Transcript Special Topics in Zoning

Free Speech/1st Amendment
Speech
Begging
Commercial Speech
Signs as Speech
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Associated Press Photo from the San Francisco Chronicle
Ladue v. Gilleo
City of Ladue, et al., Petitioners v. Margaret P. Gilleo
114 S. Ct. 2038 (1994); 512 U.S. 43 (1994)
U.S. Supreme Court Decision -- June 13, 1994
BACKGROUND INFO.
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Ladue = St. Louis suburb
St. Louis County, Missouri
Y2K Population = 8,625
Willow Hill Subdivision
One of highest median household incomes
in the U.S. & Missouri
Missouri’s best educated city, proportionately
Possible neighbors include:
Former U.S. Senator John Danforth,
William Bush and John F. McDonnell
1st Persian Gulf War 1990-1991
(a.k.a. Operation Desert Storm)
Margaret Gilleo,
Entomologist,
Active Environmentalist
& Former Professor
Photo from
University of
Maryville website
St. Louis, MO
St. Louis
Metro
Area
Map from www.city-data.com
The 1st Amendment
to the United States Constitution
Congress shall make no law
respecting an establishment of religion,
or prohibiting the free exercise thereof ;
or abridging
the freedom of speech,
or of the press; or the right of the people
peaceably to assemble, and to petition the
government for a redress of grievances.
Case
History & Facts
Gilleo stakes 24x36 -Inch
anti-war sign in front yard
Vandals steal sign & knock
down a 2nd sign
Gilleo in front of her Ladue home in 1991
Gilleo reports to police who
make her remove sign from
yard due to city ordinance
that prohibits residential
signage other than for:
1) Residence Identification
2) “For Sale”
3) Safety Hazards
Copyright J. Aramberri Website 2003, Newspaper photo archives
www.cd.sc.ehu.es/FileRoom/documents/Cases/390gulfsigns.html
Gilleo’s petition for variance denied
Gilleo sues City, the Mayor and City
Council members for violation of her
1st Amendment rights
Case History & Facts - Part 2
District Court issues injunction
Gilleo posts 8.5x11-Inch sign
in 2nd story window
For
PEACE
in the Gulf
City re-issues ordinance still
prohibiting signs with all but
10 exceptions and policy statement limiting number & size of signs in
private, residential, commercial, industrial and public areas b/c it….
“would create ugliness, visual blight and clutter, tarnish the natural 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.”
So, What Happens
In Court?
Ladue City Hall
Photo from City of Ladue Website
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District Court and Court of Appeals
find that the ordinance is
unconstitutional b/c it is contentbased
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City of Ladue appeals to the U.S.
Supreme Court
Decision
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A special respect for individual liberty in the home has long been part of our
culture and our law,
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That principle has special resonance when the government seeks to constrain a
person's ability to speak there.
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Most Americans would be understandably dismayed, given that tradition, to
learn that it was illegal to display from their window an 8 by 11 inch sign
expressing their political views. Whereas the government's need to
mediate among various competing uses, including expressive ones, for public
streets and facilities is constant and unavoidable, its need to regulate temperate
speech from the home is surely much less pressing
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Ladue’s list of banned signs is over-inclusive
Key Concepts
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THINK OF SPEECH AS COMMUNICATION OF
IDEAS
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Content neutrality
Time, manner and place restrictions – not content
Incidental impact
Permissible suppression of speech
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Misleading communication
Libelous communication
Obscene communication
Copyright or trademarked speech
Narrowly tailored
Benefit v City of Cambridge
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A 1994 Supreme Court Case about “begging” as a
form of speech
The Ordinance and Mr.
Benefit
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Persons wandering about from door to door in public
places or private property for the purposes of begging
or receiving alms, who are not licensed, may be
imprisoned for up to six months.
Craig benefit sits on the streets holding up signs
about peace, love, food, or other comments about the
government
He talks to passers-by about his homelessness and
makes suggestions about how government can help
homeless people. He asks for money
The Arrests and the Plea
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Craig Benefit has been arrested at least three times
for begging. He has been threatened by the police
many times to leave Harvard Square.
Craig claims that his peaceful begging is expressive
conduct because it is intertwined with his political
discussions
The court rejects the state’s argument that there is a
compelling need for this type of statute because
people who beg are a “pestilence” in public places
Conclusions
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By prohibiting peaceful
requests by poor people for
personal financial aid, the
statute directly targets the
content of their
communications, punishing
requests by an individual for
help with his or her basic
human needs while shielding
from government
chastisement requests for
help made by better-dressed
people for other, less critical
needs.
The Redevelopment
People, Planners & Projects
And More People
Enjoying Themselves
Megan Roulette v City of Seattle
U.S. Circuit Court of Appeals – 1996
What is the controversy? – This Ordinance ------- Prohibits people from sitting on lying on the public
sidewalks in certain commercial areas between 7:00
am and 9:00 pm. There are no restricts about sitting
of lying public parks, plazas, or sidewalks in noncommercial areas. The police must first give fair
warning
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Megan’s Argument
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The First Amendment protects not only the
expression of ideas through printed or spoken words,
but also symbolic speech -- nonverbal "activity . . .
sufficiently imbued with elements of communication."
Spence v. Washington, 418 U.S. 405, 409 (1974
Sitting on the sidewalk might also be expressive,
plaintiffs argue, such as when a homeless person
assumes a sitting posture to convey a message
of passivity toward solicitees.
The Court’s Reasoning
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In Answer to the direct, facial attack that the ordinance is an
unconstitutional, on its face, violation of the 1st Amendment’s
Right To Expression
It is possible to find some kernel of expression in almost
every activity a person undertakes -- for example, walking
down the street or meeting one's friends at a shopping mall
-- but such a kernel is not sufficient to bring the activity
within the protection of the First Amendment. By its terms,
the ordinance here prohibits only sitting or lying on the
sidewalk. As we explained above, these are not forms of
conduct integral to, or commonly associated with,
expression. We therefore reject plaintiffs' facial attack on
the ordinance
Megan Again
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Well then, the ordinance is a gross violation of my
14th Amendment Right to Due Process
THE CITY SAYS: "[a] downtown area becomes
dangerous to pedestrian safety and economic
vitality when individuals block the public
sidewalks, thereby causing a steady cycle of
decline as residents and tourists go elsewhere to
meet, shop and dine."
A Little Analysis Here
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What is going to happen?
If you challenge a rule of law as unconstitutional “on
its face you have to show that "no set of
circumstances exists under which the statute
would be valid." Megan concedes that "the city
may prevent individuals or groups of people from
sitting or lying across a sidewalk in such a way
as to prevent others from passing.“
Megan’s argument is tanked
Class Discussion
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Is this a thinly veiled aesthetic disguise to remove
undesirables from the street
Or is a genuine state interests to promote public
safety and economic vitality?????
A Few Examples of Non Commercial
Speech that is on the Border Line of the
1st Amendment
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The General Rule is that government may regulate
the:
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Time
Manner
Place
BUT NOT THE CONTENT OF THE MESSAGE
Not All Speech is Protected
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Copyright infringements
Misleading advertising
Libel – Treason
Fighting Words
Insert One World – One Family
“An ordinance prohibits the sale of merchandise on city streets.
We must determine whether it may be constitutionally applied to
bar non-profit organizations from selling message-bearing Tshirts”
HAWAII - 1993
Background
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One World One Family Now and Bhaktivedanta
Mission are non-profit corporations operating in
Hawaii. Both sell T-shirts imprinted with various
philosophical and inspirational messages, such as:
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"Protect and Preserve the Truth
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“ Beauty & Harmony of our Native Cultures"
Plaintiffs believe that selling T-shirts is a particularly
effective way to communicate because those who
buy and wear the T-shirts help spread the message.
Controversy
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The City and County of Honolulu began to hear from
visitors and local residents who complained that the
T-shirt tables were an obstruction and an eyesore.
Merchants with stores near the T-shirt tables also
complained, citing a drop in their own sales of touristoriented merchandise, which they attributed to unfair
competition from the sidewalk vendors.
Response
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The city notified the sidewalk vendors that they were
violating Honolulu law which bans the sale of all
"goods, wares, merchandise, foodstuffs,
refreshments or other kinds of property or services . .
. upon the public streets, alleys, sidewalks, malls,
parks, beaches and other public places in Waikiki
District Court
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The district court held that the city was regulating the
time, place and manner of speech pursuant to
legitimate and significant interests, it refused to enjoin
enforcement of the ordinance as to Kalakaua and
Kuhio Avenues – in the heart of the business district.
The Appeals Court
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The Circuit Court of Appeals for Hawaii has already
rejected San Francisco's contention that selling
goods was unprotected conduct, we held that, when
the sale of merchandise bearing political, religious,
philosophical or ideological messages is "inextricably
intertwined" with other forms of protected expression
(like distributing literature and proselytizing), the First
Amendment applies.
In other words selling T-Shirts that are used for
communication is protected by the first amendment
Content Neutrality
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The district court found that the ordinance furthers
three legitimate governmental interests: (1)
"maintaining the aesthetic attractiveness of Waikiki,"
(2) "promoting public safety and the orderly
movement of pedestrians," and (3)"protecting the
local merchant economy.“
None of these interests concerns the content of
speech, and there's no evidence that "the ordinance
was designed to suppress certain ideas that the City
finds distasteful or that it has been applied to the
plaintiffs because of the views that they express."
Point by Point Examination
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Aesthetics
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Cities have a substantial interest in protecting
the aesthetic appearance of their communities
by "avoiding visual clutter." As the district
court found, Honolulu's interest in eliminating
the visual blight caused by unsightly vendor
stands easily qualifies under this standard.
Nexus
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Traffic and Circulation
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Likewise, cities have a substantial interest in
assuring safe and convenient circulation on
their streets. The district court found that
Waikiki is the center of the state's tourism
industry, receives as many as 60,000 visitors a
day, and consequently has "a large
concentration of vehicles and pedestrians
which causes unique traffic problems."
Density and Usage
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Pedestrian control
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Judged in light of "the characteristic nature
and function of the particular forum involved,"
the city's interest in maintaining the orderly
movement of pedestrians on Waikiki's crowded
sidewalks is also substantial.
Economic Argument
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Honolulu has demonstrated a substantial interest in protecting local
merchants from unfair competition.
A legitimate preoccupation of local government is to attract and
preserve business. Cities rely on a prosperous, stable merchant
community for their tax base, as well as for the comfort and welfare of
their citizens.
Here, the district court found that "the tax-free and rent-free activities of
the plaintiffs . . . have had a significant effect on the economy of the
abutting shop owners on avenues whose taxes and rent contribute to
the welfare and economy of this state."
This kind of unfair competition threatens to erode tax revenues and
undermine the strength of its commercial life.* As amici remind us,
plaintiffs can offer "remarkably low prices" in part because they pay no
rent and aren't subject to various municipal regulations. Given the
district court's findings, we must take seriously the concern that "[n]o
ordinary merchant, forced to pay rent in Waikiki and comply with other
applicable laws, possibly could compete
Conclusion
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Honolulu's peddling ordinance is narrowly tailored to
serve these interests because they "would be
achieved less effectively absent the regulation."
Without the ordinance, sidewalk vendors (commercial
and charitable alike) would be free to peddle their
wares on Kalakaua and Kuhio avenues, undermining
the city's efforts to provide a pleasant strolling and
shopping area
Commercial Speech Bridging To
Personal Advertising
As Personal Expression
As Individual Expression Within A
Commercial Billboard
Public Art In Public Squares
Renee Cox – Yo Mama’s Last Supper
Sometimes Just Plain Funny
The Message
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The following cases deal specifically with commercial
speech
Does commercial speech enjoy the same 1st
Amendment protections as personal communications
or:
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The Press (Media)
Political speech
Religious Expressions
Artistic expression
Many of these questions will be covered in the
section of Aesthetics and Signs
Central Hudson Gas & Elec. V
Comm. State of New York
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A 1980 case that arises from an order of the State
Regulatory Commission that bans (temporarily) all
advertising that promotes the use of electricity
The order was based on the Commission’s finding
that it did not have sufficient energy resources to
supply electricity through the winters of 1975 – 1976
This is a 3 year ban and the Regulatory Commission
is considering extending it
Central Hudson complains that this violates their 1st
Amendment rights.
Commercial Speech
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Courts have always allowed some degree of
regulation in commercial speech
The protection available for particular commercial
expression turns on the nature both of the expression
and of the governmental interests served by its
regulation
There is no objection to banning commercial speech
(advertising) that is misleading or incomplete but the
limitation or ban must be tailored to achieve the
state’s goals
Many Examples
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Doctors could not advertise
Lawyers could not advertise
Hard liquors could not be advertised
Prescription drugs could not be advertised
Condoms could not be advertised nor could other
birth control products
Central Hudson Test
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Court devises a 4 part test for protected
commercial speech
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It must concern lawful activity and not be
misleading
The asserted government interest must be
substantial
The regulation must directly advance the
government interest asserted
Must not be more extensive that necessary to
achieve the interest
SO?
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Lawful?
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Nothing unlawful about advertising to use electricity but
since the whole industry is regulated it does not result
in any useful information
The court rejects this and says that Central Hudson has
to compete with the home heating fuel industry and the
natural gas producers
State’s Interest is Substantial
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Fair and equitable utility rates
Energy conservation
And! The Court Reverses the
Ban
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Regulation Must Directly Advance the State’s Interest
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Connection between equitable rates, on and off peak
usage and other cost basis arguments in tenuous
Connection between energy conservation is right on
target and is a good reason to ban advertising
Must Not Be More Extensive Than Necessary
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The total ban also prevents Central Hudson from
advertising and promoting more efficient products for
energy conservation (heat pumps) (well pumps).
Therefore the total ban is more extensive than
necessary
Metromedia v City of San Diego
1981 U.S. Supreme Court
A View From San Diego
The Background
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San Diego passes a series of zoning amendments
targeted a reducing the number of billboard and road
signs
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Eliminate excessive signs
Unrelated signs
Use signing for identification not advertising
Preserve and enhance appearance
Eliminate hazards to drivers
The heart of the ordinance permits only on-site
advertising – off-site signs cannot display commercial
messages
Rule #1
You can never have
too many signs
But Some Types of Signs Are
Exempt
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Exemptions
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Government signs
Bus stop signs
Commemorative signs
Religious signs
Political Signs
For Sale and lease
Public service signs
The Action
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Plaintiff’s are the 800 owners of signs that joined in
the class action
Does the ordinance violate the freedom of
expression?
Did the City over reach and go farther than necessary
to protect the aesthetic interest?
Is equal protection violated because the signs are
placed in two different class?
The Decision
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The City could simply have banned all billboards –
not just commercial – speech
Why are site bound business banned from using noncommercial speech?
Where is the City’s study that shows that the banned
forms of expression are in fact inferior to the
permitted forms?
This is a 14th and 1st Amendments violation. It is not
rationally related to the ends sought and it prejudges
the CONTENT of signs
Street Furniture and Design In
Public Places
City of Cincinnati v Discover
Network
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Discovery Network, Inc. is engaged in the business of
providing adult educational, recreational, and social
programs to individuals in the Cincinnati area.
It advertises those programs in a free magazine that
it publishes nine times a year.
Approximately one third of these magazines are
distributed through the 38 newsracks that the city
authorized Discovery to place on public property in
1989.
The Ordinance
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The street furniture
ordinance passed by the City
only targets “commercial”
handbills, magazines, and
newspapers
It still allows “traditional”
newpapers to be sold from
newsrack dispensers
Non-Traditional Press
Basics
Motivated
by its interest in the safety and attractive
appearance of its streets and sidewalks, the City of
Cincinnati notifies Discovery Network that it must
remove its newsracks within 30 days.
• The U.S. District Court concluded that -the regulatory scheme
advanced by the City of Cincinnati completely prohibiting the
distribution of commercial handbills on the public right of way
violates the First Amendment.- The court found that both
publications were -commercial speech- entitled to First
Amendment protection because they concerned lawful activity and
were not misleading.
The Harm – Says the District
Court
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It explained that the -fit- in this case was
unreasonable because the number of newsracks
dispensing commercial handbills was –minute
compared with the total number (1,500-2,000) on the
public right of way, and because they
It affected public safety in only a minimal way.
The practices in other communities indicated that the
City's safety and esthetic interests could be dequately
protected -by regulating the size, shape, number or
placement of such devices.-
Cincinnati Goes To The Court Of
Appeals
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The city argues that since a number of courts had
held that a complete ban on the use of newsracks
dispensing traditional newspapers would be
unconstitutional.
The -Constitution . . . accords a lesser protection to
commercial speech than to other constitutionally
guaranteed expression,- Central Hudson Doctrine
The City’s preferential treatment of newspapers over
commercial publications was a permissible method of
serving its legitimate interest in ensuring safe streets
and regulating visual blight.
Appeals Court Disagrees
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They hold that the lesser status of commercial speech is
relevant only when its regulation was designed either to prevent
false or misleading advertising, or to alleviate distinctive adverse
effects of the specific speech at issue.
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Because Cincinnati sought to regulate only the -manner- in
which respondents' publications were distributed, as opposed to
their content or any harm caused by their content, the court
reasoned that the burden placed on speech cannot be justified
by the paltry gains in safety and beauty achieved by the
ordinance
Cincinnati & the Supreme Court
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The fact that the city failed to address its recently
developed concern about newsracks by regulating
their size, shape, appearance, or number indicates
that it has not -carefully calculated- the costs and
benefits associated with the burden on speech
imposed by its prohibition. The benefit to be derived
from the removal of 62 newsracks while about 1,5002,000 remain in place is minute
Indicates that the essential fit (NEXUS) is not there
and that the City did “not go far enough.”
But The City Will Not Quit
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The city argues that it is wrong to focus attention on the
relatively small
number of news- racks affected by its prohibition, because the
city's central concern is with the overall number of newsracks on
its sidewalks, rather than with the unattractive appearance of a
handful of dispensing devices.
It contends, first, that a categorical prohibition on the use of
newsracks to disseminate commercial messages burdens no
more speech than is necessary to further its interest in limiting
the number of newsracks
Second, that the prohibition is a valid -time, place, and mannerregulation because it is content-neutral and leaves open ample
alternative channels of communication.
The Court Retorts
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The city's argument attaches more importance to the distinction
between commercial and noncommercial speech than our cases
warrant and seriously underestimates the value of commercial
speech.
This very case illustrates the difficulty of drawing bright lines that
will clearly cabin commercial speech in a distinct category. For
respondents' publications share important characteristics with
the publications that the city classifies as -newspapers.Particularly, they are -commercial handbills because they
contain advertising, a feature that apparently also places
ordinary newspapers within a different category.
Getting There
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Publishers' newsracks are no greater an eyesore
than the newsracks permitted to remain on
Cincinnati's sidewalks.
Each newsrack, whether containing -newspapers- or
-commercial handbills,- is equally unattractive.
Also, Under the city's policy, whether any particular
newsrack falls within the ban is determined by the
content of the publication resting inside that
newsrack.
Conclusion
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In sum, the city's newsrack
policy is neither contentneutral nor, or narrowly
tailored.
Thus, regardless of whether
or not it leaves open ample
alternative channels of
communication, it cannot be
justified as a legitimate time,
place, or manner restriction
on protected speech.
Newsrack Design
Some Future Fights
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Street furniture that advertises
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Charging impact fees for streetscape
and furniture
Porn delivered by WiFi
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New Entries Into The Fray