Speech Interests Inherent in the Location of Billboards and Signs: A Method for Unweaving the Tangled Web of Metromedia) Inc. v. City of San Diego

I. INTRODUCTION Project Billboard is an anti-war movement that has gained attention by posting anti-war billboards in Times Square and other high-profile locations.1 With billboards portraying messages such as "Democracy is best taught by example, not by war," and "Stop intelligence failures. Fund public education."2 Project Billboard has sought to spread its anti-war message to the masses. Project Billboard's campaign against the Iraq War is a paradigmatic example of using billboards to advance a political agenda. Billboards serve a unique role in our society by placing both noncommercial messages, such as Project Billboard's anti-war message, and commercial messages before a captive audience.3 In so doing, billboards represent a major means of advertising both commercial and noncommercial messages. There are more than 500,000 billboards along major highways in America, with an annual increase of anywhere from 5000 to 15,000 billboards.4 Billboards are a $1.8 billion industry.5 Despite their utility in communicating commercial advertisements or political viewpoints to a mass audience, many critics see billboards as an eyesore to the community.6 Indeed, because billboards are "designed to stand out and apart from [their] surroundings," they create unique problems for governments enacting zoning and land-use ordinances-problems particularly affecting the aesthetics of the community.7 As a result of these unique problems, the Supreme Court has held that governments may regulate the noncommunicative aspects of billboards, i.e., their size and location.8 In so regulating, however, governments often run into First Amendment difficulties because they cannot regulate the noncommunicative aspects of billboards without affecting their communicative aspects-the speech that is located on the billboard. Conceptually, regulation of the noncommunicative aspects of a given medium of speech under a state's police powers is unrestrained so long as the constitutionally protected communicative aspects of the expression are unaffected; practically, however, regulation of the noncommunicative aspects of the medium always affects the communicative aspects. Thus, the free speech protections of the First Amendment are restraints on the police powers of the state to regulate mediums of communication.9 As a medium of communication, billboards and signs represent a unique and messy intersection of First Amendment free speech interests and government regulatory interests. Beginning with the Court's decision in Metromedia, Inc. v. City of San Diego, courts struggling to determine the parameters of the free speech/regulatory intersection of billboards and signs have had little success in formulating and applying consistent, predictable rules. The main hindrance to the development of clear rules to govern the intersection of free speech and zoning power involved with signs and billboards is the decision in Metromedia. itself: a badly fractured opinion that produced no majority.10 The justices failed to agree even on the framing of the issue, the standard of review, or the impact of the San Diego ordinance at issue." Because of the disunity among the Court, Metromedia "yielded only limited definitive principles to guide lower courts and municipalities, especially with regard to restrictions on non-commercial speech."12 Since Metromedia produced no majority opinion and consisted of five separate opinions that each suggested different lines of reasoning, courts and governments seeking a clear rule to apply to billboard regulations face a difficult constitutional quandary. Each government that seeks to enact an ordinance dealing with billboards and signs must consider the confusion of Metromedia and enact ordinances that somehow fit within the confusing guidelines of that decision, which is hardly a simple task. In addition, because Metromedia is applicable to any regulation that deals with signs in a community, including signs on personal property, the uncertainties of the decision do not end on the billboard street corner-rather, they extend as far as signs in one's living-room window. …