State v. Lotze

• Decision Date: 19 April 1979
• Docket Number: No. 45649,45649
• Parties: , 13 ERC 1123, 5 Media L. Rep. 1069 The STATE of Washington, Respondent, v. Jack M. LOTZE and Beverly J. Lotze, his wife, and Ronald M. Frostad and Frances M. Frostad, his wife, Appellants. The STATE of Washington, Respondent, v. Rosa F. MEYER, Clifford E. Meyer, Marilyn J. Meyer (Reilly), Donald J. Meyer, Verla M. Meyer, and Darrel Henyan, Appellants. The STATE of Washington, Respondent, v. Larry A. LOEW and Patricia E. Loew, his wife, Appellants.
• Court: Washington Supreme Court

Page 52

92 Wn.2d 52

593 P.2d 811, 13 ERC 1123, 5 Media L.

Rep. 1069

The STATE of Washington, Respondent, v. Jack M. LOTZE and Beverly J. Lotze, his wife, and Ronald M.

Frostad and Frances M. Frostad, his wife, Appellants.

The STATE of Washington, Respondent, v. Rosa F. MEYER, Clifford E. Meyer, Marilyn J. Meyer (Reilly), Donald J. Meyer, Verla M. Meyer, and Darrel

Henyan, Appellants.

The STATE of Washington, Respondent, v. Larry A. LOEW and Patricia E. Loew, his wife, Appellants.

No. 45649.

Supreme Court of Washington, En Banc.

April 19, 1979.

Skok & Blake, Chewelah, for appellants.

Slade Gorton, Atty. Gen., Mr. Scott C. Neilson, Asst. Atty. Gen., Olympia, for respondent.

HICKS, Justice.

This consolidated appeal involves three cases certified to this court by the Court of Appeals, Division Three. The sole issue presented is whether RCW 47.42.030 ¹ and .040 ² unconstitutionally infringe upon appellants' First Amendment rights of free speech. The trial court upheld the constitutionality of the statutes. We affirm.

According to the facts stipulated to the trial court, the defendants/appellants own real property in Stevens County bordering on U.S. Highway 395, which is a federal-aid primary highway and part of the scenic highway system. The property is located in a noncommercial, nonindustrial area. Appellants maintain signs on their property which are visible from the highway and within 660 feet of the right-of-way. These signs convey the owners' personal beliefs of a political or social nature. The parties agree that appellants' signs are prohibited under RCW 47.42, a composite of the Highway Advertising Control Act of 1961 (Laws of 1961, ch. 96, § 17, p. 1575) and the Scenic Vistas Act of 1971 (Laws of 1971, 1st Ex.Sess. ch. 62, § 19, p. 485). The State filed complaints seeking to obtain orders of removal. In two cases the State sought to establish reasonable compensation pursuant to RCW 47.42.103. In the third case the State petitioned for abatement of an alleged nuisance. ³ RCW 47.42.080.

The leading decision interpreting Washington's highway sign law (RCW 47.42), is Markham Advertising Co. v. State, 73 Wash.2d 405, 439 P.2d 248 (1968), Appeal dismissed, 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 512, Rehearing denied, 393 U.S. 1112, 89 S.Ct. 854, 21 L.Ed.2d 813 (1969). In that case, several outdoor advertising companies challenged the Highway Advertising Control Act of 1961 on constitutional grounds. The trial consisted of a lengthy examination of the relationship of highway signs and highway safety. This court upheld the act as a proper exercise of the state's police power. The court found a substantial relation between the regulation of billboard advertising along highways and the legitimate public purpose of promoting traffic safety. In addition, the court recognized preservation of aesthetic values as a legitimate concern within the scope of the police power.

In addressing appellants' First Amendment challenge to the Highway Advertising Control Act of 1961, the Markham court relied upon the distinction between "purely commercial advertising" and other forms of speech, as delineated by the United States Supreme Court in Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942). Markham Advertising v. State, supra. The Markham court rejected the free speech claims of the commercial advertisers as "minimal", concluding 73 Wash.2d at page 429, 439 P.2d at pages 262-263:

This intrusive quality of highway outdoor advertising, coupled with the hazard it poses to traffic safety and its purely commercial nature, all persuade us that RCW 47.42 is a reasonable regulation which does not violate the First Amendment.

The Scenic Vistas Act of 1971 substantially amended the 1961 act upheld in Markham. Visibility became the regulatory criterion, and compensation provisions were added. The declaration of purposes section of the current act includes: promotion of health, safety, welfare, convenience and enjoyment of the traveling public, protecting the public investment in highways, attracting visitors by conserving natural beauty, and ensuring the safe and effective presentation of information of specific interest to travelers. RCW 47.42.010.

RCW 47.42.030 contains a sweeping prohibition against signs visible from interstate, primary or scenic systems except as permitted under the act. "Sign" is broadly defined under the act to include any outdoor sign, display, billboard "or other thing which is designed, intended, or used to advertise or inform . . ." RCW 47.42.020(8). The act does not prohibit all visible signs within 660 feet of a primary system. RCW 47.42.040 delineates several exceptions to the broad prohibition of RCW 47.42.030, including: directional signs, official signs, signs advertising the sale or lease of property upon which they are located, signs advertising activities conducted on the property on which they are located. Such signs are permissible within view of a scenic system subject to size, location, and number regulations. RCW 47.42.045, .046. None of the excepted sign types, however, apply to appellants' signs. The act also allows signs adjacent to highways within commercial or industrial areas, as defined by section .020, subject to certain size and spacing restrictions under sections .062 and .063.

Washington's current sign law meets the compliance requirements of Title 1 of the federal Highway Beautification Act of 1965, Pub.L. No. 89-285, Oct. 22, 1965, 79 Stat. 1028, 23 U.S.C. § 131 (1976). The federal act provides that a state must establish "effective control" of highway advertising along federal-aid highways to avoid a 10 percent reduction in its portion of federal highway funds. 23 U.S.C. § 131(b) (1976).

We examine appellants' challenge to RCW 47.42 in light of Markham and First Amendment doctrine. In Markham, the court dismissed as "minimal" the First Amendment interests asserted by commercial advertisers. We relied upon the commercial speech "exception" to First Amendment protection, a distinction that has never been clear cut or all inclusive. See e. g., Murdock v. Pennsylvania, 319 U.S. 105, 110-11, 63 S.Ct. 870, 87 L.Ed. 1292 (1943); New York Times Co. v. Sullivan, 376 U.S. 254, 256, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). The purported dichotomy between commercial speech and other forms of speech has eroded since the Markham decision. Two recent cases have attenuated the commercial speech exception to First Amendment protection. See Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975).

Whatever the residual distinctions between the Degree of First Amendment protection accorded commercial and other forms of protected speech, appellants assert that their First Amendment interests in purely political expression are entitled to a higher degree of protection than that accorded commercial billboards in Markham. We agree. Thus, we must ascertain the appropriate standard by which to review appellants' free speech challenge.

The State acknowledges that when a statute based on its police power is challenged on First Amendment grounds, it must (1) establish a compelling state interest, and (2) demonstrate a nexus of "necessity" between the statute and the state's asserted interest. See e. g., State v. Conifer Enterprises, Inc., 82 Wash.2d 94, 508 P.2d 149 (1973). Further, a statutory restraint imposed upon a First Amendment freedom bears a heavy presumption against its constitutionality. Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965).

The State argues that the challenged statutes satisfy the two-pronged Conifer test. It asserts that the state's compelling interest in traffic safety as established in Markham, and unrefuted in the instant cases, justifies the limitation on First Amendment freedoms. The State concedes that no compelling state interest exists if the statutory purposes could be achieved by less drastic means. See Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). It argues that the statutes are sufficiently "refined" to restrain speech only to the extent necessary to promote the state's interest in traffic safety and aesthetic values.

While they do not refute the traffic safety rationale established in Markham, appellants argue that Markham is distinguishable as it dealt only with commercial signs. It is the State's position that Markham's demonstrated and judicially approved rationale of highway safety will not support content-based distinctions between signs bearing commercial and noncommercial messages. The State claims that there is no difference in the effect on the motorist between commercial and noncommercial signs. With this contention, we agree, and therein lies the problem. The statutory scheme allows certain signs along scenic highways, such as on-premise advertising and realty "for sale" signs. RCW 47.42.040. These delineated exceptions pertain only to commercial signs, however, and do not encompass appellants' political signs.

As we have discussed above, RCW 47.42 is not a blanket exclusion of signs along protected highways. The exceptions applicable to the area where appellants' signs are located, however, basically are for commercial speech. Although, for First Amendment protection, the distinction between commercial speech and other speech has been considerably blurred by Bigelow v. Virginia, supra, and Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., supra, political speech should continue to be accorded whatever residual preference remains. What then is the justification for the scheme contained in RCW 47.42 where the authorized exceptions permitted come down on the side of commercial speech?

The state, of course, may regulate the time, place and manner of speech. Such statutes stand on different footing than laws prohibiting...