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| LEGISLATIVE & LEGAL : TIME, PLACE & MANNER DEFINED |
TABLE OF AUTHORITIES CASES
- 44 Liquormart, Inc. v. Rhode Island, 116 S.Ct 1495 (1996)
- Bigelow v. Virginia, 421 U.S. 809 (1975)
Ginzburg v. United States, 383 U.S. 463 (1966)
- Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952)
- Linmark Associates, Inc. V. Township of Willingboro, 431 U.S. 85 (1977)
- Metromedia Inc. v. San Diego, 453 U.S. 490 (1981)
- New York Times v. Sullivan, 376 U.S. 254 (1964)
- Perry Educational Association v. Perry Local Educators Association, 460 U.S. 37 (1983)
- Pittsburgh Press Co. v. Comm'n on Human Relations, 413 U.S. 376 (1973)
- Smith v. California, 361 U.S. 147 (1959)
United States v. Paramount Pictures, 334 U.S. 131 (1948)
- Valentine v. Chrestensen, 361 U.S. 52 (1942)
TREATISES
- Constitutional Law, 4th Ed., John E. Nowak and Ronald D. Rotunda, Chapter 18, p. 1020
- Treatise on Constitutional Law, Substance and Procedure, 2nd Ed., Ronald D. Rotunda and John E. Nowak, Chapter 20, p. 310
CONSTITUTIONAL PROVISIONS
- Annotations to the United States Constitution p. 17
- United States Constitution, First Amendment
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I. INTRODUCTION
It has been established for over 24 years that commercial speech is not outside the protection of the first amendment. A cleft in the law affecting commercial speech occurred in 1975(1), and then continued in 1976. A statute that stated Virginia pharmacists were banned from advertising prescription drug prices was declared unconstitutional. The United States Supreme Court stated that "Commercial speech is not wholly outside the protection of the First and Fourteenth Amendments, and the Virginia statute is therefore invalid." (2) The United States Supreme Court asserted further, "The fact that the advertiser's interest in a commercial advertisement is purely economic does not disqualify him from protection under the First and Fourteenth Amendments. Both the individual consumer and society in general may have strong interests in the free flow of commercial information." (emphasis added) (3)
This free flow of commercial information has been evident throughout history through the use of signs. I am reminded of a voyage to Germany a few years ago. In driving throughout Bavaria, there was evident sign usage in each tiny village that we visited. In the town square, which one inevitably drove through, there was a giant post. Upon each post there was a symbol for the different merchants in the village. A man with shoes, representing the cobbler, a baker in a baking uniform, etc. In this regard, visitors to the village could seek out and find the businesses delineated on the post. This is a practice that has been in place for hundreds of years. The local merchants and government have found harmony with the regulations of such posts, as they are not only colloquial and aesthetically pleasing, but also serve their purpose well. This is a quaint illustration of the importance of signs, and how they effect our everyday lives.
The First Amendment of the United States Constitution guarantees that "Congress shall make no law?prohibiting the free exercise thereof; or abridging the freedom of speech?"(4) It is the objective of this compendium to inform the sign industry of regulations which effect freedom of speech in the usage of commercial signs. I will also discuss the precedental authority which has been established to protect commercial signage, which is a form of commercial speech.
It is important to review the history of commercial speech decided by decisions within the United States Supreme Court. Then we will look at the particular regulations that effect the industry, which detail time, place and manner restrictions and how they may be justified. Finally, we will look at a modern application of the tests created by the United States Supreme Court to be applied to the regulations of signs at the local level. |
II. THE COMMERCIAL SPEECH DOCTRINE
What is the definition behind the concept of commercial speech and what are its origins? In 1940, an entrepreneur in New York City distributed a leaflet which advertised the exhibit of a former Navy submarine which he owned. On the other side of the leaflet, there stated a message protesting the City's denial of wharfage facilities. (5) Hence the distinction was made between commercial versus non-commercial speech. The advertisement of the exhibition of the vessel was termed as commercial speech and a local ordinance prohibited such printed public notices. However, the owner of the vessel was informed that he could legally distribute handbills solely devoted to information or a public protest, which would be termed as non-commercial speech. The United States Supreme Court was asked to address the issue of whether this ordinance was an abridgement of the freedom of the press and of speech.(6) The United States Supreme Court upheld the statute and stated that the owner's usage of the streets of New York for advertising purposes was unlawful. (7)
Consequently we have the birth of the commercial speech doctrine. The doctrine was limited to promotion of commercial activities; the fact that expression was disseminated for profit or through commercial channels did not expose it to any greater regulation than if it were offered for free. The doctrine lasted in this form for more than twenty years.(8)
"Commercial speech," the United States Supreme Court has held, is protected "from unwarranted governmental regulation," although its nature makes such communication subject to greater limitations than can be imposed on expression not solely related to the economic interests of the speaker and its audience.(9) In 1973, the Supreme Court reasserted the doctrine at first in a narrow five-to-four decision, the Court sustained the application of a city's ban on employment discrimination to bar sex-designated employment advertising in a newspaper.(10) Granting that speech does not lose its constitutional protection simply because it appears in a commercial context, Justice Powell, for the Court, found the placing of want-ads in newspapers to be "classic examples of commercial speech," devoid of expressions of opinions with respect to issues of social policy; the ad "did no more than propose a commercial transaction." But the Justice also noted that employment discrimination, which was facilitated by the advertisements, was itself illegal.(11)
The Court in Bigelow v. Virginia (12), then overturned a conviction under a state statute making it illegal, by sale or circulation of any publication, to encourage or prompt the obtaining of an abortion, as applied to an editor of a weekly newspaper who published an advertisement announcing the availability of legal and safe abortions in another State and detailing the assistance that would be provided State residents in going to and obtaining abortions in the other State.(13) The Court discerned that the advertisements conveyed information of other than a purely commercial nature, that they related to services that were legal in the other jurisdiction, and that the State could not prevent its residents from obtaining abortions in the other State or punish them for doing so.(14)
The revolution in the law occurred in 1976, as Virginia pharmacists fought to protect their right to advertise prescription drug prices. Justice Blackman, writing for the majority, phrased the issue as, "Our pharmacist does not wish to editorialize on any subject, culture, philosophical, or political. He does not wish to report any particular newsworthy fact, or to make generalized observations even about commercial matters. The idea he wishes to communicate is simply this:`I will sell you the X prescription drug at Y price." (15) The Supreme Court asserted with a resounding "yes" that the public has a protected interest in the free flow of truthful information, even if that truthful information is for profit purposes. In this regard, the Court encouraged more rational decision making and a more open weighing of the advantages and disadvantages of policy alternatives by preventing the use of the commercial speech concept to deny entirely First Amendment protection to an important area of speech.(16) |
III. TIME, PLACE AND MANNER REGULATIONS AS APPLIED TO THE COMMERCIAL SPEECH DOCTRINE
As the commercial speech doctrine developed, the regulations in which to manage the doctrine also became malleable. The first question one must ask is whether the regulation is content neutral. If a local ordinance effects what may be stated in mediums of speech, then a regulation is not considered content neutral. The regulation may then be subjected to the highest level of scrutiny under the First Amendment analysis. If the government can not demonstrate that the law has been enacted so as to be narrowly tailored to achieve a compelling government interest, then the law will most likely be declared unconstitutional.
If in fact the regulation does not regulate the content of the speech, then it is considered to be a content neutral regulation and is most commonly analyzed through a time, place and manner restriction inquiry.
The strict scrutiny analysis has not always been available to the category of commercial speech. However, in 1996, the Supreme Court agreed that the more rigorous test may be applied to regulations that impose a veritable ban on the circulation of truthful information about legal products. A Rhode Island statute which prohibited the advertising of retail liquor prices except at the place of sale, was declared unconstitutional. (17) "Regulations that entirely suppress commercial speech in order to pursue a policy not related to consumer protection must be reviewed with "special care," and such blanket bans should not be approved unless the speech itself was flawed in some way, either because it was deceptive or related to unlawful activity."(18)
The United States Supreme Court supplied an analysis in which to surmise commercial speech under Perry Educational Association v. Perry Local Educators Association.(19) Although the scrutiny is rather outmoded, it does elucidate somewhat the regulations of time, place and manner. Under the Perry analysis, when the government regulates speech in a traditional public forum, it may only base its restrictions on the content of the speech being regulated 1) if that content falls within a category of speech that the Supreme Court has found unprotected by the First Amendment (20), or 2) if the government can demonstrate a compelling interest in suppressing that speech. However, the government may employ reasonable time, place and manner restrictions to regulate speech in traditional public forums so long as the regulation promotes an important interest, unrelated to the suppression of a Particular message, and it does not unnecessarily restrict the ability to communicate that message.(21)
In other words, it is correct to state that government may place reasonable time, place and manner restrictions on speech that takes place in a public forum, but these types of restrictions must be equipped without regard to the content of the speech.(22) This is to ensure that there is no abuse of power. The government has to justify the reasoning behind the regulations and they can not be based on the content of the commercial speech itself. |
IV. DEFINITION OF TIME, PLACE AND MANNER
In order to understand the development of the examination of time, place and manner, one must first grasp the definition of these modes of communication. Time is simply defined as when a message may be displayed; place is where the message may be displayed, and how the message is presented is the manner of the conveyance. This covers the various decisions that one must make when engaging in the areas of commercial speech such as advertising through commercial signs.
The Supreme Court observed in the Virginia State Board case that time, place and manner restrictions on commercial speech are permissible if they (1) are justified without reference to the content of the speech; (2) if the restrictions serve a significant government interest; and (3) leave open ample alternative channels for communication of the information.(23) |
V. TIME, PLACE AND MANNER RESTRICTION OF COMMERCIAL SPEECH AMENDED IN CENTRAL HUDSON
In 1980, Central Hudson Gas & Electric brought suit in New York State court to challenge a statute which completely banned any promotional advertising by the utility. This total ban did not leave any modes of alternative communication for the utility and thus the statute was struck down. (24) The Court surmised that the suppression of commercial messages that convey a truthful message must be designed carefully to achieve the State's goal. The Court created a new test, much like the time, place and manner restriction inquiry applied previously, specifically for commercial speech cases. There must be a determination of whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and must not be misleading. The next step in the analysis is that the asserted government interest must be substantial. If there is an affirmative answer to both of the inquiries, then there must be a determination of whether the regulation directly advances the government interest asserted, and whether it is not more extensive than necessary to serve that interest. (25)
The court applied the analysis to the facts of the Central Hudson case. Even though the utility had a monopoly on the sale of utilities in the area, the court asserted that the suppression of advertising in such markets reduces the information available to consumers and defeats the purpose of the First Amendment. Thus the advertising was deemed to be commercial speech that is protected under the First Amendment and fulfilled the first part of the test. (26)
Next the court looked at whether the ban on the advertising was a substantial interest of the State. The State Commission argued that the conservation of energy within the State was a substantial interest in that any advertisement promoting higher usage of electricity would inevitably lead to greater consumption of electricity. This would effect the conservation of energy which is a substantial State interest, and the court agreed.
The next inquiry was to determine whether the advertising ban directly advanced the government's interest in energy conservation. The court stated that there was an immediate connection between advertising and demand for electricity. The utility company would have never contested the ban on advertising if it was not certain that the advertising would lead to greater sales and more consumption of energy. Thus the court determined that there was a direct link between the State's interest and the ban on advertising. (27)
The crucial question was the last part of the test, whether or not the ban was too extensive to serve the interest of energy conservation. The court determined that a total ban on advertising was effecting the advertisement not only of energy sales, but also products and services that would lead to energy conservation. It was then determined that the Commission's methodology of a total ban on utilities advertising was too restrictive to serve the State's interest of energy conservation. (28) |
VI.REGULATION OF COMMERCIAL SIGNS UTILIZING THE CENTRAL HUDSON TEST
The restriction of commercial signs was addressed by the United States Supreme Court in 1981. In Metromedia, Inc. v. San Diego(29), the city of San Diego enacted an ordinance which imposed substantial prohibitions on the erection of outdoor advertising displays within the city. The ordinance permitted onsite commercial advertising, but forbade other commercial and non-commercial advertising using fixed structure signs that were off-premises. The United States Supreme Court, which produced five separate opinions in the case, agreed that the ordinance was unconstitutional. The majority noted that, "The outdoor sign or symbol is a venerable medium for expressing political, social and commercial ideas. From the poster or "broadside" to the billboard, outdoor signs have played a prominent role throughout American history, rallying support for political and social causes."(30)
The Supreme Court utilized the four-part test first introduced in Central Hudson Gas & Electric Corporation v. Public Service Commission, supra.(31) "The Constitution accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. The protection available for a particular commercial expression turns on both the nature of the expression and on the government interests served by its regulation."(32)
The argument put forward by the City of San Diego was that the off-premises commercial signs actually vitiated traffic safety and that the City's interest in aesthetics was substantial enough to justify a prohibition of signs in industrial areas. The Supreme Court Justices did not agree. Justice White stated that the ordinance failed the Hudson test. The record on point was inadequate to show any connection between the billboards and traffic safety, and therefore did not directly advance government interests in traffic safety. It was further asserted that it was speculative to recognize that billboards by their very nature can be perceived as aesthetic harm.(33) Justice White concluded by stating, "It is apparent as well that the ordinance distinguishes in several ways between permissible and impermissible signs at a particular location by reference to their content. Whether or not these distinctions are themselves constitutional, they take the regulation out of the domain of time, place and manner restrictions."(34)
Commercial speech that has been based on a prejudicial purpose has been upheld when the regulations pertaining to it do not relate directly to time, place and manner. In 1977, a township ordinance prohibiting the posting of real estate "For Sale" and "Sold" signs for the purpose of stemming what the township perceived as the flight of white homeowners from a racially integrated community was held to violate the First Amendment.(35) The ordinance could not be sustained on the ground that it restricted only one method of communication while leaving ample alternative communication channels open. The alternatives (primarily newspaper advertising and listing with real estate agents, which involves more cost and less autonomy than signs) were far from satisfactory. And the ordinance was not genuinely concerned with the place (front lawns) or the manner (signs) of the speech, but rather proscribes particular types of signs based on their content because the township feared their "primary" effect - that they would cause those receiving the information to act upon it. (36) The Court further held that the defect in the ordinance was more basic because if the government can restrict the dissemination of information, then every locality could act in the same manner, so long as a plausible claim could be made that disclosure would cause the recipients of information to act irrationally. (37) |
VII. HOW TO APPLY TESTS TO REGULATIONS THAT AFFECT THE SIGN INDUSTRY
As stated above, in reviewing local or state laws that effect the mode of commercial speech utilizing commercial signs, the Supreme Court has most often utilized the Central Hudson analysis (discussed above) or some other mode of intermediate scrutiny.
It is important to consider the following factors. First, there must be a determination of whether the restriction relates to the content of speech or whether it is content neutral. If the restriction is content related, it will most likely be struck down unless the government can demonstrate that the regulation is narrowly tailored to achieve a compelling government interest.
If the regulation is content neutral, then the government's interest in having such a regulation must be narrowly drawn to serve a significant government interest. Finally, there must also be left open ample means of communication so that the message may be disseminated through other sources. If the regulation of the signage passes each element of the test above, then it transcends the scrutiny of the protections provided commercial speech under the First Amendment. |
VIII. FUTURE OF SIGN REGULATIONS
In the 24 years since the advent of cases such as Bigelow v. Virginia,(38) and the Virginia Pharmacy Board,(39) the United States Supreme Court has ventured far into the realm of affording commercial speech, and thus commercial signs, more liberal protection under the First Amendment.
With the advent of 44 Liquormart,(40) it may now be said that commercial speech may even be afforded the protection of a strict scrutiny analysis when the government regulation chooses to place a total ban on advertising a non-misleading, lawful message through the medium of commercial signs.
It is not disputed that local municipalities have a substantial, essentially aesthetic interest in regulating certain modes of commercial speech. The point to be highlighted is that sign regulations that are created in a capricious manner are fraught with danger. These are the same restrictions that must withstand the time, place and manner analysis and the Central Hudson (41) tests in order to withstand the weight of the First Amendment. The Supreme Court stated in Metromedia, "aesthetic judgments are necessarily subjective, defying objective evaluation, and for that reason must be carefully scrutinized to determine if they are only a public rationalization of a permissible purpose."(42) With concrete objective standards to apply, the sign industry may move forward to the next millennium by formulating commercial signs and advertising that complies with these regulations. |
END NOTES
(1) Bigelow v. Virginia, 421 U.S. 809 (1975)
(2) Virginia State Board of Pharmacy v. Virginia Citizens Consumer Counsel, 425 U.S. 748 pp. 761-773 (1976)
(3) Ibid at pp762-765
(4) United States Constitution, First Amendment
(5) Valentine v. Chrestensen (1942) 316 U.S. 52
(6) Ibid at p53
(7) Ibid at p54
(8) Annotations to the United States Constitution p17, citing, Books that are sold for profit, Smith v. California, 361 U.S. 147, 150 (1959); Ginzburg v. United States, 383 U.S. 463, 474-475 (1966), advertisements dealing with political and social matters which newspapers carry for a fee, New York Times Co. v. Sullivan, 376 U.S. 254, 2265-266 (1964); motion pictures which are exhibited for an admission fee, United States v. Paramount Pictures, 334 U.S. 131, 166 (1948); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-502 (1952), were all during this period held entitled to full First Amendment protection regardless of the commercial element involved. |
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