Metromedia, Inc. v. City of San Diego

• Decision Date: 30 August 1982
• Citation: 185 Cal.Rptr. 260,32 Cal.3d 180,649 P.2d 902
• Parties: , 649 P.2d 902 METROMEDIA, INC., Plaintiff and Respondent, v. CITY OF SAN DIEGO, Defendant and Appellant. PACIFIC OUTDOOR ADVERTISING COMPANY, INC., Plaintiff and Respondent, v. CITY OF SAN DIEGO et al., Defendants and Appellants. L.A. 30782.
• Court: California Supreme Court

Page 260

185 Cal.Rptr. 260

32 Cal.3d 180, 649 P.2d 902

METROMEDIA, INC., Plaintiff and Respondent, v. CITY OF SAN DIEGO, Defendant and Appellant.

PACIFIC OUTDOOR ADVERTISING COMPANY, INC., Plaintiff and Respondent, v. CITY OF SAN DIEGO et al., Defendants and Appellants.

L.A. 30782.

Supreme Court of California,

In Bank.

Aug. 30, 1982.

John W. Witt, City Atty., and C. Alan Sumption, Deputy City Atty., for defendants and appellants.

Walter Wencke, Carter J. Stroud, City Atty., Alameda, John W. Scanlon, City

Atty., Hayward, Dan Curtin, City Atty., Walnut Creek, Roy E. June and R. R. Campagna, City Attys., Costa Mesa, Harry S. Fenton, Emerson Ryhner and Ronald W. Beals, Sacramento, as amici curiae on defendants and appellants.

Gibson, Dunn & Crutcher, Los Angeles, Theodore B. Olson, Washington, D. C., Wayne W. Smith, Los Angeles, Hillyer & Irwin, Oscar F. Irwin, San Diego, Snell & Wilmer, John J. Bouma, Guy G. Gelbron, Phoenix, Ariz., Higgs, Fletcher & Mack, Joe N. Turner, San Diego, Cahill, Gordon & Reundel and Floyd Abrams, New York City, for plaintiffs and respondents.

Donovan, Leisure, Newton & Irvine, Mahlon F. Perkins, Jr., Weil, Guttman & Davis, Gilbert H. Weil, New York City, Phillip Tocker, Brownsville, Tex., Richman & Garrett, Lionel Richman, Los Angeles, Fadem, Berger & Norton, Michael M. Berger, Santa Monica, Brundage, Beeson & Pappy, Joseph J. Kaplon, Alex Kozinski, Los Angeles, Ronald A. Zumbrun, Thomas E. Hookano and Elleene A. Kirkland, Sacramento, as amici curiae on behalf of plaintiffs and respondents.

BROUSSARD, Justice.

The City of San Diego enacted an ordinance which, with certain exceptions, bans erection of off-site billboards ¹ within the city limits; the ordinance also requires removal of existing off-site billboards after expiration of an amortization period. (San Diego Ord. No. 10795 (New Series).) On motion for summary judgment, the superior court adjudged the ordinance unconstitutional, and issued an injunction barring its enforcement. In our 1980 decision, we reversed the superior court judgment and upheld the ordinance against claims that it violated the First Amendment and exceeded the scope of the city's police power. (Metromedia, Inc. v. City of San Diego (1980) 26 Cal.3d 848, 164 Cal.Rptr. 510, 610 P.2d 407.) The United States Supreme Court in turn reversed our decision, holding that the ordinance's prohibition on noncommercial billboards violated the First Amendment. (Metromedia, Inc. v. City of San Diego (1981) 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800.) ² The court then remanded the case to us to determine whether the constitutionality of the ordinance could be saved by a limiting judicial construction of its terms or by severance of unconstitutional provisions from the balance of the enactment.

As we will explain, we can salvage the constitutionality of the ordinance only by limiting its scope to prohibit only commercial signs. Such a construction would be inconsistent with the language of the ordinance and the original intent of the city council at the time of enacting the ordinance. The resulting legislation would compel the city to distinguish between commercial and noncommercial speech, a task rife with constitutional enigmas, and might not effectively achieve the city's objective of promoting traffic safety and improving community appearance. We therefore conclude that the ordinance cannot fairly and reasonably be construed in a manner that would preserve its constitutionality.

The United States Supreme Court decision was based on the specific terms of the San Diego ordinance. Section B, the crucial prohibitory language of the ordinance, bans all outdoor advertising display signs except for signs identifying the premises where the sign is located or advertising a product or service sold on those premises. The ordinance thus impartially bans commercial or noncommercial off-site signs, but while it permits an owner or lessee to erect a sign to advertise his business, it does not permit him to erect a sign to state his political or social views. Section F of the ordinance then provides 12 specific and narrow exceptions, of which the most important excepts political campaign signs maintained for no longer than 90 days. Many of the exceptions relate to noncommercial signs, but even taking into account all the exceptions the ordinance still appears to enact a substantial prohibition on noncommercial signs.

The plurality opinion of the United States Supreme Court (Justice White, for himself and Justices Stewart, Marshall and Powell), stated that considerations of community aesthetics and traffic safety justified San Diego's ban on off-site commercial billboards. The plurality stated, however, that the ordinance's ban on noncommercial billboards was facially unconstitutional. ³

First, the plurality stated, by permitting on-site commercial billboards but prohibiting the on-site owner from displaying a noncommercial message, the ordinance unconstitutionally discriminates against noncommercial speech. "Insofar as the city tolerates billboards at all, it cannot choose to limit their content to commercial messages; the city may not conclude that the communication of commercial information concerning goods and services connected with a particular site is of greater value than the communication of noncommercial messages." (453 U.S. 490, 513, 101 S.Ct. 2882, 2895, 69 L.Ed.2d 800.)

Second, the plurality indicated that the 12 exceptions for noncommercial speech in section F of the ordinance were too narrow. "With respect to noncommercial speech, the city may not choose the appropriate subjects for public discourse.... Because some noncommercial messages may be conveyed on billboards ..., San Diego must similarly allow billboards conveying other noncommercial messages...." (453 U.S. at p. 515, 101 S.Ct. at p. 2896.) ⁴

In a footnote at the conclusion of the plurality opinion, the Supreme Court explained the task of this court following remand of the case: "Although the ordinance contains a severability clause, determining the meaning and application of that clause is properly the responsibility of the state courts.... Since our judgment is based essentially on the inclusion of noncommercial speech within the prohibitions of the ordinance, the California courts may sustain the ordinance by limiting its reach to commercial speech, assuming the ordinance is susceptible to this treatment." (453 U.S 490, 521-522, fn. 26, 101 S.Ct. 2882, 2899-2900, fn. 26, 69 L.Ed.2d 800; italics added.) ⁵

In accord with this statement of the United States Supreme Court, we turn to the specific language of the ordinance to determine if it is susceptible of a limiting construction that will avoid unconstitutionality. The critical language is that of section B, which reads as follows: "Only those outdoor advertising display signs, hereinafter referred to as signs in this Division, which are either signs designating the name of the owner or occupant of the premises upon which such signs are placed, or identifying such premises; or signs advertising goods manufactured or produced or services rendered on the premises upon which such signs are placed shall be permitted. The following signs shall be prohibited:

"1. Any sign identifying a use, facility or service which is not located on the premises.

"2. Any sign identifying a product which is not produced, sold or manufactured on the premises.

"3. Any sign which advertises or otherwise directs attention to a product, service or activity, event, person, institution or business which may or may not be identified by a brand name and which occurs or is generally conducted, sold, manufactured, produced or offered elsewhere than on the premises where such sign is located."

The City suggests two methods of saving the validity of the ordinance. First, we could construe the word "signs" and the phrase "outdoor advertising display signs" in section B as limited to those bearing a commercial message. This construction would avoid any prohibition or discrimination against noncommercial speech, thus avoiding the objections presented by the Supreme Court plurality opinion. Alternatively, we could sever and delete the indirect prohibition of the first sentence of section B (which states that only certain signs are permitted), and delete a portion of the direct prohibition of the second sentence of that section. Specifically, we would have to modify part 3 of that sentence which now prohibits "[a]ny sign which advertises or otherwise directs attention to a product, service or activity, event, person, institution or business" (italics added) by deleting the italicized words, thereby limiting the prohibition to signs which advertise a "product, service or business." Such statutory surgery would remove any prohibition on noncommercial speech, and bring the San Diego ordinance into approximate alignment with the ordinance upheld by the United States Supreme Court in Suffolk Outdoor Advertising Co. v. Hulse (1978) 439 U.S. 808, 99 S.Ct. 66, 58 L.Ed.2d 101. ⁶ We first consider the question of interpreting the term "outdoor advertising display signs" to limit it to commercial signs. Judicial doctrine governing construction of a law to avoid unconstitutionality is well settled. If "the terms of a statute are by fair and reasonable interpretation capable of a meaning consistent with the requirements of the Constitution, the statute will be given that meaning, rather than another in conflict with the Constitution." (County of Los Angeles v. Legg (1936) 5 Cal.2d 349, 353, 55 P.2d 206; People v. Davis (1968) 68 Cal.2d 481, 483-484, 67 Cal.Rptr. 547, 439 P.2d 651; San Francisco Unified School Dist. v. Johnson (1971) 3 Cal.3d 937, 948, 92 Cal.Rptr. 309, 479 P.2d 669.) Consequently, "[i]f feasible within bounds set by their words and purposes, statutes should be construed to preserve their constitutionality." (Conservatorship of Hofferber (1980) 28 Cal.3d 161,...