National Advertising Co. v. Town of Niagara

• Decision Date: 15 August 1991
• Docket Number: D,No. 1479,1479
• Parties: NATIONAL ADVERTISING COMPANY, Plaintiff-Appellant, v. TOWN OF NIAGARA, Defendant-Appellee. ocket 91-7117.
• Court: U.S. Court of Appeals — Second Circuit

Page 145

942 F.2d 145

NATIONAL ADVERTISING COMPANY, Plaintiff-Appellant, v. TOWN OF NIAGARA, Defendant-Appellee.

No. 1479, Docket 91-7117.

United States Court of Appeals, Second Circuit.

Argued May 23, 1991.

Decided Aug. 15, 1991.

Myron D. Cohen, New York City (Michael R. Shebelskie, Hunton & Williams, of counsel), for plaintiff-appellant.

F. Warren Kahn, Niagara Falls, New York (Michael J. Cuddy, James Robert Pigot, of counsel), for defendant-appellee.

Before KEARSE, MAHONEY and SNEED, ^* Circuit Judges.

SNEED, Circuit Judge:

This is a First Amendment case in which a billboard company challenges a town's sign ordinance. The district court held that the ordinance violated the First Amendment by elevating commercial speech over noncommercial speech and by impermissibly favoring certain types of noncommercial speech over others based on content. The court then attempted to save the statute by excising the unconstitutional elements. We agree that the ordinance violates the First Amendment but find that the unconstitutional portions cannot properly be severed or limited. We therefore invalidate the statute as a whole.

I. FACTS AND PROCEEDINGS BELOW

Niagara's Local Law No. 2 regulates all types of signs and outdoor advertising within the town's limits. See Niagara, New York, Local Law No. 2, art. I, § 100.0 (1987). Its purposes include protecting property values, creating a more attractive economic and business climate, preserving the natural beauty of designated areas, providing a more enjoyable and pleasing community, and enhancing traffic safety. Local Law No. 2, art. I, § 100.0, art. IV, § 400.4. The key sections of the act provide that signs may only contain onsite advertising--that is, they may only describe business transacted, services rendered, or goods sold and produced on the premises where the sign is located. Local Law No. 2, art. II, §§ 200.8, .13-.16, art. VII, § 702.2. Thus, a property owner could erect a sign that said "Fried Chicken Sold Here" but not one saying "Save the Whales" or "Buy Brand X Beer," unless Brand X were sold there.

The law provides a variety of exceptions to this broad rule. For example, the law allows signs for historical purposes, bulletin boards for libraries and places of worship, temporary political signs during an election, temporary signs announcing garage National Advertising Company (National) sued the town claiming that the ordinance violates First Amendment rights relating to communication of noncommercial speech. National has standing to bring these claims given that some of the messages carried on its billboards contain noncommercial messages. The district court ruled that the ordinance was unconstitutional and severed various provisions.

                sales, and temporary signs promoting events sponsored by civic, fraternal, and church groups, fire companies, and veterans and nonprofit organizations. 1  Finally, the bulk of the law concerns time, place, and manner restrictions describing the permit process and the sizes and characteristics of signs that are allowed.   The law covers eleven pages and contains more than 130 provisions, including a severability clause
                

The only question presented on appeal is whether the district court's severance was proper. National argues that severance was improper because 1) unconstitutional provisions remain in the ordinance; and 2) the permissible and impermissible portions of the statute are so intertwined that severance is inappropriate. The town argues that the district court acted properly and that the ordinance, as adjusted by the court, should be left in force.

II. DISCUSSION

A. The Unconstitutional Aspects of the Law

Neither party challenges the district court's determination of the reasons why the statute is unconstitutional. We will briefly review these reasons, however, to explain our attempts to bring the statute into conformity with the First Amendment.

This court has adopted the plurality decision in Metromedia concerning billboard regulation. See National Advertising Co. v. Town of Babylon, 900 F.2d 551, 556-57 (2d Cir.) (applying Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 493-521, 101 S.Ct. 2882, 2885-2899, 69 L.Ed.2d 800 (1981) (plurality)), cert. denied, --- U.S. ----, 111 S.Ct. 146, 112 L.Ed.2d 112 (1990). The Court in Metromedia considered a sign ordinance that was remarkably similar to the one at issue here. The city of San Diego had passed an ordinance allowing only onsite advertising and providing various exceptions. The plurality found that the law violated the First Amendment in two ways. First, given that commercial speech is afforded less protection than other types of protected speech, the plurality concluded that it would be improper to prefer commercial speech over noncommercial speech. Metromedia, 453 U.S. at 513, 101 S.Ct. at 2895. This is, in essence, what the city did by preferring onsite advertising, a type of commercial speech, over all other types of speech, including noncommercial speech. Id.

The plurality found that the San Diego law also ran afoul of the First Amendment because of its exception provisions. Ordinarily, the government may not pick and choose among various types of noncommercial speech based on their content. Id. at 514-15, 101 S.Ct. at 2896. By allowing exceptions for signs with selected noncommercial content, such as news information and historical information, but not other types of noncommercial speech, the law contained impermissible content-based restrictions. Id. at 515, 101 S.Ct. at 2896.

A majority of the Metromedia court did agree on one point. Five justices found that the ordinance did not violate the First Amendment by allowing onsite commercial speech while forbidding commercial speech pertaining to offsite commerce. See Metromedia, 453 U.S. at 493-512, 101 S.Ct. at 2885-2895 (plurality opinion Parts I-IV joined by Justice Stevens). The Court noted that the government has more freedom in discriminating among various types of commercial speech than among noncommercial speech and found that the San Diego law satisfied the Central Hudson test

for laws that affect commercial speech. Id. at 512, 101 S.Ct. at 2895 (citing Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 563-66, 100 S.Ct. 2343, 2350-51, 65 L.Ed.2d 341 (1980)).

B. Severability

The district court correctly applied the logic of Metromedia and Babylon to Niagara's sign ordinance. The fact that portions of the statute are unconstitutional, however, does not end our inquiry. We must determine whether the invalid portions of the statute can be severed from the valid portions so the remainder of the statute can be preserved. Severability is a question of state law. See Environmental Encapsulating Corp. v. City of New York, 855 F.2d 48, 60 (2d Cir.1988) (citing Watson v. Buck, 313 U.S. 387, 395-96, 61 S.Ct. 962, 964, 85 L.Ed. 1416 (1941)). As a general rule, a court should refrain from invalidating an entire statute when only portions of it are objectionable. Cf. People ex rel. Alpha Portland Cement Co. v. Knapp, 230 N.Y. 48, 60-61, 129 N.E. 202, 207 (1920), cert. denied, 256 U.S. 702, 41 S.Ct. 624, 65 L.Ed. 1179 (1921). Justice Cardozo stated the general rule over seventy years ago: "Our right to destroy is bounded by the limits of necessity. Our duty is to save unless in saving we pervert." Id. 230 N.Y. at 62-63, 129 N.E. at 208. The preference for severance is particularly strong when the law contains a severability clause. See People v. Kearse, 56 Misc.2d 586, 596, 289 N.Y.S.2d 346, 358 (Civ.Ct.1968) (stating that inclusion of a severability clause in a statute creates a presumption that the legislature intended the act to be divisible); see also Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686, 107 S.Ct. 1476, 1481, 94 L.Ed.2d 661 (1987) (same). The presence of such a clause, however, is not dispositive. See New York State Superfund Coalition, Inc. v. New York State Dep't of Environmental Conservation, 75 N.Y.2d 88, 94, 550 N.E.2d 155, 157, 550 N.Y.S.2d 879, 881 (Ct.App.1989) (holding that objectionable sections were not severable from entire statute despite presence of a severability clause); see also United States v. Jackson, 390 U.S. 570, 585 n. 27, 88 S.Ct. 1209, 1218 n. 27, 20 L.Ed.2d 138 (1968) (the ultimate determination of severability will rarely turn on the presence or absence of a severability clause). We should not, for example, treat a severability clause as an invitation from the legislature to write whatever statute we can fashion from the constitutional remnants as augmented by our imagination.

The New York Court of Appeals has identified the following standard for determining whether severance is appropriate:

The principle of division is not a principle of form. It is a principle of function. The question is in every case whether the legislature, if partial invalidity had been foreseen, would have wished the statute to be enforced with the valid part exscinded, or rejected altogether. The answer must be reached pragmatically, by the exercise of good sense and sound judgment, by considering how the statutory rule will function if the knife is laid to the branch instead of at the roots.

Alpha Portland, 230 N.Y. at 60, 129 N.E. at 207. Put another way, the legislature could not have intended a provision to be severed if the balance of the legislation is incapable of functioning independently. See Superfund Coalition, 75 N.Y.2d at 94, 550 N.E.2d at 157, 550 N.Y.S.2d at 881; see also Alaska Airlines, 480 U.S. at 684, 107 S.Ct. at 1479-80. Thus, severance is inappropriate when the valid and invalid provisions are so intertwined that excision of the invalid provisions would leave a regulatory scheme that the legislature never intended. Superfund Coalition, 75 N.Y.2d at 94, 550 N.E.2d at 157-58, 550 N.Y.S.2d at 881.

C. The District Court's Approach

The district court ruled that the ordinance could be saved by severing eleven provisions, including the...