John Donnelly & Sons v. Campbell, 79-1575

• Decision Date: 22 December 1980
• Docket Number: No. 79-1575,79-1575
• Citation: 639 F.2d 6
• Court: U.S. Court of Appeals — First Circuit
• Parties: 11 Envtl. L. Rep. 20,091, 7 Media L. Rep. 1132 JOHN DONNELLY & SONS, National Advertising Company, and William S. Schaeffer, Plaintiffs, Appellants, v. George N. CAMPBELL, Jr., Commissioner of Transportation, State of Maine, Defendant, Appellee.

Page 6

639 F.2d 6

11 Envtl. L. Rep. 20,091, 7 Media L. Rep. 1132

JOHN DONNELLY & SONS, National Advertising Company, and William S. Schaeffer, Plaintiffs, Appellants, v. George N. CAMPBELL, Jr., Commissioner of Transportation State of Maine, Defendant, Appellee.

No. 79-1575.

United States Court of Appeals First Circuit.

Argued Feb. 5, 1980.

Decided Dec. 22, 1980.

Richard P. Holme, Denver, Colo., with whom Davis, Graham & Stubbs, Denver, Colo., Donald W. Perkins and Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Portland, Maine, were on brief, for plaintiffs, appellants.

Cabanne Howard, Asst. Atty. Gen., Augusta, Maine, with whom Allan A. Toubman, Asst. Atty. Gen., and Thomas G. Reeves, Counsel, Dept. of Transp., Augusta, Maine, were on brief, for defendant, appellee.

Before ALDRICH and BOWNES, Circuit Judges, PETTINE, District Judge. ^*

ALDRICH, Senior Circuit Judge.

The question before us of the constitutionality of a Maine statute requires the assessment of a number of general societal values against their cost in First Amendment rights. The statute, 23 M.R.S.A. §§ 1901 et seq., is entitled the Maine Traveler Information Services Act, somewhat euphemistically, ¹ since its principal purpose is to abolish billboards altogether and to reduce materially the number, size and content of all other signs viewable by travelers on any public way in the state. ² The complainants are two corporations that erect signs, John Donnelly & Sons (billboards) and National Advertising Company (others), and one individual who wishes to read them. ³ Rejecting plaintiffs' claims that the statute impermissibly overrode First Amendment rights, the district court, with an extensive opinion, John Donnelly & Sons v. Mallar, 453 F.Supp. 1272, dismissed the action, and plaintiffs appeal.

The legislature in its preamble asserted three justifications for the statute's prohibitions: the protection of the state's landscape, a natural resource; the enhancement of the tourist industry, and the public interest in highway safety. To compensate for its restrictions on signs, the law provides for various informational services. The presently salient aspects include the following.

§ 1902. Policy and purposes

To promote the public health, safety, economic development and other aspects of the general welfare, it is in the public interest to provide tourists and travelers with information and guidance concerning public accommodations, facilities, commercial services and other businesses, and points of scenic, cultural, historic, educational, recreational and religious interest. To provide this information and guidance, it is the policy of the State and the purpose of this chapter to:

1. Official information centers; signs. Establish and maintain official information centers and a system of official business directional signs;

2. Information publications. Provide official directories, guidebooks, maps and other tourist and traveler information publications;

3. Control outdoor advertising. Prohibit and control the indiscriminate use of outdoor advertising; and

4. Protection of scenic beauty. Enhance and protect the natural scenic beauty of the State.

§ 1903. Definitions

14. Sign. "Sign" means any structure, display, logo, device or representation which is designed or used to advertise or call attention to any thing, person, business, activity or place and is visible from any public way. It does not include the flag, pennant or insignia of any nation, state or town. Whenever dimensions of a sign are specified they shall include frames.

§ 1908. Regulation of outdoor advertising

No person may erect or maintain signs visible to the traveling public from a public way except as provided in this chapter.

We begin with a review of the governing principles.

"(A) direct and substantial limitation (on speech can) be sustained (if) it serves a sufficiently strong, subordinating interest that the Village is entitled to protect." Schaumburg v. Citizens for a Better Environment, 1980, 444 U.S. 620, 636, 100 S.Ct. 826, 836, 63 L.Ed.2d 73.

Time, place, and manner restrictions are permissible if

"they are justified without reference to the content of the regulated speech, ... they serve a significant governmental interest, and ... in so doing they leave open ample alternative channels for communication of the information." Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 1976, 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346.

Like most one-liners, these are overly simplistic. In our case, they omit an important consideration: not only must the restrictions serve a "sufficiently strong" or "significant governmental interest," they must significantly serve that interest. Hence we must evaluate not only the importance of the state's interests, but also the extent to which the restrictions further those interests, viz., their reasonable relationship to the achievement of the governmental purpose." Bates v. Little Rock, 1960, 361 U.S. 516, 525, 80 S.Ct. 412, 417, 4 L.Ed.2d 480. Finally, in measuring the effect of the statute on free expression, the freedoms of the First Amendment must be kept "in a preferred position." Saia v. New York, 1948, 334 U.S. 558, 562, 68 S.Ct. 1148, 1150, 92 L.Ed. 1574, see Schneider v. State, 1939, 308 U.S. 147, 161, 60 S.Ct. 146, 150, 84 L.Ed. 155. In other words, the regulation must be no more restrictive than reasonably necessary to serve the governmental interest. Brown v. Glines, 1980, 444 U.S. 348, 355, 100 S.Ct. 594, 600, 62 L.Ed.2d 540.

In sum, when First Amendment freedoms are on one side of the scale, the balance must be struck by the courts, not by the legislators.

"A legislature appropriately inquires into and may declare the reasons impelling legislative action but the judicial function commands analysis of whether the specific conduct charged falls within the reach of the statute and if so whether the legislation is consonant with the Constitution. Were it otherwise, the scope of freedom of speech and of the press would be subject to legislative definition and the function of the First Amendment as a check on legislative power would be nullified." Landmark Communications, Inc. v. Virginia, 1978, 435 U.S. 829, 844, 98 S.Ct. 1535, 1544, 56 L.Ed.2d 1.

After determining that the statute is not impermissibly content-directed, the court must gauge the validity and strength of the state's interest, the extent to which the restrictions further it and the sufficiency of the alternative means or remaining channels of communication, and then determine whether, in their totality, the limitations imposed by the statute are justified. See Central Hudson Gas & Elec. Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 100 S.Ct. 2343, 2350, 65 L.Ed.2d 341; Baldwin v. Redwood City, 9 Cir., 1976, 540 F.2d 1360, 1365-68, cert. denied, 431 U.S. 913, 97 S.Ct. 2173, 53 L.Ed.2d 223; State v. Lotze, 1979, 92 Wash.2d 52, 593 P.2d 811, appeal dismissed, 444 U.S. 921, 100 S.Ct. 257, 62 L.Ed.2d 177; Note, Less Drastic Means and the First Amendment, 78 Yale L.J. 464, 466-68 (1969).

We are satisfied that the law, generally, is not directed to content. Billboards are banned not because of the messages they convey, but because the medium itself is objectionable. Metromedia, Inc. v. San Diego, 1980, 26 Cal.3d 848, 610 P.2d 407, 418, 164 Cal.Rptr. 510, prob. juris. noted, --- U.S. ----, 101 S.Ct. 265, 66 L.Ed.2d 127, 1980. Plaintiffs point to the fact that some of the exceptions to the statute's prohibitions do depend on the message conveyed, ⁴ and accordingly argue that the statute is content-oriented. The argument proves too much. Each of the exceptions reflects "an appropriate governmental interest." Police Department of Chicago v. Mosley, 1972, 408 U.S. 92, 95, 92 S.Ct. 2286, 2289, 33 L.Ed.2d 212; see Carey v. Brown, 1980, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263. See also Gay Students Organization v. Bonner, 1 Cir., 1974, 509 F.2d 652, 660-62 and n.6; People Acting Through Community Effort v. Doorley, 1 Cir., 1972, 468 F.2d 1143, 1145; Karst, Equality as a Central Principle in the First Amendment, 43 U.Chi.L.Rev. 20 (1975). Some for signs of governmental and quasi-governmental bodies, and for traffic and bus signs and the like are justified by sheer public necessity. Others e. g., for signs showing the place and time of meetings, services and events of religious, civic and philanthropic and other public organizations, and, of course, for voter information for elections, primaries and referenda reflect the important governmental interest in dissemination of information of special public concern. These fall in the category of ideological speech ⁵ even though they may involve raising money to carry out the sponsoring group's primary functions, see Schaumburg v. Citizens, ante, 444 U.S. at 628-33, 100 S.Ct. at 831-834; Murdock v. Pennsylvania, 1943, 319 U.S. 105, 110-12, 63 S.Ct. 870, 873-74, 87 L.Ed. 1292; Jamison v. Texas, 1943, 318 U.S. 413, 416-17, 63 S.Ct. 669, 671-672, 87 L.Ed. 869, which is still accorded fuller rights under the First Amendment than commercial speech. Central Hudson Gas & Elec. Corp. v. Public Service Comm'n of New York, ante, 100 S.Ct. at 2349; Consolidated Edison Co. of New York v. Public Service Comm'n of New York, 1980, 447 U.S. 530, 538, 100 S.Ct. 2326, 2333 n. 5, 65 L.Ed.2d 319. This being said, it would ill behoove the courts to deny the legislature the power to make the same distinction. "Even within the area of protected speech, a difference in content may require a different governmental response." Young v. American Mini Theatres, Inc., 1976, 427 U.S. 50, 66, 96 S.Ct. 2440, 2450, 49 L.Ed.2d 310. In sum, we do not find that these exceptions change the statute from a time, place and manner restriction to one impermissibly based on content.

We must, however, charge some of the restrictions with being excessively content-related. To replace some of the multitude of...