USCA1 Opinion
United States Court of Appeals
For the First Circuit
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No. 95-2324
ACKERLEY COMMUNICATIONS OF MASSACHUSETTS, INC.,
Plaintiff, Appellant,
v.
CITY OF CAMBRIDGE, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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Before
Cyr, Circuit Judge,
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Coffin and Bownes, Senior Circuit Judges.
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Andrew L. Frey with whom Eric M. Rubin, Walter E. Diercks,
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Kenneth S. Geller, Charles Rothfeld, George A. Berman, Steven S.
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Broadley, and Joseph S. Berman were on brief for appellant.
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Peter L. Koff with whom Arthur J. Goldberg was on brief for
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appellees.
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July 10, 1996
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COFFIN, Senior Circuit Judge. We are asked in this appeal
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to sort out the constitutional principles at play when a
municipality, in pursuit of improved aesthetics, regulates signs
and billboards. In many respects, this is a case of deja vu.
Seven years ago, the same plaintiff successfully challenged a
similar sign ordinance as violative of the First Amendment. See
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Ackerley Communications of Massachusetts v. City of Somerville,
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878 F.2d 513 (1st Cir. 1989). Although the defending
municipality has changed -- Cambridge now replaces its neighbor
Somerville -- the central issue remains the same: the validity of
distinctions drawn between "onsite" and "offsite" signs and
between commercial and noncommercial messages.1 With
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1 We repeat our explanation of the onsite/offsite
distinction from City of Somerville, 878 F.2d at 513 n.1:
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An onsite sign carries a message that bears some
relationship to the activities conducted on the
premises where the sign is located. For example, an
onsite sign may simply identify a business or agency
("Joe's Hardware" or "YMCA"), or it may advertise a
product or service available at that location
("Budweiser Beer" at Parise's Cafe or child care at the
Lutheran Church). Depending upon the business or
agency, the message on the sign may be deemed either
commercial or noncommercial. An offsite sign -- the
category into which most billboards fit -- carries a
message unrelated to its particular location. These
signs also may display either commercial or
noncommercial messages. For example, an offsite sign
may advertise "Great Gifts at Kappy's Liquors," with
Kappy's Liquors being located at some distance from the
sign, or it may say "No one should be left out in the
cold. Write: Citizens Energy Corp."
Thus, the onsite/offsite distinction is not a
distinction between signs attached to buildings and
free standing signs. An offsite sign may be located on
a building rooftop, but because the product, good, or
service it advertises is not available at the sign's
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appreciation for the difficulties faced by municipalities in this
complicated area, we nonetheless conclude that the First
Amendment bars enforcement of the challenged ordinance in the
circumstances present here.
I. Factual Background
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Plaintiff Ackerley Communications is a Massachusetts
billboard company that has operated an outdoor advertising
business for more than 100 years. In the City of Cambridge, it
maintains 46 signs on 32 separate structures. All of these
billboards became nonconforming when Cambridge amended a zoning
ordinance in 1991 to tighten the restrictions on the height,
size, number and location of signs that may be displayed in the
city.2 Ackerley, hoping to find protection in the First
Amendment, has displayed only noncommercial messages since the
amended ordinance went into effect.
The ordinance itself makes no distinctions based on the
messages displayed on the signs. Such differential protection is
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location, it is classified as offsite. For example, if
a sign advertising the products available at Joe's
Hardware is located atop the Parise Cafe building,
Joe's sign is offsite.
In this opinion, we use the terms on-premise and off-premise
interchangeably with onsite and offsite.
2 Article 7.000 of the Zoning Ordinances of the City of
Cambridge provides, inter alia, that four categories of
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nonconforming signs must be removed within four years from the
statute's enactment, or from the first date that the sign became
nonconforming. The signs required to be removed are those on
rooftops, freestanding signs exceeding 30 square feet, wall signs
exceeding 60 square feet and projecting signs exceeding 10 square
feet. 7.18.1. All of Ackerley's signs fall into at least one
of these categories.
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conferred instead by a state statute, the Massachusetts Zoning
Act, Mass. Gen. L. ch. 40A, 6, which mandates grandfather
protection for all nonconforming uses -- including signs -- that
are in existence at the time a zoning ordinance is enacted or
amended. The statute excludes from such protection, however,
billboards, signs and other advertising devices subject to the
jurisdiction of the Massachusetts Outdoor Advertising Board
(OAB). The OAB regulates so-called "off-premise" signs.3
The combined effect of the local ordinance and state law,
therefore, is to protect signs that do not conform to the amended
Cambridge ordinance only if they carry onsite messages. None of
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Ackerley's billboards are grandfathered under this scheme because
all of its messages are offsite ones -- i.e., they are unrelated
to the property on which they sit. Thus, Ackerley's 46
noncommercial, off-premises messages must be taken down while a
large number of nonconforming commercial signs are protected.
Cambridge officials recognized the limited nature of the
grandfather provision, and, indeed, endorsed its preference for
onsite signs, finding:
Nonconforming off-premise signs, which traditionally
have been used primarily to advertise commercial goods
and services not available on the same premises, have a
significantly greater adverse aesthetic impact than on
premises signs because of their larger sizes, greater
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3 Ackerley accurately points out that the descriptive terms
"off-premise" and "on-premise" can be misleading when used to
modify the word "sign", since the applicable category is
determined not by a sign's location, but by its message. As
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noted supra, at note 1, a sign attached to a building can carry
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either off-premise or on-premise messages.
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heights, less attractive appearances, and/or more
intrusive locations.
Zoning Ordinance Article 7.000, 7.11.1(F). The Findings
section of the ordinance further states that "[t]he public
interest is served by use of signs by businesses and services to
identify their premises, or the products or services there
available, or to display noncommercial messages." Id. at (G).
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The importance of noncommercial messages is reflected in a
"substitution provision" in the ordinance, which provides that
"[a]ny sign permitted under this Article may contain, in lieu of
or in addition to any other copy, any noncommercial message."
Article 7.000, 7.17.
Consistent with this scheme, when the ordinance's four-year
grace period expired in 1995, Cambridge informed Ackerley that
its signs would have to come down. Ackerley sought a preliminary
injunction barring enforcement of the ordinance, arguing that it
violates the First Amendment because it favors nonconforming
signs that carry commercial messages over similar signs that
carry noncommercial messages.4 The district court denied
injunctive relief. It found that Ackerley had not demonstrated a
likelihood of success on the merits because the ordinance "in
effect[] distinguishes between on-site and off-site signs, which
is permissible, and not between commercial and non-commercial
messages."
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4 Ackerley also alleged a Fifth Amendment takings claim,
which is not before us at this time.
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Ackerley consequently filed this appeal, arguing that the
district court misapplied relevant First Amendment law. It
contends that the Supreme Court's decision in Metromedia, Inc. v.
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San Diego, 453 U.S. 490 (1981), and our own decision in City of
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Somerville, 878 F.2d at 513, require a conclusion that the
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Cambridge ordinance is unconstitutional as applied to Ackerley's
signs.
Although this case comes to us as an appeal of a denial of
preliminary relief, both parties at oral argument urged us to
resolve the dispute on its merits because the issue is purely a
legal one that needs no further record development. We accept
the invitation to make the ultimate determination, and proceed
with our analysis from that perspective.
II. Discussion
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A. Background
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The City of Cambridge has been working for a number of years
to improve its aesthetic environment through the increasingly
restrictive regulation of signs. The 1991 revisions to its sign
ordinance for the first time required removal of certain non-
conforming signs. Although the ordinance affects many more signs
than just the large, visually demanding -- some would say
offensive -- ones that most of us would identify as billboards, a
comprehensive report prepared in connection with the revised
ordinance reveals that they are the city's most pressing
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concern.5 Billboards typically carry offsite messages. The
state's grandfathering provision -- exempting nonconforming on-
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premise signs -- therefore nicely dovetails with Cambridge's
priority to eliminate billboards as soon as possible.6 Onsite
signs, most of which are business signs, may stay; offsite signs
-- many of which at the moment in Cambridge are billboards
carrying noncommercial messages -- must go.
Ackerley offers two primary reasons why this scheme violates
the First Amendment. First, it claims that the Cambridge
ordinance directly conflicts with our decision in City of
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5 The report on the Cambridge sign environment concluded
that off-premise signs -- a term it equated with billboards --
were more troubling than onsite signs because, inter alia, they
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dominate the surrounding environment, both visually and
physically, and are not likely to be removed except as the result
of a total redevelopment of the site on which they are found.
The report found that on-premise signs, in contrast, have a more
"limited and contained" aesthetic impact because "they are placed
low on their host buildings, they are obscured from afar by
street trees and almost without exception they do not approach
the sheer size and dominance of off-premise signs." In addition,
the report stated that onsite signs were likely to be less
permanent, since businesses are likely to change hands and new
signs would not be grandfathered.
6 For purposes of our discussion, we treat the state
grandfathering provision as part-and-parcel of the Cambridge
ordinance, and certain of our references to "the Cambridge
ordinance" will assume that the grandfathering provision is
contained within it. Indeed, as noted supra, at pages 4-5, the
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ordinance seems to incorporate the state grandfather provision as
part of its regulatory scheme.
We emphasize that the validity of the state statute, as an
independent matter, is not a question before us. The issue we
must decide is whether Cambridge may enforce its sign ordinance
to require Ackerley to remove its billboards. As Cambridge's
counsel acknowledged at oral argument, the impact of the state
grandfathering provision is relevant to that inquiry regardless
of the statute's constitutionality.
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Somerville, where we found the ordinance to be impermissible
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based on a grandfathering provision that exempted only signs that
had carried no offsite commercial speech during the year
preceding the ordinance's enactment. We held that "[i]t is
without question that the government may not impose a penalty --
in this case, denying the right to continue speaking by means of
nonconforming signs -- because of a person's constitutionally
protected past speech." 878 F.2d at 519.
Ackerley contends that Cambridge's ordinance, when applied
in light of the state statute, suffers from essentially the same
flaw: the right to use nonconforming signs in the future to
express noncommercial messages is given by the substitution
provision only to certain speakers, based on their past speech --
in this instance, to those who were displaying onsite messages on
the day the ordinance was enacted. Ackerley maintains that
distributing the future right to speak in a certain way (i.e.,
through large, nonconforming signs) based on the content of
earlier speech is impermissible whether the restriction looks
back a year in time, as it did in Somerville, or only a day.
This must be so, it asserts, because the practical effect of the
two ordinances is identical; both reserve the right to display
noncommercial messages primarily to a limited category of
speakers, business owners.
Ackerley's second theory is that the ordinance is invalid
because it imposes an impermissible content-based restriction on
speech: whether a sign may remain is determined by the message it
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carries. Because most content-based restrictions are
presumptively invalid, see City of Ladue v. Gilleo, 114 S. Ct.
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2038, 2047 (1994) (O'Connor, J., concurring); National
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Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 736 (1st Cir.
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1995), and subject to strict scrutiny, even Cambridge seems to
acknowledge that, if this traditional content-based inquiry
applies, its ordinance would fail. See Burson v. Freeman, 504
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U.S. 191, 211 (1992) ("[I]t is the rare case in which . . . a law
survives strict scrutiny.").
Cambridge responds that enforcement of its ordinance is not
inconsistent with City of Somerville because the regulation does
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not use "past speech" as the distinguishing criterion. In its
view, the grandfather provision permissibly distinguishes between
categories of signs (onsite vs. offsite), and such a distinction
inevitably must relate to the signs as they existed at a
particular point in time. Cambridge further contends that its
ordinance is a valid content-neutral regulation that does not
require strict scrutiny.
Under traditional First Amendment analysis, we probably
should address as a threshold matter whether the onsite/offsite
grandfathering restriction is a content-based regulation that
triggers strict scrutiny.7 See City of Ladue, 114 S. Ct. at
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7 In "commonsense" terms, the distinction surely is content-
based because determining whether a sign may stay up or must come
down requires consideration of the message it carries. The
Supreme Court made such an observation in City of Cincinnati v.
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Discovery Network, Inc., 113 S. Ct. 1505, 1516-17 (1993), which
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involved a city policy banning newsracks carrying commercial
handbills but not those carrying newspapers. The Court noted:
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2047 (O'Connor, J., concurring) ("The normal inquiry that our
doctrine dictates is, first, to determine whether a regulation is
content-based or content-neutral, and then, based on the answer
to that question, to apply the proper level of scrutiny.");
National Amusements, 43 F.3d at 736. We choose to sidestep that
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difficult question, however, because we conclude that the
Cambridge scheme suffers from two readily identifiable First
Amendment flaws that bar its enforcement.
B. Distinguishing Among Categories of Noncommercial Speech
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Under the city's newsrack policy, whether any
particular newsrack falls within the ban is determined
by the content of the publication resting inside that
newsrack. Thus, by any commonsense understanding of
the term, the ban in this case is "content-based."
See also National Amusements, Inc. v. Town of Dedham, 43 F.3d
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731, 738 (1st Cir. 1995); Whitton v. City of Gladstone, Mo., 54
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F.3d 1400, 1403-04 (8th Cir. 1995) ("The Supreme Court has held
that a restriction on speech is content-based when the message
conveyed determines whether the speech is subject to the
restriction.").
(cont'd)
(7 cont'd)
Cambridge acknowledges that the onsite/offsite distinction
indirectly has a content-based effect because most on-premise
signs are commercial in nature and most noncommercial messages
are off-premise. In Cambridge, the disadvantage to noncommercial
speech is magnified because of Ackerley's decision to change all
of its billboards to noncommercial messages.
Several courts, however, have found the offsite/onsite
distinction to be essentially content-neutral, at least for the
purpose of determining the correct standard. See, e.g., Rappa v.
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New Castle County, 18 F.3d 1043, 1067 (3d Cir. 1994); Messer v.
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City of Douglasville, Ga., 975 F.2d 1505, 1509 (11th Cir. 1992).
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In Rappa, a divided court noted that "[f]avoring onsite over off-
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site speech probably leads to the effect of favoring commercial
speech over non-commercial speech as most conspicuous onsite
speech is probably commercial, but this effect is too attenuated
for us to take into account." 18 F.3d at 1056 n.19.
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While not facially preferring commercial messages to
noncommercial ones -- a preference barred by Metromedia -- the
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Cambridge scheme does draw a line between two types of
noncommercial speech -- onsite and offsite messages.8 This line
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has the effect of disadvantaging the category of noncommercial
speech that is probably the most highly protected: the expression
of ideas. The only signs containing noncommercial messages that
are exempted are those relating to the premises on which they
stand, which inevitably will mean signs identifying nonprofit
institutions.
In its report, the city emphasizes the important role that
on-premise signs play "in promoting activities important to the
well-being of the City." But with rare exceptions, the First
Amendment does not permit Cambridge to value certain types of
noncommercial speech more highly than others,9 particularly when
the speech disfavored includes some -- like political speech --
that is at the core of the First Amendment's value system.10
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8 Ackerley does not contest the city's authority to require
removal of nonconforming signs that display offsite commercial
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messages. See Metromedia, Inc. v. San Diego, 453 U.S. 490, 512
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(1981) (a city lawfully may exempt signs bearing onsite
commercial messages without also exempting those bearing offsite
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commercial messages).
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9 For example, an ordinance that exempted only highway speed
and directional signs, and municipal street signs, probably could
survive strict scrutiny. See John Donnelly & Sons v. Campbell,
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639 F.2d 6, 9 (1st Cir. 1980).
10 An affidavit from Ackerley's public affairs director
through mid-1994 states that the material displayed on Ackerley's
signs since the 1991 ordinance revisions has included election
campaign information for candidates for City Council and County
Commissioner, artwork created by Cambridge students, promotion of
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See Metromedia, 453 U.S. at 514-15 ("Although the city may
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distinguish between the relative value of different categories of
commercial speech, the city does not have the same range of
choice in the area of noncommercial speech to evaluate the
strength of, or distinguish between, various communicative
interests. . . . With respect to noncommercial speech, the city
may not choose the appropriate subjects for public discourse . .
. ."); see also Rappa v. New Castle County, 18 F.3d 1043, 1063
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(3d Cir. 1994) ("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 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."); National Advertising Co. v.
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City of Orange, 861 F.2d 246, 248-49 (9th Cir. 1988).11
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Cambridge does not suggest that there is an aesthetic
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difference between a "Remember to Vote" message and one
announcing the location of the public library; it simply
maintains that the physical characteristics of "Public Library"
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a Cambridge literacy program, information about a Cambridge voter
registration drive, and public service announcements about such
topics as food stamps, the campaign against drunk driving, and
AIDS prevention.
11 The court in National Advertising invalidated the
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ordinance at issue because of exemptions for specific types of
noncommercial speech, while reserving judgment on whether a
categorical limitation of noncommercial messages to onsite
activities would be constitutional. 861 F.2d at 249 & n.3.
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signs are more likely to be less objectionable because they tend
to be smaller and less obtrusive than most signs carrying offsite
messages. The ordinance, however, gives protection based on the
message and not the physical characteristics, and it is that
distinction that the city must justify.12 Perhaps if a total
ban of signs were at issue, signs identifying buildings would be
a permissible limited exception because, like traffic and safety
signs, they would serve a substantial need that could not be met
in any other way. In this case, however, we consider not a total
ban, but only restrictions on size, style and location. The
identification interest for nonconforming signs cannot satisfy
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even intermediate scrutiny when the ordinance presumes that
identification can be accomplished adequately in the future by
smaller signs.
C. The City of Somerville Problem: Penalizing Past Speech
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The regulation's second flaw arises from the manner in which
it seeks to protect ideological speech. The substitution
provision guarantees that noncommercial messages may be placed on
any exempted sign. What this means, however, is that Cambridge
is choosing which speakers may in the future display offsite
noncommercial messages on nonconforming signs in the way City of
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Somerville held was impermissible -- by looking to past speech.
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12 Indeed, although the city's sign report emphasized that,
"almost without exception," on-premise signs have less of a
negative visual and aesthetic impact than billboards, the report
acknowledged that "[m]any on-premise signs are of course
disappointing" and "can at times be too large, too high, too
visually loud."
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Only those speakers whose signs displayed onsite messages on the
day of the ordinance's enactment may substitute noncommercial
messages for the previous ones. We explored at some length in
City of Somerville the dangers of awarding future speech rights
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based on past speech. See 878 F.2d at 519-20.
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Although those dangers may seem less likely from the
Cambridge regulation because it does not, like Somerville's,
disqualify speakers based on only a single day's display of a
non-preferred message (i.e., offsite commercial) during the
course of a year, the Cambridge scheme's reliance on the date of
enactment nevertheless eliminates speakers from future access to
a particular medium based on their past choice of lawful speech.
If it is impermissible to assign future speech rights based on
the content of past speech, the amount of past speech does not
strike us as significant. The chilling effect that results from
linking future speech to past speech exists even if the pressure
to conform one's speech is compressed into a short time frame.
Moreover, the division drawn here between those who may and
may not use nonconforming signs in the future, for the most part,
isolates business and property owners as a privileged class. As
Cambridge freely acknowledges, onsite signs typically are
commercial in nature. Because the substitution provision gives
the right to display noncommercial messages on nonconforming
signs only to those individuals whose signs previously carried
onsite messages, the primary effect of the substitution provision
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is to give only commercial speakers the option of changing their
signs to noncommercial messages.
Giving an identifiable group virtually exclusive access to
the use of a medium is wholly inconsistent with First Amendment
principles; it is doubtful that the noncommercial messages of
interest to business owners would reflect as broad a cross-
section of viewpoints as might occur in a marketplace in which
every speaker has equal footing to speak.13 Indeed, the case
law makes it clear that even more problematic than the loss of
all noncommercial messages would be the selective preservation of
them. See Turner Broadcasting System, Inc. v. FCC, 114 S. Ct.
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2445, 2476 (1994) ("Under the First Amendment, it is normally not
within the government's power to decide who may speak and who may
not, at least on private property or in traditional public
fora.");14 Somerville, 878 F.2d at 518 ("Even if a complete ban
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13 It should be noted that the Cambridge ordinance does not
ban all noncommercial speech, except for that allowed on
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nonconforming signs by the substitution provision. The ordinance
also permits noncommercial messages on conforming signs, which
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are those that do not exceed ten square feet in area. At issue
here, however, is the selective grant of the right to speak
through the more effective medium of large, nonconforming signs.
14 The Court in Turner Broadcasting further noted that time,
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place and manner restrictions are permissible in large part
because they apply to all speakers. 114 S. Ct. at 2476. It
continued:
Laws that treat all speakers equally are relatively
poor tools for controlling public debate, and their
very generality creates a substantial political check
that prevents them from being unduly burdensome. Laws
that single out particular speakers are substantially
more dangerous, even when they do not draw explicit
content distinctions.
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on nonconforming signs would be permissible, we must consider
carefully the government's decision to pick and choose among the
speakers permitted to use such signs.") (citing and quoting First
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National Bank of Boston v. Bellotti, 435 U.S. 765, 784-85 (1978)
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("In the realm of protected speech, the legislature is
constitutionally disqualified from dictating . . . the speakers
who may address a public issue.")).
What made this case particularly difficult is that the
"offsite" label, in practical terms, embraces not only most
noncommercial signs but also most of the worst aesthetic
offenders. In addition, most offsite signs tend to display
commercial messages; Ackerley's present configuration in
Cambridge is a deliberate departure from its usual mixture of
messages (15% noncommercial) in order to place itself in the best
possible position to retain use of its sign faces. Limiting
grandfather protection to onsite signs thus is an effective means
of accomplishing the city's legitimate objective of improving
aesthetics, and typically would result in the loss primarily of
offsite commercial messages.
The fact remains, however, that the grandfathering benefit
is conferred in content-based terms that have no aesthetic
justification and effectively penalizes a category of speakers
based on their prior choice of message. In addition, nearly all
of the sign owners privileged to display offsite noncommercial
messages on nonconforming signs may be expected to share similar
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Id.
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views on certain matters of public interest. We hold that the
First Amendment does not allow Cambridge to achieve its aesthetic
objective by allocating the right to speak in this way.15
D. Remedial Option
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We recognize that our conclusion puts Cambridge in a
peculiar position because the content-based grandfathering
derives from state law. Relief from this disability condition is
beyond the scope of this court's power in this case. Any change
in state law probably must be left to the workings of the
political process. As we noted in Somerville, it is possible to
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construct a justifiable, content-neutral grandfather provision
that will advance the city's "dual objectives of eliminating most
billboards while giving substantial protection to onsite signs,"
878 F.2d at 522. A grandfather provision could, for example,
exclude from grandfathering all signs over a certain square
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15 The substitution provision does not cure the problem
because it does not affect eligibility for exemption. As in
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Somerville, a speaker's willingness to display noncommercial
messages in the future is insufficient to qualify that speaker's
signs for exemption; eligibility for future use is based on past
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speech.
Indeed, the substitution provision appears to lead to a
potentially bizarre operation of the sign ordinance. It seems
that Ackerley could have protected its billboards by changing
them to onsite commercial messages before the ordinance went into
effect. Although the onsite messages available for some of the
signs likely would be limited, creative possibilities -- such as
"No Trespassing" or "This Property Not for Sale" -- seem to
exist. The substitution provision apparently would have allowed
Ackerley to revert to noncommercial messages the next day. Such
a scheme strikes us as irrational. In addition, First Amendment
values are inverted: Ackerley's signs would be protected if they
contained (onsite) commercial messages but not if they contained
(offsite) noncommercial ones.
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footage on the ground that the larger the sign, the greater the
aesthetic harm.16 Indeed, Cambridge's own ordinance includes
such a provision.
III. Conclusion
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The Cambridge ordinance contains a severability provision
stating that, in the event some portion of it is declared
invalid, it is the City's intent that the remainder of the
ordinance continue in full force and effect. We do not in this
decision rule unlawful any particular section of the ordinance.
Rather, because the constitutional problem stems from the
interplay of the ordinance and the state provision, we hold only
that Cambridge may not require removal of signs displaying
noncommercial messages based on their exclusion from exemption
under the state provision.
Reversed and remanded.
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16 "Such an ordinance would fall directly within the time,
place, or manner category of speech regulations, and would need
to meet the three-part test established for content-neutral
regulations. See Heffron v. International Society for Krishna
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Consciousness, Inc., 452 U.S. 640, 647-48, 101 S. Ct. 2559, 2563-
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64, 69 L.Ed.2d 298 (1981)." City of Somerville, 878 F.2d at 522
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n.15.
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