Title Rappa v. New Castle County
Date 1994
By
Subject Other\Concurring
Contents
Page 1
40 of 52 DOCUMENTS
DANIEL D. RAPPA, SR. v. NEW CASTLE COUNTY; DENNIS E. GREENHOUSE; ROBERT W. O'BRIEN; JOHN C. CARNEY, JR.; MARK A. KLEINSCHMIDT; WILLIAM S. MCINTYRE, Appellants; DANIEL D. RAPPA, SR. v. STATE OF DELAWARE; DEPARTMENT OF TRANSPORTATION OF THE STATE OF DELAWARE; KERMIT H. JUSTICE * Ann Canby, Secretary, in her official capacity and Kermit H. Justice in his individual capacity, Appellants
* pursuant to Rule 43(c) see letter received 2/22/94
No. 92-7282, No. 92-7293
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
18 F.3d 1043; 1994 U.S. App. LEXIS 4386
January 20, 1993, Argued
March 11, 1994, Filed
SUBSEQUENT HISTORY: **1
As Corrected May 2, 1994.
PRIOR HISTORY: On Appeal from the United States District Court for the District of Delaware. (D.C. Civil Nos. 90-00608, 90-00609)
CASE SUMMARY:
PROCEDURAL POSTURE: Appellant state and county officials challenged the order of the United States District Court for the District of Delaware, which granted partial summary judgment to appellee politician, holding that the Delaware statute and a county ordinance were fa- cially unconstitutional under U.S. Const. amends. I, XIV because they impermissibly restricted speech on the basis of content.
OVERVIEW: Appellee politician challenged the con- stitutionality of the Delaware Code relating to signs ad- vertising local industries, meetings, buildings, historical markers and attractions. Appellant state and county offi- cials claimed that portions of Del. Code Ann. tit. 17 and a local ordinance passed constitutional muster. The court affirmed the order of the district court that held both the statute and ordiance were facially defective and deter- mined that the entire statute failed. The court held that the individual appellants reasonably could have concluded, based on the existing case law, that the relevant sections of the state law and the county ordinance were facially constitutional, and were therefore entitled to qualified im- munity. The court held that the statute which precipitated the removal of appellee's campaign signs placed too great
a limit on speech and discriminated between signs unre- lated to the property or its use. The court ruled that it could not properly assess the constitutionality of the remainder of the statute based on the record and remanded for a de- termination of the availability of alternative avenues for the speech sought to be limited.
OUTCOME: The court concluded that the statute was sufficiently content-based that a significant part of it was unconstitutional. The court affirmed that part of the dis- trict court's judgment that enjoined enforcement of the state statute and held that it was unconstitutional. The court remanded the case to the district court for a deter- mination of the effect of the state regulations set forth in the balance of the statute.
LexisNexis(R) Headnotes
Governments > State & Territorial Governments > Police
Power
HN1 Chapter 11 of the Delaware statutes allows signs advertising local industries, meetings, buildings historical markers and attractions. Del. Code Ann. tit. 17, § 1114(6). Constitutional Law > Fundamental Freedoms > Freedom of Speech > Scope of Freedom
HN2 Statutes aimed at a legitimate end unrelated to the suppression of speech but which nonetheless restrict speech in a certain locality may constitutionally contain content-based exceptions as long as the content exempted from restriction is significantly related to the particular area in which the sign is viewed. Such exceptions must also be substantially related to advancing an important state interest that is at least as important as the overall goal
18 F.3d 1043, *; 1994 U.S. App. LEXIS 4386, **1
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advanced by the underlying regulation, be no broader than necessary to advance the special interest, and be narrowly drawn so as to impinge as little as possible on the overall goal.
Civil Procedure > Appeals > Appellate Jurisdiction > Interlocutory Orders
HN3 The appellate court has jurisdiction over an appeal from a district court's injunction pursuant to 28 U.S.C.S.
§ 1292(a)(1).
Civil Procedure > Appeals > Appellate Jurisdiction > Final Judgment Rule
Civil Procedure > Appeals > Appellate Jurisdiction > Collateral Order Doctrine
HN4 The appellate court has jurisdiction over a dis- trict court's denial of an individual defendants' motions for summary judgment on grounds of qualified immunity under 28 U.S.C.S. 1291; a decision denying a claim of qualified immunity based on a question of law is a final decision under the collateral order doctrine.
Civil Procedure > Appeals > Standards of Review > Standards Generally
Civil Procedure > Summary Judgment > Summary
Judgment Standard
HN5 When a district court's decisions are made pursuant to motions for partial summary judgment, the appellate court exercises plenary review, applying the same stan- dard the district court was to have applied in the first instance.
Transportation Law > Commercial Vehicles > Bridges
& Roads
HN6 A "state highway" is defined by Title 17 to in- clude any road or highway or portion thereof which the Department has constructed or of which the Department has taken or assumed control or jurisdiction. Del. Code Ann. tit. 17, § 101(a)(8).
Transportation Law > Commercial Vehicles > Bridges
& Roads
Transportation Law > Commercial Vehicles > Maintenance & Safety
HN7 A "controlled area" is defined as any area inside the boundaries of this State which is adjacent to the right- of-way of a highway of the interstate or primary systems, except that areas beyond 660 feet of the right-of--way in- side urban areas shall be excluded from this chapter. Del. Code Ann. tit. 17, § 1102(b)(4).
Transportation Law > Commercial Vehicles > Bridges
& Roads
Trademark Law > Subject Matter > Pictures
HN8 See Del. Code Ann. tit. 17, § 1102(b)(1).
Transportation Law > Commercial Vehicles > Bridges
& Roads
HN9 Section 1108(a) prohibits the posting of signs within 25 feet of the right-of--way line of any public highway if visible from any portion of the same. Del Code Ann. tit. 17, § 1108(a). Section 1108(b) prohibits, in relevant part, signs placed on the right-of--way of any public highways. Del. Code Ann tit. 17, § 1108(b)(1). Transportation Law > Private Motor Vehicles > Traffic Regulation
Transportation Law > Commercial Vehicles > Traffic
Regulation
HN10 The Federal Highway Beautification Act requires states, upon penalty of losing 10 percent of federal high- way funds, to restrict along interstate highways and the state's "primary system" outdoor advertising that is within six hundred and sixty feet of the nearest edge of the right- of-way and visible from the main traveled way or more than six hundred and sixty feet off the nearest edge of the right-of--way, located outside of urban areas, visible from the main traveled way of the system, and erected with the purpose of being read from such main traveled way. 23
U.S.C.S. § 131(b).
Transportation Law > Private Motor Vehicles > Traffic
Regulation
Transportation Law > Commercial Vehicles > Traffic
Regulation
HN11 See Del. Code Ann. tit. 17, § 1121. Transportation Law > Private Motor Vehicles > Traffic Regulation
Transportation Law > Commercial Vehicles > Traffic
Regulation
HN12 A New Castle Ordinance prohibits all exterior signs "except as permitted." New Castle Co., Del., Code Art. XII, § 23-73.
Constitutional Law > Fundamental Freedoms > Freedom of Speech > Commercial Speech
HN13 The first step in U.S. Const. amend. I analysis of a speech limiting statute is to determine whether a statute is content-neutral or content-based. If a statute is content-based, then the state is required to show that the regulation is necessary to serve a compelling state in- terest and that it is narrowly drawn to achieve that end. On the other hand, if the statute is content-neutral, and merely restricts the total quantity of speech by regulating the time, the place or the manner in which one can speak, a very different test applies. Even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication
18 F.3d 1043, *; 1994 U.S. App. LEXIS 4386, **1
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of the information.
Constitutional Law > Supremacy Clause
Governments > Courts > Judicial Precedents
HN14 The decisions of the Supreme Court are binding on the appellate court and constitute the law of the land. Governments > Courts > Judicial Precedents
HN15 When a fragmented U.S. Supreme Court decides a case and no single rationale explaining the result enjoys the assent of five justices, the holding of the Court may be viewed as that position taken by those members who concurred in the judgment on the narrowest grounds. Governments > Courts > Judicial Precedents
HN16 Whenever possible there must be a single legal standard for the lower courts to apply in similar cases and this standard, when properly applied, produces results with which a majority of the justices in the case articulat- ing the standard agree. Where no single rationale enjoys the assent of five justices, the situation becomes more complex, but the controlling principle is the same. Where a justice or justices concurring in the judgment in such a case articulates a legal standard which, when applied, will necessarily produce results with which a majority of the court from that case would agree, that standard is the law of the land.
Governments > Courts > Judicial Precedents
HN17 One opinion can be meaningfully regarded as
"narrower" than another only when one opinion is a log- ical subset of other, broader opinions. In essence, the narrowest opinion must represent a common denomina- tor of the court's reasoning; it must embody a position implicitly approved by at least five justices who support the judgment.
Governments > Courts > Judicial Precedents
HN18 In some splintered decisions, there will be three or more distinct approaches, none of which is a subset of another; instead, each approach is simply different. In such cases, no particular standard constitutes the law of the land, because no single approach can be said to have the support of a majority of the court.
Governments > Courts > Judicial Precedents
HN19 Lower courts must adhere at the minimum to the principle of "result" stare decisis, which mandates that any specific result espoused by a clear majority of the Court should be controlling in substantially identical cases. The absence of a clear majority rationale support- ing the result may give a lower court some flexibility to formulate a justifying rule, it does not, however, justify a court in embracing a line of reasoning that will lead to a contrary result. Adherence to "result" stare decisis is essential if principles of certainty and uniformity are to have any meaning at all.
Constitutional Law > Fundamental Freedoms > Freedom of Speech > Scope of Freedom
HN20 U.S. Const. amend. I is concerned not only with the extent to which a law reduces the total quantity of communication, but also, and perhaps even more funda- mentally, with at least three additional factors: distortion of public debate, improper motivation, and communica- tive impact. These three factors, which are most clearly presented by content-based restrictions, explain both why the Court tests virtually all content-based restrictions of high-value speech with a single, strict standard of re- view, and why it does not apply that same standard to all content-neutral restrictions.
Constitutional Law > Fundamental Freedoms > Freedom of Speech > Scope of Freedom
HN21 The rule against content discrimination forces the government to limit all speech, including speech the government does not want to limit, if it is going to re- strict any speech at all. By deterring the government from exempting speech the government prefers, the Supreme Court has helped to ensure that government only limits any speech when it is quite certain that it desires to do so. Constitutional Law > Fundamental Freedoms > Freedom of Speech > Prior Restraint
HN22 When there is a significant relationship between the content of particular speech and a specific location or its use, the state can exempt from a general ban speech having that content so long as the state did not make the distinction in an attempt to censor certain viewpoints or to control what issues are appropriate for public debate and so long as the exception also survives the this test: The state must show that the exception is substantially related to advancing an important state interest that is at least as important as the interests advanced by the underlying regulation, that the exception is no broader than neces- sary to advance the special goal, and that the exception is narrowly drawn so as to impinge as little as possible on the overall goal.
Constitutional Law > Fundamental Freedoms > Freedom of Speech > Prior Restraint
HN23 The requirement that a sign be significantly re- lated to the property can be met in either of two ways. First, the state can show that a sign is particularly im- portant to travellers on the nearby road, for example, a directional sign, or a sign conveying the nearest location of food. Second, the state can show that a sign better con- veys its information in its particular location than it could anywhere else, for example, an address sign performs its function better when it is actually on the property with that address than if it is anywhere else.
Constitutional Law > Fundamental Freedoms > Freedom of Speech > Prior Restraint
18 F.3d 1043, *; 1994 U.S. App. LEXIS 4386, **1
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HN24 The time, place, and manner test requires that a constitutional restriction on speech must leave in place ample alternative channels of communication. The court allows the state to constitutionally exempt from a time, place, and manner restriction signs for which there may be alternative channels of communication, but for which the alternatives are inferior because of the context specific nature of the signs.
Constitutional Law > The Judiciary > Case or
Controversy > Constitutionality of Legislation
HN25 In a challenge to the constitutionality of a statute, a court should refrain from invalidating more of the statute than is necessary.
Constitutional Law > The Judiciary > Case or
Controversy > Constitutionality of Legislation
HN26 When a federal court is called upon to invalidate a state statute, the severability of the constitutional portions of the statute are governed by state law.
Constitutional Law > The Judiciary > Case or Controversy > Constitutionality of Legislation Governments > Legislation > Suspension, Expiration & Repeal
HN27 Separability questions are essentially questions of statutory construction, to be determined according to either the will of the legislature or its manifested meaning. Separability is to be decided according to the legislative intent. The problem is twofold: the legislature must have intended that the act be separable, and the act must be capable of separation in fact.
Governments > Legislation > Suspension, Expiration & Repeal
HN28 See Del. Code Ann. tit. 1, § 308.
Constitutional Law > Fundamental Freedoms > Freedom of Speech > Prior Restraint
HN29 Even in a public forum the government may im- pose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant gov- ernmental interest, and that they leave open ample alter- native channels for communication of the information. Governments > State & Territorial Governments > Claims By & Against
HN30 In evaluating a claim of qualified immunity, the court considers whether the official's conduct violated clearly established statutory or constitutional rights of which a reasonable person would have known. Governments > State & Territorial Governments > Claims By & Against
HN31 In order for the governing law to be sufficiently
well established for immunity to be denied, it is not neces- sary that there have been a previous precedent directly in point. The ultimate issue is whether, despite the absence of a case applying established principles to the same facts, reasonable officials in the defendants' position at the rele- vant time could have believed, in light of what was in the decided case law, that their conduct would be lawful.
COUNSEL: CARL A. AGOSTINI, Agostini, Levitsky & Agostini, 623 King Street, P.O. Box 2323, Wilmington, DE 19899. THOMAS S. NEUBERGER (Argued), Suite 702, 200 West Ninth Street, Ninth Street Plaza, Wilmington, DE 19801-1646, Attorneys for Appellees in
92-7282 and 92-7293.
JOHN A. PARKINS, JR. (Argued), HELEN M. RICHARDS, Richards, Layton & Finger, One Rodney Square, P.O. Box 551, Wilmington, DE 19899. WILLIAM W. BOWSER, JULIE M. SEBRING, New Castle County Department of Law, 800 French Street, Wilmington, DE 19801, Attorneys for Appellants in 92-
7282.
MALCOLM S. COBIN (Argued), Department of Justice, Assistant State Solicitor, 820 N. French Street, Wilmington, DE 19801. FREDERICK H. SCHRANCK, Office of Attorney General, Assistant Attorney General, Department of Transportation, P.O. Box 778, Dover, DE
19903-0778, Attorneys for Appellants in 92-7293. STUART E. SCHIFFER, Acting Assistant Attorney General, WILLIAM C. CARPENTER, JR., United States Attorney, ANTHONY J. STEINMEYER, JOHN F. DALY, Attorneys, Appellate Staff, Civil Division, Room
7416-C, Department of Justice, Washington, **2 DC
20530, Attorneys for the United States as Amicus Curiae. JUDGES: Before: BECKER, ALITO and GARTH, Circuit Judges.
OPINIONBY: BECKER
OPINION:
*1046 TABLE OF CONTENTS
I. FACTUAL AND PROCEDURAL BACKGROUND
II. THE DELAWARE STATUTORY SCHEME
III. CONTENT NEUTRALITY
A. Introduction
18 F.3d 1043, *1046; 1994 U.S. App. LEXIS 4386, **2
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B. The Metromedia Plurality
C. Analyzing Plurality Opinions -- Doubts Cast by the
Metromedia Concurrence and Dissents
D. Applicability of the Result in Metromedia
IV. CONTENT DISCRIMINATION REVISITED
A. A New Test
B. Application of the Test
C. Summary
V. SECONDARY EFFECTS
VI. PUBLIC FORUM ANALYSIS
VII. SEVERABILITY
VIII. TIME, PLACE AND MANNER
IX. QUALIFIED IMMUNITY
A. Qualified Immunity of Defendant Justice
B. Qualified Immunity of the Individual County
Defendants
X. CONCLUSION
18 F.3d 1043, *1047; 1994 U.S. App. LEXIS 4386, **2
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*1047
OPINION OF THE COURT
BECKER, Circuit Judge.
In 1990, plaintiff Daniel Rappa sought the Democratic nomination for Delaware's seat in the United States House of Representatives in a primary election contest which pitted him against the incumbent, Thomas Carper. Rappa was a businessman who had not held public office and had little public name recognition. In an effort to achieve it, he placed a large number **3 of signs along Delaware's roadways, only to have many of them peremptorily re- moved by state and local authorities on the grounds that they were in violation of laws and ordinances enacted by the State of Delaware ("the State"), the County of New Castle ("the County"), and the City of Wilmington ("the City"). Although Rappa's signs were barred, a number of other types of signs, such as "for sale" signs and highway beautification signs were permitted. Particularly notewor- thy is the fact that the state statute, HN1 "Chapter 11," allows signs advertising local industries, meetings, build- ings historical markers and attractions. See Del. Code Ann. tit. 17, § 1114(6).
Rappa brought suit in the District Court for the District of Delaware challenging these regulatory schemes on First Amendment grounds. After discovery and the sub- mission of extensive affidavits, the district court granted partial summary judgment, holding that the Delaware statute and the New Castle County ordinance were fa- cially unconstitutional under the First and Fourteenth Amendments to the Constitution because they impermis- sibly restricted speech on the basis of content. The court issued an injunction requiring the **4 state and county defendants to permit political signs to the same extent that commercial or other non-political signs were allowed.
Much of the case against the City of Wilmington remained unresolved but Rappa and the City settled, and the City's appeal of certain aspects of the district court's decision was therefore dismissed. The appeals of the County and
various state and county officials remain, however, and impose on us the difficult task of determining the current state of First Amendment law pertaining to outdoor signs. The district court believed that the Supreme Court's lead- ing pronouncement in the area, Metromedia, Inc. v. San Diego, 453 U.S. 490, 101 S. Ct. 2882, 69 L. Ed. 2d 800
(1981) was controlling, but we think that it has little prece- dential effect. Metromedia was a badly splintered plural- ity opinion which has arguably been undermined by the recent decision in Cincinnati v. Discovery Network, 123
L. Ed. 2d 99, 113 S. Ct. 1505 (1993). Although our analy- sis differs significantly from that of the district court, we nonetheless conclude that the Delaware regulation **5 is sufficiently content-based that a significant part of it is unconstitutional.
Based on the principles underlying the First Amendment, we conclude that HN2 statutes aimed at a legitimate end unrelated to the suppression of speech but which nonetheless restrict speech in a certain locality may constitutionally contain content-based exceptions as long as the content exempted from restriction is signifi- cantly related to the particular area in which the sign is viewed -- for example, a sign identifying the property on which it sits as a restaurant, or a sign alongside a highway which tells drivers how to reach a nearby city. Such ex- ceptions must also be substantially related to advancing an important state interest that is at least as important as the overall goal advanced by the underlying regulation, be no broader than necessary to advance the special interest, and be narrowly drawn so as to impinge as little as pos- sible on the overall goal. Although under this approach some content-based exceptions will pass constitutional muster, the exception in Chapter 11 relating to signs ad- vertising local industries, meetings, buildings, historical markers and attractions, Del. Code Ann. Titl 17 **6 §
1114(6), fails the test. As a result, Chapter 11 is facially unconstitutional.
Our finding that Chapter 11 is unconstitutional does not end the matter, however;
18 F.3d 1043, *1048; 1994 U.S. App. LEXIS 4386, **6
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*1048 that is because we find that certain aspects of the state regulatory scheme are not impermissibly content- based, at least absent the development of facts showing these fail the substantial state interest prong of the con- stitutional test. The injunction must therefore be modi- fied accordingly. However, after the development of more facts, the plaintiff will, on remand, have the opportunity to attack these provisions as content-based and as uncon- stitutional time, place, and manner restrictions which do not pass constitutional muster.
We decline to reach Rappa's contention that the statute is unconstitutionally vague because of the uncertainty of the location of the right of way, from which the placement of signs is to be measured to determine their lawfulness, and Rappa's argument that the defendants violated his pro- cedural due process rights by the manner in which they removed his signs; the record is insufficiently developed for us to make these determinations. We do, however, note our agreement with the district court that **7 the sec- ondary effects doctrine, explicated in Renton v. Playtime Theatres, 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29
(1986), does not save the offending statute and ordinance, for we do not think that the secondary effects of the signs forbidden by the provisions are more harmful than the secondary effects of the signs permitted by the provisions. We must also confront the individual defendants' ap- peals from the district court's denial of their motions for summary judgment which were based on their assertions of qualified immunity from damage claims. We note in this regard that while the County has not appealed the dis- trict court's decision concerning the constitutionality of its ordinance, we have had to take it into account with respect to the qualified immunity issue. See Brown v. Grabowski,
922 F.2d 1097, 1105 (3d Cir. 1990). We conclude that offi-
cials in the position of these individual defendants reason- ably could have concluded, based on the existing case law, that the relevant sections of the state law and the county ordinance were facially constitutional. Accordingly, we will reverse **8 the district court's denial of summary judgment to the individual defendants and remand with direction to enter summary judgment in their favor on the claims for damages, to the extent that they are based on the facial unconstitutionality of the respective regulations. I. FACTUAL AND PROCEDURAL
BACKGROUND
These suits were precipitated by events surround- ing plaintiff Daniel Rappa's campaign for the 1990
Democratic nomination for Delaware's lone seat in the United States House of Representatives against then Representative Thomas Carper, who is now Governor of Delaware. As Rappa explained, he had been a successful businessman and a long time supporter of and contributor to the Democratic Party in Delaware but had never before sought public office. On July 26, 1990, Rappa declared his candidacy for the House seat and began actively cam- paigning in preparation for the September 8, 1990 primary election. Because Carper was an established incumbent, Rappa's campaign strategy was dependent upon his ability to establish name recognition in the short period before the primary election. In order to establish it, Rappa at- tempted to blanket Delaware with campaign signs. He placed **9 signs at various locations along roadsides throughout the state, including the following: (1) on the private property of supporters within twenty-five feet of the public right-of--way; (2) on the rights-of--way abut- ting the private property of supporters; and (3) on the rights-of--way adjacent to sidewalks or public thorough- fares. n1 However, in the period
18 F.3d 1043, *1049; 1994 U.S. App. LEXIS 4386, **9
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*1049 between July 26 and September 8, 1990, many of these signs were removed by employees of the Delaware Department of Transportation ("DelDOT"), employees of New Castle County, and employees of the City of Wilmington.
n1 According to Rappa's "Verified Complaint," the signs he utilized were of several types. There were typical poster signs, approximately 2' x 2'; larger signs, either 4' x 4' or 4' x 8', which were of wooden construction and may or may not have been driven into the ground; and posters, 2' x 2', which were fixed to trees, utility poles, fences, or buildings. Additionally, Rappa also made use of bumper stickers affixed to automobiles.
While the messages on particular signs may have varied somewhat, the typical Rappa sign stated: "Dan Rappa 'The' Democrat for Congress." According to Rappa, in addition to creating name recognition, these signs were intended to convey a dual message; first, that voters should vote for Rappa, rather than Carper, in the primary, and that they should vote for the Democratic nominee in the general election; and second, that the campaign signs were intended to convey that Rappa, unlike Carper, was a true Democrat in the best traditions of the Democratic Party.
**10
Shortly after his defeat in the Democratic primary, Rappa filed three civil rights suits under 42 U.S.C. § 1983 in the District Court for the District of Delaware. In these suits, he challenged the constitutionality of the respective statutes and ordinances enacted by the State of Delaware, New Castle County, and the City of Wilmington to regu- late the posting of outdoor signs, including political cam- paign signs. Rappa challenged the statutes and ordinances under the First and Fourteenth Amendments on both fa- cial and as applied grounds, and sought declaratory relief, injunctive relief, damages, and attorneys' fees.
In the first of the three cases, Rappa sued New Castle County and various county officials, both individually and in their official capacities. n2 In the second case, Rappa named as defendants the State of Delaware, DelDOT, and Secretary of Transportation Kermit Justice, both individ- ually and in his official capacity. The State and DelDOT were subsequently dismissed on Eleventh Amendment grounds. Additionally, since Justice was subsequently re- placed by Mark McNulty as Secretary of Transportation,
**11 McNulty was substituted for Justice, in his official capacity, under Fed. R. App. P. 43(c)(1). Justice, however, still remains a defendant in his individual capacity. n3
In the third case, Rappa sued the City of Wilmington; Daniel Frawley, individually and in his official capacity as Mayor; Paul Ignudo, individually and in his official capacity as Commissioner of the Department of Licenses and Inspections; and James Dipinto, individually and in his official capacity as Zoning Administrator.
n2 The individual defendants are Dennis Greenhouse, County Executive; Robert W. O'Brien, Director of the Department of Public Works; John Carney, Jr., Executive Assistant; Mark Kleinschmidt, Policy Coordinator; and William McIntyre, Code Enforcement Officer, Department of Public Works. We sometimes refer to these de- fendants, together with the County, as the "County defendants."
n3 McNulty and Justice are sometimes referred to collectively as the State defendants.
The district court consolidated the three cases and, after **12 (limited) discovery, the parties filed cross- motions for summary judgment. Confining its considera- tion to the facial constitutionality of Chapter 11 and the county and city ordinances, the district court held that the Delaware statute and the New Castle County ordi- nance were both facially unconstitutional under the First and Fourteenth Amendments because they impermissi- bly regulated speech on the basis of its content. More specifically, the court analyzed the statute and ordinance according to its reading of the standard announced by a plurality in Metromedia, see Rappa v. New Castle County,
813 F. Supp. 1074, 1079-80 (1992), and concluded that both the county and state restrictions ran afoul of the First Amendment by favoring commercial over noncommer- cial speech and by discriminating in favor of some types of noncommercial speech over others. Id. at 1080.
The court rejected the argument of the state and county defendants that the respective regulations were content- neutral under an application of the secondary effects doc- trine announced in Renton v. Playtime Theatres, 475 U.S.
41, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986). **13 See Rappa, 813 F. Supp. at 1080-81. The district court be- lieved that the secondary effects doctrine had never been applied outside of "the limited context of zoning ordi- nances directed at businesses purveying sexually explicit materials," and that it should not be extended to political speech, for "when state action affects political speech it trenches upon an area in which the importance of First Amendment protections is 'at its zenith.'" Id. at 1081 (in- ternal quotation marks and citation omitted).
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*1050 To correct these constitutional infirmities, the court entered an injunction generally requiring the state and county defendants to permit political signs to the same extent that commercial or other noncommercial signs are allowed. Id. at 1082-83.
The court concluded that the Wilmington ordinance survived the initial facial challenge, but allowed the case to continue for determinations of whether the ordinance was a valid time, place, and manner restriction and whether it had been applied in a discriminatory manner. Id. at 1081. The court also denied the motions for **14 summary judgment made by the individual defendants in all three cases, which were based on their assertions of qualified immunity as to the claim of facial unconstitu- tionality. Id. at 1082. All the defendants and Rappa filed timely appeals. Prior to oral argument, however, Rappa and the City settled.
The state defendants have appealed both the district court's injunction, which was based on the court's holding that the Delaware statute was facially unconstitutional, and the court's refusal to grant qualified immunity to de- fendant Justice. The state defendants advance a number of arguments as to why the district court erred in finding the relevant enactments unconstitutional. Primarily their ar- gument is that the statute is a valid, content-neutral time, place and manner regulation. n4 The county defendants have chosen not to press their arguments as to the constitu- tionality of the county ordinance on this appeal, deferring them until a later stage. With respect to the denial of sum- mary judgment, the individual defendants argue that they were entitled to qualified immunity because the facial unconstitutionality of Chapter 11 and the New Castle or- dinance was **15 not clearly established at the time of the primary election. The district court's jurisdiction was based on 28 U.S.C. §§ 1331, 1343(3), 2201, and 2202.
HN3 We have jurisdiction over the appeal from the dis- trict court's injunction pursuant to 28 U.S.C. § 1292(a)(1). See Hershey Foods Corp. v. Hershey Creamery Co., 945
F.2d 1272, 1276-79 (3d Cir. 1991); Cohen v. Board of
Trustees, 867 F.2d 1455, 1463-68 (3d Cir. 1989) (in banc).
HN4 We have jurisdiction over the district court's denial of the individual defendants' motions for summary judg- ment on grounds of qualified immunity under 28 U.S.C.
1291; a decision denying a claim of qualified immunity based on a question of law is a final decision under the collateral order doctrine. Mitchell v. Forsyth, 472 U.S.
511, 530, 105 S. Ct. 2806, 2817, 86 L. Ed. 2d 411 (1985); Brown v. Grabowski, 922 F.2d 1097, 1105 (3d Cir. 1990).
HN5 The district court's decisions were made pursuant to motions for **16 (partial) summary judgment, hence we exercise plenary review, applying the same standard the district court was to have applied in the first instance. Kreimer v. Bureau of Police, 958 F.2d 1242, 1250 (3d Cir.
1992).
n4 This argument has been amplified by the United States Department of Justice in an amicus curiae brief, which was filed in response to notice from this court that the interests of the United States might be implicated by the present appeal. See infra p. 15 n.12.
II. THE DELAWARE STATUTORY SCHEME
The case against the state defendants centers on the constitutionality of Chapter 11 of Title 17 of the Delaware Code, n5 Del. Code Ann. tit. 17, §§ 1101-31. Chapter
11, entitled "Regulation of Outdoor Advertising," con- tains three subchapters, each of which covers a differ- ent, though sometimes overlapping, portion of the road system. The stated purpose of Chapter 11 is to promote the general welfare by ensuring full receipt of federal highway funds (which requires **17 compliance with the Federal Highway Beautification Act, 23 U.S.C. §
131 ("HBA"), promoting aesthetic values, and promot- ing driving safety. n6 Del. Code Ann. tit. 17, § 1101.
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*1051 We will describe each of the subchapters in turn.
n5 Title 17 of the Delaware Code is entitled
"Highways" and governs a variety of issues relat- ing to Delaware's system of roads.
n6 The public policy behind the Federal Highway Beautification Act, 23 U.S.C. § 131, is incorporated by reference as a policy basis for the enactment of Chapter 11. See Del. Code Ann. tit.
17, § 1101. The HBA, in turn, describes the public policy animating the Act as follows:
The Congress hereby finds and de- clares that the erection and mainte- nance of outdoor advertising signs, displays, and devices in areas adja- cent to the Interstate System and the primary system should be controlled in order to protect the public invest- ment in such highways, to promote the safety and recreational value of public travel, and to preserve natural beauty.
23 U.S.C. § 131(a).
**18
Subchapter I has the greatest regulatory scope, cover- ing all "outdoor advertising" along "any state highway," n7 except for outdoor advertising that is located both within the corporate limits of an incorporated town or city and is not within a "controlled area" within these towns or cities. n8 "Outdoor advertising" is itself defined very broadly:
n7 HN6 A "state highway" is defined by Title 17 to include "any road or highway or por- tion thereof which the Department has constructed or of which the Department has taken or assumed control or jurisdiction." Del. Code Ann. tit. 17, §
101(a)(8).
n8 HN7 A "controlled area" is defined as
"any area inside the boundaries of this State which is adjacent to the right-of--way of a highway of the interstate or primary systems, except that areas beyond 660 feet of the right-of--way inside urban areas shall be excluded from this chapter." Del. Code Ann. tit. 17, § 1102(b)(4).
HN8
"Outdoor advertising" or "outdoor advertis- ing signs, displays and devices" shall include any outdoor **19 sign, display, device, picture, emblem, trademark, figure, painting, drawing, message, placard, poster, billboard, light or other thing which is designed, in- tended or used to advertise, to inform or to attract the attention of the traveling public, which is within 660 feet and visible or be- yond 660 feet and visible and erected with the purpose of being read from the main traveled way of any state highway.
Del. Code Ann. tit. 17, § 1102(b)(1).
The key provisions of Subchapter I, at least for the present appeal, are sections 1108 and 1114, which de- scribe the areas from which signs are prohibited and the specific types of signs that are exempted from these gen- eral prohibitions. HN9 Section 1108(a) prohibits the posting of signs "within 25 feet of the right-of--way line of any public highway if visible from any portion of the same." Del Code Ann. tit. 17, § 1108(a). Additionally, section 1108(b) prohibits, in relevant part, signs placed
"on the right-of--way of any public highways." Del. Code
Ann tit. 17, § 1108(b)(1).
Thus, Subchapter I prohibits all signs in the right-of-- way and within 25 feet of the right-of--way of any state highway (other than those that are both outside of a con- trolled **20 area and inside of the corporate limits of an incorporated town or city). These general prohibitions, in turn, are limited by a series of often overlapping ex- ceptions set out in sections 1108(c), 1108(d), and 1114. These exceptions are as follows:
(1) Directional or warning signs and of- ficial signs or notices are allowed within the restricted zones. Del. Code Ann. tit. 17, §§
1108(a), 1108(b), 1114(4).
(2) Signs advertising the sale or lease of the real property on which they are lo- cated are allowed. Del. Code Ann. tit. 17, §§
1108(c), 1114(2). n9
n9 We note at this point that Chapter 11 is quite unclear in a number of respects. The specific exceptions in sections 1108 and 1114 often overlap, but, because their terms are not identical, the exact scope of the exception is not always clear. Section
1114(2), for example, includes a limitation on the size of sale and rent signs that is not present in section 1108(c). For present purposes, we need not
18 F.3d 1043, *1051; 1994 U.S. App. LEXIS 4386, **20
Page 11
resolve this ambiguity because Rappa has not chal- lenged the size restrictions provided in Chapter 11. These ambiguities, however, take on greater sig- nificance in connection with other exceptions. See infra note 11.
**21
(3) Signs advertising activities conducted on the real property may be posted on that real property. Del. Code Ann. tit. 17, §§
1108(c), 1114(1). n10
n10 Here the drafting of the overlapping sec- tions presents a potential problem. Section 1108(c) exempts signs "which advertise . . . activities con- ducted upon the real property." Section 1114(1), in contrast, exempts signs "placed on the premises to identify a business conducted thereon." The question thus becomes whether the term activities is limited to commercial activities (businesses), or also encompasses noncommercial activities con- ducted on the site. As a matter of general statutory construction, the more specific provision -- "busi- ness" -- might well limit the more general, ambigu-
ous term -- "activities", thus limiting the exception to commercial speech. However, because this in- terpretation would raise significant constitutional questions by preferring commercial over noncom- mercial speech, we will interpret the exception to allow signs advertising both commercial and non- commercial activities conducted on the property. See Edward J. De Bartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S.
568, 575-76, 108 S. Ct. 1392, 1397-98, 99 L. Ed. 2d
645 (1988) ("Where an otherwise acceptable con- struction of a statute would raise serious constitu- tional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress."); Frisby v. Schultz, 487 U.S. 474, 483, 108 S. Ct. 2495, 2501,
101 L. Ed. 2d 420 (1988) ("To the extent they en- dorsed a broad reading of the ordinance, the lower courts ran afoul of the well-established principle that statutes will be interpreted to avoid constitu- tional difficulties.").
**22
18 F.3d 1043, *1052; 1994 U.S. App. LEXIS 4386, **22
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*1052 (4) Signs that the State Department of Public Instruction has approved may be displayed on school bus waiting shelters. Del. Code Ann. tit. 17, § 1108(c).
(5) "Beautification/landscape planting sponsorship signs" are allowed in rights- of-way, as long as they meet the approval and construction requirements of the section. Del. Code Ann. tit. 17, § 1108(d).
(6) Notices or advertisements required by law in any legal proceeding or put upon the property by a public authority are allowed within the restricted zones. Del. Code Ann. tit. 17, § 1114(3).
(7) Danger and precautionary signs that relate to the premises are allowed within the restricted zones. Del. Code Ann. tit. 17, §
1114(4).
(8) Signs or notices of a railroad, other transportation, transmission, or communica- tion company that are necessary for the di- rection, information, or safety of the public are allowed within the restricted zones. Del. Code Ann. tit. 17, § 1114(5).
(9) Signs announcing a town, village, or city and advertising itself or its local indus- tries, meetings, buildings, historical mark- ers, or attractions are allowed within the re- stricted zones, as long as the signs are no larger than 6 square feet and are maintained
**23 at public expense. Del. Code Ann. tit.
17, § 1114(6).
Subchapter II, Del. Code Ann. tit. 17, §§ 1121-26, is a direct response to the HBA. Most relevantly, HN10 the HBA requires states, upon penalty of losing ten percent of federal highway funds, to restrict along interstate high- ways and the state's "primary system" outdoor advertising that is "within six hundred and sixty feet of the nearest edge of the right-of--way and visible from the main trav- eled way" or "more than six hundred and sixty feet off the nearest edge of the right-of--way, located outside of urban areas, visible from the main traveled way of the system, and erected with the purpose of . . . being read from such main traveled way." 23 U.S.C. § 131(b). Thus, Subchapter II applies to a subset of roads governed by Subchapter I (interstate highways and the primary sys- tem) but it restricts signs for a greater distance away from
the road.
Subchapter II of Chapter 11 of the Delaware Code tracks generally, but not exactly, the requirements of the HBA. n11 Like Subchapter I, there is a general prohibi- tion on outdoor advertising in the regulated area and then a list of enumerated exceptions **24 to this general pro- hibition. See Del. Code Ann. tit. 17, § 1121. n12 Section
1121 exempts the following specific types of signs:
n11 For this reason, the United States Attorney General was notified that the present action, to the extent it addresses the validity of Subchapter II, might bear upon the validity of the HBA as well. In response, the United States has filed an amicus curiae brief addressing many of the issues raised in this appeal. While there are clearly parallels be- tween the requirements of the HBA and the re- quirements of Subchapter II, the HBA is not di- rectly before us, and we therefore do not consider its constitutionality.
n12 Specifically, the prohibition provides:
HN11
Subject to § 1122 of this title, no out- door advertising sign, display or de- vice, any part of the advertising, in- formative or attention attracting con- tents of which is visible from the main traveled way of a highway of the inter- state system or primary system, shall be erected or maintained within a con- trolled area, unless it shall come within
1 or more of the exempt categories.
Del. Code Ann. tit. 17, § 1121.
**25
(1) Directional and other official signs and notices, which signs and notices shall include, but not be limited to, signs and no- tices pertaining to natural wonders, scenic and historic attractions as authorized or re- quired by the laws of this State;
(2) Signs, displays and devices advertis- ing the sale or lease of the real property upon which they are located;
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Page 13
*1053 (3) Signs, displays and devices advertising activities conducted on the real property upon which they are located;
(4) Signs, displays and devices located ei- ther (i) in controlled areas adjacent to the in- terstate system and within the boundaries of incorporated municipalities, as such bound- aries existed on September 21, 1959, wherein the use of real property is subject to munic- ipal regulation and control, which are zoned industrial or commercial, or (ii) in other con- trolled areas adjacent to the interstate sys- tem zoned industrial or commercial which were zoned industrial or commercial as of September 21, 1959;
(5) Signs, displays and devices located in controlled areas adjacent to highways of the primary system which are zoned industrial or commercial;
(6) Signs, displays and devices located in unzoned commercial and industrial **26 controlled areas adjacent to highways of the primary system and defined by regulations to be promulgated by the Department;
(7) Any school bus waiting shelter dis- playing a sign provided such sign does not exceed 32 square feet in area and with a limit of 2 signs per shelter. Should the State Department of Instruction determine that there is no longer a need for a waiting shelter at its present location, the exemption pro- vided by this paragraph shall then terminate.
Del Code Ann. tit. 17, § 1121(1)-(7).
Subchapter III, entitled "Limitations on Outdoor Advertising Along Limited Access, State Toll Roads," which became effective on July 20, 1992, simply pro- vides that "the provisions of Subchapter II of this chapter shall be applicable to any limited access, state toll road in this State." Del. Code Ann. tit. 17, § 1131. Thus, the analysis under Subchapter III is the same as that under Subchapter II.
HN12 The New Castle Ordinance prohibits all ex- terior signs "except as permitted." New Castle Co. Code Art. XII, § 23-73. The ordinance contains a very long list
of permitted signs including directional signs, warning signs, memorial plaques, address signs, signs attached to gasoline pumps, **27 permanent subdivision signs, noncommercial signs relating to ideological, religious, or political thought, signs advertising grand openings on the site, temporary political campaign signs so long as they are removed within 10 days of an election, and many others. See id.
III. CONTENT NEUTRALITY A. Introduction
Ever since the Supreme Court invalidated an ordinance that prohibited all picketing near a school except for peaceful labor picketing on the basis that "the ordinance .
. . described impermissible picketing not in terms of time, place, and manner, but in terms of subject matter," see Police Dep't of Chicago v. Mosley, 408 U.S. 92, 99, 92 S. Ct. 2286, 2292, 33 L. Ed. 2d 212 (1972), HN13 the first step in First Amendment analysis has been to determine whether a statute is content-neutral or content-based. n13
The answer to this question normally determines under which of two very different modes of analysis a statute is to be evaluated. Accordingly, it becomes a (if not the) crucial determination in evaluating a particular regulation of speech. See Mark Tushnet, The Supreme Court and Its First Amendment **28 Constituency, 44 Hastings L.J.
881, 882 (1993) ("Today the central organizing concept of First Amendment doctrine is the distinction between content-based regulations and content-neutral ones.").
n13 We will refer to Chapter 11 throughout, be- cause the constitutionality of the New Castle ordi- nance is not before us except as necessary to decide the qualified immunity issues.
If a statute is content-based, then the State is re- quired "to show that the 'regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.'" Boos v. Barry, 485 U.S. 312, 321,
108 S. Ct. 1157, 1164, 99 L. Ed. 2d 333 (1988). On the other hand, if the statute is content-neutral, and merely restricts the total quantity of speech by regulating the time, the place or the manner in which one can speak, a very different test applies. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791; **29 109 S. Ct. 2746, 2753,
105 L. Ed. 2d 661
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Page 14
*1054 (1989); Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 804-05, 104 S. Ct. 2118,2128-
29, 80 L. Ed. 2d 772 (1984). As the Supreme Court has explained:
Even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, pro- vided 1 the restrictions "are justified with- out reference to the content of the regulated speech, 2 that they are narrowly tailored to serve a significant governmental interest, and 3 that they leave open ample alternative channels for communication of the informa- tion."
Ward v. Rock Against Racism, 491 U.S. at 791; 109 S. Ct. at 2753 (quoting Clark v. Community for Creative Non- Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 3069, 82 L. Ed. 2d 221 (1984)); see also Taxpayers for Vincent, 466
U.S. at 789, 104 S. Ct. at 2118. **30 n14
n14 In Taxpayers for Vincent, the Supreme Court applied the standard established in United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673,
20 L. Ed. 2d 672 (1968), for evaluating content neutral regulations of expressive conduct. The two standards, however, are essentially equivalent. See, e.g., Clark, 468 U.S. at 298 n.8, 104 S. Ct. at 3071 n.8.
Chapter 11 indisputably distinguishes between, and allows the posting of certain signs, (for example, "for sale" signs and directional signs,) based on the subject matter the signs convey. Under a literal understanding of
"content based" that fact makes the statute content-based. Cf. Discovery Network, 113 S. Ct. at 1516 ("Under the city's newsrack policy, whether **31 any particular newsrack falls within the ban is determined by the con- tent of the publication resting inside that newsrack. Thus, by any commonsense understanding of the term, the ban in this case is 'content-based.'"). n15
n15 Whether or not a literal understanding is the appropriate mode of interpretation is not en- tirely clear. See Tushnet, supra, at 883 n.6 (Noting in relation to the effect of classifying a regulation as content-based or content-neutral: "The definition of 'content-neutral' therefore might be a matter of
some concern. The Court's definition of content- based regulations has varied.").
B. The Metromedia Plurality
A plurality of the Supreme Court analyzed a statute very similar to Chapter 11 and found it content-based in Metromedia, Inc. v. San Diego, 453 U.S. 490, 101 S. Ct. 2882, 69 L. Ed. 2d 800 (1981). n16 Like Chapter 11, the San Diego ordinance in Metromedia consisted of a broad ban subject to a series of exceptions. **32 As does Chapter 11, the San Diego ordinance exempted on- site signs, government signs, signs located at public bus stops, historical signs, and "for sale" and "for lease" signs. The San Diego ordinance also contained some exemptions not present in Chapter 11 -- exemptions for signs manu- factured, transported, or stored within the city if not used for advertising purposes, for signs within shopping malls, for religious symbols, for signs depicting time, tempera- ture, or news, and for temporary political campaign signs. See Metromedia, 453 U.S. at 494-95, 101 S. Ct. at 2885-
86 (plurality opinion). Conversely, Chapter 11 contains some exemptions not present in the San Diego ordinance, including exemptions for highway beautification signs, signs advertising local industries, notices required by law, and signs necessary for the safety of the public.
n16 It is generally understood, for First Amendment purposes, that each method of expres- sion is "'a law unto itself' and that law must reflect the 'differing natures, values, abuses and dangers' of each method." Metromedia, 453 U.S. at 501, 101
S. Ct. at 2889 (plurality opinion). Here, the method of expression is outdoors signs, which generally embraces the use of billboards and other signs to convey a message.
**33
There are other distinctions between the two ordi- nances. Most important, the Metromedia plurality deemed the onsite exception in the San Diego ordinance to apply only to commercial signs, meaning that the ordinance permitted onsite commercial signs but not onsite non- commercial signs. Id. at 494, 101 S. Ct. at 2886 (plu- rality opinion). But see 453 U.S. at 535-36, 101 S. Ct. at 2906-07 (Brennan, J., concurring in the judgment)
(concluding that the onsite exception in the San Diego ordinance should have been interpreted in such a way that
"if the occupant is an enterprise usually associated with noncommercial speech, the substance of the identifying
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Page 15
*1055 sign would be noncommercial."). In contrast, we have interpreted the onsite exception, the exception for signs advertising "activities conducted upon state real property," Del. Code Ann. tit. 17, §§ 1108(a), 1114(1), to apply to both commercial and noncommercial signs. See supra note 11. n17
n17 Additionally, unlike the Delaware statute, the San Diego ordinance did not purport to regulate all outdoor signs, but only those which were "per- manent" in nature, i.e., billboards. See Metromedia at 493, 101 S. Ct. at 2885 (plurality opinion). Finally, the exemption for historical signs in the San Diego ordinance applied not just to signs involving nearby historical attractions, as does Chapter 11, but also to "commemorative plaques of recognized historical societies and organizations." Id. at 514,
101 S. Ct. at 2896 (plurality opinion).
**34
In Metromedia the Court found that the San Diego ordinance unconstitutionally discriminated among types of speech based on content. First, the plurality concluded that by allowing onsite commercial signs but not noncom- mercial ones on the same site, the ordinance impermissi- bly discriminated in favor of commercial over noncom- mercial speech. More specifically, the plurality remarked:
Our recent commercial speech cases have consistently accorded noncommercial speech a greater degree of protection than commercial speech. San Diego effectively in- verts this judgment, by affording a greater de- gree of protection to commercial than to non- commercial speech. . . . The city does not ex- plain how or why noncommercial billboards located in places where commercial bill- boards are permitted would be more threat- ening to safe driving or would detract more from the beauty of the city. Insofar as the city tolerates billboards at all, it cannot choose to limit their content to commercial messages; the city may not conclude that the communi- cation of commercial information concern- ing goods and services connected with a par- ticular site is of greater value than the com- munication of noncommercial messages.
**35
Id. at 513, 101 S. Ct. at 2895 (plurality opinion). Second, the plurality concluded that the ordinance impermissi-
bly favored certain types of non-commercial speech over other types of non-commercial speech by exempting reli- gious signs, historical signs, and temporary political signs but not exempting other non-commercial signs. The plu- rality stated:
With respect to noncommercial speech, the city may not choose the appropriate subjects for public discourse . . . . Because some non- commercial messages may be conveyed on billboards throughout the commercial and in- dustrial zones, San Diego must similarly al- low billboards conveying other noncommer- cial messages throughout those zones.
Id. at 514-15, 101 S. Ct. at 2896 (plurality opinion)
(citation omitted).
However, the plurality concluded that the statute's reg- ulation of commercial signs was constitutional because the statute met the test for regulation of non-misleading commercial speech articulated in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm., 447 U.S. 557, 563-66,
100 S. Ct. 2343, 2350-51, 65 L. Ed. 2d 341 (1980), **36 namely that the regulation reached no further than nec- essary to advance a substantial governmental interest and it directly advanced that interest. See Metromedia, 453
U.S. at 507-12, 101 S. Ct. at 2892-95 (plurality opinion). Moreover, the plurality concluded that the statute's con- tent-based distinctions within the category of commercial speech -- between onsite and offsite commercial advertis- ing, and between "for sale" signs and other signs did not undercut the city's argument that the ordinance directly advanced its aesthetic and safety interests. Id. at 511-12,
101 S. Ct. at 2894-95 (plurality opinion). n18
n18 The plurality's decision as to the regula- tion of commercial speech was expressly joined by Justice Stevens. See Metromedia, 453 U.S. at 541,
101 S. Ct. at 2909-10 (Stevens, J., dissenting in part).
Thus, the plurality opinion **37 indicated that con- tent-based distinctions within the category of commercial speech were permissible; however, similar distinctions fa- voring commercial over non-commercial speech or favor- ing certain speech within the category of non-commercial speech were impermissible. A straightforward application of the plurality opinion would probably lead to an invali- dation
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Page 16
*1056 of the Delaware statute at issue in this case -- although it would do so on only one of the two grounds articulated by the plurality.
The plurality's first rationale may well not apply in this case. Because we have interpreted the onsite ex- ception to apply to onsite non-commercial as well as to onsite commercial speech, the statutes at issue here do not favor commercial over non-commercial speech within the same category of speech. Both onsite com- mercial and onsite non-commercial speech are permit- ted. n19 Of course, even after we interpret the statute in this way, Chapter 11 still exempts some commercial speech (onsite commercial speech, "for sale" signs) while prohibiting some non-commercial speech (offsite non- commercial speech that does not fall into any exemption). n20 Thus, if the Metromedia plurality meant to indicate
**38 that a statute that allowed any commercial speech could not prohibit any non-commercial speech, then the statute at issue here would fail the test. But we interpret the Metromedia plurality to have been concerned with the fact that the San Diego ordinance allowed a broad type of commercial speech (onsite speech) while not allowing non-commercial speech even of the same type. That con- cern is not implicated here given our interpretation of the statute to allow commercial and non-commercial onsite speech.
n19 Favoring onsite over off-site speech prob- ably leads to the effect of favoring commercial speech over non-commercial speech as most con- spicuous onsite speech is probably commercial, but this effect is too attenuated for us to take into ac- count. See Outdoor Systems, Inc. v. Mesa, 997 F.2d
604, 612 (9th Cir. 1993).
n20 Moreover, as the Justice Department strongly argues in its amicus brief, the first ba- sis of the plurality's holding has been significantly called into question by the Court's recent holding in Discovery Network, 123 L. Ed. 2d 99, 113 S. Ct.
1505 (1993). In that case, the Court struck down as content-based an ordinance that banned news- racks for commercial papers but allowed newsracks for non-commercial papers on public property. The Court's refusal to uphold a distinction based on the higher status of non-commercial speech in the First Amendment firmament indicates that, in certain contexts, non-commercial speech is not favored over commercial speech. If the First Amendment
does not favor non-commercial speech over com- mercial speech, the Metromedia plurality is incor- rect that there is anything especially problematic about distinctions such as those in the San Diego ordinance -- distinctions favoring commercial over non-commercial speech. However, even if such dis- tinctions are not impermissible because of the hi- erarchy of categories of speech, they may be im- permissible merely because they distinguish speech based on content. In other words, they may be im- permissible for the same reason that distinctions within the category of non-commercial speech may be impermissible.
**39
The second basis of the plurality's ruling -- that dis- tinctions within the category of non-commercial speech must be supported by a compelling state interest -- applies much more squarely here. While Chapter 11 does not ex- empt religious symbols or temporary political campaign signs as did the San Diego ordinance, it does exempt his- torical signs, government signs, and highway beautifica- tion signs. Thus, under the reasoning of the Metromedia plurality, it is unconstitutional. Other courts of appeal have struck down sign ordinances based on just such rea- soning. See, e.g., Gilleo v. Ladue, 986 F.2d 1180 (8th Cir.
1993), cert. granted, 62 U.S.L.W. 3242 (1993); National
Advertising Co. v. Babylon, 900 F.2d 551, 557 (2d Cir.
1990), cert denied, 498 U.S. 852, 111 S. Ct. 146, 112 L. Ed.
2d 112 (1990); Fisher v. Charleston, 188 W. Va. 518, 425
S.E.2d 194 (W. Va. 1992). But see Messer v. Douglasville,
975 F.2d 1505, 1511-13 (11th Cir. 1992) **40 (finding the ordinance at issue constitutional despite limited con- tent-based exceptions because these exceptions did not
"express a preference between different noncommercial messages"), cert. denied, 124 L. Ed. 2d 296, 113 S. Ct.
2395 (1993).
C. Analyzing Plurality Opinions -- Doubts Cast by the Metromedia Concurrence and Dissents
The second Metromedia rationale would seem to dispose of the merits of the case: not only is it the rationale of a Supreme Court plurality, but it seems to flow easily out of the Court's general First Amendment jurisprudence on content neutrality. Nonetheless, this is a hard case, be- cause the concurrence and dissents in Metromedia call into question whether the specific reasoning of the plural- ity is the governing law with
18 F.3d 1043, *1057; 1994 U.S. App. LEXIS 4386, **40
Page 17
*1057 respect to First Amendment analysis of sign prohibitions and also whether the Court's general First Amendment jurisprudence clearly dictates a particular re- sult here.
The Metromedia decision was badly splintered, pro- ducing five separate opinions. As Justice Rehnquist ob- served, it is difficult to divine what, if any, principles from Metromedia became the governing standard **41 for future cases, i.e., "the law of the land." See Metromedia,
453 U.S. at 569, 101 S. Ct. at 2924 (Rehnquist, J., dis- senting). He lamented that it was "a genuine misfortune to have the Court's treatment of the subject be a virtual Tower of Babel, from which no definitive principles can be clearly drawn. " Id. at 569, 101 S. Ct. at 2924 (Rehnquist, J., dissenting). See generally Linda Novak, Note, The Precedential Value of Supreme Court Plurality Decisions,
80 Colum. L. Rev. 756 (1980) (discussing the difficulties inherent in interpreting plurality opinions).
Obviously, HN14 the decisions of the Supreme Court are binding on this Court and constitute the law of the land. This statement is deceptively simple, how- ever, because when a Supreme Court decision fails to garner a majority, it is often difficult to determine what standard the Court has adopted. Aware of this difficulty, the Court has provided some guidance, " HN15 When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices,
**42 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds.'" Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 993, 51 L. Ed. 2d
260 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169
n.15, 96 S. Ct. 2909, 2923 n.15, 49 L. Ed. 2d 859 (1976)
(opinion of Stewart, Powell, and Stevens, JJ.)).
In Planned Parenthood of Southeastern Pa. v. Casey,
947 F.2d 682 (3d Cir. 1991), modified on other grounds
120 L. Ed. 2d 674, 112 S. Ct. 2791 (1992), we had an opportunity to consider the Marks rule and explain its application in some depth. We wrote:
The principle objective of this Marks rule is to promote predictability in the law by ensuring lower court adherence to Supreme Court precedent. This objective requires that,
HN16 whenever possible, there be a sin-
gle legal standard for the lower courts to ap- ply in similar cases and that this standard, when properly applied, produces results with which a majority of the Justices in the case articulating **43 the standard agree. . . . Where no single rationale "enjoys the assent of five Justices," the situation becomes more complex, but the controlling principle is the same. Where a Justice or Justices concurring in the judgment in such a case articulates a legal standard which, when applied, will nec- essarily produce results with which a major- ity of the Court from that case would agree, that standard is the law of the land.
947 F.2d at 693 (citation omitted) (emphasis added). Applying the rule, in Casey, this Court adopted Justice O'Connor's "undue burden" standard to analyze abortion restrictions. See id. at 697. In a series of cases, Justice O'Connor had taken the middle, and swing, position be- tween Justices who favored more severe tests such as strict scrutiny to evaluate abortion restrictions and other Justices who had favored the less restrictive rational basis review. But any time a regulation constituted an undue burden, Justice O'Connor and those Justices who favored more severe tests would form a majority to strike down the statute. Any time a regulation did not constitute an un- due burden, Justice O'Connor and those **44 Justices who favored rational basis review would form a majority to uphold the statute. Thus, the undue burden test had become the law of the land even before Casey.
However, it is not always possible to discover a sin- gle standard that legitimately constitutes the narrowest ground for the decision. The Court of Appeals for the D.C. Circuit explains:
Marks is workable -- HN17 one opinion can be meaningfully regarded as "narrower" than another -- only when one opinion is a logical subset of other, broader opinions. In essence, the narrowest opinion must repre- sent a common denominator of the Court's reasoning; it must embody a position implic- itly approved by at least five Justices who support the judgment.
18 F.3d 1043, *1058; 1994 U.S. App. LEXIS 4386, **44
Page 18
*1058
King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991)
(en banc); see also Casey, 947 F.2d at 694 (recogniz- ing that the opinions considered had "a common denom- inator standard"). The court in King realized that there would not always be such a common denominator in the Court's reasoning. HN18 In some splintered decisions, there will be three or more distinct approaches, none of
**45 which is a subset of another; instead, each ap- proach is simply different. See King, 950 F.2d at 782-83; John F. Davis & William L. Reynolds, Juridical Cripples: Plurality Opinions in the Supreme Court, 1974 Duke L.J.
59, 72; Novak, supra, at 763.
In such cases, no particular standard constitutes the law of the land, because no single approach can be said to have the support of a majority of the Court. As the court stated in King:
When, however, one opinion supporting the judgment does not fit entirely within a broader circle drawn by the others, Marks is problematic. If applied in situations where the various opinions supporting the judgment are mutually exclusive, Marks will turn a sin- gle opinion that lacks majority support into national law. When eight of nine Justices do not subscribe to a given approach to a legal question, it surely cannot be proper to en- dow that approach with controlling force, no matter how persuasive it may be.
950 F.2d at 782. n21
n21 A number of commentators have noted the same concern. For instance, Davis and Reynolds have stated:
Traditionally, of course, the Court's primary function has been that of a tri- bunal whose institutional pronounce- ments guide and bind the process of adjudication both in the state courts and in the lower federal courts. In that context a plurality opinion is not, strictly speaking, an opinion of the Court as an institution; it represents nothing more than the views of the individual justices who join in the opinion. A plurality opinion does not, therefore, essentially differ in charac-
ter from either a concurring opinion or a dissenting opinion. Those joining in a plurality opinion may speak with authority accorded wise men, but their voices do not carry the authority of the Supreme Court as an institution.
Davis & Reynolds, supra, at 61-61 (footnotes omit- ted); see also Ken Kimura, Note, A Legitimacy Model for the Interpretation of Plurality Decisions,
77 Cornell L. Rev. 1593, 1594-1600 (1992) (dis- cussing tension between plurality decisions and principles of precedential legitimacy); Novak, supra, at 757-58 (discussing the values underlying a precedential system).
**46
Metromedia is such a case. Simply stated, the plu- rality and the concurrence took such markedly different approaches to the San Diego ordinance that there is no common denominator between them. Like the plurality, Justice Brennan, in a concurring opinion joined by Justice Blackmun, found the San Diego ordinance unconstitu- tional. Unlike the plurality, however, the concurrence did not think that the relevant issue was the constitutional effect of the exceptions to the general prohibition. The concurrence viewed the San Diego ordinance as a total ban on billboards because it believed that the ordinance would have the practical effect of eliminating the bill- board industry in San Diego and thereby would eliminate billboards as an effective medium of communication. Id. at 525-36, 101 S. Ct. at 2901-02 (Brennan, J., concurring in the judgment). This understanding of the ordinance, in turn, led to a method of analyzing its constitutionality very different from the plurality's. Id. at 526, 101 S. Ct. at 2902 (Brennan, J., concurring in the judgment) ("The characterization of the San Diego regulation as a total ban of a medium of communication has more than semantic implications, **47 for it suggests a First Amendment analysis quite different from the plurality's.").
Under the concurrence's view, a total ban of signs could be upheld only on a showing that the governmen- tal interest was substantial, that the governmental interest was directly furthered by the total ban, and that any more narrowly drawn restriction would not further that interest as well. Id. at 528, 101 S. Ct. at 2903 (Brennan, J., con- curring in the judgment). n22 Justice Brennan concluded that San Diego had failed to establish adequate justifica- tion for the ban. In particular, the concurrence concluded that "the city
18 F.3d 1043, *1059; 1994 U.S. App. LEXIS 4386, **47
Page 19
*1059 had failed to come forward with evidence demon- strating that billboards actually impair traffic safety." Id. at 528, 101 S. Ct. at 2903 (Brennan, J., concurring in the judgment). Additionally, the concurrence concluded
"that the city had failed to show that its asserted interest in aesthetics was sufficiently substantial in the commercial and industrial areas of San Diego" because in these areas the elimination of billboards would not necessarily have had more than a negligible effect on aesthetics. 453 U.S. at
530-33, 101 S. Ct. at 2904-06 (Brennan, J., concurring in the judgment). **48 Thus, the concurrence determined that the San Diego statute was unconstitutional.
n22 This test is essentially a more stringent version of the time, place, and manner test. The concurrence thought that this more stringent ver- sion of the test applied to bans of an entire medium of communication.
In addition to employing different reasoning from that of the plurality, Justice Brennan seemed explicitly to re- ject the first basis for the plurality's holding -- that it was impermissible for legislation to favor commercial over non-commercial speech. Justice Brennan seemed to think that content-based distinctions favoring commercial over non-commercial speech were the same as content- based distinctions within the category of non-commercial speech or within the category of commercial speech. To hold otherwise would, in some situations, force the ex- ecutive branch to evaluate what speech was commercial and what speech was non-commercial:
I cannot agree with the plurality's view that an ordinance totally banning commercial **49 billboards but allowing noncommercial bill- boards would be constitutional. For me, such an ordinance raises First Amendment prob- lems at least as serious as those raised by a total ban, for it gives city officials the right -- before approving a billboard -- to determine whether the proposed message is 'commer- cial' or 'noncommercial'.
Id. at 536, 101 S. Ct. at 2907 (Brennan, J., concurring). The concurrence also disagreed with the plurality's second justification for its decision -- namely, that dis- tinctions within the category of non-commercial speech
require justification by a compelling state interest:
Obviously, a city can have special goals the accomplishment of which would conflict with the overall goals addressed by the total billboard ban. It would make little sense to say that a city has an all-or--nothing propo- sition -- either ban all billboards or none at all . . . . If a city can justify a total ban, I would allow an exception only if it directly furthers an interest that is at least as impor- tant as the interest underlying the total ban, if the exception is no broader than necessary to advance the special goal, and if the exception is narrowly drawn so as to impinge **50 as little as possible on the overall goal. To the extent that exceptions rely on content-based distinctions, they must be scrutinized with special care.
Id. at 532 n.10, 101 S. Ct. at 2905 n.10 (Brennan, J., concurring in the judgment).
Even more so than the concurrence, the dissenters rejected the plurality's analysis of the San Diego statute as content-based. The dissenters felt that the exceptions in the statute were so de minimis that they should not count as content-based. See id. at 553, 101 S. Ct. at 2916
(Stevens, J., dissenting in part) ("The essential concern embodied in the First Amendment is that government not impose its viewpoint on the public or select the topics on which public debate is permissible. The San Diego or- dinance simply does not implicate this concern."); id. at
564, 101 S. Ct. at 2922 (Burger, C.J., dissenting) ("The ex- ceptions San Diego has provided -- the presence of which is the plurality's sole ground for invalidating the ordi- nance -- are few in number, are narrowly tailored to pecu- liar public needs, and do not remotely endanger freedom of speech."); id. at 570, 101 S. Ct. at 2925 (Rehnquist, J., dissenting) ("Nor do I believe that **51 the limited exceptions contained in the San Diego ordinance are the types which render this statute unconstitutional."). Not only did the dissenters disagree with the plurality's view that the San Diego ordinance was content-based, the three dissenters also disagreed with the concurrence's view that the San Diego ordinance constituted an unconstitutional ban of an entire medium of communication. See id. at
552-53, 101 S. Ct. at 2916-17 (Stevens, J., dissenting in part); id. at 562-63, 101 S. Ct. at 2921 (Burger, C.J., dis- senting); id. at 570-71, 101 S. Ct. at 2924-25 (Rehnquist, J., dissenting).
18 F.3d 1043, *1060; 1994 U.S. App. LEXIS 4386, **51
Page 20
*1060 Thus, neither the plurality nor the concurrence
"articulates a legal standard which, when applied, will necessarily produce results with which a majority of the Court from that case would agree." Casey, 947 F.2d at 693
(emphasis added). n23 If a statute banned signs on some but not all roads so that the concurrence did not see it as a total ban of signs, and if it crafted content-based ex- ceptions to the ban justifiable under the test articulated by the concurrence, the concurring Justices would probably join the dissenters to form a majority **52 upholding the statute with members of the plurality dissenting. In contrast, if a statute banned all commercial signs but no other signs along all roads, neither the plurality nor the dissents would see it as content-based. Thus, the plurality would join with the dissenters to uphold the statute; the concurring Justices would dissent. Cf. Outdoor Sys., Inc. v. City of Mesa, 997 F.2d 604 (9th Cir. 1993) (uphold- ing a statute that allowed any noncommercial message anywhere a sign was allowed, but prohibited all offsite commercial signs). Thus, in a significant number of hypo- thetical cases, the Court would reach a result at odds with the reasoning of either the plurality or the concurrence; neither approach would necessarily produce a majority re- sult in every case. n24 Since the opinions in Metromedia share no common denominator, they do not establish a governing standard for future cases. n25
n23 We do not mean to imply that Casey squarely asserts that an opinion has precedential value only when it would "necessarily produce re- sults with which a majority of the Court from that case would agree." 947 F.2d at 694. Casey did not address whether an opinion has precedential effect when none of its holdings would necessarily gar- ner the support of a majority; Casey was addressing whether a concurring opinion had precedential ef- fect when it would necessarily produce results with which a majority would agree. See id. at 697. That is why Casey concluded that, "in a constitutional case where (1) there is a 5-4 split or there are only two opinions in the majority and (2) the majority strikes down a law as unconstitutional, the authori- tative standard will be that which would invalidate the fewest laws as unconstitutional." Id. at 694. Based on the general reasoning of Casey, and that which we have employed above, this conclusion generally follows, because, when there is a narrow- est opinion, it will be the one that would strike down the fewest laws. However, the opinion that strikes down the fewest laws is not the governing stan- dard in those cases in which there is no narrowest opinion; -- Casey does not dictate a contrary result, because Casey was not addressing such a situation and its general reasoning of looking for a "common
denominator" is consistent with our conclusion that in such cases there is no governing standard. See id.
**53
n24 Of course, it would be possible to pre- dict the outcome in almost every case simply by counting the votes of the Justices. Thus, a statute that discriminated among types of noncommercial speech and constituted a total ban of a means of communication would be unconstitutional, but a statute that did neither of these things -- or only one of them would probably be constitutional. If we were to count votes in this manner and give them precedential value, it would have the advan- tage of creating some predictability.
However, such a system would be unprincipled. Even though a statute that discriminated among types of non-commercial speech would be consti- tutional in and of itself, it would somehow be mag- ically transformed into an unconstitutional statute if it also completely banned a means of commu- nication. This would be true even though not one Justice would have argued that there was any spe- cial synergistic effect of the two attributes.
Thus, giving precedential value to a matrix predicting results would produce a system of low level, fairly predictable, formal rules but a system not rooted in any consistent constitutional values. Moreover, the predictability of such a system is not a significant advantage. First, it is only rare cases in which there is no least common denominator in the view of a majority of the Justices. Second, the predictability of such a system is lower than it appears, because the Supreme Court is likely to reconsider any case which produces a splintered result. This means that the ability of a legislature to rely on the decision when attempting to enact constitutional legislation is relatively small, even if lower courts always decide cases by counting votes in the Supreme Court decision.
**54
n25 One might argue that the concurrence's test for content discrimination is a narrower ver- sion of the test proposed by the plurality and thus has precedential value for us; five Justices seemed to agree that any statute that fails the concurrence's test is unconstitutional. However, it is not at all clear that the concurrence thought that its test for content based exceptions applied outside the con-
18 F.3d 1043, *1060; 1994 U.S. App. LEXIS 4386, **54
Page 21
text of a total ban on a means of communication. See Metromedia, 453 U.S. at 533 n.10, 101 S. Ct. at
2905 n.10. Moreover, Metromedia was not a pro- totypical case in which the concurrence proposed a test that was a narrower version of the test pro- posed by the plurality and then applied the test to come to the same conclusion as the plurality (that the statute was unconstitutional). The concurrence did not reach the issue of whether the San Diego ordinance failed the test it proposed for content- based exceptions to sign ordinances; rather, it con- cluded that the ordinance was impermissible for independent reasons. If it had needed to reach a decision on the constitutionality of the exceptions, it might well have concluded that the exceptions were constitutional under the test it proposed in
n.10. Thus, even if the concurrence's test in n.10 is the narrowest view of 5 Justices about content based exceptions from sign bans, it is not a nar- rowest view that explains the result in Metromedia. It is as if the concurrence's view of content based exceptions was the same as that of the dissenters -- in such a case, the "narrowest" view of five Justices would be that content based exceptions are consti- tutional so long as they are de minimis. Such a view could not have precedential value as the preceden- tial meaning would then be inconsistent with the result in that case.
**55
18 F.3d 1043, *1061; 1994 U.S. App. LEXIS 4386, **55
Page 22
*1061 D. Applicability of the Result in Metromedia While we are unable to derive a governing standard from the splintered opinions in Metromedia we are still, at a minimum, bound by its result. See Novak, supra, at
779. n26 If Chapter 11 is substantially identical to the San Diego ordinance at issue in Metromedia then we are bound to strike it down. However, as explained on pp.
24 - 25 & n. 18 supra, there are significant differences between the ordinance at issue here and that at issue in Metromedia. n27 Thus, the result in Metromedia does not control our decision here.
n26 Novak stated in this context:
It seems clear that HN19 lower courts must adhere at the minimum to the principle of 'result' stare decisis, which mandates that any specific result es- poused by a clear majority of the Court should be controlling in substantially identical cases. The absence of a clear majority rationale supporting the result may give a lower court some flexibility to formulate a justifying rule, it does not, however, justify a court in embrac- ing a line of reasoning that will lead to a contrary result . . . . Adherence to
'result' stare decisis is essential if prin- ciples of certainty and uniformity are to have any meaning at all . . . .
Id. (footnote omitted)).
**56
n27 One fundamental difference is that the laws in question here, even when considered in combination, probably would not effectively con- stitute a complete ban on outdoor signs in the view of the concurrence. There remain limited areas in which outdoor signs may still be posted. In par- ticular, Chapter 11 applies only to "outdoor ad- vertising," see Del. Code Ann. tit. 17, § 1103(c)
(limiting the scope of Chapter 11 to outdoor ad- vertising and thus, for example, excluding signs posted inside windows), on "state highways," see Del. Code Ann. tit. 17, § 1102(b)(1) (limiting the
application of the statute to "any state highway" meaning those roads constructed or controlled by DelDOT), which probably leaves some, albeit min- imal, portion of the roads in Delaware free from restriction. Additionally, the restrictions of Chapter
11 do not apply to certain select zones within urban areas. See Del. Code Ann. tit. 17, §§ 1102(b)(4),
1103(c). Finally, at least within certain regulated areas, signs are permissible as long as they are set back at least 25 feet from the right-of--way. See Del. Code Ann. tit. 17, § 1108.
**57
Moreover, because the choice of remedy for any con- stitutional violation will be shaped by the principles un- derlying our decision, we could not just follow the result in Metromedia without explicating the First Amendment principles that justify that decision. For example, if we determine that it is impermissible for the statute to distin- guish among types of non-commercial speech, we could craft an order requiring the state to permit all types of non-commercial speech while still restricting commer- cial speech. But if we determine that specific exceptions in the statute are unconstitutional because they fail to meet the test proposed by the Metromedia concurrence for content-based exceptions, then we could not rescue the statute by requiring the State to permit more non- commercial speech. In the view of the concurrence, such a requirement would create new content-based distinc- tions between the non-commercial speech permitted and offsite commercial speech which would continue to be prohibited. In such a case, we would either have to strike down the offending exceptions or strike down the statute. Thus, we must ourselves determine whether Chapter 11 is a content-based statute, **58 and, if it is, what makes it so. n28
n28 We note that the Supreme Court will soon hear argument in Gilleo v. Ladue, 986 F.2d 1180
(8th Cir. 1993), cert. granted, 62 U.S.L.W. 3242
(1993). This case at least offers the Court the oppor- tunity to clarify and rectify the problems created by its splintered opinion in Metromedia, as evidenced by the foregoing 21 pages of discussion. We hope that the Court will do so.
18 F.3d 1043, *1062; 1994 U.S. App. LEXIS 4386, **58
Page 23
*1062 IV. CONTENT DISCRIMINATION REVISITED
A. A New Test
In Part III. A. supra, we indicated that the laws at issue here looked as if they plainly involved content discrim- ination. After all, they each exempted some signs from regulation based on the content of those signs. Yet neither the concurrence nor the dissenters in Metromedia agreed that this was dispositive, suggesting that the question of whether the laws are content-based is more difficult than it initially appeared to us. In order to understand and eval- uate the difficulties, **59 we must explain why the First Amendment requires content neutrality.
At the heart of the First Amendment is the concern that government should not restrict speech based on the fear that the speech will persuade listeners that a par- ticular view is correct. Restricting speech on such a basis indicates a fundamental distrust in the rationality of listen- ers that is incompatible with the notion of an autonomous democratic citizenry. Moreover, such restriction often dis- torts debate on particular issues by allowing speech on one side of an issue while preventing speech on another side. As the Supreme Court has explained, "there is an 'equality of status in the field of ideas,' and government must af- ford all points of view an equal opportunity to be heard." Police Dep't of Chicago v. Mosley, 408 U.S. 92, 96, 92
S. Ct. 2286, 2290, 33 L. Ed. 2d 212 (citation omitted). n29 Distortion of debate can occur even if the restriction does not differentiate by viewpoint but only by subject matter -- for example, if the government bans all speech on labor issues regardless of viewpoint but allows speech on other issues. By limiting debate on a particular **60 issue, government can focus speech on other issues and thus shape the agenda for political action. "To allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for political truth." Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 538, 100 S. Ct.
2326, 2333, 65 L. Ed. 2d 319 (1980). n30
n29 The idea of distortion of public debate assumes that there is some background notion of undistorted public debate against which distortion can be judged. The idea that an absence of gov- ernmental censorship leads to undistorted public debate has been accurately criticized as wrongly as- suming that private economic power, which leads to differential access to the marketplace of ideas based, for example, on ability to buy television time, does not itself distort debate. See, e.g., Owen Fiss, Why the State?, 100 Harv. L.Rev. 781 at 787-
88. Nonetheless, governmental intervention in the marketplace of ideas to restrict speech often has a significantly greater potential to distort public de- bate than does private economic power. Cf. John Hart Ely, Democracy and Distrust, 106 (1980).
**61
n30 Dean Stone has summarized explanations for the distinct treatment accorded content-neutral and content-based restrictions as follows:
HN20
The first amendment is concerned not only with the extent to which a law re- duces the total quantity of communica- tion, but also -- and perhaps even more fundamentally -- with at least three additional factors: distortion of pub- lic debate, improper motivation, and communicative impact. These three factors, which are most clearly pre- sented by content-based restrictions, explain both why the Court tests vir- tually all content-based restrictions of high-value speech with a single, strict standard of review, and why it does not apply that same standard to all con- tent-neutral restrictions.
Geoffrey R. Stone, Content Neutral Restrictions,
54 U. Chi. L.Rev. 46, 54-55 (1987).
Even when government asserts a motive to restrict speech other than antipathy towards particular content, a long history of governmental attempts to censor speech provides reason to suspect that a restriction that facially differentiates based on content is in **62 fact often motivated by such antipathy. Because of the oft-disguised censorial motive, illicit governmental motivation is not an element of a prima facie case under the First Amendment. Cf. Minneapolis Star & Tribune v. Minnesota Comm'r of Revenue, 460 U.S. 575, 595, 103 S. Ct. 1365, 1376, 75
L. Ed. 2d 295 (1983) (striking down a statute that sin- gled out a small group of newspapers to tax despite the absence of explicit evidence of illicit governmental mo- tivation, because "illicit legislative intent is not the sine qua non of a violation of the First Amendment"); Mosley,
408 U.S. at 95, 92 S. Ct. at 2290 (not bothering to look for evidence of illicit governmental motivation, because the
"central problem" with such an ordinance was merely that it "described" permissible speech "in terms of its subject matter" (emphasis added).
18 F.3d 1043, *1063; 1994 U.S. App. LEXIS 4386, **62
Page 24
*1063 Moreover, even if government is not intending to limit speech expressing a particular idea, content differ- entiation can still distort public debate merely by limiting the dissemination of some ideas within that debate.
A final justification **63 for prohibiting content discrimination is that when the government creates con- tent-based exemptions from a general ban, it implies that it does not have as great an interest in limiting speech as the general ban suggests. If some newsracks do not pose enough of an aesthetic threat to justify banning them, per- haps the government's aesthetic interest in banning other newsracks is not that momentous. See Discovery Network,
113 S. Ct. at 1505; cf. Metromedia, 453 U.S. at 521, 101
S. Ct. at 2899 ("If the city has concluded that its official interests are not as strong as private interests in com- mercial communications, may it nevertheless claim that those same official interests outweigh private interests in noncommercial communications? Our answer, which is consistent with our cases, is in the negative.") (plurality opinion). HN21 The rule against content discrimination forces the government to limit all speech -- including speech the government does not want to limit -- if it is going to restrict any speech at all. By deterring the gov- ernment from exempting speech the government prefers,
**64 the Supreme Court has helped to ensure that gov- ernment only limits any speech when it is quite certain that it desires to do so.
As we have seen, the Metromedia dissenters did not think that any of these concerns were implicated by excep- tions like those at issue here. As Justice Stevens explained,
"the essential concern embodied in the First Amendment is that government not impose its viewpoint on the public or select the topics on which public debate is permissi- ble. The San Diego ordinance simply does not implicate this concern." See Metromedia, 453 U.S. at 553, 101 S. Ct. at 2916 (Stevens, J., dissenting in part). The concur- rence, while not going as far as the dissent, also thought that minimal exceptions to a general ban could be justi- fied. Otherwise, a legislature would essentially be faced with a choice between banning all speech or none. See Metromedia, 453 U.S. at 532 n.10, 101 S. Ct. at 2905 n.10
(Brennan, J., concurring in the judgment).
We agree with the concurrence and the dissents that the exceptions at issue in the San Diego ordinance, and those **65 at issue in the Delaware ordinance, do not
raise many of the concerns that mandate limiting gov- ernment's ability to discriminate based on content. The exceptions are quite small; they are not for particular sub- jects likely to generate much debate and so are not likely to focus debate on that subject matter at the expense of other subject matter; and they do not discriminate by viewpoint. Thus, they do not appear to be motivated by a desire to suppress certain speech, and they do not eliminate certain issues from discussion in a way that makes it likely that government is aiming to shape the public agenda or is in fact significantly affecting the shape of that agenda. n31
Cf. Scadron v. Des Plaines, 734 F. Supp. 1437, 1446
(N.D. Ill. 1990) (basing a decision that a sign regulation was content neutral on the reasoning of the Metromedia concurrence and dissents).
n31 Of course, government's aim in restrict- ing political campaign signs may well be to distort public debate by depriving non-incumbents of an inexpensive and effective means of communica- tion necessary to challenge incumbents. However, if such an improper motive exists, government's means of achieving its aim is not through the con- tent differentiation existing in this statute-- govern- ment is not attempting to focus debate on highway beautification or directional information rather than on elections. If government is attempting to restrict speech about elections, it is doing so by means of the general ban in the statute rather than by means of the exceptions to the general ban. Given cur- rent First Amendment doctrine, the proper way to address this type of concern -- at least absent ex- plicit evidence that government's justification for the restriction is to restrict content -- is by arguing that the general limitation is an illegitimate time, place, and manner restriction because it does not leave open ample alternative channels of commu- nication. If we decide that the Delaware statutes do not discriminate based on content, they must still meet time, place, and manner scrutiny.
**66
Nonetheless, we are unwilling to follow the sugges- tion of the dissenters that whenever content-based dis- crimination is de minimis, it is permissible. For courts to conduct the analysis necessary to reach such a conclusion
18 F.3d 1043, *1064; 1994 U.S. App. LEXIS 4386, **66
Page 25
*1064 would require undermining many of the advan- tages of what has been largely a per se rule against con- tent discrimination. Judges are human, like legislators, and often share majoritarian views. Allowing judges to make a case by case determination that content discrimi- nation is de minimis risks allowing judges' subconscious judgments about the worth of particular speech to affect whether they deem a limitation on speech to be permissi- ble.
Likewise, the test posited by the Metromedia concur- rence poses a concern about excessive judicial discretion. The concurrence states:
If a city can justify a total ban, I would allow an exception only if it directly furthers an in- terest that is at least as important as the inter- est underlying the total ban, if the exception is no broader than necessary to advance the special goal, and if the exception is narrowly drawn so as to impinge as little as possible on the overall goal.
Metromedia, 453 U.S. at 532 n.10, 101 S. Ct. at 2905 n.10 **67 (Brennan, J., concurring in the judgment). Although the concurrence's test does not allow govern- ment to justify restricting speech based on its antipathy towards certain speech but only based on an interest un- related to content (e.g. aesthetic interests), it does allow government to exempt certain speech from a ban if gov- ernment justifiably thinks that the speech is important enough to outweigh its general interest in a ban. This would allow government to make a judgment that speech regarding some issues is more important than speech re- garding other issues -- and would require courts to ratify that abstract judgment. For example, government could decide that it is especially important that the public be informed about health care policy and thus aesthetic in- terests that justify banning all other signs do not justify banning signs related to health care. This is exactly the sort of case by case analysis of the importance of speech that the ban on content discrimination test is supposed to prevent.
The Metromedia concurrence, however, is correct that when government has a significant interest in limiting speech that is unrelated to the content of that speech, government should not **68 be left with a choice of enacting a regulation banning all signs in a particular geo- graphic area or none. Some signs are more important than others not because of a determination that they are gen-
erally more important than other signs, but because they are more related to the particular location than are other signs. Allowing such "context-sensitive" signs while ban- ning others is not discriminating in favor of the content of these signs; rather, it is accommodating the special nature of such signs so that the messages they contain have an equal chance to be communicated. n32
n32 In the Equal Protection context, the Supreme Court has upheld laws permitting adver- tisements related to a particular location but not permitting general purpose advertising. See Packer Corp. v. Utah, 285 U.S. 105, 107, 52 S. Ct. 273, 273,
76 L. Ed. 643 (1932) (rejecting Equal Protection challenge to ban on cigarette billboards, excepting, inter alia, the premises of any dealer in such prod- ucts); Railway Express Agency, Inc. v. New York,
336 U.S. 106, 109-10, 69 S. Ct. 463, 465, 93 L. Ed. 533 (1949) (upholding ordinance banning ad- vertisements on vehicles, except for those relating to a business in which the vehicle is engaged).
**69
A sign that says "Speed Limit 55" or "Rest Stop" is more important on a highway than is a sign that says
"Rappa for Congress." A sign identifying a commercial establishment is more important on its premises than is a sign advertising an unrelated product. If the former signs are banned from the highway or the place of business, there is no other means of communication that can pro- vide equivalent information. In contrast, placing a sign that says "Rappa for Congress" or "Drink Pepsi" on a highway, while it may be an important means of com- munication because of the number of travellers on the highway, has no relationship to the property on which it is placed or to the fact that it is next to a highway. Banning these signs potentially leaves many alternative means of communicating the same information. n33
n33 Whether alternative means of communi- cation actually exist for signs such as "Rappa for Congress" is a question that must be assessed in a time, place, and manner inquiry. The point here is that equally effective alternatives may exist. In contrast, there are no possible effective alternatives to signs such as "Speed Limit 55."
**70
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Page 26
*1065 Thus, we conclude that HN22 when there is a significant relationship between the content of particular speech and a specific location or its use, the state can exempt from a general ban speech having that content so long as the state did not make the distinction in an attempt to censor certain viewpoints or to control what issues are appropriate for public debate and so long as the excep- tion also survives the test proposed by the Metromedia concurrence n34 : i.e. the state must show that the ex- ception is substantially related to advancing an important state interest that is at least as important as the interests advanced by the underlying regulation, that the exception is no broader than necessary to advance the special goal, and that the exception is narrowly drawn so as to impinge as little as possible on the overall goal. n35
n34 We think that the concurrence's proposed test is necessary to ensure that the state is care- ful when it adopts content based exceptions even within the limited confines of signs significantly related to a location or its use. Although the con- currence may have thought that its test only applied to content based exceptions from total bans of signs, see supra n.26, we see no reason to so limit appli- cation of the test.
**71
n35 There may be cases in which some com- mercial signs, unrelated to the property on which they stand, are exempted from regulation while other commercial speech is restricted. A straight application of the test we have adopted would lead to the conclusion that such a restriction would constitute impermissible content discrimination. However, under the reasoning of the Metromedia plurality, content differentiation among categories of commercial speech is generally permissible. Thus, so long as the hypothetical regulation we are discussing did not regulate any non-commercial speech, the Metromedia plurality would uphold this regulation.
Fortunately, we do not have to decide here whether we agree with the Metromedia plurality on the resolution of this issue. The statutes at issue in this case significantly limit some non-commercial speech as well as some commercial speech. Thus, we need not, and do not, decide whether con- tent-based distinctions solely within the category of commercial speech are permissible even if they fail the test we have articulated. We do note that the view of the Metromedia plurality that such dis- tinctions are permissible is in significant tension
with the holding of City of Cincinnati v. Discovery
Network, Inc., 123 L. Ed. 2d 99, 113 S. Ct. 1505
(1993), where the Supreme Court struck down an ordinance that banned commercial newsracks but allowed non-commercial newsracks on city streets.
**72 HN23
The requirement that a sign be significantly related to the property can be met in either of two ways. First, the state can show that a sign is particularly important to travellers on the nearby road -- for example, a directional sign, or a sign conveying the nearest location of food. Second, the state can show that a sign better conveys its information in its particular location than it could any- where else -- for example, an address sign performs its function better when it is actually on the property with that address than if it is anywhere else. n36
n36 HN24 The time, place, and manner test requires that a constitutional restriction on speech must leave in place ample alternative channels of communication. Ward, 491 U.S. at 791, 109 S. Ct. at 2753 (1989). Here, we allow the state to consti- tutionally exempt from a time, place, and manner restriction -- signs for which there may be alter- native channels of communication, but for which the alternatives are inferior because of the context specific nature of the signs.
**73
By requiring exceptions to be significantly related to a particular locality, we provide a concrete criterion by which legislatures and courts can evaluate particular ex- ceptions. n37 Courts will not be making an abstract as- sessment of the relative worth of various types of speech. n38 Yet the test we have adopted still allows government some flexibility to limit speech when it has a significant interest in doing so without eliminating all speech.
n37 Of course, even if an exception is not re- lated to the particular locale, the exception will be justified if it passes strict scrutiny. In such a case, the state must show that the exception is necessary to a compelling state interest and that it is narrowly drawn to achieve that interest.
n38 Of course, the "significantly related to" test does leave room for case by case analysis in which subconscious biases can potentially creep in; how- ever, our concrete criteria vastly limits the ability of these biases to have an effect as compared with the unguided application of a "de minimis" test or
18 F.3d 1043, *1065; 1994 U.S. App. LEXIS 4386, **73
Page 27
the application of the concurrence's test weighing the general importance of speech with particular content.
**74
Such flexibility does come at a price -- because gov- ernment is no longer faced with a choice between banning all speech or none, it is more likely to opt to
18 F.3d 1043, *1066; 1994 U.S. App. LEXIS 4386, **74
Page 28
*1066 restrict speech. But we do not think that govern- ment should be forced to refrain from restricting speech in a place whenever it thinks that particular speech is so important a component of the place that it will be unwill- ing to restrict any speech if it has to restrict that speech. n39 Thus, restating the major components of the test we have adopted, we hold that when there is a significant re- lationship between the content of particular speech and a specific location, the state can exempt speech having that content from a general ban so long as the exemption is substantially related to serving an interest that is at least as important as that served by the ban. n40
n39 We believe this standard is consistent with Mosley, the original case on content neutrality,. There, the Court struck down an ordinance for- bidding picketing near schools except for peaceful labor picketing, See 408 U.S. 92, 99, 92 S. Ct. 2286,
2292, 33 L. Ed. 2d 212 (1972). Arguably the ex- ception could have been justified by the fact that the labor picketing was targeted at the school and thus was particularly related to the school location. However, the Court did not consider this possi- bility. Moreover, the fact that the ordinance only exempted peaceful labor picketing without exempt- ing any other speech related to the school made it likely that the government's actual motive was to favor speech about labor issues. Additionally, al- lowing labor picketing but not speech opposed to the picketing comes close to viewpoint discrimi- nation. Thus, Mosley does not preclude us from adopting the test we have discussed.
**75
n40 The other components of the test are set out on pp.52-53 supra. It may also be the case that just as R.A.V. v. St. Paul, 120 L. Ed. 2d 305, 112 S. Ct.
2538, 2543 (1992), held that content discrimina- tion even within generally proscribable categories of speech such as fighting words is usually imper- missible, content discrimination within a category of speech that can generally be excluded from an overall ban may be impermissible. Any exceptions a sign ban creates may have to apply to all speech of a similar relationship to the locality or its use -- if some onsite signs are exempted because onsite signs are significantly related to the locality, then all onsite signs equally related to the locale may have to be exempted. However, applying R.A.V. in this context would have a significant disadvantage as it might force states that enacted sign bans to enact a vague exception for "any signs significantly related to the locality of the ban" rather than specifying the
content of allowable signs. We decline to reach this issue here as it was not raised by the parties, and we have not been pointed to any signs Delaware did not exempt that were as related to the localities of the sign restrictions as the speech Delawar did exempt.
**76
B. Application of the Test
Most, but not all, of the exceptions in Subchapter I of Delaware Code Ann. tit. 17 meet the test we have adopted. We discuss them seriatim, combining exceptions that are related.
(1) Directional or warning signs and official signs or notices, Del. Code Ann. tit. 17, §§ 1108(a), 1108(b),
1114(4), danger and precautionary signs that relate to the premises, id. § 1114(4); and signs or notices of a railroad, other transportation, or communication company that are necessary for the direction, information, or safety of the public, id., § 1114(5), are all regulatory signs directly re- lated to the functioning of the roads and property on which they are located. n41 Moreover, most of these signs are important enough that they probably could survive even a compelling state interest test. Cf. John Donnelly & Sons v. Campbell, 639 F.2d 6, 9 (1st Cir. 1980) ("Each of the exceptions reflects 'an appropriate governmental interest.' Some -- for signs of governmental and quasi- governmental bodies, and for traffic and bus signs and the like -- are justified by sheer public necessity." (quoting Mosley, 408 U.S. at 92, 95, 92 S. Ct. at 2289 (1972)),
**77 aff'd 453 U.S. 916, 101 S. Ct. 3151, 69 L. Ed.
2d 999 (1981). Thus, these exceptions certainly survive the intermediate scrutiny component of the test we have adopted -- the state's interest in these signs is greater than the state's aesthetic and safety interests in banning these signs, and the exemption is narrowly tailored to serve the state interest.
n41 To be constitutional, the exception for of- ficial signs or notices must be interpreted as limited to signs relating to the property on which they stand, such as directional signs. An official sign that said
"Thomas Carper -- Congressman" probably would not be related to the property on which it stood unless it was standing at Carper's district office.
(2) Signs advertising the sale or lease of the real prop- erty on which they are located, Del. Code Ann. tit. 17, §§
1108(c), 1114(2), are directly related to that real property; there is a good reason why the signs are on that particular property rather than **78 on other
18 F.3d 1043, *1067; 1994 U.S. App. LEXIS 4386, **78
Page 29
*1067 property. Moreover, there is probably an im- portant state interest in allowing such signs in order to facilitate transactions in the housing market -- this inter- est is probably at least as great as the safety and aesthetic interests in banning these particular signs. However, as it currently stands, the record lacks sufficient facts from which we can conclude that this exception meets the sub- stantial state interest component of the test. Thus, if we do not strike down the statute based on a different excep- tion, the district court will have to address the sale/lease exception on remand. Although the showing of an impor- tant state interest should not be difficult to meet, the state will still have to present evidence, such as the testimony of an economist, explaining the importance of its interest in sale/lease signs and demonstrating that that interest is greater than the state's aesthetic and safety interests in banning these particular signs; the state will also have to explain why the exception is narrowly tailored to serve its interest in sale/lease signs.
(3) The exception for signs advertising activities con- ducted on the premises, Del. Code Ann. tit. 17, §§ 1108(c),
1114(l), **79 is constitutional. It does not even have to meet the test we have adopted, because it is not a content- based exception at all. n42 Although evaluating whether a sign is an onsite sign does require the state to analyze the content of the sign, the onsite exception does not pre- clude any particular message from being voiced in any place; it merely establishes the appropriate relationship between the location and the use of an outdoor sign to convey a particular message. R. Douglass Bond explains in his Note that "the content of onsite noncommercial signs would be as varied as the noncommercial establish- ments on whose premises they would be found." Note, Making Sense of Billboard Law: Justifying Prohibitions and Exemptions, 88 Mich. L. Rev. 2482, 2504 (1990). n43 An Exxon sign could be placed on an Exxon station but not at Rappa's campaign headquarters; conversely, a
"Rappa for Congress" sign could be placed on Rappa's campaign headquarters but not at an Exxon station. This contrasts, for example, with the exceptions for directional signs or "for sale" signs which allow signs of particular content in all locations. Thus, the exception for onsite signs, **80 unlike the other exceptions, is not even subject to the test we have proposed.
n42 Because the onsite exception is not con- tent-based, however, does not make it irrelevant to
time, place, and manner analysis more generally. To the contrary, it may be highly relevant to evaluating the fit between the regulation and the government's asserted interest. See infra note 58.
n43 Additionally, onsite signs are arguably a unique media. Because onsite signs are by defini- tion signs that identify the activities conducted on the real property, they derive their primary meaning and efficacy from the site on which they are located. Bond, supra, at 2496 & n.95.
(4) The exception for signs that the State Department of Public Instruction has approved for presentation on school bus waiting shelters, Del. Code Ann. tit. 17, §
1108(c), is also, on this record, not a content-based ex- ception. While this exception may well prove to be prob- lematic, there is no indication that the signs approved for placement on these waiting **81 shelters have any par- ticular content or that signs with any particular content are disapproved. n44
n44 There has been no challenge to, or informa- tion provided about, the Department's approval pro- cedures. Accordingly, we do not address the consti- tutionality of rules by which sign space is allocated, any fees charged for access to post signs, or any dis- cretion the State Department of Public Instruction has in approving signs. But see Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 108 S. Ct.
2138, 100 L. Ed. 2d 771 (1988) (holding uncon- stitutional a statute giving unfettered discretion to city's mayor to grant or deny permits to place news- racks on public property).
(5) The exception for beautification/landscape plant- ing sponsorship signs, Del. Code Ann. tit. 17, § 1108(d), while content-based, probably also meets the require- ment that signs be significantly related to the locality -- although we acknowledge that this result initially seems counter-intuitive. **82 Signs indicating that partic- ular property has been landscaped at the expense of X company are directly related to that real property -- for a speaker to be able to communicate the meesage that par- ticular landscaping is attributable to a particular company, it must post the
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Page 30
*1068 signs on the particular property. There is no other place in which the same information can be conveyed as well. However, whether the State's interest in beautifi- cation/landscape planting signs is sufficient to meet the other requirements of the test is dubious. This is a ques- tion that will have to be addressed on remand unless we strike down the statute on other grounds.
(6) It is hard to assess the (context-based) exception for notices or advertisements required by law, Del. Code Ann. tit. 17, § 1114(3). If the law only requires the posting of signs related to the property (e.g., zoning notices) and the other requirements of the test we have adopted are met, then this exception is acceptable, so long as it meets the substantial state interest prong of the test (which it would appear to do). Once again, the district court will have to explore these questions unless we strike down the statute on an alternative ground. **83
(7) The exception for signs announcing a town, village or city and advertising itself or its local industries, meet- ings, buildings, historical markers, or attractions, Del. Code Ann. tit. 17, § 1114(6), is another matter. An ex- ception which merely allowed signs directing people to local towns, historical sites, or attractions would probably be acceptable -- because the main function of roads is to enable people to travel to where they want to go, signs telling people where they are or directing them to par- ticular sites are especially important along those roads. However, signs advertising a local city or industry or meeting are not related to the land on which they are placed nor to the function of the highway -- at least they are no more related to that land than are signs advertis- ing local stores or local politicians. To allow such signs violates the test we have adopted and constitutes imper- missible content discrimination.
C. Summary
Subchapter I of Delaware's statute is therefore uncon- stitutional, because at least one of the exceptions -- the exception for signs advertising local cities, industries and meetings -- is for signs that are not significantly related
to the specific **84 location where the signs are placed or its use. It may seem odd that such an arguably minor infirmity can be the cause of a declaration of unconsti- tutionality but, as we have already explained, we cannot permit content discrimination just because our intuition is that it is de minimis.
Subchapter II, however, does not contain an exception for signs advertising local cities, industries or meetings. Like Subchapter I, Subchapter II exempts directional and other official signs, signs advertising the sale or lease of real property, other onsite signs, and signs on bus waiting shelters. n45 As was the case with Subchapter I, these exceptions are probably all constitutional. On remand, the exception related to sale/lease signs (and perhaps the bus shelter signs, depending on the record developed) must meet the important state interest test to be constitutional.
n45 As we have discussed supra p.20, the ex- ceptions in Subchapter III are the same as those in Subchapter II.
Moreover, we must interpret the official sign **85 exception in Subchapter II, which allows "directional and other official signs and notices, which signs and notices shall include . . . signs and notices pertaining to natu- ral wonders, scenic and historic attractions," Del. Code Ann. tit. 17 § 1121(1), to include signs pertaining to nat- ural wonders, scenic, and historic attractions only insofar as these signs direct traveller's to the sites. n46 A sign with general information about a natural or historic site which does not provide such directional information is not related to the highway or the property alongside the highway any more than a sign describing a nearby restau- rant or a local politician. Just as a sign describing a local politician cannot be exempted, a sign describing a his- torical site cannot be exempted. Thus, we must interpret the exception for official signs narrowly to exclude such general descriptive signs in order to avoid constitutional infirmities. Therefore, the only signs "pertaining to natu- ral wonders, scenic and historic attractions"
18 F.3d 1043, *1069; 1994 U.S. App. LEXIS 4386, **85
Page 31
*1069 which are allowed are directional signs and on- site signs. On remand, the district court must address whether these signs meet the important state interest com- ponents of the **86 test.
n46 Signs pertaining to such sites are of course also permissible if they fall into the onsite excep- tion, i.e., if they are actually on the historic or nat- ural site to which they relate.
In summary, while Subchapter I of Chapter 11 violates content neutrality by failing the "significantly related to locality" test, Subchapters II and III of Chapter 11 do not. We will remand for the district court to evaluate whether the exceptions in Subchapters II and III fail other parts of the content neutrality test. Because the County has not appealed the District Court's decision with respect to the constitutionality of the county ordinance, we need not analyze it. We can resolve the question of the qualified immunity of the county defendants without conducting such a specific analysis.
V. SECONDARY EFFECTS
Before determining what remedial action we should take as a result of our determination that the exception in Subchapter I for advertising of local industry and meet- ings is unconstitutional, we must address the **87 state defendants' remaining arguments as to why the statute is entirely constitutional. n47 These defendants first argue that regardless of any facial content-based distinctions made by Chapter 11, the statute is nevertheless content- neutral because the legislature was not motivated by the content of the speech but rather by the particular "sec- ondary effects" caused by use of the prohibited signs. We disagree.
n47 The county defendants raise similar ar- guments in order to demonstrate that the county ordinance was not clearly unconstitutional.
In Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48,
106 S. Ct. 925, 929, 89 L. Ed. 2d 29 (1986), the Supreme Court upheld an ordinance that created zoning restrictions for adult theaters but not for any other type of speech and thus that, on its face, discriminated based on con- tent. The Court indicated that the city's ordinance aimed to prevent crime and to protect retail trade and property values, rather than to **88 suppress unpopular views.
See id. Crime, and lower retail and property values were not caused by the persuasive power of speech in adult theaters but merely by the presence of adult theaters, and these effects were associated to a greater extent with adult theaters than with other speech. See id. at 49, 106 S. Ct. at 930 (citing Young v. American Mini Theatres, Inc.,
427 U.S. 50, 82, 96 S. Ct. 2440, 2458, 49 L. Ed. 2d 310
(1976) (Powell, J. concurring)). Because the statute aimed to limit these secondary effects, it was content neutral. Defendants argue that the statute at issue here can be sim- ilarly treated as content neutral, because it aims to limit the secondary effects of danger and ugliness associated with signs, effects not caused by the persuasive power of those signs. See Wheeler v. Commissioner of Highways,
822 F.2d 586, 590 (6th Cir. 1987) (determining that sec- ondary effects analysis justified upholding a statute reg- ulating signs even though the statute contained various exemptions). We have some doubts, however, **89 that political speech is subject to secondary effects analy- sis; a majority of the Supreme Court has never explicitly applied the analysis to political speech. n48
n48 In the case most directly on point, only a three Justice plurality indicated a willingness to apply the doctrine to political speech. See Boos v. Barry, 485 U.S. 312, 320-21, 108 S. Ct. 1157,
1163-64, 99 L. Ed. 2d 333 (1988) (plurality opin- ion on this point). Texas v. Johnson, 491 U.S. 397,
411-12, 109 S. Ct. 2533, 2543, 105 L. Ed. 2d 342
(1989), which defendants cite as indicating that sec- ondary effects analysis has been applied in the con- text of political speech, was essentially explaining that even if secondary effects analysis applied, the statute in question was still unconstitutional.
At all events, we need not decide this difficult ques- tion because, even assuming, arguendo, that secondary effects analysis could justify **90 otherwise content- based restrictions on political speech, the statute at is- sue here clearly fails that analysis. Under secondary ef- fects analysis, speech that is prohibited must produce a greater secondary effect than speech that is permitted. As the Supreme Court explained last Term in Discovery Network:
Regardless of the mens rea of the city, it has enacted a sweeping ban on the use of news- racks that distribute 'commercial
18 F.3d 1043, *1070; 1994 U.S. App. LEXIS 4386, **90
Page 32
*1070 handbills' but not 'newspapers.' Under the city's newsrack policy, whether any particular newsrack falls within the ban is determined by the content of the publi- cation resting inside that newsrack. Thus, by any commonsense understanding of the term, the ban in this case is 'content-based.' Nor are we persuaded that our statements that the test for whether a regulation is content-based turns on the 'justification' for the regulation compel a different conclusion. . . .
In contrast to the speech at issue in Renton, there are no secondary effects attributable to respondent publishers' newsracks that distin- guish them from the newsracks Cincinnati permits to remain on its sidewalks.
113 S. Ct. at 1516-17 **91 (citations omitted) (empha- sis added). Here, there are no aesthetic or safety effects caused by the signs prohibited by Chapter 11 that are not also caused by the signs allowed by Chapter 11. Any jus- tification for treating these signs differently must rely on the content of these signs.
The defendants made a more focused argument be- fore the district court, and defendants' amicus continues this argument here. Specifically, the argument is that cam- paign signs tend to proliferate more than other signs and therefore create greater safety and aesthetic problems than other signs. See Rappa, 813 F. Supp. at 1081. This argu- ment fails. First, even were this quantitative comparison a permissible basis for disparate treatment generally, it does not explain why numerous signs other than cam- paign signs are prohibited. Second, the state defendants have simply offered no proof to support their claim that campaign signs present greater aesthetic and safety prob- lems than other types of signs. See Ladue, 986 F.2d at
1183 & n.7; cf. Discovery Network, 113 S. Ct. at 1514-
15 ("The city has asserted **92 an interest in esthet- ics, but respondent publishers' newsracks are no greater an eyesore than the newsracks permitted to remain on Cincinnati's sidewalks . . . . While there was some testi- mony in the District Court that commercial publications
are distinct from noncommercial publications in their ca- pacity to proliferate, the evidence of such was exceedingly weak, the Court of Appeals discounted it, and Cincinnati does not reassert that particular argument." (citation omit- ted)).
VI. PUBLIC FORUM ANALYSIS
The state defendants also defend Chapter 11 as a reg- ulation within non-public fora -- within fora that have neither traditionally been available for public expression, nor been designated by the State as open for expressive ac- tivity. See International Soc. for Krishna Consciousness v. Lee, 120 L. Ed. 2d 541, 112 S. Ct. 2701, 2705 (1992); see generally Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44-49, 103 S. Ct. 948, 954-57, 74 L. Ed. 2d 794 (1983) (setting out forum analysis). In non- public fora, the state acts in its proprietary capacity and can therefore **93 regulate speech so long as its regula- tions do not discriminate by viewpoint and are reasonable. See United States v. Kokinda, 497 U.S. 720, 726, 110 S. Ct. 3115, 3121, 111 L. Ed. 2d 571 (1990). Thus, in non- public fora, discrimination based on content (subject mat- ter) is generally permissible, and the regulation need not survive normal time, place and manner analysis.
Defendants argue that rights of way are non-public fora. This argument, however, is without merit. The Delaware statute at issue regulates the posting of signs both along the rights of way of the majority of roads in Delaware and on private property. Indeed, the state defendants have conceded that rights of way are an in- distinguishable portion of the roads themselves. See Del. Code Ann. tit. 17, § 101(a)(6) ("'Road' and 'highway' in- clude any public way or road or portion thereof and any sewer, drain or drainage system connected therewith and any bridge, culvert, viaduct or other construction or artifi- cial way used in connection therewith and anything which is accessory to any of the same or to the use thereof."); Guy v. State, 438 A.2d 1250, 1255 (Del. Super. Ct. 1981)
**94 (daylight easement is part of the road as defined in section 101(a)(6) of Title 17 because it has "no purpose other than its relationship as appurtenant to, and for the use of, the road.").
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*1071 Once it is determined that the forum at issue is public roads, it is clear that it is a public forum. As the Supreme Court explained in rejecting an argument that the historical uses and characteristics of the particular streets need to be considered on a case-by--case basis to determine the nature of the forum:
In short, our decisions identifying public streets and sidewalks as traditional pub- lic fora are not accidental invocations of a
"cliche," but recognition that "wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public." No particularized inquiry into the precise nature of a specific street is neces- sary; all public streets are held in the public trust and are properly considered traditional public fora.
Frisby v. Schultz, 487 U.S. 474, 480-81, 108 S. Ct. 2495,
2500, 101 L. Ed. 2d 420 (1988) (quoting Hague v. CIO,
307 U.S. 496, 515, 59 S. Ct. 954, 964, 83 L. Ed. 1423
(1939) **95 (Roberts, J., separate opinion)). n49
n49 Defendants cite Kokinda for the propo- sition that a particularized inquiry into the func- tion of specific streets is necessary. In Kokinda, the Supreme Court held that the sidewalk between a parking lot and a post office was not a traditional public forum. However, the sidewalk at issue was completely contained within the confines of Post Office property, property similar to a private busi- ness and thus within the government's proprietary domnin. "The postal sidewalk was constructed so- ley to negotiate the space between the parking lot and the front door of the post office, not to facilitate the daily commerce and life of the neighborhood or city." 497 U.S. at 727, 110 S. Ct. at 3121. Thus, the Court needed to undertake a particularized in- quiry into expressive uses of the sidewalk at issue in Kokinda only because the sidewalk at issue was not a traditional sidewalk; in contrast, the high- ways at issue here are traditional roads. Moreover, in Kokinda, only a small segment of sidewalk space was removed from the ambit of traditional public forum status.
**96
The statutes do not just apply to highways but to all roads. So, even if the highways are not public fora, the statutes apply to streets that clearly are public fora. Finally, because the statutes regulate a private party's
speech on his or her own property, they are subject to the highest level of scrutiny, that applied to the regula- tion of a public forum. See Arlington County Republican Comm. v. Arlington County, 983 F.2d 587 (4th Cir. 1993)
(subjecting a regulation limiting the number of signs a landowner was allowed post on his or her own property to normal time, place, and manner analysis). n50
n50 The state defendants have also argued that the present challenge to Chapter 11 is inappropriate because they acted under the authority of sections
131 and 132 of Title 17 of the Delaware Code, not Chapter 11. These sections grant DelDOT jurisdic- tion over all public roads and impose on it the duty to "maintain all state highways under its jurisdic- tion." Del. Code Ann. tit. 17, §§ 132. Maintenance is defined to "include the keeping of the right-of-- way clear of all underbrush and debris which might interfere with the drainage or injure the founda- tions of such highways." Del. Code Ann. tit. 17 §
101(a)(4). Defendants assert that the removal of signs constituted removal of debris. They point to several letters and affidavits concerning elections from 1982 through 1990, which indicated that signs were removed based strictly on safety concerns. However, the district court concluded that the signs were removed under the authority of Chapter
11. Rappa contends that we have no jurisdiction to review this finding, because we have no jurisdic- tion to review denials of summary judgment. See Grabowski, 922 F.2d at 1105 (3d Cir. 1990). But we do have jurisdiction to review denials of summary judgment that are raised "in tandem with an appeal of an order granting a cross-motion for summary judgment." Nazay v. Miller, 949 F.2d 1323, 1328
(3d Cir. 1991).
We agree with the district court that the signs were removed under the authority of Chapter 11. We do not think that §§ 131 and 132 could provide DelDot the authority to remove signs, as the au- thority they delegate is plainly limited to removal of obstacles that are a threat to drainage or to the foundation of the highways. Moreover, even if the state defendants removed signs for safety reasons, this does not mean that they removed them un- der the authority of §§ 131 and 132 rather than under Chapter 11 -- none of the evidence in the record cites §§ 131 or 132. In contrast, there is some evidence in the record that during prior elec- tions, DelDOT specifically referred to Chapter 11 as a source of authority empowaering it to remove signs. JA 399, 428 . More importantly, on August
22, 1990, shortly after removal of the signs at issue
18 F.3d 1043, *1071; 1994 U.S. App. LEXIS 4386, **96
Page 34
here, the Attorney General sent a letter indicating that there had been practical problems with enforce- ment of Chapter 11 previously but it would hence- forth be fully enforced. JA 392-93 . This letter implies that Deldot had exercised authority for the limited enforcement under the auspices of Chapter
11. Furthermore, it indicated that the statute would be enforced in the future, which means that Rappa, who has stated that he plans to run for public office again, has a basis for his facial challenge to Chapter
11 regardless of whether past state actions relied on that statute. See, e.g., City of Houston v. Hill, 482
U.S. 451, 459 n.7, 107 S. Ct. 2502, 2508 n.7, 96 L. Ed. 2d 398 (1987) (after showing genuine threat of future enforcement, plaintiff had standing to bring facial challenge).
**97
18 F.3d 1043, *1072; 1994 U.S. App. LEXIS 4386, **97
Page 35
*1072 VII. SEVERABILITY
In view of the foregoing discussion, neither secondary effects analysis nor non-public forum analysis eliminates the problems of content discrimination in Chapter 11. As a result, we hold to our view that Subchapter I of that Chapter is unconstitutional because it contains an ex- ception for signs announcing a town, village, or city or advertising itself or its local industries, meetings, build- ings, historical markers, or attractions. We also continue to believe that the constitutionality of the other exceptions in Subchapter I, as well as those in Subchapters II and III, depends on further development of the record.
It is settled law that HN25 in a challenge to the constitutionality of a statute, "'a court should refrain from invalidating more of the statute than is necessary.'" Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684, 107 S. Ct. 1476,
1479, 94 L. Ed. 2d 661 (1987) (quoting Regan v. Time, Inc., 468 U.S. 641, 652, 104 S. Ct. 3262, 3268, 82 L. Ed.
2d 487 (1984)). Thus, it may be that we should sever the offending provision of Subchapter I, or **98 at least sever Subchapter I as a whole, and leave the rest of the statute intact.
HN26 When a federal court is called upon to in- validate a state statute, the severability of the constitu- tional portions of the statute are governed by state law, here the law of Delaware. See Planned Parenthood of Southeastern Pa. v. Casey, 978 F.2d 74, 77 (3d Cir. 1992)
(modified on other grounds). Generally, the severability of a statute is a question of legislative intent as to the specific provision. As one commentator explained:
HN27
Separability questions are essentially ques- tions of statutory construction, to be deter- mined according to either the will of the leg- islature or its manifested meaning. Judicial opinions are replete with statements that sep- arability is to be decided according to the legislative intent.
The problem is twofold: the legislature must have intended that the act be separable, and the act must be capable of separation in fact.
2 Norman J. Singer, Sutherland Statutory Construction §
44.03, at 483 (4th ed. 1986). As to the first prong, where the legislative intent is not clear from the statute itself, the Delaware courts derive the necessary intent **99 from Delaware's general severance provision, Del. Code Ann. tit. 1, § 308. See State v. Dickerson, 298 A.2d 761, 766
(Del. 1972). Section 308 provides:
HN28
If any provision of the Code or amendments hereto, or the application thereof to any per- son, thing or circumstance is held invalid, such invalidity shall not affect the provisions or application of this Code or such amend- ments that can be given effect without the invalid provisions or application, and to this end the provisions of the Code and such amendments are declared to be severable.
Del. Code Ann. tit. 1, § 308. Accordingly, absent a show- ing that the Delaware legislature specifically intended the provisions not to be severable, which has not been made in this case, n51 the question normally would devolve to the second prong of the inquiry--whether the remaining provisions have a separate purpose and are capable of functioning independently. See In the Matter of Oberly,
524 A.2d 1176, 1182 (1987).
n51 Some evidence suggests that the legisla- ture may have intended that at least Subchapter II be severable. In particular, Subchapter II specifically provides that "the provisions of this Subchapter re- lating to the regulation of outdoor advertising in controlled areas are in addition to, and not in lieu of, Subchapter I of this chapter." Del. Code Ann. tit. 17, § 1126.
**100
If we eliminated the exception in Subchapter I regard- ing advertising local industries and meetings, the rest of the statute could surely function independently. However, we are unwilling to sever the exception, because our severability inquiry here has a constitutional dimension. Eliminating the offending exception would mean that we would be requiring the State to restrict more
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*1073 speech than it currently does. n52 All existing restrictions would apply, plus there would be a restriction on signs advertising local industries and meetings. To our knowledge, no court has ever mandated issuance of an injunction such as that, and we decline to be the first. In Mosley, without even commenting on the possibility of eliminating the exception for peaceful labor picketing, the Supreme Court struck down a statute banning picketing near a school rather than striking down the exception. See Mosley, .
n52 Cf. Finzer v. Barry, 255 U.S. App. D.C. 19,
798 F.2d 1450, 1474 (D.C. Cir. 1986) (commenting as an aside that, "if the court were to strike only the element of discrimination and leave a flat and neu- tral prohibition in place, it would be narrowly tai- loring the statute by broadening its application -- a peculiar outcome, but one that would end the equal protection problem." (emphasis added).
**101
We refuse to strike down the exception in part be- cause of the special status of speech in our constitutional scheme, a scheme which generally favors more speech. A second reason is that if courts were to sever exceptions from content discriminatory statutes, individuals would lose much of their incentive to challenge such statutes, because those whose speech is banned would often not benefit from the remedy. For example, (Rappa would re- main unable to post signs.) If we decide to eliminate the content-based exception in Chapter 11. Thus, we hold that the proper remedy for content discrimination gener- ally cannot be to sever the statute so that it restricts more speech than it did before -- at least absent quite specific evidence of a legislative preference for elimination of the exception. Absent a severability clause much more spe- cific than § 308, we refuse to assume that the Delaware legislature would prefer us to sever the exception and re- strict more speech than to declare Subchapter I invalid. n53
n53 In an analogous context, Robert Mathews challenged as violative of the Equal Protection Clause a benefits provision in the Social Security Act that he alleged discriminated against men by providing them a lower level of benefits than women. See Heckler v. Mathews, 465 U.S. 728, 104
S. Ct. 1387, 79 L. Ed. 2d 646 (1984). He also chal- lenged as unconstitutional a severability provision in the Act that indicated that if the "discriminatory" provision in the Act was found invalid, benefits would not be extended to new persons -- presum- ably they would be have been reduced instead. If
this provision had been enforced and Mathews had won his challenge against the benefits provision, the Court would have mandated that women would receive lower benefits rather than men receiving higher benefits. Thus, like Rappa, the only ben- efit Mathews could have won from his challenge if the severability provision were enforced would have been equality of benefits (in Rappa's case -- speech); he would not have attained a higher level of absolute benefits. Nonetheless, the Court held that the severability provision could be enforced. The Court explained:
although the choice between 'exten- sion' and 'nullification' of benefits is within the 'constitutional competence of a federal district court,' and, ordi- narily 'extension, rather than nullifica- tion, is the proper course,' the court should not, of course, 'use its reme- dial powers to circumvent the intent of the legislature'. . . . In this case, Congress has, through the severability clause, clearly expressed its preference for nullification, rather than extension, of the pension offset exception." Id. at
739 n.5, 104 S. Ct. at 1395 n.5 (quot- ing Califano v. Westcott, 443 U.S. 76,
91, 99 S. Ct. 2655, 2665, 61 L. Ed. 2d
382).
However, unlike in Heckler, here there is no spe- cific severability clause indicating a preference for less speech rather than more speech -- and Heckler itself indicates that ordinarily extension of bene- fits (here, the ability to speak) is the proper course. Moreover, in the First Amendment context there is a constitutional value favoring more rather than less speech -- in Heckler there was no constitu- tional value favoring more rather than fewer bene- fits. And, in the First Amendment context, Mosley provides some counterbalance to the precedential value of Heckler. In any case, we think it is perfectly consistent with Heckler for us to refuse to sever a statute in a manner that reduces speech unless there is a much clearer legislative intent that we do so than exists in this case.
**102
The only other way we could refrain from striking down Subchapter I altogether would be to countenance an injunction similar to that issued by the district court. Generally, when courts have found billboard statutes to
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involve content discrimination, they have mandated that states permit all speech with a higher place in the constitu- tional hierarchy than the speech allowed by the statutory exemption. For example, the Metromedia Court suggested that on remand, the California courts could rescue the San
Diego ordinance by holding that non-commercial speech had to be allowed since commercial speech was allowed. See 453 U.S. at 521-23 n.26, 101 S. Ct. at 2899-2900 n.26. The district
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*1074 court here required the state to allow political speech to the same extent that it allowed other speech under a variety of exceptions to the statute. See Rappa,
813 F. Supp. at 1082.
However, the district court's injunction in this case it- self perpetuates the constitutional infirmity by leaving in place the sweeping restrictions on most signs -- for exam- ple, on non-commercial, non-political ideological signs unrelated **103 to the property on which they stand. Allowing political speech to a greater extent than other non-commercial speech unrelated to the property entails content discrimination. Our test does not tolerate it; nor would it endure under the reasoning of the Metromedia plurality, which found content discrimination in the San Diego ordinance impermissible partly because that ordi- nance exempted temporary political campaign signs but not other non-commercial speech. See 453 d U.S. at 514,
101 S. Ct. at 2896. n54
n54 We could craft an injunction different from that crafted by the district court by follow- ing the suggestion of the Metromedia plurality that a state court could have sustained the San Diego ordinance by interpreting its prohibitions to apply only to commercial speech while allowing all non- commercial speech. See 453 U.S. at 521-23 n.26,
101 S. Ct. 2899-2900 n.26. That is, we could re- quire Delaware to allow all non-commercial speech to the same extent that it allows signs advertising local industries and meetings. This would mean that the Delaware ordinances would ban much off- site commercial speech while allowing all non- commercial speech. However, the likely consti- tutionality of such an injunction has been signif- icantly undermined by Discovery Network, which overturned a law banning commercial newsracks but allowing non-commercial newsracks. In distin- guishing Metromedia, the Court stated:
The CHIEF JUSTICE is correct that seven Justices in the Metromedia case were of the view that San Diego could completely ban offsite commer- cial billboards for reasons unrelated to the content of those billboards. Those seven Justices did not say, however, that San Diego could distinguish be- tween commercial and noncommer- cial offsite billboards that cause the same esthetic and safety concerns. That question was not presented in Metromedia, for the regulation at is- sue in that case did not draw a dis- tinction between commercial and non-
commercial offsite billboards; with a few exceptions, it essentially banned all offsite billboards.
113 S. Ct. at 1514. The Discovery Network Court thus undermines the Metromedia plurality's im- plication that a law banning commercial signs but not non-commercial signs would be constitu- tional. But, in any case, it seems fairly clear after Discovery Network that it is unconstitutional to ban commercial speech but not non-commercial speech -- at least absent a showing that the com- mercial speech has worse secondary effects. See id. at 1516
**104
Hence, there is no remedy we can implement that will sustain Subchapter I of the Delaware statute. As a result, we must invalidate it entirely.
Conversely, we find no similar reason to strike down Subchapters II and III. Unlike the possibility of eliminat- ing the content-based exception in Subchapter I, striking down all of Subchapter I, while leaving Subchapters II and III intact, increases the amount of speech the law allows. This remedy eliminates a subchapter that restricts speech rather than eliminating an exception that allows speech. And the other requirements of severability are met. In par- ticular, as discussed supra p.73, Delaware has statutorily expressed a legislative preference for severability, and we find no specific contrary evidence before us. Moreover, there is no inhibition to each subchapter operating in- dependently, and each subchapter independently helps serve the State's interests in safety and aesthetics. Finally, an additional, primary purpose of Chapter 11 is to ensure Delaware's receipt of the fullest possible amount of fed- eral-aid highway funds. Subchapter II is clearly drafted to meet the relevant requirements established by the Federal Highway Beautification **105 Act, 23 U.S.C. § 131. Accordingly, Subchapter II alone serves an important, independent state interest.
Although we believe that Subchapters II and III are severable from Subchapter I, we must remand to the dis- trict court for consideration of whether these subchapters, standing alone, are constitutional. In particular, the dis- trict court will have to determine if sufficient, independent justifications exist for whatever content-based exceptions exist in Subchapters II and III for in other words, it will have to determine if the exceptions "for sale" or "for lease" signs, for official signs pertaining to natural won- ders, scenic, and historic attractions, and perhaps for signs on school bus waiting shelters, are narrowly tailored
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*1075 to serve a substantial state interest at least as great as the state's aesthetic and safety interests in banning the signs. See supra Part IV. B. Additionally, the district court will have to determine whether Subchapters II and III meet the requirements for time, place and manner regulations. See infra Part VIII. In order to assist the district court in making these determinations in this complex, difficult
**106 case, we add the following observations. VIII. TIME, PLACE AND MANNER
The Supreme Court has explained that:
HN29
Even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, pro- vided 1 the restrictions "are justified with- out reference to the content of the regulated speech, 2 that they are narrowly tailored to serve a significant governmental interest, and 3 that they leave open ample alternative channels for communication of the informa- tion."
Ward, 491 U.S. at 791, 109 S. Ct. at 2753 (1989) (quot- ing Clark v. Community for Creative Non-Violence, 468
U.S. 288, 293, 104 S. Ct. 3065, 3069, 82 L. Ed. 2d 221
(1984)). The first of these requirements should pose no se- rious problem on remand. As the district court recognized in commenting on the validity of the city's sign ordinance, see Rappa, 813 F. Supp. at 1018, the sufficiency of the government's interest in aesthetics and safety has, by this juncture, become unquestioned. n55 And, while subject to greater doubt, we **107 suspect that Chapter 11 is probably sufficiently narrowly tailored to accomplish these aesthetic and safety interests. n56 Resolution of the requirement that Chapter 11 leaves open ample al- ternative channels of communication is, however, quite another matter.
n55 See Metromedia, 453 U.S. at 507-08, 101
S. Ct. at 2892-93 (plurality opinion) ("Nor can there be substantial doubt that the twin goals that the or- dinance seeks to further -- traffic safety and the appearance of the city -- are substantial govern- mental goals. It is far too late to contend other- wise with respect to either traffic safety, or esthet- ics.") (footnote and citations omitted)); see also Taxpayers for Vincent, 466 U.S. at 806-07, 104 S. Ct. at 2130-31 ("We reaffirm the conclusion of the majority in Metromedia. The problem addressed by this ordinance -- the visual assault on the citizens of Los Angeles presented by an accumulation of signs posted on public property -- constitutes a sig-
nificant substantive evil within the City's power to prohibit.").
**108
n56 The Supreme Court has explained that "the requirement of narrow tailoring is satisfied 'so long as the . . . regulation promotes a substantial govern- ment interest that would be achieved less effectively absent the regulation.'" Ward, 491 U.S. at 791, 109
S. Ct. at 2758 (quoting United States v. Albertini,
472 U.S. 675, 689, 105 S. Ct. 2897, 2906, 86 L. Ed. 2d 536 (1985)) (alteration original to Ward). It is true that Delaware might well have substantially accomplished its goals by less restrictive means. In particular, the State has always had available the option of regulating the size, appearance, and density of signs rather than banning them outright. While this would not have completely eliminated the problems caused by signs, the State, by ex- empting some signs from the regulatory scheme, has demonstrated that it does not believe that the total elimination of signs is necessary. Nonetheless, the result of the "narrow tailoring" inquiry may be foreshadowed by the Court's decision in Taxpayers for Vincent.
In Taxpayers for Vincent, the Court found that a Los Angeles ordinance totally banning the post- ing of signs on public property was narrowly tai- lored because "by banning these signs, the City did no more than eliminate the exact source of the evil it sought to remedy." Taxpayers for Vincent,
466 U.S. at 808, 104 S. Ct. at 2130. Moreover, the Court came to this conclusion even though Los Angeles allowed signs on private property, which made the ordinance underinclusive since it did not entirely eliminate the substantive evil with which it was concerned. See id. at 810-12, 104 S. Ct. at
2132. Thus, the more minor underinclusiveness of Chapter 11 would not itself appear to cause that chapter to fail the narrowly tailored requirement. But cf. Discovery Network, 113 S. Ct. at 1510
("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.") The district court, with the aid of a more complete record, should be able to resolve the "narrowly tai- lored" inquiry without difficulty.
**109
The state defendants make two arguments to demon-
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strate the existence of sufficient alternative avenues of communication. First, they argue that the Delaware statute leaves sufficient areas open in which signs may be erected.
Second, they argue that there are a number of alternative media that may be
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*1076 used to replace signs as a means to convey politi- cal campaign messages. We will address these contentions in turn. n57
n57 We focus on Rappa's particular message, as well as campaign speech generally, because that is the subject about which we have been provided the most information.
As Chapter 11 currently stands, it leaves open only a few areas in which signs covered by the statute may be erected, for example certain portions of urban areas. And because Subchapters II and III contain only very lim- ited exceptions, essentially all signs visible from the road will be prohibited on roads covered by these provisions. See Del. Code Ann. tit. 17, § 1121, 1131; supra Part II. However, if we sever Subchapter I of Chapter **110 11, an individual will be able to post signs on a significant proportion of roads in the State. Whether the ability to post signs along these roads constitutes an adequate al- ternative channel of communication to the ability to post signs along the roads covered by Subchapters II and III depends on the extent to which the latter roads are fun- damental for communication. Cf. Wheeler v. Comm'r of Highways, 822 F.2d 586, 596 (6th Cir. 1987), cert. denied,
484 U.S. 1007, 108 S. Ct. 702, 98 L. Ed. 2d 653 (1988)
(upholding a ban on most signs near interstate or federal- aid primary highways). There are simply not enough facts in the record to address this question.
The state defendants also argue that there are more than ample alternative channels of communication avail- able because Chapter 11 in no way restricts the use of other media, such as print, radio, television, and leaflet- ting. In Taxpayers for Vincent, where the Court sustained a restriction on posting signs on public property, it em- phasized that "nothing in the findings indicates that the posting of political posters on public property **111 is a uniquely valuable or important mode of communication,"
466 U.S. at 812, 104 S. Ct. at 2133.
However, unlike the plaintiffs in Taxpayers for Vincent, Rappa has introduced powerful expert testimony tending to show that other media does not provide a suf- ficient alternative. According to Rappa's expert, political signs are uniquely effective in developing name recogni-
tion for unknown candidates. The expert contended that the use of most other media, such as television and radio, would have been prohibitively expensive. n58 See, e.g., Baldwin v. Redwood City, 540 F.2d 1360, 1368 (9th Cir.
1976), cert. denied, 431 U.S. 913, 97 S. Ct. 2173, 53 L. Ed.
2d 223 (1977). And less expensive media, such as leaflet- ting or canvassing, allegedly are both extremely time con- suming, see Arlington County Republican Comm., 983
F.2d at 595, and ineffective.
n58 We take judicial notice, Fed. R. Evid.
201(b), of the fact that the only non-cable stations that are available in Delaware are Philadelphia and Baltimore stations, and that the cost of a televi- sion advertisement on these stations, whose pri- mary viewing audiences are elsewhere, would be enormous.
**112
But this evidence did not stand uncontested. Defendants introduced an affidavit from the Executive Director of the Republican State Committee of Delaware which indicated that a barrage of radio announcements is the most effective means of gaining name recogni- tion in the Delaware market. Moreover, after we ex- cise Subchapter I, the alternative of radio (and perhaps television) must be considered in combination with the alternative of posting signs on roads not governed by Subchapters II and III. The district court should analyze this combination on remand to determine whether to up- hold Subchapters II and III because political candidates retain adequate alternative channels of communication. We also note that the restrictions at issue implicate not only the First Amendment rights of political candi- dates, but of residents of roadside property (homeown- ers or lessees) as well. See Arlington County Republican Comm. v. Arlington County, 983 F.2d at 595 ("In addi- tion, the County's laundry list of alternative methods fails to recognize that the two-sign limit infringes on the rights of two groups: the candidates and the homeown- ers. Homeowners **113 also express their views by posting political signs in their yard."). Even if a person in Rappa's position has alternatives available, the average
homeowner
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*1077 may have few, if any, viable alternative avenues by which to communicate. See id. at 594-95 (concluding that county zoning ordinance limiting property owners in residential districts to two temporary political signs
"leaves no viable alternative means of political speech"). Posting a sign on one's own property may not only be easier and less expensive than alternative means of com- munication, but may be a unique means of self-expression for the property owner for whom the sign says not only that Rappa should be a Congressman but also that "I, John Doe, owner of this piece of property, support Rappa for Congress." n59 The fact that we have struck down Subchapter I of Chapter 11 provides little help to those residents who live along roads on which the posting of signs continues to be forbidden.
n59 Cf. Taxpayers for Vincent, 466 U.S. at 811,
104 S. Ct. at 2132 (upholding an ordinance elimi- nating signs on public property but allowing them on private property, because "the private citizen's interest in controlling the use of his own prop- erty justifies the disparate treatment.") Although Tapayers for Vincent was merely allowing rather than requiring a distinction between the posting of signs on private and public property, Taxpayers for Vincent did recognize a special interest in posting signs on private property which should be taken into account in a time, place, and manner analysis.
**114
On remand, defendants may be able to show that homeowners do have ample alternative channels of com- munication despite the existence of Chapter 11. Moreover, in order for Rappa to assert the First Amendment inter- ests of the homeowners, the statute must be substantially overbroad "judged in relation to the statute's plainly legit- imate sweep." See Broadrick v. Oklahoma, 413 U.S. 601,
615, 93 S. Ct. 2908, 2917-18, 37 L. Ed. 2d 830 (1973). As of now, there is no evidence in the record that enough people live alongside the roads affected by Subchapters II and III to ground an overbreadth challenge. On remand, of course, plaintiff can introduce such evidence and thus argue that Subchapters II and III are invalid time, place, and manner restrictions because they leave homeowners, as well as politicians, with inadequate alternative chan- nels of communication.
IX. QUALIFIED IMMUNITY
The individual state and county defendants have ap- pealed the district court's denial of their motions for sum- mary judgment based on assertions of qualified immunity.
**115 See Rappa, 813 F. Supp. at 1082. The parties agree that the only immunity issue before the district court and before us is the individual defendants' qualified im- munity as to the facial unconstitutionality of the respective restrictions on outdoor signs.
HN30 In evaluating a claim of qualified immunity, the court considers whether the official's conduct "vio- lated clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738,
73 L. Ed. 2d 396 (1981).
HN31
In order for the governing law to be suffi- ciently well established for immunity to be denied, it is not necessary that there have been a previous precedent directly in point. .
. . The ultimate issue is whether, despite the absence of a case applying established princi- ples to the same facts, reasonable officials in the defendants' position at the relevant time could have believed, in light of what was in the decided case law, that their conduct would be lawful.
Good v. Dauphin County Social Services, 891 F.2d 1087,
1092 (3d Cir. 1989); **116 accord Abdul-Akbar v. Watson, 4 F.3d 195 (3d Cir. 1993).
A. Qualified Immunity of Defendant Justice
Rappa argues that in light of Metromedia, in which the Court found a similar San Diego law unconstitutional, any reasonable official in the defendant's position would have known that Chapter 11 was facially unconstitutional under the First and Fourteenth Amendments. Justice, the former Secretary of Highways, provides three primary responses. First, he asserts that the effect of the decision in Metromedia, with its five separate opinions, was not clear. Second, he argues
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*1078 that Chapter 11 is content-neutral under the sec- ondary effects doctrine. Finally, Justice submits that exist- ing case law has found statutes similar to Delaware's con- stitutional under the reasoning of Metromedia. We con- clude that Justice has the better of the argument, and that based on the above reasoning, he is entitled to summary judgment as to Rappa's facial challenge on the ground of qualified immunity.
We have concluded, see supra Part III. C., that the Metromedia Court, because of its splintered reasoning, failed to establish a clear, binding standard by **117 which to evaluate statutes regulating outdoor advertising. Cf. Abdul-Akbar, 4 F.3d at 202-03 (concluding that the standard announced in Bounds v. Smith, 430 U.S. 817,
828, 97 S. Ct. 1491, 1498, 52 L. Ed. 2d 72 (1977), as to what would constitute the constitutionally required "ad- equate" law libraries and assistance from legally trained individuals was sufficiently indefinite that the defendant officials did not violate a clearly established constitu- tional right). Accordingly, Justice was left to ascertain the constitutionality of Chapter 11 under more general First Amendment analysis. We find that the state officials reasonably could have concluded that Chapter 11 was a constitutional time, place, and manner restriction on the posting of outdoor signs.
First, we believe that Justice reasonably could have relied on the secondary effects doctrine to conclude that Chapter 11 is content-neutral. Contrary to the argument of the plaintiff and the statement of the district court, See Rappa, 813 F. Supp. at 1081, the secondary effects doc- trine has not been restricted **118 to the zoning of sexually explicit businesses. In Ward, the Supreme Court expressly applied the secondary effects doctrine outside that narrow context. See Ward, 109 S. Ct. at 2754; id. at
2761 n.1 (Marshall, J., dissenting) ("Today, for the first time, a majority of the Court applies Renton analysis to a category of speech far afield from that decision's orig- inal limited focus."). Moreover, in Wheeler, 822 F.2d at
590, the Court of Appeals for the Sixth Circuit found a Kentucky statute regulating billboards constitutional un- der secondary effects analysis. Although our conclusion as to secondary effects is contra, see supra Part V, a rea- sonable official in Justice's position could have concluded that Chapter 11 was constitutional under the secondary ef- fects doctrine.
Once Justice concluded that Chapter 11 did not un- constitutionally discriminate based on content, we believe that he also reasonably could have concluded that there were constitutionally sufficient alternative channels for communication. We reach this conclusion even though we have remanded **119 on the issue of whether Chapter
11 violated the test for time, place, and manner regu- lations because when Justice's actions occurred, uncer- tainty over the validity of regulations such as Chapter 11 was widespread. See Bond, supra, at 2488. In addition, Justice points to two specific cases that found restrictions on signs to be acceptable under time, place, and manner analysis -- Wheeler, supra Part VIII, and Taxpayers for Vincent, supra Part VIII. Although both cases are distin- guishable, n60 we nevertheless believe that a "reasonable official in the defendant's position at the relevant time could have believed, in light of what was in the decided case law, that his conduct would be lawful." Good, 891
F.2d at 1092.
n60 In particular, both cases involved restric- tions much narrower than those found in Chapter
11. The Kentucky statute at issue in Wheeler ap- plied only to signs along interstate highways and federal-aid primary highways, thus leaving the ma- jority of Kentucky roads unregulated. See Wheeler,
822 F.2d at 587-88, 596. The Los Angeles ordi- nance considered in Taxpayers for Vincent also pro- vided greater alternative avenues of communication because it only regulated the posting of temporary signs on public property. See Taxpayers for Vincent,
466 U.S. at 811, 104 S. Ct. at 2132.
**120
Accordingly, we will reverse the district court's order denying summary judgment with respect to Justice and remand with direction to enter summary judgment in fa- vor of Justice on the claim for damages to the extent that it is based on the facial invalidity of Chapter 11.
B. Qualified Immunity of the Individual County
Defendants
Although the county ordinance varies from Chapter 11 in a number of particulars,
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*1079 the underlying analysis of the qualified immu- nity question is the same. The exemptions in the county ordinance were no more clearly content-based than were those in the state statute; nor did the overarching ban con- stitute a more severe time, place, and manner restriction than Chapter 11. Thus, for the reasons discussed, supra Part IX. A, we will reverse the district court's denial of summary judgment and remand with direction to enter summary judgment in favor of the individual county de- fendants on the claim for damages to the extent that the claim is based on the facial invalidity of the county ordi- nance.
X. CONCLUSION
For the foregoing reasons, we will affirm the dis- trict court's summary judgment in favor of Rappa that Subchapter I of Chapter 11 is facially invalid. **121 We arrive at this conclusion, however, based on differ- ent reasoning than that the district court employed. In our view, Subchapter I is unconstitutional because the exception for signs advertising local industries or meet- ings impermissibly discriminates between these signs and other signs unrelated to the property or its use. We will therefore vacate the district court's more limited injunc- tion as to Subchapter I and direct it to enter an injunction generally prohibiting enforcement of that subchapter. Subchapters II and III, however, have separate im- port and may operate independently of Subchapter I. To determine whether severance of Subchapter II or III is appropriate, the district court must adjudge whether each subchapter is independently constitutional. Because we cannot make this determination on the present record, we will vacate the judgment with respect thereto and remand to the district court for its consideration of these questions. The district court should consider both whether the var- ious exceptions contained in these subchapters for signs that are related to their location meet the other requisites we have set out for content-based exceptions from a gen- eral ban and **122 whether these subchapters leave open ample alternative channels of communication to sur- vive the test for time, place and manner regulations. In the interim, we will vacate the district court's injunction
as to Subchapter II.
On the issue of qualified immunity, we hold that the defendant officials reasonably could have concluded that Chapter 11 and the county ordinance, respectively, were constitutional time, place, and manner restrictions on the use of outdoor signs. Accordingly, we will reverse the district court's denial of summary judgment as to the mo- tions of the individual state and county defendants and remand with direction to the district court to enter sum- mary judgment in favor of the individual defendants on Rappa's claims for damages to the extent that those claims are based on the facial invalidity of Chapter 11 and the county ordinance. Rappa may still seek damages against these defendants to the extent he asserts that they applied the statute in a manner that was clearly unconstitutional under either the First Amendment or the Due Process Clause.
Parties shall bear their own costs.
CONCURBY: ALITO; GARTH
CONCUR: ALITO, Circuit Judge, concurring:
While I completely agree with most **123 of the court's opinion, I would, if sitting alone, employ a method of analysis somewhat different from that used by the court. Nevertheless, because this analysis would lead to con- clusions quite similar to those reached by the court and because I think it is important for the panel to agree on a judgment and rationale, I concur in the court's judgment and opinion. I will, however, very briefly explain my own preferred method of analysis.
I view both subchapter I n61 and subchapter II n62 of Title 17, chapter 11 of the Delaware Code as essentially banning signs (within the areas they cover) with two sig- nificant exceptions and a number of other exceptions that are insignificant for present purposes. The two significant exceptions pertain to "for sale" signs and signs relating to on-site activities. The exceptions that are not important for present purposes are, first, those exceptions, such as the exceptions for directional and warning signs, that are narrowly tailored
18 F.3d 1043, *1080; 1994 U.S. App. LEXIS 4386, **123
Page 45
*1080 to further the state's compelling interest in high- way safety and could thus survive the test for a content- based restriction on speech (see Maj. Typescript at 55) and, second, those exceptions that I believe are truly
**124 de minimis, such as those for highway beau- tification signs and signs announcing a municipality or a local attraction. Since subchapters I and II (within the ar- eas they cover) ban all signs not falling under their listed exceptions, I think that both subchapters should, at the outset, be tested to see if they can at least pass the test that would be applied to a content-neutral law restricting the locations in which all signs may be placed. Subchapter I, in my view, cannot survive that test. Under that test, a law must, among other things, be "narrowly tailored to serve a significant governmental interest." Ward v. Rock Against Racism, 491 U.S. 781, 791, 105 L. Ed. 2d 661,
109 S. Ct. 2746 (1984) (quoting Clark v. Community for
Creative Non-Violence, 468 U.S. 288, 293, 82 L. Ed. 2d
221, 104 S. Ct. 3065 (1984). While Delaware's interests in traffic safety and highway beautification are significant, subchapter I is not narrowly tailored. This subchapter gen- erally prohibits signs on all property within 25 feet of the right of way of all portions of every state highway **125 except for those portions that are located within an incor- porated town or city but not within a "controlled area." This regulation sweeps broadly and indiscriminately, and I cannot see how it can be viewed as narrowly tailored. Subchapter II, by contrast, has a very limited geographical reach, applying only to areas adjacent to the interstate and primary highway system, and therefore I think it can sur- vive the test for a content-neutral time, place, or manner restriction. See Wheeler v. Commissioner of Highways, Commonwealth of Kentucky, 822 F.2d 586, 594-96 (6th Cir. 1987), cert. denied, 484 U.S. 1007, 98 L. Ed. 2d 653,
108 S. Ct. 702 (1988).
n61 Del. Code Ann. Tit. 17, §§ 1101-1114.
n62 Del. Code Ann. Tit. 17, §§ 1121-1126.
The question remains, however, whether subchapter II's exceptions for "for sale" signs and signs relating to on- site activities render the subchapter content-based. There is no easy answer to this **126 question. Until the Supreme Court provides further guidance concerning the constitutionality of sign laws (see Maj. Typescript at 42 n.29), I endorse the test set out in the court's opinion (see Maj. Typescript at 51).
DISSENTBY: GARTH
DISSENT: GARTH, J., dissenting and concurring:
I dissent from the judgment of the majority, which judgment results in vacating the orders of the district court pertaining to Subchapters II and III of Chapter 11 of the Delaware law, and which judgment sustains the constitu- tionality of those subchapters. Even more so, I disagree with the majority's analysis which departs from the in- structions of Metromedia, Inc. v. San Diego, 453 U.S.
490, 69 L. Ed. 2d 800, 101 S. Ct. 2882 (1981).
As to Subchapter I, I agree with my colleagues in the majority that the district court order holding Subchapter I unconstitutional must be affirmed, excepting, however, for directional and warning signals. See Del Code Ann. tit. 17, §§ 1108(a), 1108(b), 1114(4). n63 I also agree with the majority that we must reverse the district court order which denied qualified immunity to the individual defendants and that on remand, summary **127 judg- ment should be entered in the individual defendant's favor on Rappa's claims for damages.
n63 With respect to the exception for direc- tional and warning signs, I agree with the majority that this exception could survive the Court's most exacting level of constitutional scrutiny. See ante at (typescript at 55). Unlike the other excep- tions contained in Chapter 11, the exception for directional and warning signs is narrowly tailored to achieve the state's compelling interest in public safety. The discharge of an essential governmental function, such as ensuring public safety, will jus- tify restrictions on speech so long as the regulation is narrowly tailored so that it does not unnecessar- ily infringe on speech. Police Dep't of Chicago v. Mosley, 408 U.S. 92, 99, 33 L. Ed. 2d 212, 92
S. Ct. 2286 (1972). The exception for directional and warning signs satisfies this requirement; these signs are justified by public necessity. Because this exception, unlike the others, is directly related to Delaware's asserted interest in public safety, and can be justified without reference to the content of the regulated speech, "there is an appropriate governmental interest suitably furthered by the dif- ferential treatment." Id. at 95.
**128
In order to highlight my disagreement with the panel majority, let me say at the outset that I believe that we are bound by
18 F.3d 1043, *1081; 1994 U.S. App. LEXIS 4386, **128
Page 46
*1081 the pronouncements of the Supreme Court in Metromedia. The panel majority does not. Yet, in my view, Metromedia governs the disposition of this appeal. Applying the standard of Metromedia, I would -- ex- cepting only for directional and warning signs -- affirm District Court Judge Fullam's order that all three subchap- ters of the Delaware statute constitute an impermissible restriction on protected speech, and are facially unconsti- tutional under the First and Fourteenth Amendments to
the U.S. Constitution. I.
Contrary to the position of the majority of this panel, I believe that Metromedia is the controlling authority in this case. While not a model of clarity, Metromedia provides a sufficient standard for us to apply. Many other courts have so held. See, e.g., Matthews v. Town of Needham, 764 F.2d
58, 60 (1st Cir. 1985) (following Metromedia plurality opinion in striking down as impermissible content-based regulation local bylaw which permitted posting of certain commercial signs but prohibited posting **129 of polit- ical signs on residential property); National Advertising Co. v. Town of Babylon, 900 F.2d 551, 556-57 (2nd Cir.) (applying standard of Metromedia plurality in in- validating on First Amendment grounds content-based ordinance favoring commercial speech over political and other noncommercial speech), cert. denied, 498 U.S. 852,
112 L. Ed. 2d 112, 111 S. Ct. 146 (1990); Major Media of the Southeast v. City of Raleigh, 792 F.2d 1269, 1272
(4th Cir. 1986) (applying Metromedia standard to uphold city signage ordinance because ordinance allowed substi- tution of non-commercial messages where commercial messages permitted), cert. denied, 479 U.S. 1102, 94 L. Ed. 2d 185, 107 S. Ct. 1334 (1987); Gilleo v. City of Ladue,
986 F.2d 1180 (8th Cir. 1993), (following Metromedia in striking down city ordinance favoring commercial speech over noncommercial speech and favoring certain types of noncommercial speech over others), cert. granted, 114
S. Ct. 55 (1993); **130 Outdoor Sys., Inc. v. City of Mesa, 997 F.2d 604, 610 (9th Cir. 1993) (following Supreme Court's example in Metromedia and consider- ing separately effect of signage restrictions on commer-
cial and noncommercial speech, because Court in subse- quent pronouncements never explicitly disavowed com- mercial-noncommercial analytical distinction); National Advertising Co. v. City of Orange, 861 F.2d 246, 248-49
(9th Cir. 1988) (applying Metromedia standard in strik- ing down city regulation requiring examination of content of noncommercial messages for purpose of determining whether on-site signs permissibly related to activity on premises); Jackson v. City Council of Charlottesville, Va., 659 F. Supp. 470, 474 (W.D. Va. 1987) (conclud- ing that plurality opinion in Metromedia is controlling authority in determining whether ordinance affording greater protection to commercial than to noncommercial speech is facially violative of First Amendment), aff'd in part and vacated in part without opinion, 840 F.2d
10 (4th Cir. 1988); see also Ackerley Communications of Massachusetts, Inc. v. City of Somerville, 878 F.2d
513, 516-17 (1st Cir. 1989) **131 (interpreting ma- jority of Metromedia Court to hold that sign regulation cannot prohibit display of noncommercial messages in places where commercial messages permitted); Georgia Outdoor Advertising v. City of Waynesville, 833 F.2d 43,
46 n. 6 (4th Cir. 1987) (distilling from Metromedia re- quirement that billboard-restricting ordinance not prefer commercial to non-commercial speech). Contra Wheeler v. Commissioner of Highways, 822 F.2d 586, 591, 593
(6th Cir. 1987) (upholding, as content-neutral time, place and manner restriction, ordinance restricting onsite sig- nage to activities for which site is utilized), cert denied,
485 U.S. 944, 99 L. Ed. 2d 287, 108 S. Ct. 1127 (1988). Metromedia holds that if the government interest in regulating speech is not so great as to outweigh the place- ment of signs with certain commercial messages, then First Amendment principles dictate that such an interest is not great enough to outweigh an individual's right to communicate non-commercial messages in the same spot and by the same means. Delaware's stated governmental
**132 interests in restricting signs in and around the right-of--way of public highways are no different from those expressed by San Diego in Metromedia -- aesthet- ics and traffic
18 F.3d 1043, *1082; 1994 U.S. App. LEXIS 4386, **132
Page 47
*1082 safety. In exempting certain types of speech from the general prohibitions of Chapter 11, the Delaware Legislature has effectively balanced its asserted govern- mental interests of aesthetics and safety against the in- terests of those individuals, such as Rappa, who would erect political or other noncommercial signs unrelated to activities upon the real property where they are posted.
The distinction drawn by the Delaware Legislature between permitted on-site signs and impermissible signs bears no relationship to Delaware's asserted interests in aesthetics and traffic safety. A "For Sale" sign in the eyes of the First Amendment is no less an eyesore than a "Rappa for Congress" sign. See City of Cincinnati v. Discovery Network, Inc., 123 L. Ed. 2d 99, 113 S. Ct.
1505, 1514-15 (1993). Nor is there any principled basis for assuming that a "Rappa for Congress" sign poses more of a risk to traffic safety than, say, an eye-catching onsite advertisement. All signs, regardless **133 of content, are equally threatening to the asserted governmental in- terests.
Because the distinction drawn by the Delaware Legislature between permitted signs and impermissible signs bears no relationship whatsoever to the particular interests it asserts, Chapter 11 of the Delaware Code
"is therefore an impermissible means of responding to the city's admittedly legitimate interests." Cf. Discovery Network, 113 S. Ct. at 1514 (striking down categorical ban on commercial newsracks which did not apply to noncommercial newsracks).
Here, as in Metromedia, the allowance of some signs, but not others, is evidence that the government's asserted interests in traffic safety and aesthetics are not sufficiently compelling to justify disparate treatment between classes of speech. See Metromedia, 453 U.S. at 520 (plurality opinion) ("the city has conceded that some communica- tive interests . . . are stronger than its competing interests in esthetics and traffic safety"); see id. at 532 n.10 (Brennan, J., concurring in judgment) **134 (allowing exception to total billboard ban "only if it directly furthers an inter- est that is at least as important as the interest underlying the total ban . . . .").
II.
The majority in this case explicitly acknowledges the insufficiency of Delaware's asserted interests in distin- guishing between commercial and noncommercial and between different types of noncommercial speech: "Here, there are no aesthetic or safety effects caused by the signs prohibited by Chapter 11 that are not also caused by the signs allowed by Chapter 11." Ante at (typescript at
64). The majority concludes, however, Metromedia does not control because "there are significant differences be- tween the ordinance at issue here and that at issue in Metromedia." Ante at (typescript at 41-42). I disagree. Because, contrary to the majority, I believe that Chapter
11 is substantially identical to the San Diego ordinance at issue in Metromedia, I would hold that we are bound to strike it down.
Like the San Diego ordinance, Chapter 11 of the Delaware Code begins with a broad prohibition against the use of "outdoor advertising" on public roads as a means of promoting aesthetic values **135 and driving safety. Chapter 11, like the San Diego ordinance, enumerates ex- ceptions for onsite "For Sale" or "For Lease" signs, signs advertising onsite activities, beautification and landscape sponsorship signs, government signs, historical signs, signs located at public bus stops. Chapter 11, like the San Diego ordinance, "does not generally ban outdoor advertising as an unacceptable 'manner' of communica- tion information or ideas; rather, it permits various kinds of signs." See Metromedia, 453 U.S. at 515-16 (plurality opinion). The plurality opinion in Metromedia is on point: There can be no question that a prohibi-
tion on the erection of billboards infringes freedom of speech: The exceptions do not create the infringement, rather the general prohibition does. But the exceptions to the general prohibition are of great significance in assessing the strength of the City's inter- est in prohibiting billboards. . . . By allowing commercial establishments to use billboards to advertise the products and services they offer, the
18 F.3d 1043, *1083; 1994 U.S. App. LEXIS 4386, **135
Page 48
* * *
*1083 city necessarily has conceded that some communicative interests, e.g., on- site commercial **136 advertising, are stronger than its competing interests in aes- thetics and traffic safety. It has nevertheless banned all noncommercial signs except those specifically excepted.
Governmental interests are only revealed and given concrete force by the steps taken to meet those interests. If the city has concluded that its official interests are not as strong as private interests in commercial communica- tions, may it nevertheless claim that those same official interests outweigh private inter- ests in noncommerial communications? Our answer, which is consistent with our cases, is in the negative.
commercial speech over noncommercial speech. Chapter
11, like the invalid San Diego ordinance, prohibits the display of noncommercial messages in places where com- mercial messages are permitted. Taking instruction from, and paraphrasing, Metromedia: "Insofar as Delaware tolerates signs at all, it cannot choose to limit their con- tent to commercial messages; Delaware may not con- clude that the communication of commercial information concerning goods and services connected with a particular
**138 site is of greater value than the communication of noncommercial messages." 453 U.S. at 513 (plural- ity opinion); see also id. at 536 (Brennan, J., concurring in judgment) (agreeing with plurality that Court's cases have accorded more protection to noncommercial than to commercial speech). But see Wheeler, 822 F.2d at 591
(upholding such a distinction as a content-neutral time, place and manner regulation).
The district court also correctly concluded that the Delaware statute impermissibly discriminates between different types of noncommercial speech. Chapter 11, as did the San Diego ordinance held to be invalid in Metromedia, exempts certain noncommercial speech
453 U.S. at 520-21.
The majority here appears to believe that, because the Delaware statute can be construed as not distinguishing facially between commercial or noncommercial speech, this case somehow stands on a different footing than Metromedia. See ante at (typescript at 25 and 17 n.11). As I read Metromedia, the plurality there accepted the California Supreme Court's narrowing construction of the San Diego ordinance as encompassing -- but nev- ertheless burdening -- noncommercial speech. Id. at 494 n.2; **137 see also id. at 535 (Brennan, J., concur- ring in judgment) (finding onsite premises exception of San Diego ordinance not limited solely to commercial speech). More to the point, the majority's construction of the Delaware statute "of course . . . still exempts some commercial speech (onsite commercial speech, 'for sale' signs) while prohibiting some non-commercial speech
(offsite non-commercial speech that does not fall into any exemption)." Ante at (typescript at 28).
In my opinion, the district court correctly analyzed Chapter 11 under the Metromedia standard because Chapter 11 of the Delaware Code impermissibly favors
(here, e.g., a sign describing a historical site; in Metromedia, temporary political signs) on the basis of content alone. As the district court found, "The State may not in this way choose the appropriate subjects for public discourse." Rappa, 813 F. Supp. at 1080. See Metromedia,
453 U.S. at 514-15 **139 (plurality opinion); see also Consolidated Edison of New York Co. v. Public Serv. Comm'n, 447 U.S. 530, 538, 65 L. Ed. 2d 319, 100 S. Ct. 2326 (1979) ("To allow a government the choice of permissible subjects for public debate would be to al- low that government control over the search for political truth").
III.
Without reconciling its conclusion with controlling authority, the majority has embarked on its own uncon- strained interpretation of First Amendment neutrality re- quirements. In fashioning "A New Test" from the whole- cloth, the majority, in my opinion, has discarded tradi- tional doctrinal analysis and has deviated impermissibly from established principles of stare decisis.
18 F.3d 1043, *1084; 1994 U.S. App. LEXIS 4386, **139
Page 49
*1084 A.
The majority holds that, "statutes aimed at a legiti- mate end unrelated to the suppression of speech but which nonetheless restrict speech in a certain locality may con- stitutionally contain content-based exceptions as long as the content exempted from restriction is significantly re- lated to the particular area in which the sign is viewed . .
.." Ante at (typescript at 6). Under this unprecedented formulation, content neutrality is **140 assessed by a subjective standard, i.e., whether the restrictions "appear to be motivated by a desire to suppress certain speech." See ante at (typescript at 47).
Whether or not government acts with animus to- ward certain speech, or with "a desire to suppress certain speech," is not dispositive of the question of whether a restriction on protected speech may constitutionally con- tain content-based exceptions. The Supreme Court has consistently "rejected the argument that 'discriminatory .
. . treatment is suspect under the First Amendment only when the legislature intends to suppress certain ideas." Discovery Network, 113 S. Ct. at 1516 (quoting Simon & Schuster v. Members of New York State Crime Victims Bd.,
116 L. Ed. 2d 476, 112 S. Ct. 501, 509 (1991)). As the Supreme Court has cautioned, "even regulations aimed at proper governmental concerns can restrict unduly the exercise of rights protected by the First Amendment." Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Rev., 460 U.S. 575, 592, 75 L. Ed. 2d 295, 103 S. Ct.
1365 (1983). For this reason, **141 government reg- ulation of expressive activity must be deemed content- based unless "justified without reference to the content of the regulation of the speech." Ward v. Rock Against Racism, 491 U.S. 781, 791, 105 L. Ed. 2d 661, 109 S. Ct.
2746 (1989) (quoting Clark v. Community for Creative
Non-Violence, 468 U.S. 288, 293, 82 L. Ed. 2d 221, 104
S. Ct. 3065 (1984)).
Under the new test of the majority, whether any partic- ular sign is permissible is determined by the message the sign conveys. "Thus, by any commonsense understand- ing of the term, the ban in this case is 'content-based.'"
Discovery Network, 113 S. Ct. at 1516-17. Except for di- rectional and warning signs, however, Delaware's differ- ential treatment of protected speech furthers no asserted state interest. The Court, time and again, has rejected an asserted state interest that has "'nothing to do with the state's content-based distinctions among expressive ac- tivities.'" Burson v. Freeman, 119 L. Ed. 2d 5, 112 S. Ct. 1846, 1865 (1992) **142 (Stevens, J., dissenting)
(quoting Simon & Schuster, Inc. v. Members of New York
Crime Victims Bd., 116 L. Ed. 2d 476, 112 S. Ct. 501
(1991)); see also Discovery Network, 113 S. Ct. at 1517; Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221,
231, 95 L. Ed. 2d 209, 107 S. Ct. 1722 (1987). The ab- sence of any neutral justification for all but the directional and warning signs exceptions to the general prohibition of Chapter 11 infects the entire statute and requires invali- dation under established First Amendment jurisprudence. The majority therefore errs in suggesting that the ex- ceptions found in Subchapters II and III of Chapter 11 can be justified as legitimate time, place, or manner re- strictions on protected speech. This must be so because
"in time, place, and manner cases, the regulation's justi- fication is a central inquiry." Burson v. Freeman, 112 S. Ct. at 1859 (Kennedy, J., concurring) (citations omitted); see also Discovery Network, 113 S. Ct. at 1517 **143
("regardless of whether or not content-based speech re- striction leaves open ample alternative channels of com- munication, it cannot be justified as a legitimate time, place, or manner restriction on protected speech"). But see Wheeler, 822 at 591 (holding ordinance similar to both San Diego ordinance in Metromedia and Delaware statute in the instant case to be constitutional as a content- neutral time, place and manner restriction).
By the majority's standard, whether or not a sign may be maintained on a particular property depends upon the kind of message the sign seeks to convey. Only if the sign conveys the right message (i.e., "significantly re- lated to the particular area") is it permissibly posted. If the function of the property is to sell liquor, then a
"Reckless Eddie's Packaged Goods" sign would be per- missible while
18 F.3d 1043, *1085; 1994 U.S. App. LEXIS 4386, **143
Page 50
*1085 a "Don't Drink and Drive" sign would be imper- missible. Although such distinctions may appear benign, I agree with the First Circuit that the "preference for the
'functions' of certain signs over those of other (e.g., polit- ical) signs is really nothing more than a preference based on content." Matthews v. Town of Needham, 764 F.2d at
60. **144
Furthermore, the majority's property-compatibility standard vests enforcement officials with unbridled dis- cretion to decide which activities are site-specific and which are not. A single official, for example, could re- move a "JOE SMITH FOR COUNCIL" sign from the front lawn of Joe Smith's house, because, in the opinion of that official, Smith's political sign might not be "signif- icantly related to the particular area in which the sign is viewed" -- even though Smith may run his campaign out of his house. Yet, Smith's well-financed opponent might well prominently display "DEFEAT JOE SMITH" signs at as many campaign offices as campaign contributions will support, because, in the view of that same enforce- ment official, that sign would reflect the nature of the on-site political activities. Such a result risks discrimi- nation against unpopular viewpoints. Metromedia, 453
U.S. at 536-37 (Brennan, J., concurring in judgment) (or- dinance which permits governmental unit to determine, in the first instance, whether speech is commercial or non- commercial, "entails a substantial exercise of discretion by a city's official" and therefore **145 "presents a real danger of curtailing noncommercial speech in the guise of regulating commercial speech"); cf. Discovery Network,
113 S. Ct. at 1513 n.19 ("the responsibility for distin- guishing between protected speech carries with it the potential for invidious discrimination of disfavored sub- jects"); Arkansas Writers' Project, Inc. v. Ragland, 481
U.S. 221, 230, 95 L. Ed. 2d 209, 107 S. Ct. 1722 (1987)
("official scrutiny of the content of publications as the basis for imposing a tax is entirely incompatible with the First Amendment's guarantee of freedom of the press"). Under the majority's formulation, government may not only ascribe a higher value to a commercial sign (e.g.,
"Reckless Eddie's Packaged Goods") than to a noncom- mercial sign (e.g., "Don't Drink and Drive"), it may also ascribe a higher value to one viewpoint (e.g., "Defeat Smith") than to another (e.g., "Elect Smith"). In fashion- ing a standard requiring consideration of the function of the property, the majority invites government to disguise its preference for or against the content or the viewpoint of a particular **146 message by simply asserting its preference for the function of the sign. Such a result, in my opinion, is patently unconstitutional. Boos v. Barry, 485
U.S. 312, 319, 99 L. Ed. 2d 333, 108 S. Ct. 1157 (1988);
cf. Linmark Assocs., Inc. v. Township of Willingboro, 431
U.S. 85, 52 L. Ed. 2d 155, 97 S. Ct. 1614 (1977) (invalidat- ing as impermissible content-based regulation ordinance prohibiting posting of "For Sale" and "Sold" signs).
I would hold that limiting noncommercial signs to ad- vocacy of onsite activities, is itself, an unconstitutional content-based regulation. n64 See Metromedia, 453 U.S. at 513 (government may not "prohibit an occupant from displaying its own ideas or
18 F.3d 1043, *1086; 1994 U.S. App. LEXIS 4386, **146
Page 51
*1086 those of others"); see also City of Orange,
861 F.2d at 249 n.3 (declining to address this precise issue, but noting that plurality opinion in Metromedia lends support to proposition that offsite/onsite distinc- tion between noncommercial messages would be invalid); Burkhart Advertising Inc. v. Auburn, 786 F. Supp. 721, 732
(N.D. Ind. 1991) **147 (finding ordinance prohibiting off-premise billboards impermissibly content-based "be- cause the determination of whether the billboard is con- sidered 'on-premise' or 'off-premise' depends upon what it says, i.e., does it promote a business or activity at the location of the billboard?").
n64 I note that the Eleventh Circuit reached a different result in Messer v. City of Douglasville, Ga., 975 F.2d 1505 (11th Cir. 1992), cert. de- nied, 124 L. Ed. 2d 296, 113 S. Ct. 2395 (1993). The Messer court employed a dubious analysis, however, in holding that the Douglasville ordi- nance allowing onsite noncommercial messages while prohibiting offsite noncommercial signs sat- isfied First Amendment requirements. Finding that the Douglasville ordinance's preference for onsite noncommercial speech over offsite noncommercial speech was not viewpointdiscriminatory, the court concluded that the ordinance could be justified as a reasonable time, place, and manner restriction. 975
F.2d at 1509-10. Analysis of the constitutionality of such restrictions on protected speech, of course, depends not only on whether or not the restrictions are viewpoint-discriminatory, but also on whether they are "content-neutral" or "content-based." See, e.g., Burson v. Freeman, 119 L. Ed. 2d 5, 112 S. Ct.
1846 (1992); Boos v. Barry, 485 U.S. 312, 319, 99
L. Ed. 2d 333, 108 S. Ct. 1157 (1988).
Furthermore, Messer is distinguishable from both this case and Metromedia because, unlike ei- ther the San Diego ordinance in Metromedia or Chapter 11 of the Delaware Code, the exemptions of the Douglasville sign ordinance were not exemp- tions from a general ban of all off-premise signage; rather, they were exemptions from permit require- ments and fees. 975 F.2d at 1513.
**148
B.
The exemptions of the Delaware statute are impermis- sibly content-based. They cannot be justified without ref- erence to the content of the signs. The majority acknowl- edges this, as it must. Because there are no secondary ef- fects attributed to the excepted signs that distinguish them from the impermissible signs allowed under Chapter 11 of
the Delaware Code, the majority must concede that "any justification for treating these signs differently must rely on the content of these signs." Ante at (typescript at 64-
65). Having so found, the majority is bound by Supreme Court precedent to strike down Chapter 11, excepting only for directional and warning signs. See, e.g., Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 74
L. Ed. 2d 794, 103 S. Ct. 948 (1983) (any restrictions of noncommercial speech based on its content can be justi- fied only by a compelling state interest and only if they are narrowly drawn to achieve that interest); Police Dep't of Chicago v. Mosley, 408 U.S. 92, 99, 33 L. Ed. 2d 212,
92 S. Ct. 2286 (1972) (content-based **149 restrictions on protected speech must be carefully scrutinized).
All other exceptions of Chapter 11, even as the statute is construed by the majority to permit both commercial and noncommercial signs related to an on-premise ac- tivity, are unconstitutional because they cannot be jus- tified without reference to the content of the regulated speech and cannot be justified by the interests asserted by Delaware. The Delaware statute, as did the San Diego ordinance in Metromedia, thus violates First Amendment neutrality. See Metromedia, 453 U.S. at 517-21. The ma- jority suggests as much when it acknowledges: "Under a literal understanding of 'content-based,' the fact that Chapter 11 exempts speech of certain content from its prohibitions (for example, "for sale" signs and directional signs) makes the statute content-based." Ante at (type- script at 23) (citing Discovery Network, 113 S. Ct. at
1516).
C.
To justify its result in the face of the content-based exceptions of Chapter 11, the majority engages in a re- markable analytical process. First, it dismisses the respec- tive **150 analytical approaches of the Metromedia plurality, the concurrence, and the dissent. It then pro- ceeds -- without any supporting authority -- to concoct its own property-compatibility formulation, substituting this novel test for the considered opinions of all mem- bers of the Metromedia Court and in disregard of firmly- entrenched First Amendment jurisprudential standards. Finally, and inexplicably, it tacks on to this new formu- lation the test proposed by the two-Justice Metromedia concurrence, a test which the majority of this panel does not even believe "'articulates a legal standard which, when applied, will necessarily produce results with which a majority of the Court from that case would agree,'" ante at (typescript at 38 (quoting Planned Parenthood v. Casey, 947 F.2d 682, 693 (3d Cir. 1991), modified on other grounds, 120 L. Ed. 2d 674, 112 S. Ct. 2791 (1992), or produces a desirable result. Ante at (typescript at
49).
18 F.3d 1043, *1086; 1994 U.S. App. LEXIS 4386, **150
Page 52
I know of no rule of law which countenances the ma- jority's disposition of this case. Certainly nothing in the jurisprudence of the Supreme Court, or in ours, suggests that **151 a three-judge panel of a court of appeals is free to substitute its judgment for that of a four-Justice plurality opinion, let alone that of the entire Court. The
majority concedes, in a footnote, that its approach is un- precedented, but justifies its disregard of established prin- ciples of stare decisis as an extrapolation of the general reasoning of Casey. Ante at (typescript at 38 n.24). Nothing in Casey, however, suggests
18 F.3d 1043, *1087; 1994 U.S. App. LEXIS 4386, **151
Page 53
*1087 that we have the power, indeed the option, to overrule a plurality opinion of the Supreme Court.
D.
The result reached by the majority is all the more perplexing because, as the majority acknowledges, a
"straightforward application of the plurality opinion would probably lead to an invalidation of the Delaware statute at issue in this case -- although it would so on only one of the two grounds articulated by the plurality." Ante at (typescript at 27). That rationale was sufficient for the Ninth Circuit in City of Orange, 861 F.2d at 247-48, to strike down a regulation which, similar to the Delaware statute as construed by the majority of this panel, permit- ted both commercial and noncommercial on-site **152 signs only if related to an activity on the premises. The Ninth Circuit interpreted Metromedia as requiring inval- idation of an ordinance restricting the posting of signs if the ordinance either (1) imposes greater restrictions on noncommercial than on commercial billboards or (2) regulates noncommercial billboards based on their con- tent. The Ninth Circuit found no need to decide whether the ordinance challenged in City of Orange passed the first test of Metromedia because the ordinance clearly vi- olated the second test of Metromedia. 861 F.2d at 248
(citing Metromedia plurality at 453 U.S. at 513).
"Based on just such reasoning," I would follow the example of our sister circuits, and strike down Chapter
11 in its entirety, excepting only for directional and warn- ing signs. n65 Compare ante at (typescript at 28, 38) with Town of Babylon, 900 F.2d at 557; Ladue, 986 F.2d at 1182; City of Orange, 861 F.2d at 247-48. I would do so because "not only is it the rationale of a Supreme
**153 Court plurality, but it seems to flow easily out of the Court's general First Amendment jurisprudence on content neutrality." See ante at (typescript at 30).
n65 See, supra, note 1, regarding modifying the district court's order to except directional and warning signs.
IV.
In my view, the Delaware statute, excepting only for directional and warning signals, must be struck down be- cause it violates both tests of the Metromedia plurality: it imposes greater restrictions on noncommercial speech than on commercial speech and it regulates noncommer- cial speech based solely on its content. Metromedia,
453 U.S. at 513-16 (plurality); see also id. at 532 n.10
(Brennan, J., concurring in judgment) ("To the extent that exceptions rely on content-based distinctions, they must be scrutinized with special care"). The majority of this panel turns the First Amendment on its head when **154 it suggests that a "For Sale" sign is entitled to greater pro- tection under the First Amendment than a "Rappa for Congress" sign, merely because of the coincidence of location. Where the suppression of political speech is in- volved, as it is in the instant case, we must be particularly vigilant. As the Court has repeatedly instructed, "the First Amendment 'has its fullest and most urgent application' to speech uttered during a campaign for political office." Burson v. Freeman, 112 S. Ct. at 1850 (plurality opinion)
(quoting Eu v. San Francisco Democratic Comm., 489
U.S. 214, 223, 103 L. Ed. 2d 271, 109 S. Ct. 1013 (1989))
(additional citation omitted).
Even accepting that the more recent pronouncement of the Court in Discovery Network elevates commercial speech to the same level of noncommercial speech in the hierarchy of First Amendment values, I find no support for the majority's elevation of commercial speech over political and other noncommercial speech, or for its tacit approval of disparate treatment between classes of non- commercial speech. Unlike the majority of this **155 panel, however, I do not read Discovery Network to un- dermine the essential lessons of Metromedia, i.e., that government may neither ban noncommercial billboards in places where commercial billboards are permitted, nor discriminate between different types of noncommercial speech. To the contrary, the Court in Discovery Network emphasized its animosity towards underinclusive restric- tions of protected speech -- the very constitutional infir- mity of the statute from which the
18 F.3d 1043, *1088; 1994 U.S. App. LEXIS 4386, **155
Page 54
*1088 Cincinnati regulation in Discovery Network, the San Diego ordinance in Metromedia, and the Delaware statute at issue in this case all suffer. Discovery Network teaches that government may not distinguish between commercial and noncommercial offsite speech that cause the same aesthetic and safety concerns. n66 If such dis- parate treatment is unconstitutional as between commer- cial and noncommercial offsite speech, it follows a for- tiori that it is unconstitutional as between onsite commer- cial speech (e.g., site-specific "for sale" signs) and other protected speech (e.g., non-"context-sensitive" political campaign signs) that also cause the same aesthetic and safety concerns.
n66 In Discovery Network, the Court held that there was no close fit between a ban on newsracks containing commercial handbills, which did not ap- ply to newsracks containing newspapers, and the City of Cincinnati's safety and aesthetics interests.
113 S. Ct. at 1511. The Court rejected the city's contention that the asserted governmental interests justified the discrimination against commercial use of newsracks that were no more harmful than per- mitted noncommercial newsracks. Because the ban was not content-neutral, its enforcement could not constitute a valid time, place and manner restriction of protected speech.
The Discovery Network Court explicitly distin- guished Metromedia on the grounds that the regu- lation at issue in Metromedia did not draw a dis- tinction between commercial and noncommercial offsite billboards; with a few exceptions, the regu- lation in Metromedia (and Chapter 11 in this case) essentially banned all offsite billboards.
**156
V.
Because the challenged Delaware statute, even as con- strued by the majority, does not allow any political or other non-commercial message to be placed on a conforming commercial sign, it effectively prefers commercial speech
over noncommercial speech. Because it allows certain noncommercial messages and prohibits others, without any justification unrelated to the content of those mes- sages, it is impermissibly content-based. For these rea- sons, it is unconstitutional under Metromedia.
Like the majority, see ante at (typescript at 68), I also believe that a statute that restricts not only signs on public property, but on private property as well, runs afoul of the First Amendment. See Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 811,
80 L. Ed. 2d 772, 104 S. Ct. 2118 (1984) (upholding or- dinance banning signs on public but not private property because "the private citizen's interest in controlling the use of his own property justifies the disparate treatment"); see also Burson v. Freeman, 112 S. Ct. at 1857-58 (complete ban on temporary, **157 political signs within 100 yards of polling place justified only by two compelling government interests of protecting the right of citizens to vote freely for candidates of their choice and conducting election with reliability and integrity). Unlike the major- ity, I would strike down Chapter 11 under Metromedia for this reason alone. See Metromedia, 453 U.S. at 513
(plurality opinion) (noting that government may not pro- hibit occupant "from displaying its own ideas or those of others"); see also Matthews, 764 F.2d at 60 (striking down town bylaw that prohibited posting of political signs on residential property but permitted posting of certain com- mercial signs).
Thus, contrary to the majority, I would affirm the judg- ment of the district court striking down Chapter 11 in its entirety, although I would allow directional and warn- ing signs to be excepted from a general prohibition. n67
Accordingly, I respectfully dissent.
n67 As I noted earlier, I concur in reversing the judgment of the district court denying the indi- vidual defendants' motions for summary judgment based on their assertions of qualified immunity.
**158
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