Georgia Outdoor Advertising, Inc. v. City of Waynesville

833 F.2d 43
Court of Appeals for the Fourth Circuit·Decided November 13, 1987·No. No. 86-1267·Published·Cited by 14 cases

Opinion

WIDENER, Circuit Judge:

The plaintiff, Georgia Outdoor Advertising, Inc., appeals from a grant of summary judgment in favor of the defendant, the City of Waynesville. We affirm the district court’s decision in part and remand the case for further proceedings.

The plaintiff erects and maintains a number of outdoor advertising signs within the City of Waynesville and within one mile outside of Waynesville, the area covered by the ordinance in question. In the most general terms, plaintiff leases the right to erect and maintain a sign from a landowner for a term of years and then leases the sign to advertisers. Most of the advertising relates to trade and custom, but a small part relates to non-commercial advertising such as churches, etc. The terms of the leases between the landowners and the plaintiff vary but may extend for a period of 10 years. An affidavit in the record discloses that the life of the signs erected may be as long as 30 to 50 years.

Plaintiff brought this action to have an ordinance of the City of Waynesville enjoined as unconstitutional. The ordinance in question, adopted November 26, 1985, effectively outlaws all its billboards within the jurisdiction of the City.1 The plaintiff attacks this ordinance on four basic fronts: (1) the ordinance violates the First Amendment free speech rights of the plaintiff and the plaintiff’s clients by outlawing a protected form of expression, commercial off-premise advertising, (2) the stated objectives of the ordinance (traffic safety and aesthetics) are neither rationally related to the ordinance nor adequate to support its constitutionality; (3) the ordinance violates due process of law by causing the total destruction of plaintiff’s business; and (4) the ordinance constitutes a taking of private property for public use without just compensation.

The ordinance at issue here is far-reaching, and there is little doubt that it will ultimately destroy plaintiff’s business within the City of Waynesville’s zoning jurisdic[45] tion. The issues we address, however, have already been considered in cases that constitute persuasive or controlling precedent, and we take up each of them in turn.

Plaintiff’s principal argument against the constitutionality of the Waynesville ordinance is that it unduly infringes upon the free speech rights of plaintiff and its advertising customers. Obviously, any law that has as its purpose the complete prohibition of a particular form of speech must be carefully scrutinized.2 The distinct speech interests implicated here are the interest of those seeking to convey commercial messages on billboards and the interest of those seeking to communicate non-commercial messages. With reference to that point, the Supreme Court has frequently stated that commercial speech is not entitled to as much protection as non-commercial speech, see e.g., Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 562-63, 100 S.Ct. 2343, 2349-50, 65 L.Ed.2d 341 (1980), and in Metromedia, Inc. v. San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981), the Court established that the rights of those who seek to convey commercial messages are not unconstitutionally infringed by a law banning all offsite billboards.

Metromedia was a decision striking down a San Diego, California billboard ordinance very similar to the one before us today.3 Four justices agreed, in the opinion authored by Justice White, that the ordinance was unconstitutional because it accorded more protection to commercial speech than to non-commercial speech.4 Justices Brennan and Blackmun found the ordinance invalid because it totally prohibited a protected form of speech without sufficient justification and without being narrowly drawn. The three dissenting opinions by Justice Stevens, Chief Justice Burger, and Justice (now Chief Justice) Rehnquist each generally concluded that a municipality may constitutionally ban all billboards, and that the allowing of some commercial signs did not render the ordinance infirm.

The four justices of the plurality found that “insofar as it regulates commercial speech the San Diego ordinance meets the constitutional requirements of Central Hudson.” 453 U.S. at 512, 101 S.Ct. at 2895. Since three other justices found no constitutional defect in the San Diego ordinance, it would appear that this statement of the plurality is now the law. The district court was therefore correct in determining that the Waynesville ordinance likewise did not unconstitutionally infringe the right of commercial speech.

Although Metromedia held the San Diego ordinance invalid because it preferred commercial to non-commercial speech (noncommercial speech by billboard was banned, both on-site and off), the Court did not discuss the extent to which off-premise, non-commercial billboards could be banned. However, this circuit has since construed Metromedia adversely to plaintiff’s remaining First Amendment arguments. In Major Media of the Southeast, Inc. v. City of Raleigh, 792 F.2d 1269 (4th Cir.1986), this court found that the Supreme Court “determined in Metromedia ... that a city may justifiably prohibit all off-premise signs or billboards for aesthetic and safety reasons _”5 Id. at 1272. Therefore, [46] since all off-premise billboards could constitutionally be outlawed in Waynesville, the remaining basis for a First Amendment challenge to this ordinance is that it may prefer commercial to non-commercial speech.6

As noted above, the Waynesville ordinance is virtually identical to the San Diego ordinance in most significant aspects. Both effect virtually a complete ban on off-premise outdoor advertising, while allowing on-premise commercial advertising. The Waynesville ordinance varies from the San Diego ordinance in one crucial way, however. The Waynesville ordinance also contains the following provision: “Any sign authorized in this ordinance is allowed to contain non-commercial copy in lieu of other copy.” The Raleigh ordinance addressed in Major Media contained an almost identical clause.7 The Major Media court held that such a clause, effectively allowing any non-commercial message to be placed on a conforming sign, removed the preference toward commercial speech that was fatal to the San Diego ordinance. 792 F.2d at 1272. The court also held that the possibility that owners of on-premise signs would not allow their signs to be used for non-commercial messages was not constitutionally significant, since that would “derive from the decisions of the individual property owners ... [and not] the Raleigh ordinance itself.” 792 F.2d at 1273. The same result must be reached in this case.

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Georgia Outdoor Advertising, Inc. v. City of Waynesville, 833 F.2d 43 (4th Cir. 1987).

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