U.S. SUPREME COURT FURTHER REFINES
MUNICIPALITIES' ENCROACHMENT ON
THE FIRST AMENDMENT

By GREGORY T. RIDDLE, Gordon & Glickson P.C.

On December 8, 1990, Margaret Gilleo, a resident of Ladue, Missouri, placed a 24" x 36" sign in her front yard which read, "Say No to War In The Persian Gulf, Call Congress Now." The sign soon disappeared from the yard and Gilleo put up another such sign which was eventually knocked to the ground. After reporting the incidents to City Police and other City authorities, Gilleo was informed that the signs were prohibited under Ladue City ordinance. After a denial by the City Council for variance, Gilleo began legal proceedings against the City and City authorities in Federal District Court. Gilleo v. City of Ladue, 774 F. Supp. 1559 (E.D. Mo. 1991).

In response to a preliminary injunction issued by the Federal District Court on Jaunary 7, 1991, enjoining the City from enforcing the ordinance, the City repealed the sign ordinance in question replacing it with a new ordinance. Also in response to the preliminary injunction, Gilleo placed an 11" x 8.5" sign in the front window of her home which read "For Peace in the Gulf." She was then informed by City officials that the sign violated the new City ordinance.

The Ladue City ordinance began with a broad definition of the term "sign" and contained a general prohibition of all signs except those that fell within enumerated exemptions.¹ The exemptions, each subject to size limitations, included: municipal signs; subdivision signs; residence identification signs; road signs and driveway signs for danger, direction, or identification; health inspection signs, church, religious institution, and school signs announcing names, services, activities, or functions (limited by number); identification signs for nonprofit organizations; signs identifying the location of public transportation stops; ground signs advertising the sale or rental of real property (one per property and containing only the fact of the proposed sale or rental and the seller or agent's name, address or telephone number); commercial signs in districts zoned for commercial or industrial use (limited by number); and signs identifying safety hazards. The ordinance also included a "Declaration of Findings, Policies, Interests and Purposes" which provided, in part:

Proliferation of an unlimited number of signs in private, residential, commercial, industrial, and public areas of the City of Ladue would create ugliness, visual blight and clutter, tarnish the nature beauty of the landscape as well as the residential and commercial architecture, impair property values, substantially impinge upon the privacy and special ambience of the community, and may cause safety and traffic hazards to motorists, pedestrians, and children.

The District Court subsequently held the ordinance to be unconstitutional and permanently enjoined Ladue from enforcing the ordinance and further awarded Gilleo attorney's fees. Gilleo v. City of Ladue, 774 F. Supp. 1564 (E.D. Mo. 1991). After an appeal by the City, the United States Court of Appeals for the Eighth Circuit affirmed the unconstitutionality of the ordinance although it did slightly modify the attorney fee award. Gilleo v. City of Ladue, 986 F.2d (8th Cir. 1993).

On appeal to the United States Supreme Court, the City of Ladue argued in support of the principles set forth in the "Declaration of Findings, Policies, Interests and Purposes." The City maintained that the prohibitions and exemptions in the ordinance reflected "legitimate differences among the side effects of various kinds of signs" which are only "adventitiously connected with content" which supplied enough justification for establishing the specific exemptions from the general ban. The exempted signs, Ladue argued, were "unlikely to contribute to the dangers of unlimited proliferation" such as would be the case with the prohibited signs which are "not inherently limited in number." For example, "For Sale" signs would be limited at any given time because only a few residents would need to display the signs. Likewise, given that the City had few businesses, churches and schools, those signs would also naturally be limited. Therefore, visual clutter would be minimal with the exemptions. Further, the City indicated that it neither approved nor disapproved of the specific messages contained on signs as the ordinance was not directed at the content of the signs messages. Thus, according to Ladue, the ordinance was "content-neutral."

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On June 13,1994, the Supreme Court, in a unanimous decision (J. O'Connor concurring), rejected Ladue's arguments and affirmed the Appellate Court's holding that the ordinance is in violation of Gilleo's constitutional right to free speech. City of Ladue v. Gilleo, No. 92-1856 (U.S. S.Ct. June 13, 1994). The Court's analysis was based primarily on the review of three prior decisions, Linmark Assoc. Inc. v. Willingboro, 431 U.S. 85.97 S.Ct. 1614, 52 L.Ed.2d 155 (1977); Metromedia, Inc. v. San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) and City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984).² The Linmark, Metromedia and Vincent cases, the Supreme Court noted, illustrated two distinct bases for citizens to challenge municipal ordinances regulating the display of signs. The first basis is where the ordinance restricts too little speech since its exemptions discriminate on the basis of the signs messages. The second basis is where the ordinance prohibited too much protected speech.

The Court's decision in Gilleo was based on the second point that the Ladue ordinance prohibited too much protected speech. Accordingly, during its analysis, the Court assumed, arguendo, the validity of the City's argument that its exemptions were content-neutral.³ Gilleo, the Court found, was not concerned about the scope of the exemptions available in other locations, such as commercial areas. Rather, she claimed that she has a constitutional right to display an antiwar sign on her own property. Therefore, the Court considered the following questions: (1) whether Ladue could properly prohibit Gilleo from displaying her sign, and if so, (2) whether it was improper for the City to simultaneously permit certain other signs.

In deciding whether Ladue could prohibit Gilleo from displaying her sign, the Court noted that while signs are a form of expression protected by the First Amendment, they are subject to municipalities' police powers since they take up space and may obstruct view, distract motorists and pose other problems which legitimately may be regulated. While it is clear governments may regulate the physical characteristics of signs, when regulations concern the medium, such as where signs can be placed (i.e. private property), communication is inevitably affected causing constitutional concerns. Ladue residents, the Court indicated, are precluded from displaying almost all signs on their property — including "absolutely pivotal speech as a sign protesting an imminent governmental decision to go to war." The City, it was found, had virtually foreclosed residential signs as a "venerable means of communication that is both unique and important" that have long been a distinct medium for expression. The City had totally foreclosed the medium to political, religious and personal messages. Even though an ordinance may be completely free of content or viewpoint discrimination, an ordinance which forecloses an entire medium poses a readily apparent danger to freedom of speech and such measures can suppress too much speech.

Ladue also argued that its ordinance was a proper regulation of "time, place or manner" of speech.⁴ Ladue residents, including Gilleo, the city asserted, were allowed to freely convey their messages by other means including hand held signs, flyers, telephone calls, newspaper advertisements, speeches or through the use of flags. Thus, Gilleo had ample opportunity for free speech according to the City. The Court, however, was not persuaded by Ladue's argument that adequate substitutes existed for the medium of speech Ladue banned. Precisely because of their location on residential property, such signs provided information about the identity of the "speaker" which is an important component of persuasion. Further, the Court indicated such signs are a unusually cheap and convenient form of communication which can reach particular audiences.

Additionally, the "special respect for individual liberty in the home" under our culture and law was observed to be long-standing — especially when government seeks to constrain the individual's ability to speak there. Government's need to regulate speech from the home is much less pressing than government's need to

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regulate the various competing uses of public streets and facilities.

The Supreme Court was careful to point out that it's decision that Ladue's ban on almost all residential signs violates the First Amendment does not leave municipalities powerless in addressing potential ills associated with residential signs. The Court specifically stated that it was not holding that every kind of sign must be permitted in residential areas. Different considerations, it was noted, might well apply in the case of signs displayed by residents for a fee or in the case of off-site commercial advertisements on residential property. Also, the Court in Gilleo was not faced with regulations that fell short of a virtually complete ban.

While the Gilleo decision does not answer all the questions regarding municipalities' attempts to regulate non-commercial areas, it does assist in defining the boundaries in which municipalities can regulate. That, in itself, should assist municipalities in maintaining compliance with the law or in drafting sign ordinances.

1. The ordinance defined "sign" as: "A name, word, letter, writing, identification, description, or illustration which is erected, placed upon, affixed to, painted or represented upon a building or structure, or any part thereof, or any manner upon a parcel of land or lot, and which publicizes an object, product, place, activity, opinion, person, institution, organization or place of business, or which is used to advertise or promote the interests of any person. The 'sign' shall also include 'banners', 'pennants', 'insignia', 'bulletin boards', 'ground signs', 'billboards', 'poster billboards', 'illuminated signs', 'projecting signs', 'temporary signts', 'marques', 'roof signs', 'yard signs', 'electric signs', 'wall signs', and 'window signs', wherever placed out of doors in view of the general public or wherever placed indoors as a window sign."

2. Linmark involved an ordinance which prohibited "For Sale" or "Sold" on homeowners property. The ordinance was intended to maintain stable, integrated neighborhoods. While recognizing the objective of the ordinance, the Supreme Court, nevertheless, struck down the ordinance as being in violation of homeowner's First Amendment rights. The Court held that the ordinance's objective could not lie achieved by restricting the free flow of truthful information. 431 U.S. at 98, 97 S.Ct. at 1621, 52 L.Ed. at 165.

The Supreme Court, in Metromedia, struck down an ordinance that allowed "on-site" commercial advertising lint prohibited, with limited exceptions, all "off-site" commercial advertising and all noncommercial advertising. Four Justices rules that a municipality could bar "off-site" commercial signs hut found the ordinance in question in violation of the First Amendment since, by not allowing "on-site" noncommercial signs at the same time allowing "on-site" commercial signs, tile city had provided greater protection to commercial speech. 453 U.S. at 513-515,101 S.Ct. at 2895-2896,69 L.Ed. 2d at 818-819. Three Justices, on the other hand, while concurring with the Court's judgment, found tile City had failed to offer sufficient proof that tile ordinance served substantial government interests that could not lie served by means less intrusive on constitutionally protected speech. 453 U.S. at 528,101 S.Ct. at 2903,69 L.Ed. 2d at 827.

In 1984, the Supreme Court, in Vincent, reviewed an ordinance which prohibited posting of signs on public property. The ordinance, which was passed for esthetic reasons, was upheld by the Court. 466 U.S. at 817, 104 S.Ct. at 2135, 80L.Ed.2d at 795.

3. Justice Sandra Day O'Connor wrote an opinion concurring with the Court's decision but wrote separately to voice her objection to the Court's assuming, "arguendo", the validity of Ladue's ordinance being content-neutral. Justice O'Connor would have had the Court apply the normal analytical approach taken in these cases which may have required the appropriate judicial scrutiny appropriate for content-based regulations. Content-based regulations are subject to strict judicial scrutiny. To survive strict scrutiny, municipalities must show that tile content-based restrictions are necessary to serve a compelling city interest and must lie narrowly drawn to achieve the end. Simon & Schuster, Inc. v. New York Crime Victims Bd., __ U.S. __ 112 S.Ct. 501, 116L.Ed.2d 476 (1991).

4. Regulations have been allowed to withstand freedom of speech challenges Where they merely regulate the time, place or manner of speech. The regulations, however, must lie: (1) justified by a city without reference to the content of the regulated speech, (2) serve a significant government interest, and (3) leave open ample alternative channels for communication of the information. Metromedia, 453 U.S. at 516,101 S.Ct.at 2897,69 L.Ed.2d at 820. Further, regulations of a time, place or manner typically are found concerning regulations effecting public property.

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