest in aesthetics can-

not justify a total ban on a medium of communication as

long-established and pervasive as the display of signs and

symbols on private property. Ladue’s effort to justify its

total ban on aesthetic grounds fails on at least four

Ladue’s effort to ban a long-established and per-

vasive medium of communication exercises far

too drastic an impact on the free flow of ideas

to qualify for relaxed scrutiny as a time, place or

manner rule. Banning books to save trees would

not qualify as a time, place or manner rule.

Neither does banning virtually all Signs in the

levels:

(a) an interest in aesthetics is not of sufficient

magnitude to warrant the complete elimination

(as opposed to regulation) of a long-established

and pervasive medium of communication.

Schneider v. New Jersey, 308 U.S. 147 (1939).

See infra, Point II(A) at pp.13-17; |

(b) no showing has been made that the sign in

question poses a genuine danger to any rational

conception of aesthetics. At most, Ladue cites

wholly speculative fears of a "risk" that unsightly

signs will "proliferate" uncontrollably if any signs

are permitted at all. Brandenburg v. Ohio, 395

U.S. 444 (1969). See infra, Point II(B) at pp.17-

20;

(c) obvious less drastic means exist to guard

against Ladue’s bogeyman of uncontrolled sign

proliferation. Ladue has made absolutely no ef-

fort to show that limits on the size, duration, for-

mat and number of signs would be ineffective in

guarding against any rational conception of aes-

thetic degradation. Sable Communications v.

FCC, 492 U.S. 115 (1989). See infra, Point II(C)

at pp.20-21; and

(d) even if Ladue’s effort to stamp out an entire

medium of communication is incorrectly ana-

lyzed as a mere "time, place or manner” regula-

tion, it unquestionably fails the "narrow tailoring

test imposed in Ward v. Rock Against Racism,

491 U.S. 781 (1989). More importantly, though,

4

name of aesthetics. See infra, Point II(D) at pp.

21-23.

Third, Ladue’s ordinance impermissibly discriminates

on the basis of content by explicitly permitting commer-

cial "For Sale" and "For Rent" signs, while forbidding

identical signs containing non-commercial messages and

by forbidding non-commercial messages in areas where

commercial signs are freely permitted. The speculative

assertion that commercial speech may be less likely to

pose a threat to aesthetics because it is less likely to

"proliferate" than its non-commercial cousin cannot justi-

fy such differential treatment of the two categories of

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

S.Ct. 1505. See infra, Point III at pp.24-26.

Finally, Ladue’s ordinance impermissibly interferes

with a property owner’s right to use private property for

communicative purposes. Whatever the State’s power to

regulate its own property, or property held for the com-

mon use of the public, the State must establish an over-

whelming social need before overriding the combined ef-

fect of the two most important protections of human

autonomy present in the Constitution -- free expression

and private property. Buckley v. Valeo, 424 US. 1

(1976); Linmark Associates, Inc. v. Township of Willing-

boro, 431 U.S. 85 (1977); FCC vy. League of Women

Voters, 468 U.S. 364 (1984). When, as here, a municipal-

ity ignores both free expression and private property by

attempting to ban the display of innocuous Signs on a

homeowner’s lawn and on the inside of a homeowner’s

window, it enters the realm of Orwellian fantasy. See

infra, Point IV at pp.26-28.

ARGUMENT

The City of Ladue, in the name of community beau-

tification, seeks to impose a flat ban on the display of

virtually all private signs and symbols.’ The extraordi-

nary reach of Ladue’s crusade to make its world safe

from signs is demonstrated by the City’s effort in this

case to ban an 8.5 x 11 inch hand-lettered sign displayed

in the second-floor front window of a resident’s home

reading "For Peace in the Gulf.”

Ladue’s effort to eliminate the display of signs and

symbols is unconstitutional on four grounds. First, a

quixotic effort to ban virtually all communication by

signs and symbols from the life of a community inevita-

bly invites impermissible viewpoint-driven- judgments

about whether, when and how to enforce it. Second, La-

due’s asserted interest in aesthetics and the maintenance

of property values cannot justify a total ban on a signifi-

cant and long-established medium of communication.

' Ladue’s current anti-sign ordinance was enacted on January 21, 1991,

and amended on February 25, 1991. It is reproduced in its entirety in

the Joint Appendix at pp.116-31. It flatly forbids most signs, with the

exception of municipal signs; road and driveway danger signs; health

inspection signs; signs for churches, religious institutions and schools;

identification signs for not-for-profit organizations, public transporta-

tion signs; signs advertising the sale or rental of real property, com-

mercial signs in areas zoned for commercial use; signs at filling sta-

tions; and signs identifying safety hazards.

The version of Ladue’s anti-sign ordinance in effect at the com-

mencement of this litigation is set forth in the Joint Appendix at pp.

26-37. It established a standardless permit system that clearly violated

Lovell v. Griffin, 303 U.S. 444 (1938), and its substantial progeny. See

Lakewood vy. Plain Dealer Publishing Co., 486 U.S. 750 (1988). The

petty tyranny of Ladue’s viewpoint-driven refusal to grant a permit for

respondent’s original sign graphically illustrates the wisdom of this

Court’s repeated invalidation of standardless permit systems in the

First Amendment area.

? Respondent’s sign in her window was carefully covered by Ladue’s

current ordinance. See J.A.120-21.

6

Third, Ladue’s ordinance impermissibly discriminates on

the basis of content by permitting commercial “For Sale"

signs, while forbidding identical signs containing non-

commercial messages. Finally, Ladue’s ordinance imper-

missibly interferes with a speaker’s right to use private

property for communicative purposes.

I. LADUE’S ATTEMPT TO IMPOSE A TOTAL

BAN ON THE DISPLAY OF VIRTUALLY ALL

SIGNS AND SYMBOLS ON PRIVATE PROP-

ERTY INEVITABLY INVITES VIEWPOINT-

DRIVEN JUDGMENTS GOVERNING ITS

ADMINISTRATION AND ENFORCEMENT

Censorship on the basis of viewpoint violates the

core of the First Amendment. Stone, "Content Regula-

tion and the First Amendment," 25 Wm. & Mary L.Rev.

189 (1983); Karst, "Equality as a Central Principle in the

First Amendment,” 43 U.Chi.L.Rev. 20 (1975). Accord-

ingly, this Court has consistently condemned speech reg-

ulations that invite viewpoint-driven judgments concern-

ing enforcement and administration. Police Department

v. Mosley, 408 U.S. 92 (1972). Statutes overtly discrimi-

nating on the basis of viewpoint are unconstitutional on

their face. Schacht v. United States, 398 U.S. 58 (1970);

Boos v. Barry, 485 U.S. 312 (1987); Simon & Schuster,

Inc. v. Members of the New York State Crime Victims

Board, 502 U.S. __, 112 S.Ct. 501 (1991); RAV. v. City

of St. Paul, 50S U.S. __, 112 S.Ct. 2538 (1992). Stand-

ardless permit systems are similarly unconstitutional on

their face because they delegate de facto power to censor

on the basis of viewpoint. Lovell v. Griffin, 303 U.S. 444;

Schneider v. New Jersey, 308 U.S. 147; Shuttlesworth v.

Birmingham, 394 U.S. 147 (1969); Lakewood v. Plain

Dealer Publishing Co., 486 U.S. 750. Vague statutes in

the First Amendment area are also unconstitutional on

their face because they vest enforcement officials with

discretion to discriminate on the basis of viewpoint.

J

Smith v. Goguen, 415 U.S. 566 (1974). See Amsterdam,

"The Void-for-Vagueness Doctrine in the Supreme

Court,” 109 U.Pa.L.Rev. 67 (1960). Finally, overbroad

statutes purporting to ban both protected and unprotect-

ed communicative activity are unconstitutional on their

face precisely because they create an excessive risk of

viewpoint-based application.’ Broadrick v. Oklahoma,

413 U.S. 601 (1973); Houston v. Hill, 482 U.S. 451. See

Fallon, "Making Sense of Overbreadth," 100 Yale LJ.

853 (1991).

Ladue’s attempt to ban the display of virtually all

signs and symbols in a community likewise creates an ex-

cessive risk that viewpoint discrimination will play an im-

permissible role in its administration and enforcement.

Despite Ladue’s attempt to defend its massive exercise

in censorship as a content-neutral exercise in city plan-

ning, the distasteful facts of this case reveal that a flat

ban on communicating through signs inevitably lends it-

self to forbidden viewpoint censorship.

Respondent’s original sign was initially the target of

vandals, and both signs were targets of municipal au-

thorities,° because they conveyed a dissenting message

that questioned American policy in the Persian Gulf. At

* Since Ladue’s ordinance may not be applied constitutionally against

the sign at issue im this case, the ordinance is classically overbroad

even if it may be applied constitutionally in other settings. Note, "The

First Amendment Overbreadth Doctrine,” 83 Harv.L.Rev. 844 (1970).

The unconstitutionality of Ladue’s ordinance as applied to respon-

dent’s sign is discussed infra at Point II.

* Respondent's first two efforts to a small sign on her prope

soteedan the tar to the Penton Gel 0 dake t wndis che da

ply tore it down. After ascertaining the sign’s content, the Ladue po-

lice rebuffed respondent’s request for police protection, citing a pred-

ecessor ban on signs without a permit.

* Three levels of bureaucracy denied respondent a permit for her orig-

inal sign under Ladue’s predecessor ordinance after ascertaining its

message.

the very moment Ladue’s guardians of public order were

denying respondent a permit because her small lawn sign

allegedly posed a threat to the town’s aesthetic purity,

many of Ladue’s residences and streets were emblazoned

in yellow ribbons and American flags signifying support

for our hostages abroad and for our military presence in

the Persian Gulf.* Unlike their response to respondent's

sign, however, Ladue’s authorities made no effort to in-

terfere with the widespread display of yellow ribbons to

express symbolic support for the Gulf War, even though

display of the ribbons, as “banners,” “pennants” or “in-

signia,” appears to fall within the definition of "sign"

contained in both the predecessor and current ordinance.

J.A120 and J.A.26,’ Indeed, an earlier, non-

controversial sign on respondent’s property discussing

environmental issues had remained undisturbed, both by

neighborhood vandals and by municipal authorities alike.

J.A.42-43. Finally, Ladue’s Mayor candidly conceded

that respondent’s sign would have been less objectiona-

ble if it had read "Free the Hostages” or "Give Up

Dope.” J.A.55. Little doubt exists, therefore, that the

“controversial” viewpoint espoused by respondent’s origi-

nal sign played a significant role in both private and

public efforts to secure its elimination.

Recognizing that its predecessor ordinance was

clearly unconstitutional because it was saturated with

viewpoint-based judgments during the permit process,

Ladue rescinded its permit system mid-way through this

litigation and now argues that its current “absolute” anti-

* See affidavit of Nancy Sachs, {49,11 and 13. J.A.190-92.

7

of symbols to express support for, or opposition to, government policy

is fully protected by the First Amendment. Texas v. Johnson, 491 US.

397 (1989). It is the gross disparity between Ladue’s toleration of

symbols of support and suppression of signs of dissent that cannot be

condoned.

9

sign ordinance is no longer vulnerable to viewpoint-

driven abuse because it allegedly bans all signs regard-

less of subject matter." But, given the breadth of La-

due’s current ordinance, its administration and enforce-

ment will inevitably be viewpoint-sensitive. Given the

foibles of human nature, the limits of municipal re-

sources and the pervasive presence of written communi-

cation through signs and symbols in our society,” a pur-

ported ban on all signs and symbols must inevitably de-

generate into a viewpoint-driven series of judgments over

which signs or symbols are brought to the attention of

the authorities and whether scarce enforcement re-

sources should be committed to stamping out, or protect-

ing, a particular sign or symbol. Non-controversial signs

and symbols espousing highly_popular views, like the yel-

low ribbons supporting our troops in the Persian Gulf or

the display of religious symbols, will continue to be toler-

ated, both by private vandals and by municipal authori-

ties; while controversial signs, like respondent’s, will

continue to be brought to the attention of municipal au-

thorities and aggressively suppressed.

In Houston v. Hill, 482 U.S. 451, this Court invali-

dated a similarly quixotic ban on all speech that inter-

* In fact, Ladue’s ordinance makes forbidden content distinctions be-

tween commercial "For Sale” signs and other identical signs, including

non-commercial signs such as the sign at issue in this case. See infra,

Point Ill. The invalidity of a total ban on signs is discussed in Point

Il.

* The display of signs and symbols is among the oldest and most per-

vasive forms of human communication:

And you shall bind them as a sign between your eyes and

write them on the doorposts of your house and upon your

gates.

Deuteronomy, Chapter 6, verses 5-9.

Read literally, Ladue’s ordinance bans the display of religious sym-

bols on private property, even during the holiday season.

10

ed

rupts a police officer in the performance of his or her

duties. In words that could have been written for this

case, Justice Brennan noted:

The ordinance’s plain language is admittedly

violated scores of times daily, [yet] only

some individuals -- those chosen by the

police in their unguided discretion -- are

arrested.

482 U.S. at 466-67. See also id. at 480-81 (Powell, J.,

concurring).

As in Houston v. Hill, the unavoidable impact of

viewpoint on the administration and enforcement of La-

due’s effort to ban virtually all signs and symbols from a

community is the functional equivalent of granting a

standardless licensing power to municipal authorities. By

purporting to ban a long-established and pervasive form

of communication, Ladue has simply replaced the clearly

unconstitutional de jure permit system under its prede-

cessor ordinance with an even more dangerous de facto

permit system under the current ordinance. See United

States v. Reese, 92 U.S. 214, 222 (1876). Whatever the

face of the Ladue ordinance may recite, the reality is a

de facto standardless licensing system that will tolerate

yellow ribbons in support of government policy and sup-

press innocuous signs opposing it.”

° The risk of viewpoint-based administration is enhanced by the fact

that Ladue’s ordinance is designed to advance an inherently subjective

concept -- aesthetics. Certain officials of Ladue appear to believe that

0 eee Cp eanening agen Se © pied eamniete eo caus & a

hetic detriment, presumably because it is not a tree. Many others,

isdn tie Ueniinen Gaal chur elias of eam techs

ment in self-government as an aesthetic plus because it betokens a

—— There may, of course, come a point where deterio-

ating or unsightly signs pose a consensus problem in aesthetics. But

otal thet giliiecd das exo thaandir Chondiees oll canadien b

untenable.

11

Il. LADUE’S ASSERTED INTEREST IN AES-

THETICS AND THE MAINTENANCE OF

PROPERTY VALUES CANNOT JUSTIFY AN

EFFORT TO ELIMINATE THE DISPLAY OF

VIRTUALLY ALL SIGNS AND SYMBOLS

FROM THE LIFE OF A COMMUNITY

When, as here, the government seeks to stamp out a

significant and long-standing medium of communication,

it must carry a heavy burden of justification on at least

three issues. First, the State must demonstrate an inter-

est in censorship that rivals our nation’s historic commit-

ment to free expression. Garden-variety preferences

simply cannot justify massive censorship. Schneider v.

New Jersey, 308 U.S. 147.

Second, the State must demonstrate that the target

of its censorship is extraordinarily likely to harm the

State’s asserted interest. Mere speculation that the com-

municative activity at issue might lead to something

worse can never suffice. Brandenburg v. Ohio, 395 U.S.

444.

Third, the State must show that less intrusive means

of regulation will not equally advance its interests. Un-

necessarily broad efforts at censorship violate the First

Amendment. Sable Communications v. FCC, 492 U.S.

115.

Ladue’s effort to eliminate signs as a significant

medium of communication fails all three tests. In fact,

the two versions of Ladue’s anti-sign ordinance are clas-

sic examples of how not to regulate speech. The original

ordinance sought to delegate ad hoc authority to draw

lines to local enforcement officials, resulting in a stand-

ardless permit system. The current ordinance refuses to

draw any lines at all, resulting in an unconstitutionally

overbroad ordinance and a de facto permit system.

Despite Ladue’s apparent aversion to the process,

however, the careful drawing of lines is the key to any

12

serious effort to regulate speech. While the aesthetic

problem of visual clutter may well justify thoughtful

regulation of the format, number, size and location of

certain signs, it cannot justify an overbroad effort to

extirpate a significant and long-established medium of

communication from the life of a community.

A. Ladue’s Asserted Interest In Aesthetics Is

Insufficient To Justify Massive Censorship

Aimed At Eliminating The Display Of Signs

And Symbols As A Significant Medium Of

Communication

In order to justify an interference with free speech

of a magnitude similar to Ladue’s effort to ban virtually

all private signs and symbols, government must seek to

advance an interest that has been variously described as

“compelling,” “subordinating,” "paramount," "cogent,"

"strong," "important," or "substantial." See United States

v. O'Brien, 391 U.S. 367, 376-77, nn.22-27 (1968); Central

Hudson Gas & Elec. Corp. v. Public Service Comm’n, 447

U.S. 557, 564 (1980). Amicus believes that the precise

term used to describe the required quality of the State’s

interest is less important than a recognition that the in-

terest must transcend the general run of concerns ordi-

narily motivating government. In adopting the First

Amendment, the Founders balanced the ordinary con-

cerns of government against the value of free expression

and resoundingly endorsed free expression. Banning the

display of virtually all signs and symbols on private prop-

erty in the name of aesthetics fails to respect that foun-

dational balance. Cohen v. California, 403 U.S. 15

(1971); Street v. New York, 394 U.S. 576 (1969); Erznoz-

nik v. Jacksonville, 422 U.S. 205 (1975). Thus, even if

Ladue’s anti-sign ordinance could escape inevitable en-

tanglement in viewpoint-driven judgments about whether

and when to enforce it, the ordinance would, neverthe-

less, violate the First Amendment on its face because

Ladue’s asserted interest in aesthetics cannot justify a

13

flat ban on the type of sign at issue in this case." Al-

though aesthetics might well justify limits on the number,

format, placement and size of certain signs in certain set-

tings, an interest in community beautification simply can-

not justify an effort to stamp out all signs, even the 8.5 x

11 inch sign in respondent’s second floor front window

announcing her opposition to the war in the Persian

Gulf.”

Once before in the nation’s history, municipal au-

thorities sought to justify a complete ban on a significant

and long-standing medium of communication -- leaflet-

ting -- by asserting an interest in the aesthetics of clean

streets. In Schneider v. New Jersey, 308 U.S. 147, this

Court soundly rejected the notion that aesthetics could

justify the total elimination of a significant medium of

communication from the life of a community, invali-

" Since Ladue’s ordinance may not be applied constitutionally to re-

spondent’s sign, it is unconstitutional both as applied and on its face

as classically overbroad, since it sweeps both protected and unprotect-

ed communication within its ambit. Houston v. Hill, 482 U.S. 451.

Given the overbreadth in the very definition of “sign,” J.A.120, it is im-

possible, despite the presence of a severability clause, to parse Ladue’s

ordinance to separate the valid from the invalid provisions. The exist-

ence of a severability clause is not a warrant to the courts to re-write

the statute’s core definitional sections.

* In addition to the Eighth Circuit below, the lower federal courts

have unanimously invalidated similar efforts to ban the display of alli

signs on private property. Arlington County Rep. Comm. y. Arlington,

Va., 983 F.2d 587 (4th Cir. 1993); Matthews v. Town of Needham, 764

F.2d 58 (1st Cir. 1985); National Advertising Co. v. Town of Niagara,

942 F.2d 145 (2d Cir. 1991); National Advertising Co. v. City of Orange,

861 F.2d 246 (9th Cir. 1988); Whitton v. City of Gladstone, 832 F.Supp.

1329 (W.D.Mo. 1993); City of Antioch v. Candidates’ Outdoor Graphics

Sve., 557 F.Supp. 52 (N.D.Cal. 1982); Loftus v. Township of Lawrence

Park, 764 F.Supp. 354 (W.D.Pa. 1991). See also Baldwin v. City of

Redwood, 540 F.2d 1360 (9th Cir.), cert. den. sub nom. Leipig v. Bald-

win, 431 U.S. 913 (1977); Aiona v. Pai, 516 F.2d 892 (9th Cir. 1975):

Orazio v. Town of Hempstead, 426 F.Supp. 1144 (E.D.N.Y. 1977).

14

dating three municipal ordinances that imposed flat bans

on leafletting in the name of clean streets. Indeed, in

Niemotko v. Maryland, 340 U.S. 268, 276 (1951)(Frank-

furter, J., concurring), Justice Frankfurter observed that

the "easiest" free speech cases were those where a mu-

nicipality sought to justify a ban on leafletting by as-

serting an aesthetic interest in clean streets. In words

directly relevant to this case, Justice Frankfurter stated:

The easiest cases have been those in which

the only interest opposing free communica-

tion was that of keeping the streets of the

community clean. This could scarcely justify

prohibiting the dissemination of information

by handbills or censoring their contents.

340 U.S. 268, 276 (1951).

The Ladue anti-sign ordinance is a modern variant

of the anti-leafletting ordinances struck down in

Schneider. Instead of leaflets, the target medium is signs.

Instead of the aesthetics of clean streets, the municipal

interest is the aesthetic avoidance of “visual clutter." But

the balance between free speech and aesthetics is the

same. Schneider and its progeny teach that aesthetics is

simply not a sufficient basis for wiping out an entire me-

dium of communication. Thus, while cases like City of

Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984);

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

(1981); and Renton v. Playtime Theaters, Inc., 475 U.S. 41

(1986), suggest that aesthetics may justify the regulation

of various forms of communication, nothing in this

Court’s free speech jurisprudence supports the proposi-

tion that aesthetics can justify the virtual elimination of a

significant and long-standing medium of communication

from the life of a community.

City of Los Angeles v. Taxpayers for Vincent, 466 U.S.

789, provides no support for the total elimination of

Signs as a significant medium of communication. The

15

Los Angeles ordinance upheld in Taxpayers for Vincent

banned signs from public property on aesthetic grounds,

but explicitly declined to impose a ban on signs on pri-

vate property. Justice Stevens, writing for the Court, rec-

ognized that a private property owner’s self-interest

would naturally guard against aesthetic degradation,

making municipal regulation of signs on private property

less necessary. Moreover, he noted that the widespread

availability of signs on private property mitigated the im-

pact of the Los Angeles regulation on the free flow of

information. /d. at 811.

Nor does Metromedia, Inc. v. City of San Diego, 453

U.S. 490, support a flat ban on all signs in the name of

community beautification. The plurality opinion in Met-

romedia carefully confined that case to the regulation of

large permanent billboards that are the equivalent of

structures.” Nothing in Metromedia suggests that all

signs may be totally banned merely because some large

billboards may be regulated."

Finally, Renton was explicitly premised on a finding

that the municipal zoning regulation at issue in that case

left over 520 acres available for the speech in question.

475 U.S. at 53-54. The non-intrusive zoning rules at is-

" The California Supreme Court definitively construed the San Diego

ordinance narrowly to prevent its application to "a small sign placed in

one’s front yard proclaiming a political or religious message.” 453

U.S. at 494, n.2.

In fact, the categorical content distinctions drawn by the Ladue

ordinance between commercial and non-commercial speech are virtu-

ally identical to the content-based distinctions that doomed the San

Diego ordinance in Metromedia. See infra at pp.24-25 & n.19.

‘In the years since Metromedia, this Court has repeatedly acknowl-

edged the interest of hearers in receiving information. Given the im-

portance of signs as a means of disseminating such information,

amicus does not believe that aesthetics can justify a total ban even on

large permanent signs, as opposed to their thoughtful regulation.

16

sue in Renton are a far cry from Ladue’s effort to im-

pose a flat ban on an entire medium of communication.

See Young v. American Mini Theaters, 427 US. 50, 71,

n.35 (1976).

Indeed, in the years since Schneider v. New Jersey,

this Court has repeatedly refused to permit aesthetic dis-

approval to justify censorship. For example, in Cohen v.

California, 403 U.S. 15, Justice Harlan, writing for the

Court, held that vulgar language could not be banned

merely because it offended hearers:

The constitutional right of free expression is

powerful medicine in a society as diverse

and populous as ours... . To many, the im-

mediate consequences of this freedom may

often appear to be only verbal tumult, dis-

cord, and even offensive utterance ....

[But] that the air may at times be filled with

verbal cacophony is . not a sign of

weakness but of strength.

403 U.S. at 24-25. See also Erzoznik v. City of Jackson-

ville, 422 U.S. at 210-11.

Thus, Ladue’s asserted interest in aesthetics simply

cannot justify censorship of the sweep imposed by a flat

ban on virtually all signs wherever located.

B. Ladue’s Assertion That Permitting Signs

Similar To Respondent’s Poses A Significant

Risk Of Aesthetic Degradation Through

"Visual Clutter" Is Wholly Unsubstantiated

Even if aesthetics were a sufficiently weighty interest

to justify Ladue’s effort at mass censorship, Ladue must

demonstrate that respondent's sign actually poses a gen-

uine threat of “visual clutter" before suppressing it.

Mere speculative fear or "undifferentiated apprehension"

cannot suffice. Brandenburg v. Ohio, 395 U.S. 444:

17

Tinker v. Des Moines Indep. Community School Board,

393 U.S. 503, 508 (1969).

One of Justice Holmes’ great gifts to the nation was

his recognition that speech may not be suppressed mere-

ly because it may pose a threat to a government interest.

Prior to Justice Holmes, government was permitted to

justify censorship by showing that a particular form of

communication had a “bad tendency” to impair a signifi-

cant government interest. Gitlow v. New York, 268 U.S.

652 (1925). Justice Holmes’ seminal free speech opin-

ions reject the "bad tendency" test and establish that gov-

ernment must prove that the target speech actually poses

an imminent threat to the asserted government interest.

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

United States, 249 U.S. 211 (1919); Abrams v. United

States, 250 U.S. 616, 624 (1919)(Holmes and Brandeis,

JJ., dissenting); Gitlow v. New York, 268 U.S. at 672

(Holmes and Brandeis, JJ dissenting). Whitney v. Cali-

fornia, 274 U.S. 357, 372 (1927)(Brandeis and Holmes,

JJ., concurring). See Strong, “Fifty Years of ‘Clear and

Present Danger’: From Schenck to Brandenburg," 1969

Sup.Ct.Rev. 41. Speculative fear that the speech in

question may lead to something worse can never justify

censorship of the sweep attempted by the Ladue ordi-

nance. Edenfield v. Fane, 507 U.S. __, 113 S.Ct. 1792

(1993).

Since it would border on the absurd to claim that a

small hand-lettered sign in a second floor window is it-

self an aesthetic threat, petitioners seek to defend a total

ban on signs by speculating that unsightly signs will pro-

liferate uncontrollably unless even the most innocuous

signs are completely banned. In support of that dubious

assumption, petitioners presented the affidavit of a single

witness -- Malcolm Drummond, a city planner. J.A.138-

59. Mr. Drummond described Ladue’s requirement of

three-acre residential zoning, recounted Ladue’s refusal

to permit apartment houses, and noted that less than 5%

18

a

of the total land mass of Ladue is occupied by structures

The remaining 95% is parkland, or nse p ta sur-

rounding residences with larger than normal set-backs.

While Mr. Drummond opined that the "careful regula-

tion of signage” is an “essential element of city plan-

ning,” he carefully refrained from urging a complete pro-

hibition on signs. Read most generously for petitioners,

Mr. Drummond’s affidavit warns that signs with no “nat-

ural limit on number or duration" create a "risk" of pro-

liferation causing visual blight. J.A.154. Basing wide-

spread censorship on such a speculative assessment of

risk" is precisely the evil that Justice Holmes sought to

avoid in Gitlow and precisely the type of “undifferenti-

—_ apprehension" condemned in Tinker and Branden-

urg.

Moreover, Ladue’s assumption that, unless all signs

are banned, unsightly signs will sprout like mushrooms

throughout the city faces two insurmountable objections.

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

S.Ct. 1505, Cincinnati abandoned as untenable a virtually

identical speculative fear of proliferation as a justifica-

tion for censorship. Jd. at 1515. In Discovery Network

Cincinnati had sought to defend its ban on commercial

newsracks by arguing that commercial newsracks were

especially prone to proliferate. After the Sixth Circuit

commented scathingly on its proliferation argument, 946

F.2d at 466-67, Cincinnati did not even attempt it in this

Court. Cincinnati recognized that fear of uncontrollable

proliferation was speculative and, in any event, could not

justify a total ban on all commercial newsracks. In fact

Ladue’s "proliferation" argument is much weaker than

Cincinnati's.” With more than 2,000 newsracks on its

streets, Cincinnati was arguably at a saturation point that

The Eighth Circuit commented on the weakness of petitioners’ ar-

gument that non-commercial signs are subject t

eration. 986 F.2d at 1183, n.7. ; anand med

19

would have made fear of proliferation a credible con-

cern. As the Drummond affidavit demonstrates, how-

ever, the display of an occasional sign on a lawn or in a

window is hardly an imminent aesthetic threat in a city

95% of which consists of well-manicured parkland and

spacious private grounds.

Second, as Justice Stevens noted in Taxpayers for

Vincent, owners of private property, especially residential

property, have a powerful motive to care about the aes-

thetics of their property. Accordingly, he reasoned, it

was unnecessary to forbid signs on private property to

guard against runaway visual blight. In the three years

that Ladue has operated under court order without a

ban on signs,’* Ladue’s citizens have behaved exactly as

Justice Stevens predicted. Occasional signs are dis-

played, expressing a deeply felt idea; but there is no

evidence whatever that uncontrolled proliferation has

given rise to visual blight anywhere but in the overheat-

ed imaginations of Ladue’s officialdom.

C. Ladue’s Asserted Interest In Stemming

Visual Blight Does Not Require A Total Ban

On Signs. Reasonable Regulation Of The

Number, Format, Size And Duration Of

Signs Is An Obvious Less Drastic Means Of

Advancing Ladue’s Asserted Aesthetic

Interest

Where, as here, obvious alternatives exist that would

fully protect the government's asserted interest without

resorting to unnecessary censorship, the First Amend-

ment requires use of the less drastic alternative. Martin

v. Struthers, 319 U.S. 141 (1943); Sable Communications

v. FCC, 492 U.S. 115; Peel v. Attorney Registration and

‘* Ladue’s anti-sign ordinance has been judicially suspended since

January 7, 1991.

20

Disc. Comm'n, 496 U.S. 91 (1990). While disputes have

arisen over whether an alleged alternative is an equally

effective means of advancing the government's interest,”

no doubt exists in this case that thoughtful regulation, as

opposed to total prohibition, is an adequate defense

against the bogeyman of uncontrolled proliferation of

unsightly signs. See Board of Airport Comm'rs v. Jews for

Jesus, Inc., 482 U.S. 569 (1987); Lee v. International Soci-

ety for Krishna Consciousness, Inc., 50S U.S. __, 112 S.Ct.

2709, 2711 (O’Connor, J.), 2715 (Kennedy, J.), 2724

(Souter, J.)(1992).

D. Ladue’s Effort To Impose A Total Ban On

Virtually All Private Signs Cannot Be

Defended As A “Time, Place Or Manner"

Regulation

Recognizing that its ordinance cannot survive tradi-

tional First Amendment scrutiny, Ladue attempts to in-

voke the less stringent review applied to time, place or

manner restrictions. United States v. O’Brien, 391 U.S.

367; Clark v. Community for Creative Non-Violence, 468

U.S. 288 (1984); Ward v. Rock Against Racism, 491 U.S.

781. The short answer to petitioners’ effort to seek shel-

ter in the time, place and manner doctrine is that even

time, place and manner rules must be “narrowly tailored"

to avoid unnecessary interference with free speech. As

Justice Kennedy observed for the Court in Rock Against

Racism:

Lest any confusion on the point remain, we

reaffirm today that a regulation of the time,

place or manner of protected speech must

'’ Compare Board of Trustees v. Fax, 492 U.S. 469 (1989)(no need for

“perfect” fit between means and ends; “reasonable fit sufficient) with

Central Hudson Gas & Elec. Corp. v. Public Service Comm'n, 447 U.S.

557 (government must show that its interest cannot be protected ade-

quately by more limited regulation of appellant's speech).

21

be narrowly tailored to serve the govern-

ment’s legitimate content-neutral interests,

but that it need not be the least-restrictive

or least-intrusive means of doing so... . To

be sure, this standard does not mean that a

time, place or manner regulation may bur-

den substantially more speech than is neces-

sary to further the government’s legitimate

interests. Government may not regulate ex-

pression in such a manner that a substantial

portion of the burden on speech does not

serve to advance its goals.

Id. at 798-99.

Indeed, in words that are particularly applicable to

this case, Justice Kennedy concluded:

A ban on handbilling, of course, would sup-

press a great quantity of speech that does

not cause the evils that it seeks to eliminate,

whether they be fraud, crime, litter, traffic

congestion or noise. For that reason, a com-

plete ban on handbilling would be substan-

tially broader than necessary to achieve the

interests justifying it.

491 U.S. at 799, n.7.

Substitute the word "signs" for the word “handbill-

ing” and Justice Kennedy was deciding this case.

Even more importantly, however, Ladue’s flat ban

on the display of signs and symbols on private property

is not a mere time, place or manner restriction. Censor-

ship of such sweep, aimed at virtually eliminating a long-

established and pervasive medium of communication,

must satisfy rigorous First Amendment standards. Noth-

ing in the Court’s free speech jurisprudence suggests that

a regulation aimed at eliminating one of our most signif-

icant and pervasive forms of communication should be

22

tested under relaxed standards. If, for example, Ladue

sought to ban books in order to save paper, its attempt

at censorship would not be viewed as a mere time, place

or manner rule. The dramatic impact on free speech of

such an attempt to ban a long-established medium of

communication would require it to pass rigorous First

Amendment scrutiny. Instead of books, Ladue has

banned signs. While the justifications for banning books

and signs may vary, the rigorous First Amendment stand-

ard of review does not.

In order to qualify as a time, place or manner rule,

a speech regulation must permit the speech in question

some time, some place, or some manner. From the in-

ception of the doctrine in Cox v. New Hampshire, 312

U.S. 569 (1941), through its refinement in Grayned v.

City of Rockford, 408 U.S. 104 (1972), to its current ap-

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

the doctrine has been used to regulate the geography of

speech and to assure that unconventional means of com-

munication did not cause undue dislocation to other im-

portant governmental interests. But the fundamental as-

sumption underlying the slightly relaxed rules governing

time, place or manner regulations is that such regula-

tions do not pose a significant impediment to the free

flow of ideas. The time, place or manner doctrine has

no place, therefore, in the analysis of an attempt to

eliminate an entire medium of communication.”

* Petitioners’ efforts to show that alternative forms of speech were

available to respondent are, thus, irrelevant. If Ladue outlawed books

instead of signs, the fact that alternative means of communication

were alleged to exist could not be a defense to such a drastic interfer-

ence with free expression.

Moreover, it is obvious that the alleged alternative means of com-

munication trumpeted by petitioners are fundamentally different in

nature and quality. Requiring respondent to phone all of her neigh-

bors, or to put material in their mailboxes, is hardly an adequate al-

(continued...)

23

Ill. LADUE’S ORDINANCE MAKES IMPERMIS-

SIBLE CONTENT-BASED DISTINCTIONS

BETWEEN COMMERCIAL AND _ NON-

COMMERCIAL SPEECH

Even if aesthetics were a sufficient basis for elimi-

nating all signs, Ladue’s ordinance does not purport to

eliminate all signs. It explicitly permits commercial "For

Sale" or "For Rent" signs (but not non-commercial signs

like respondent’s) in residential neighborhoods and per-

mits commercial signs, but not non-commercial signs, in

commercial areas. Thus, Ladue makes precisely the

content-based distinction between commercial and non-

commercial speech that doomed the ordinance in Metro-

media, Inc. v. City of San Diego, 453 U.S. 490, and makes

the obverse of the distinction that doomed the ordinance

in City of Cincinnati v. Discovery Network, Inc., 113 S.Ct.

1505.

In Metromedia, a plurality” of the Court voted to in-

* (..continued)

ternative to the display of a sign or symbol. The display of signs and

symbols evolved as significant medium of communication precisely be-

cause it differs from verbal or individually directed written speech.

The existence of alternative means of expression, as used in time,

place or manner analysis, means alternatives of the same nature and

quality as the forbidden expression. Thus, in Taxpayers for Vincent,

the alternatives included identical signs on private property. In Clark

v. Community for Creative Non-Violence, the alternatives included

identical demonstrations in the park. In Rock Against Racism, the al-

ternatives included the very music at issue. In Renton, the alternatives

included the identical speech at a different geographical location.

Conversely, the alleged existence of alternative forms of communica-

tion have been deemed irrelevant when they are of a different quality

and nature than the communication at issue. E.g., Texas v. Johnson,

491 U.S. 397 (alternatives to flag-burning); Cohen v. California, 403

U.S. 15 (alternative to vulgar language).

* Justice White delivered the plurality opinion in Metromedia, joined

by Justices Stewart, Marshall and Powell, condemning the discrimina-

(continued...)

24

validate a San Diego ordinance regulating billboards be-

cause the ordinance discriminated against non-

commercial speech. The aversion to content-based dis-

crimination that motivated the Metromedia plurality

ripened into a cogent theory in City of Cincinnati v. Dis-

covery Network, Inc., 113 S.Ct. 1505. In Discovery Net-

work, Cincinnati attempted to ban commercial newsracks

while permitting newspapers unlimited access to the

medium. Cincinnati argued that commercial speech was

less important than newspapers and, thus, could be dif-

ferentially treated in the interest of aesthetics and public

safety. Justice Stevens, writing for the Court, rejected

Cincinnati’s attempt to discriminate against commercial

speech, reasoning that the City’s asserted interest in aes-

thetics and public safety did not justify differential treat-

ment of commercial and non-commercial speech.

This case is the obverse of Discovery Network. In-

stead of discriminating against commercial speech, as in

Discovery Network, Ladue discriminates in favor of it. As

in both Discovery Network and Metromedia, however, La-

due’s asserted interest in regulation -- aesthetics -- does

not support differential treatment of commercial and

non-commercial speech. No intrinsic aesthetic difference

exists between identical signs expressing commercial or

non-commercial messages. Ladue concedes that obvious

truth; but argues that non-commercial signs are more

likely to “proliferate” uncontrollably. However, both

commercial and non-commercial signs are equally ame-

nable to regulation as to number, size, duration and lo-

cation. Thus, as in Discovery Network, no reasonable

* (...continued)

tion against non-commercial speech. 453 U.S. at 512-17. Justices

Brennan and Blackmun voted to invalidate the ordinance because it

constituted a de facto total ban that had not been adequately justified.

Id. at 521. Chief Justice Burger, (id. at 554), Justice Rehnquist, (id. at

568), and Justice Stevens, (id. at 539), voted to uphold the ordinance.

25

linkage exists between the government interest in cen-

sorship and the decision to treat commercial and non-

“commercial speech differently.

In the absence of a persuasive, non-speculative func-

tional justification for differential treatment, the decision

to treat commercial speech better or worse than its non-

commercial cousin turns on a forbidden subjective judg-

ment about the relative “importance” or “value” of cate-

gories of protected expression. As Justice Powell repeat-

edly warned, however, the First Amendment places judg-

ments about the relative value of different categories of

speech in the private marketplace of ideas, not in the

hands of a government regulator. Young v. American

Mini Theaters, 427 U.S. at 82, n.6 (Powell, J. concurring);

FCC v. Pacifica Foundation, 438 U.S. 726, 761 (1978)

(Powell, J. concurring). Although the short term inter-

ests of commercial speakers might be enhanced by seek-

ing privileged treatment at the expense of non-

commercial speakers, the long-term interests of the First

Amendment demand content-neutrality in the absence of

a powerful functional justification for treating one cate-

gory of speech more favorably than another. Since no

reason exists to treat commercial and non-commercial

speech differently on aesthetic grounds, Ladue’s ordi-

nance is in clear violation of Discovery Network.

IV. LADUE’S EFFORT TO BAN THE DISPLAY OF

SIGNS AND SYMBOLS ON PRIVATE PROP-

ERTY VIOLATES THE RIGHT OF A PROP-

ERTY OWNER TO USE PRIVATE PROPERTY

FOR COMMUNICATIVE PURPOSES

Whatever power the State may possess to regulate

the communicative use of its own property,” or to im-

® See United States v. O'Brien, 391 US. 367 (draft cards); Greer v.

(continued...)

26

pose restrictions on public property held for common

use,” government power is at its lowest ebb when it

seeks to forbid the use of private property for expressive

use. Whether the context has been regulation of the

electoral process, Buckley v. Valeo, 424 U.S. 1; regulation

of public utilities, Pacific Gas & Elec. v. Public Utilities

Comm'n, 475 U.S. 1 (1986); enforcement of the criminal

law, Stanley v. Georgia, 394 U.S. 557 (1969); motor vehi-

cle regulation, Wooley v. Maynard, 430 U.S. 705 (1977);

postal regulation, Lamont v. Postmaster General, 381 U.S.

301 (1965); zoning, Moore v. City of East Cleveland, 431

U.S. 494 (1977); newspapers, Miami Herald Pub. Co. v.

Tornillo, 418 U.S. 241 (1974); regulation of public televi-

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

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

Texas v. Johnson, 491 U.S. 397; regulation of corpora-

tions, First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765

(1978); or commercial speech, Linmark Associates, Inc. v.

Township of Willingboro, 431 U.S. 85, this Court has con-

sistently upheld the right of a property owner to utilize

private property for expressive ends.” And when, as

” (..continued)

Spock, 424 U.S. 828 (1976)(military base); United States Postal Service

v. Greenburgh Civic Ass'ns, 453 U.S. 114 (1981)(mail boxes); Los An-

geles v. Taxpayers for Vincent, 466 U.S. 789 (1984)(telephone poles);

Rust v. Sullivan, 500 US. __, 111 S.Ct. 1759 (1991)(use of public

funds); United States v. Kokinda, 497 U.S. 720 ( 1990)(postal property).

* Compare Clark v. Community for Creative Non-Violence, 468 US.

288; Ward v. Rock Against Racism, 491 US. 781; and Burson v. Free-

man, S04 US. __, 112 S.Ct. 1846 (1992); with Lee v. Society of Krishna

Consciousness Inc., 112 S.Ct. 2709, Frisby v. Schultz, 487 US. 474

(1988); United States v. Grace, 461 U.S. 171 (1983); and Hague v. CIO,

37 US. 496 (1939).

* The Court has recognized the correlative right of a property owner

to refrain from using his property for communicative purposes. Wool-

ey v. Maynard, 430 US. 705.

27

here, the private property is residential, the right is at its

strongest. Stanley v. Georgia, 394 U.S. 557; Moore v. City

of East Cleveland, 431 U.S. 494. But see City of Ladue v.

Joan K. Horn and Terrence Jones, 720 S.W.2d 745 (Mo.

Ct.App. 1986)(enforcement of Ladue’s anti-cohabitation

ordinance against member of Congress who lived with

unmarried partner and children).

The power of the private property-free expression

combination should come as no surprise, since free ex-

pression and private property are the principal guaran-

tees of individual autonomy contained in the Constitu-

tion. When the two concepts pull in different directions,

the Court is confronted with the extremely difficult task

of choosing between the two. E.g,. Marsh v. Alabama,

326 U.S. 501 (1946); Lloyd Corporation v. Tanner, 497

U.S. 551 (1972); Pruneyard Shopping Center v. Robins,

447 U.S. (1980). But where, as here, the two concepts

overlap and reinforce each other, the combined force of

both can be breached by the government, if at all, only

upon a showing of extraordinary social need that far

transcends Ladue’s “undifferentiated apprehension" that

the display of any signs at all inevitably leads to aesthetic

degradation.

. CONCLUSION

For the above-stated reasons, the judgment of the

United States Court of Appeals for the Eighth Circuit

should be affirmed.

Respectfully submitted,

Burt Neuborne

(Counsel of Record)

40-Washington Square South

New York, New York 10012

(212) 998-6172

Attorney for

Association of National

Advertisers, Inc.

Of Counsel

Gilbert H. Weil

60 East 42 Street

New York, New York 10165

(212) 687-8573

Dated: December 13, 1993

29