Warren E. Burger: We will hear arguments now in Wisconsin Department of Industry and so forth against Gould. Mr. Hoornstra, you may proceed whenever you are ready.
Charles D. Hoornstra: Mr. Chief Justice, and may it please the Court: We are here on an appeal from a decision of the Seventh Circuit. The decision struck as unconstitutional two Wisconsin statutes. The ground of the decision was pre-emption under the National Labor Relations Act. The statutes in question function together as a single unit to direct the purchasing agent of the State, when purchasing goods for the internal needs of the State, not to buy the goods of violators of the National Labor Relations Act. Those NLRA violators are defined by our statute as those who have been adjudicated by the federal courts three times in a five year period to have violated the NLRA. The consequence of being an NLRA violator as defined is that the purchasing agent may not acquire state goods from those violators for a three-year period. This directive aims only at the state purchasing decisions. It does not direct itself to the purchasing decisions of counties, municipalities or any other political subdivisions of the state.
Sandra Day O'Connor: Mr. Hoornstra, what is the purpose of the statute?
Charles D. Hoornstra: The purpose of the statute, Your Honor, is to spend the state's money on those employers that have exhibited a fidelity to the law and not to spend their money on those who have violated the law.
Sandra Day O'Connor: Did the state ever concede during the course of this litigation that the purpose of the statute was to deter private conduct, namely the conduct of the respondent and companies like it?
Charles D. Hoornstra: Yes. The other side of the same coin, namely, if we're going to reward those employers who are exemplary by giving them our business, we necessarily will decide that we do not want to encourage labor law violations by giving those violators our business. In either event, it remains a purchasing decision, where we are buying our goods for our purpose. To shape the issue with some more precision, we want to be able to make the choice, the choice consumers generally enjoy, the choice trading partners in the private sector enjoy when they are engaged in proprietary conduct, to make the decision. We want to give our business to those employers, those companies, that demonstrate the best in corporate America and we would rather not have to hire people who have violated the labor laws. The holding of the Seventh Circuit--
John Paul Stevens: May I ask on that point, General Hoornstra, does the Wisconsin Legislature define any other groups of ineligible suppliers other than this one?
Charles D. Hoornstra: --Yes, Your Honor. We have another statute that prohibits our purchasing department from buying the goods from those that have demonstrated a proclivity to discriminate against minorities, women, and a rather expanded class of protected persons within the equal rights area.
John Paul Stevens: Is that a similar pattern, if they've been found guilty on three separate occasions or something like that?
Charles D. Hoornstra: Basically, without that precise formulary, and without a deference to the federal machinery since we have co-equal jurisdiction to adjudicate that ourselves. But otherwise, in substance it is the same.
John Paul Stevens: What about violating something like the RICOH statute or, committed a lot of arsons or something like that?
Charles D. Hoornstra: We don't have anything as express, Your Honor, but I think I can say that our catchall statute of rewarding contracts to the lowest responsible bidder, we would regard as a catchall authorization so we don't have to deal with organized crime either. We choose not to, even though they might be the low bidder. Similarly with an employer--
John Paul Stevens: No other statutory category of ineligible suppliers?
Charles D. Hoornstra: --Correct, so we're prepared to lose money on a particular deal if we're dealing with discrimination. We might pay a higher price but as a matter of policy, when we're spending our money what do we want to encourage? Fidelity to law. We assert that--
Harry A. Blackmun: These unfair labor practices did not take place in Wisconsin, did they?
Charles D. Hoornstra: --That is correct.
Harry A. Blackmun: And were they by divisions of Gould that are no longer owned by Gould?
Charles D. Hoornstra: Yes.
Harry A. Blackmun: Are there situations under the Labor Act where an employer has to commit an unfair labor practice in order to get judicial review?
Charles D. Hoornstra: Yes.
Harry A. Blackmun: You are penalizing that particular employer, aren't you?
Charles D. Hoornstra: Well, permit me first to say that those questions, I believe, are all Fourteenth Amendment questions, not NLRA pre-emption questions. It may be that our statute is subject to infirmity for those reasons, but not for NLRA pre-emption. Let me turn more directly to the question of whether it's a penalty. In response to Justice O'Connor's question, I think we have to concede that the opposite side of the coin, of the same coin, of trying to reward the best in corporate America, is that you're going to have as an effect the same thing as though a penalty were exacted on the violator. The effect is the same only in this respect, and it's a narrow effect. That is that they are going to have a lost business profit-making opportunity, but it stops and it starts right there, and I think I can demonstrate that this is not a penalty within the remedial concept of the NLRA and the machinery of the NLRB by a number of different considerations. First is, Your Honor, that question wouldn't arise, were a private employer, a private company standing here rather than the State. It wouldn't arise because we instantly would discern a distinction between the economic pain that befalls someone who has lost a customer, from a regulatory penalty. We can admit the effect is the same in other respects, but there is that distinction, that we would say if a private employer were here, that is an economic pain, not a remedial penalty. Second, I think that as the holding of this Court in Camden crystallized the meaning of the market participant cases, insofar as the state does act as a proprietor or as a consumer, there can be... there can be no conflict or interference with the federal regulatory machinery. Further, this Court in the withdrawal of subsidization cases has held that a penalty is not involved if a sovereign state or the federal government withdraws subsidy for the exercise of even a fundamental constitutional right. I'm referring to the McRae v. Harris, Buckley, Regan line of cases. Now, obviously we are well within the circumference of that holding. First we are not refusing to subsidize the exercise of a fundamental constitutional right. We are simply declining to enter into a voluntary agreement. Second, there isn't a fundamental constitutional right involved here. There is, to be sure, a valued right, a very valued right, and that is the right of a consumer to make its choices. It is the right of a proprietor to choose its trading partner. And that is our right. Finally, in respect to the question, Justice Blackmun, whether it is a penalty, there is this very easy conceptual difference. We are not taking money from a particular company to put it into our treasury. That is what the gist of a penalty is. We are taking money from our treasury, and the question is which of two companies are we going to spend it on, and that's why we come back to the two sides of the coin analog I used earlier.
John Paul Stevens: Is that really a fair characterization, a choice between... you have a flat rule that even if there's only one supplier, you just can't buy the goods, independent of if there are a hundred, you can still just... it isn't choosing between two, is it?
Charles D. Hoornstra: That's true. I think--
John Paul Stevens: It's legislative prohibition, it's not an individual decision by a purchasing agent. Or, do I misunderstand?
Charles D. Hoornstra: --No, you understand correctly, Your Honor, and I think I understand the purport of your question. I think my response to your question as first framed is, our ordinary experiences, we ordinarily have a choice of two or 20 or 50, but you are right. If we were down to a single source supplier our statute would apply in that event as well.
Harry A. Blackmun: How long has Wisconsin had this statute?
Charles D. Hoornstra: It was passed in May of 1980.
Harry A. Blackmun: Is a statute of this kind fairly common among the other states?
Charles D. Hoornstra: No.
Harry A. Blackmun: What brought it about in Wisconsin?
Charles D. Hoornstra: I don't know. I would have to speculate on the political motives and of course, as Your Honor appreciates, we judge legislation and its purpose by what it says. It is an infrequent occurrence. There are some other parallels in other states, and I think its infrequency probably accounts for the fact that Congress has not had occasion to address this kind of conduct. But in explaining that, and admitting that, we are saying that Congress did not address it and that, of course, in any pre-emption case is the touchstone, did Congress address this conduct. We have two premises that underlie our basic argument. One, any private company could do exactly what we have done. It would be free under the National Labor Relations Act to do exactly what we have done. Any private consumer could make exactly this precise choice, and I believe that is conceded by the appellee. Second, the second premise is, the states enjoy the same rights as any private company when it's doing the same thing, namely making a proprietary choice or a consumer choice. There are two sources for this second premise, because that I want to dwell on inasmuch as the appellee does not concede it. First, the dormant Commerce Clause cases expressly have held that the states, when operating in the free market, may operate freely and as stated in Reeves specifically, evenhandedness as a matter of federalism, evenhandedness requires that states operate as free from federal constraint as a private company. So, simply as a general matter of our federalism, when we're doing exactly what the private sector regularly does and have on our proprietor hat, we have the same freedom.
William H. Rehnquist: Of course, that may be true under the dormant Commerce Clause and not true where Congress has affirmatively enacted a law such as the NLRA, I suppose.
Charles D. Hoornstra: Yes, sir. I come to my second source because of exactly that question. The next logical question is, that might be true as a general matter, but is it true in an NLRA situation, and I think the answer is yes. First, as noted, the private company could do this. Second, there is nothing on the face of the NLRA to distinguish the states acting as proprietors from the private companies. Third, I think this Court specifically has put the states in the position of the protected proprietor and the protected consumer in the NLRA itself. I have in mind as a lead case the 1959 decision of this Court, Plumbers versus Poor County, where one of our... which, incidentally, is a Wisconsin county, one of our counties was building a courthouse and it was victimized by what we call secondary boycott activity of unions. The question is, is the state or a political subdivision within that principle of secondary boycott law when it's trying to build its buildings, that it preserves its own freedom of choice of a trader, or is the state, because it's a state or a political subdivision removed from these protections of neutrals in the business economy who are to be free from this kind of union coercion. This Court clearly held that even though states and political subdivisions are not employers covered by the Act, and even though there is what we call the Garmon pre-emption doctrine, when it comes to preserving the freedom of choice that the secondary boycott law is all about, the states and the political subdivisions enjoy those same benefits. May I give this example to further illustrate that the states under the NLRA, Justice Rehnquist, enjoy the same prerogatives as though there weren't an NLRA when it comes to proprietary choices. Were Gould's union to appeal to the officials of the State of Wisconsin, please don't do business with Gould because we've got a union labor dispute, that would be protected activity by the union under this Court's Cervette doctrine going back 25 years now, I think. The reason it would be protected, and the union could appeal to Wisconsin not to do business with its employer, is because Wisconsin in that circumstance is in the position of a proprietor, a business person making a business choice, and that appeal could be made. Finally--
John Paul Stevens: Mr. Hoornstra, you surely don't contend the state can have the same latitude as a private purchaser in all its decisions on purchasing, do you?
Charles D. Hoornstra: --No, sir.
John Paul Stevens: Because they could say, we won't purchase from Baptists--
Charles D. Hoornstra: Absolutely. I'm happy for the opportunity to respond to that. Our point is very narrow, Justice Stevens. The Fourteenth Amendment inhibits all our decisions, even as a proprietor. That's why one of my early responses to Justice Blackmun's question was, those considerations he raised, we've got to meet under the Fourteenth Amendment but not under the NLRA.
John Paul Stevens: --What if they said, we won't purchase from any out of state companies?
Charles D. Hoornstra: I have a real problem with that under the privileges and--
John Paul Stevens: How about even under the Commerce Clause, for any companies that are engaged in interstate commerce--
Charles D. Hoornstra: --I think that would be a negative inhibition on Wisconsin under the Commerce Clause.
John Paul Stevens: --They don't really have the same freedom as a private purchaser?
Charles D. Hoornstra: That's correct. So, I want to come back to this point. We have a different set of inhibitions that will restrain us, that won't restrain a private company. But there is nothing restraining us from this decision, just as there is nothing restraining a private company from this decision, and it's this convergence of two distinct capacities that come together here.
Sandra Day O'Connor: Can the state decide that it won't purchase from any unionized company or employer?
Charles D. Hoornstra: The Second Circuit has said yes, and the other side of that coin, it said it can have contracts, the state can have a contract with union printers only. That, Your Honor, remains undecided, in my opinion, under the Fourteenth Amendment.
Sandra Day O'Connor: Well, under your view the state would be free to say, we will not buy from any employer whose employees belong to a union?
Charles D. Hoornstra: Under the NLRA, that's right. But I would have a First Amendment problem, being a state, because of freedom of association rights, and I'd have a Fourteenth Amendment problem but I don't think I'd have an NLRA problem. If I may approach this from the perspective of burdens and presumptions, I want to suggest to the Court that the appellee has the burden here of defending the Seventh Circuit's decision for these reasons. First, it is clear, I believe conceded, that a private company as a general matter could do exactly this and that as a general matter a state can do what a private company can do, absent a Fourteenth Amendment or First Amendment problem. That being so, and the intent of Congress always being the touchstone in an NLRA pre-emption case, the burden switches to my appellee friend to say where it is that Congress has single out the state for disparate treatment.
John Paul Stevens: Let me interrupt you again. Supposing Wisconsin had a statute and said, no private company in Wisconsin may buy from a labor law violator. And there's no objection to that, I suppose, except possibly pre-emption. He's been arguing the market participant at great length, but what... would you concede there would be pre-emption there?
Charles D. Hoornstra: I concede I have a problem defending that statute, that I wouldn't have--
John Paul Stevens: It would be a pre-emption problems, wouldn't it?
Charles D. Hoornstra: --Pardon?
John Paul Stevens: It would be a pre-emption problem?
Charles D. Hoornstra: Yes, yes.
John Paul Stevens: If there is pre-emption of that, why isn't there also pre-emption where you're the purchaser? Why is the state entitled to different treatment than the private purchaser?
Charles D. Hoornstra: Because in the circumstance you raised, the state is acting as a lawgiver.
John Paul Stevens: But what has that got to do with pre-emption? I understand that's a difference, but why is that difference related to the pre-emption issue, because you're asking, what did Congress intend.
Charles D. Hoornstra: Because the pre-emption issue... the pre-emption issue turns on where you've got conflicting regulations and when the state acts as a regulator, as a lawgiver in an area acted by Congress, that's what pre-emption is about.
Sandra Day O'Connor: But if the purpose of the statute is to deter private conduct, why doesn't that bring you in under the pre-emption? Now, if the state's purpose were to insure a steady supply from a supplier who wasn't involved in labor disputes, I could understand your argument. The state would be really concerned with its position as a purchaser. But, where the state concedes that its purpose is to regulate private activity and to deter certain behavior that is regulated in detail by the National Labor Relations Act, why isn't that different?
Charles D. Hoornstra: Because it's a spending power decision, and that's why I think the significance of this Court's statement in Camden cannot be underscored enough.
Sandra Day O'Connor: But the spending seems to be related to a regulatory purpose as opposed to a purpose devoted to assuring a certain source of supply.
Charles D. Hoornstra: The spending power cases, I submit, say that you may engage in a spending power decision which is not regulation, even though you're serving the same kind of purpose, so long as you're dealing with your buying power. One example--
Sandra Day O'Connor: You mean, under the dormant Commerce Clause context, and maybe it's different if you're dealing with the National Labor Relations Act pre-emption question.
Charles D. Hoornstra: --It might be, but if our touchstone is the intent of Congress to limit somebody's buying power in trying to influence the conduct of others, inasmuch... especially, I should say, since we're dealing with a sovereign prerogative of making policy choices for its people, the burden is pretty heavy simply as a matter of the principles of our federalism to show why Congress would want to say to a state, you have to deal with these law violators even if you don't want to. Federalism itself--
Sandra Day O'Connor: Except that Congress has set up a very broad, detailed Act in this labor field in which it has spelled out what the penalties are and it has structured the Act in such a way that an employer isn't always given an option whether the employer is to be a violator of the Act or not.
Charles D. Hoornstra: --That's true, and in no circumstance where those considerations apply do they apply to someone making a purchasing decision, a buying decision. We're talking about from whom we buy our goods with our money for our internal needs, and it's that narrow, and I think that makes a very decisive difference. I have no further argument to make. Thank you.
Warren E. Burger: Mr. Gangemi.
Columbus R. Gangemi, Jr.: Mr. Chief Justice, and may it please the Court: I would like to begin by directing my remarks to the questions posed by Justice O'Connor concerning the purpose of the state's enactment. In the briefs before this Court, I think the state has been somewhat less than clear with respect to what its purpose was in enacting the labor law violator debarment statutes in Wisconsin. Below, however, the state was quite clear with respect to what its purpose is and I would like to direct the Court's attention to the record in this case.
William H. Rehnquist: Do you really think it makes a lot of difference what the purpose of the state was, if we know what the effect of the statute is?
Columbus R. Gangemi, Jr.: In the final analysis, Justice Rehnquist, I agree with you that the purpose of the state is irrelevant if the effect is to interfere with the federal statutory scheme. I believe, however, that the purpose of the state is of some interest in determining whether or not there is any legitimate state interest in an area of deeply rooted local concern which is of some consequence under the pre-emption doctrine where the federal interest is only of peripheral concern.
William H. Rehnquist: And so, then it really turns on what sort of an argument the Assistant Attorney General for the State of Wisconsin makes to the Seventh Circuit?
Columbus R. Gangemi, Jr.: Insofar as that is a statement of the purpose of the statute, no, I do not... in the final analysis I agree with you that the purpose of the statute, the object of the statute, is irrelevant. It is the effect of the statute and its potential for interfering with the federal statutory scheme that is of, in the final analysis, of utmost importance under the supremacy clause.
Sandra Day O'Connor: Well, then, what if the state is concerned about having steady source of supply of whatever the product is that it's buying, and it doesn't want to buy from somebody who's engaged in labor disputes because it thinks there are going to be strikes and its source of supply might be cut off. Do you think the State is not free to say, I'll buy from "B" whose employees don't even belong to a union as opposed to "A" who has these problems?
Columbus R. Gangemi, Jr.: I believe it depends upon the object of the decision not to purchase. Where the state addresses--
Sandra Day O'Connor: Then it does make a difference what the purpose is, in contrast to what you've just been telling Justice Rehnquist? The purpose makes a difference, in your view?
Columbus R. Gangemi, Jr.: --It makes a difference only in those cases in which the interference is of a peripheral nature. I don't think in this case, regardless of what the purpose of the state would be, interference with the federal right of appeal which is one of the areas that we have addressed is so clear, so strong that regardless of what the state's actions would be in this case, I feel pre-emption is appropriate. But in the cases you have posited, which is a hypothetical case that has very little to do with this particular statute, were it not for the interference with the right of appeal, one could at least posit a legitimate state interest, legitimate state economic interest in the propensity towards participation in labor disputes. Here, of course, the state statute does not even permit such a classification. In this case Wisconsin statute does not on its face, or through any statement of purpose that we've heard so far, does not limit itself to situations in which an employer engages in a labor dispute where the labor dispute could be perceived by the state as interfering with the performance of the state contract. The Wisconsin labor law debarment statutes do not even address only labor disputes which result or could be perceived as resulting in an unreliable contractor because he has a history of labor disputes.
William H. Rehnquist: Mr. Gangemi, why can't the state adopt something of a prophylactic rule for something it considers a three-time loser in the area of labor law violations? "If you've done it this often, you're just so likely to have additional problems that we don't want to deal with you. "
Columbus R. Gangemi, Jr.: Because, Your Honor, the Winconsin statute addresses labor law violations, violation of federal law, qua violation of federal law. It does not at all address nor does it purport to address the underlying labor disputes that may have given rise to unfair labor practices. It makes no judgment with respect to whether those were the types of labor disputes that would... upon which the state could base a judgment that the contractor was unreliable, had a history of unreliability.
William H. Rehnquist: Why does it have to be that precise?
Columbus R. Gangemi, Jr.: I think it has to be that precise because there is a very definite interference with the federal statutory scheme.
William H. Rehnquist: How does it interfere with the federal statute? You said something about interfering with the federal right of appeal. How does it do that?
Columbus R. Gangemi, Jr.: Well, Your Honor, I believe it interferes with the federal right of appeal because this statute does not debar individuals who are unfair labor practice violators. This statute debars unfair labor practice violators who have appealed to a United States Court of Appeals and has lost. There are two ways in which an employer can seek review in the Court of Appeals. One is to directly appeal. The other approach is to allow the... is to decline to obey the Board's order which is not self-effectuated, and to allow the Board to proceed for enforcement before a court of appeals. The only difference in those two types of cases, of course, is that the Board in that case gets to choose the forum whereas in the former case the employer does. In both cases, I submit, that is the exercise of a right of appeal by the employer.
William H. Rehnquist: And you say Wisconsin statute penalizes the first but not the second?
Columbus R. Gangemi, Jr.: No, it penalizes the employer in both cases, Your Honor. If there is a subsequent adverse decision from a court of appeals, that is the only circumstance under which Wisconsin will debar. So, the classification that Wisconsin sets up is not that, we are not going to deal with unfair labor practice law violators, we are not... the classification they do set up is, we are not going to deal with unfair labor practice violators, violators of federal law, who have appealed to the United States Court of Appeals and who have lost.
William H. Rehnquist: Well, is your complaint, then, that Wisconsin doesn't also include people who have lost before the NLRB but don't appeal to the Court of Appeals?
Columbus R. Gangemi, Jr.: No, Your Honor.
William H. Rehnquist: What is your... what is your complaint as to this right of appeal business?
Columbus R. Gangemi, Jr.: At the time at which the employer must decide whether to seek review before the United States Court of Appeals, either directly by filing his appeal himself or indirectly by allowing... by refusing to obey the Board order and allow the Board to appeal the case to the court of appeals, a chilling effect sets in because the employer knows that if he does that and loses then he will be debarred by state contract, from state contracts.
William H. Rehnquist: If he either appeals himself or doesn't appeal and lets the board come against him, in either even he'll be debarred, won't he?
Columbus R. Gangemi, Jr.: That is right, Your Honor.
William H. Rehnquist: So, how does that in any way penalize his right to appeal? He's treated equally whether he appeals or doesn't.
Columbus R. Gangemi, Jr.: No, Your Honor. There are two circumstances under which... I believe I understand the point of confusion on my part. There are two circumstances under which the Board may seek review itself. One is where the employer declines to obey the Board's order. In that circumstance, that is the equivalent of the employer appealing himself. The only difference is that the Board gets to choose the forum. That's just the same as though the employer had appealed himself. The second circumstance under which the Board will seek court enforcement is even more interesting, I think. In that circumstance there are a limited number of occasions in which the General Counsel of the National Labor Relations Board will seek enforcement of a Board order, even when the employer is prepared to comply with that order. Now, if the General Counsel knows, if the General Counsel of the National Labor Relations Board knows that there are statutes like the Wisconsin statute, as they are in fact in Wisconsin, Michigan and a number of other states, knows that if he seeks a Court of Appeals decision, forcing the court order, that he can trigger one of the statutes. It gives him the power of debarment, a power that was expressly denied to him by Congress.
William H. Rehnquist: Well, your right to appeal point is different than your pre-emption point, isn't it?
Columbus R. Gangemi, Jr.: No, it isn't, Your Honor. I believe that there are two grounds for pre-emption. One is that it interferes with the federal right of appeal as set forth in Section 7 of the National Labor Relations Act. Our second basis for pre-emption is the fact that it imposes a penalty. Those are two independent bases on which we seek to have the statute pre-empted. We seek affirmance of the Seventh Circuit's decision in this case.
John Paul Stevens: May I just ask, since you paused, you started to tell us what the purpose for the statute was in the court of appeals. Have you told us? If you have, I'm not sure I--
Columbus R. Gangemi, Jr.: I wanted to underscore the statements of purpose of the State of Wisconsin below, which I think have not been really set forth in the briefs before this Court. Just a couple of examples, is the from the very beginning, defendants's brief in opposition to the motion for preliminary relief, which appears in the record at R-8, page 15, Wisconsin said that the Wisconsin statutes simply encourage obedience to law as federally adjudicated. Likewise, the defendant's brief in support of its motion for summary judgment which appears at R-22 states that: "The state has a deeply rooted policy of discouraging labor law violations, and the state, as a market participator in the purchase of the goods and products, can so restrict its purchases so as not to promote labor law violators as an exception to the National Labor Relations Act pre-emption. " Again, 18 of this document... "It will not make purchases from flagrant labor law violators in promotion of its legitimate stated interest of dealing only with companies in compliance with federal rulings. " "Wisconsin is not engaging in state regulation of private labor conduct but is merely seeking to influence private conduct already prescribed by federal labor policy. " The underscoring of "influence private conduct" is Wisconsin's. And finally, "Wisconsin has a long history of fostering labor relations consistent with the goals of the National Labor Relations Act, and if in its wisdom the Legislature determined that the state should not make purchases from frequent labor law violators, that is the state's prerogative. " Most telling was the brief in opposition to the plaintiff's notion for summary judgment which appears at R-24. At page 16 of that document Wisconsin said, explaining why it was not bound by what the Congress had done in rejecting penalties under the statute, it said: "Whether Wisconsin was wise in its policy of enacting state debarment procedures for its contracts is not relevant here. " The fact is that its views are different from Congress's on this matter. I think it's obvious, therefore, that the purpose of this statute is not merely the state declining to do business. It has to be recognized that the purpose of that declining to do business is not some legitimate state economic interest but merely to seek enforcement of federal law. This is also clear from the statute itself, again addressing myself to Justice O'Connor's questions and points. This statute is not limited to current labor disputes between an employer and a union where the state makes the judgment that this labor dispute will interfere with the performance of the contract. Thus, the state in that type of situation could make the judgment that the labor dispute might affect performance and therefore the state would have a legitimate economic interest in the statute... in the labor dispute which may underpin the statutory violation.
Sandra Day O'Connor: --In your view, could the state adopt a policy of honoring every lawful union request to boycott the products of an employer whose employees are on strike, just make that a state policy?
Columbus R. Gangemi, Jr.: I do not believe that it could be made a state policy. I think there is a world of difference between the situation that Mr. Hoornstra posits, where because of a particular labor dispute between a union and an employer, the union members have a free speech right to appeal to the state, to cease doing business with the employer. That is a far cry from enacting a statute which prohibits doing business with a particular classification of employer. I suggest that that is more like Section 8-E of the National Labor Relations Act which prohibits private traders from entering into agreements with the union, to cease doing business with some third party. That situation is very much akin, I think, to the passage of a statute which prohibits the dealing with a particular classification of employers. And what does the state tell us when we mention Section 8-E under the National Labor Relations Act? It says, "We are a state. " "We are exempt from the National Labor Relations Act. " The state is trying to have its cake and eat it too. On the one hand it says it is a private trader and on the other hand it hides behind the fact that it is a state and therefore exempt from the National Labor Relations Act.
William H. Rehnquist: Mr. Gangemi, what if under Justice Stevens' hypothesis put to General Hoornstra, the State of Wisconsin has a statute prohibiting and contracts for supplies with any firms who have been convicted of violating RICOH. Would you say that is pre-empted?
Columbus R. Gangemi, Jr.: I am not familiar with the pre-emptive... precedents on pre-emption of RICOH. I only--
William H. Rehnquist: I'm not sure there are any.
Columbus R. Gangemi, Jr.: --I don't think there are. It depends on whether or not the RICOH legislative scheme was supposed to provide an exclusive remedy, an exclusive federal regulation of the types of violations that constitute a violation of RICOH. The National Labor Relations Act is different. Let's assume that RICOH... strike that. The National Labor Relations Act is an extensive and complex, integrated regulatory scheme established by the federal government in which the federal government decided to occupy the field, this Court has held time and again, in order to avoid these local attitudes and local approaches to labor problems and labor disputes. Therefore, the states have repeatedly been held not to have a right to interfere with the federal statutory scheme.
William H. Rehnquist: But we've never extended that to simply purchasing by a state as opposed to regulating, have we?
Columbus R. Gangemi, Jr.: I believe this Court has made it quite clear under, first of all McCulloch with respect to pre-emption generally, McCulloch versus Maryland, and Garment under the labor law pre-emption. I believe this Court has made it quite clear that the method or the mode adopted is of absolutely no relevance as to whether or not there should be pre-emption because the issue is not whether the state uses a particular method or mode. The question is whether that method or mode, regardless of what it is, interferes with the statutory scheme established by the federal government. In Garment, for example, the Court in that case was presented with a situation in which the State of California merely sought to provide civil damage remedy for illegal picketing, that which was admittedly illegal under the National Labor Relations Act.
William H. Rehnquist: But that's a form of the state regulating a labor activity.
Columbus R. Gangemi, Jr.: All right. I believe that there is no difference, however, Your Honor, between what the state would like to call participation in the market and regulation in the final analysis. Let us address the market participant exception because I think it becomes clear from that. When a state is the market participant exception to the dormant Commerce Clause is premised upon the concept that the state, acting in its own economic self-interest, can use its treasury for the benefit of its own citizens. That is the one theme that is consistent in every market participant exception case. In fact, the legitimate state interest to be served by the exercise of the spending power in those cases is favoritism. But once you take the market participant exception and its limited recognition of the fact that within the dormant Commerce Clause there is a difference between direct regulation and indirect action, once you take the market participant concept outside the dormant Commerce Clause, you lose completely the legitimate state interest that underpins the market participant exception of acting in one's own legitimate economic self-interest, spending for the benefit of one's citizens who fund that treasury. Outside of the dormant Commerce Clause, that rationale ceases to exist and the market participant exception becomes an unrestricted principle.
William H. Rehnquist: What if the Wisconsin statute had been framed in terms of employers who three times within the last five years have been subjected to strikes of more than six months' duration and it was limited to contractors who were going to bid on jobs in Wisconsin?
Columbus R. Gangemi, Jr.: If the object of the statute, it seems to me, were directed at the labor dispute and not at an unfair labor practice qua unfair labor practice--
William H. Rehnquist: We don't care who started the strike, we just don't want to deal with employers who have long strikes, with contractors.
Columbus R. Gangemi, Jr.: --I think that presents a far closer case than the case at bar, because at least in that case the state could argue that it has a legitimate economic self-interest in not dealing with an employer that has a lot of labor disputes because it's concluded, it's determined, that individual is an unreliable contractor-- But it's important to note, Your Honor, that in this case this statute makes no such classification, provides and permits of no such distinction or judgment. Indeed, the court of appeals said that the very fact that this statute did not provide for any administrative determinations of that type only underscored the penal nature of the statute, and by penal I mean debarring an employer for a violation of law, not because of any economic consequences to the state or within the state, but simply because there was a violation of federal law. The instant case provides an excellent example of what I mean. Gould did not commit any unfair labor practice in connection with the performance of any state contract. Gould did not engage in any labor dispute that was connected to or related to any contract with the State of Wisconsin. Gould did not have a history of, or the divisions with which the State of Wisconsin was dealing, did not have a history of labor disputes which would affect or might be deemed to affect the ability of Gould to perform its contract. In fact, the divisions with which the State of Wisconsin was doing business were not even those that were found to be guilty of the unfair labor practices which resulted in Gould's debarment. Indeed, the divisions which Gould... of Gould which committed the unfair labor practices were divested by Gould prior to the time of the debarment, although I don't mean to suggest that was the reason for that. And, all of the unfair labor practices which resulted in Gould's debarment had been remedied with the exception of one, by the time of the passage of the law and that one was remedied prior to any debarment of Gould under the statute. There was, in fact, no labor dispute conduct that the state could look at and say, this will affect the performance of these contracts and therefore we have a legitimate self-interest, economic self-interest, in not doing business with this particular employer. They debarred Gould because Gould was an unfair labor practice violator, expressly for the reasons that they have admitted below. They want to encourage compliance with the National Labor Relations Act by debarring those who have engaged in violation, regardless of the nature, extent, duration or type of violation, without any state economic interest to justify that involvement or concern with the labor conduct of the particular employer. I have already addressed the right of appeal issue. I would like to spend some time focusing on the penal aspect of the statute. This, and lesser federal courts, have repeatedly recognized that the National Labor Relations Act is remedial in nature, and that it eschews any reliance upon penalties. This Court and lesser federal courts have repeatedly recognized that even the provision of additional remedies under the National Labor Relations act by states for conduct that amounts to a violation of the National Labor Relations Act would interfere with the federal statutory scheme. In Garner, in Garmon, in Lockridge, in Jones and in Farmer, this Court has so said. A fortiori, if the state imposes a penalty for violation of the National Labor Relations Act, it is definitely interfering with the federal statutory scheme. Affirmance in this case entails... which is what we see... entails a very narrow holding. Affirmance does not entail any further incursion of state sovereign rights beyond that which has already been declared to be the limitations on sovereignty dictated by the Supremacy Clause itself. Reversal, on the other hand, would entail the creation of a major new exception to the Supremacy Clause which has never heretofore been recognized by this or any other federal court. It is no accident that the state finds it necessary to rely upon the market participant exception to the dormant Commerce Clause. Make no mistake about it, what the state seeks is the creation of a major exception to the Supremacy Clause. That is what they have called it before. That is what reversal would require. If there are no further questions, thank you.
Warren E. Burger: Anything further, counsel?
Charles D. Hoornstra: I have no further argument to make, Your Honor. I am, of course, available for any questions.
Warren E. Burger: Thank you, gentlemen. The case is submitted.


Warren E. Burger: We will hear arguments next in The City Council of Los Angeles v. Taxpayers for Vincent. Mr. Alperin, you may proceed whenever you are ready.
Anthony Saul Alperin: Mr. Chief Justice, and may it please the Court: This case presents the important constitutional issue whether the City of Los Angeles may consistent with the First Amendment prohibit the attachment of signs to items of public and utility property which are located on and along the city streets and sidewalks. The City submits that the Constitution permits this regulation. Municipal Code Section 28.04 is the city ordinance at hand. It prohibits the attachment of signs without regard to their content to enumerated items of public and utility property located along the streets. Among those items of property on which signs may not be posted are utility poles and their appurtenances and in particular with regard to this case the cross wires which help support those utility poles, traffic and street signs, street lights--
William H. Rehnquist: What exactly are the cross bars, Mr. Alperin?
Anthony Saul Alperin: --The cross wires are a wire or cable which attaches the upright wooden utility pole to another pole on the other side of the sidewalk, and that pole is then attached from the top of the pole on the other side of the sidewalk to the top of the wooden utility pole with a wire and it helps support the pole in an upright position.
William J. Brennan, Jr.: Is any of this in private property, Mr. Alperin?
Anthony Saul Alperin: Some of it is owned by private utility companies, and what is owned by private utility companies--
William J. Brennan, Jr.: You say some of it. Much of it?
Anthony Saul Alperin: --Without knowing exactly how many of the utility poles are owned by private utility companies and how much by the City, they are owned either by the City or by the utility companies. Those poles which are owned by the City are leased to the private utilities for their wires. When the private utilities own the utility poles the City leases space for its wires. Basically these are power wires that the City owns and communication transmission wires, telephone wires which the private utilities own. So they are jointly used. They are located, most of them at least, at the edge of the sidewalk next to the roadway.
William J. Brennan, Jr.: You do not think there is for First Amendment purposes any difference between a prohibition against hanging signs from privately owned wires and publicly owned?
Anthony Saul Alperin: Not with regard to these utility poles. The City is regulating the attachment of signs on these utility poles and on their appurtenances for public policy reasons, for traffic safety reasons, for reasons of safety to workers who need to climb the poles in order to repair wires and other equipment at the top of the poles and for the purpose of eliminating to the extent that is possible visual clutter which is directly caused by signs that proliferate on these utility poles, on the cross bars, on city street lighting systems and on numerous others of these items of property most of which are public property which are located on and along the streets and the sidewalks.
Warren E. Burger: In the particular election that was involved here how many candidates were there for all the public offices on that election date? Have you any idea? Does the record show anything about that?
Anthony Saul Alperin: The record does not show exactly how many there were. There were a number of candidates for this office, at least two, Mr. Vincent and I believe another nonincumbent who was elected to the City Council in that district. There are 15 City Council districts, and in half of the years half of the members run. In some of the years we also have a number of city-wide offices which run and there are, of course, always several candidates for various of these offices. So there are a number of candidates. Signs, of course, are posted not only by candidates and those who support them but also by others who have both political and nonpolitical messages that they want displayed. We have those who espouse viewpoints, positions on public issues and of course we have those who put up signs for commercial purposes, those who want to invite people to their disco or their dance or to tell them where they can find the latest built condominium for sale and those who have garage sales and those who have merely lost their pets and want them returned if someone finds them. So we see attached to all of these objects many different kinds of signs not only political signs. In fact the record indicates that probably the vast majority of the signs that are attached are nonpolitical commercial signs.
Harry A. Blackmun: Mr. Alperin, following through on Justice Rehnquist's question, at pages 136 and 137 of the Appendix are those photographs of cross wires?
Anthony Saul Alperin: Yes, they are.
Harry A. Blackmun: How do they affect the safety of the workers involved? Those cross bars are there in any event are they not? The worker is not going to get out of--
Anthony Saul Alperin: These signs attached to these cross wires will generally not affect the safety of the workers. However, if you look at the picture on page 136 you will see that the sign is located very, very close to the upright pole, and it is certainly possible that if the sign is attached that close to the pole that a worker climbing the pole might hit his foot on the sign and lose balance. But generally speaking signs on these cross bars do not cause a problem for the workers who climb the pole. They cause other problems. They may very well regardless of their size hide a traffic hazard and certainly they not only add to the visual clutter but as the district court found they encourage others to post signs in other unsightly places and in that way add to the proliferation. One of the problems which the City faces especially a city like Los Angeles which is so large, the third largest city in the nation with regard to population, one of the largest with regard to its size... There are 465 square miles approximately of the city and over 6,400 miles of streets and roadways along which all of these signs are located. These are a great number of signs, a great number of objects on which signs can be posted and on which signs are posted. You have all of these objects with signs on them. You have a lot of visual clutter.
Warren E. Burger: --What if the people interested in Proposition 10... I take it that is what appears in 136 is it not?
Anthony Saul Alperin: That is correct.
Warren E. Burger: The referendum. What if the people interested in that and wanting to put up their signs came along and saw the signs on 137 for Mr. Marcus who is running for something so they tear down Mr. Marcus' sign and put up Proposition 10, is there any ordinance of the City of Los Angeles or statute of the State of California that makes that an unlawful act?
Anthony Saul Alperin: It is not clear whether that is an unlawful act. By destroying someone else's sign they may very well be committing a misdemeanor, a destruction of someone... malicious mischief, destruction of someone else's property. The proposition could be made, however, that when a sign has been attached illegally to an object of public property or utility property on which it has been prohibited that it is treated as abandoned property.
Warren E. Burger: It acquires no right.
Anthony Saul Alperin: We do not believe that someone who puts up a sign acquires any rights. In fact, we believe that when they put up that sign illegally they lose their rights to the sign.
William H. Rehnquist: It would be a great law school exam on personal property, would it not?
Anthony Saul Alperin: I am sorry, Mr. Rehnquist, I did not--
William H. Rehnquist: That would be a great law school exam question in a personal property class. [Laughter]
Anthony Saul Alperin: --Yes, sir. It certainly would.
William J. Brennan, Jr.: Does this ordinance include a prohibition against the individual homeowner if it was a tree or shrub on property from erecting a pro or con Item 10 sign on his property on his tree or shrub?
Anthony Saul Alperin: The City has generally interpreted this ordinance to apply to signs which are either on City property or on a City parkway. I do not believe that the City has ever attempted to--
William J. Brennan, Jr.: There is no exception as I read 28.04.
Anthony Saul Alperin: --On its face it would apply to any tree. It has not to my knowledge been construed by the courts. As I say just from my general knowledge we do not believe that the City has interpreted it that way. However, the City certainly has a public policy interest in protecting all trees and shrubs in the City without regard to whether or not they are privately owned or publicly owned because trees and shrubs are a public resource. Having trees and shrubs adds to the beauty of the community. It adds to the vitality of the community.
William H. Rehnquist: You mean if I have a tree in my yard that tree is a public resource?
Anthony Saul Alperin: It is not public property, but certainly having that tree adds to the vitality and to the beauty of that community. We are not arguing that the City has a right to remove signs that you put up on your own tree, and the City has not interpreted its ordinance to permit it to do that. On its face there is no exception. The ordinance just says any tree, any shrub.
William J. Brennan, Jr.: So even Mr. Marcus running for office could not put a sign up on his own home lawn "Please vote for me"?
Anthony Saul Alperin: Arguably that is the case, but the City would certainly not seek to enforce its ordinance in that case. It would not interpret its ordinance as applying in that case unless it is a piece of property which is on the public right of way which is adjacent to the street. There the City certainly has a right because the City has an easement and indeed in many cases has planted those trees. But if we are talking about a tree otherwise in his yard or in his backyard, somewhere else on his property we just would not interpret the ordinance as being applicable.
John Paul Stevens: Mr. Alperin, how is this ordinance enforced? Just by City personnel pulling down the signs is that right?
Anthony Saul Alperin: It is generally enforced by City personnel pulling down these signs. It has also been enforced criminally and could be enforced criminally.
John Paul Stevens: So that conceivably in Justice Brennan's example a person could be charged with a crime for putting a sign up on a tree on his own lawn?
Anthony Saul Alperin: Theoretically that may be possible unless you read the ordinance as not applying. It would not reasonably apply to the tree in his backyard or otherwise in his front yard.
John Paul Stevens: It would not reasonably but literally it does.
Anthony Saul Alperin: Yes, we would have to concede that literally--
John Paul Stevens: Unless the City construed to the contrary, but no California court has construed the ordinance. Is that right?
Anthony Saul Alperin: --To our knowledge this ordinance has been construed in one unreported case... not construed by the constitutionality, has been tested in one unreported case of a superior court appellate department decision. It is an unreported opinion, and in that case that court ruled that the ordinance might be unconstitutional, send it back down the municipal court for an evidentiary hearing as to the facts which might support a valid public purpose. The City lost a motion in the municipal court and did not appeal that. But no, it has not actually been construed and certainly to our knowledge has not been construed with regard to the question of whether or not a private tree on private property is subject to the ordinance. We do not believe that that would be a reasonable interpretation.
William J. Brennan, Jr.: This suit was a facial attack on the ordinance?
Anthony Saul Alperin: That is right. This suit is concerned with objects which located on or adjacent to the public streets. The litigation did not deal either at the district court level or the level of the Ninth Circuit with questions of trees and shrubs that might be located on someone's own private property and so that question was just never litigated in this case.
William J. Brennan, Jr.: Well, I would expect it would be it is a facial attack.
Anthony Saul Alperin: That is certainly correct, but what was litigated and what all of the attention was placed on was the question of whether or not these objects including trees and shrubs which are located or and along the streets are a public forum. The City contends that they are not a public forum even though they are located on and along the street. A public forum is a place which is either specifically designated by a government as being a public forum or which by tradition has become a public forum. The streets and the sidewalks themselves are a traditional public forum. They are a place which traditionally has been used among other things for communication of public issues. They have been legitimately used in that fashion for hundreds of years. In fact, they have probably been used for even longer than that. However, these particular objects of public property although located in the streets were erected for quite different reasons. They were erected either so that the City could string its utility wires along the streets in a convenient place or with regard to the lighting system so that the streets could be lit for safety purposes or with regard to posts and poles that are erected for the purpose of displaying the City's own traffic and street information, information about where the City streets are, what street someone may be driving on, how fast that person can drive, where that person can park or not park. They were not erected for the purpose of giving to private individuals the right to put up any signs that they wanted. So they were not designated by the government as a public forum, and indeed although they have been used in the City of Los Angeles they have not been used legally or legitimately. The City's ordinance prohibits their use. The City contends that an item of government property cannot by tradition become a public forum unless it is legitimately used as a public forum. Here these objects have never been legitimately used as a public forum. They obviously have been used because the signs have been posted and the signs have been removed, but they have been used illegally. Illegal use certainly cannot result in the creation of a public forum especially where the City has strong public policy interests which are served by its ordinance. Here the City has public policy interests which are directly served by this ordinance and they are interests which have been recognized by this Court over and over again as being substantial, legitimate, even compelling government interests. Certainly traffic safety is a substantial government interest. Certainly aesthetics is a substantial, very important, very legitimate government interest. It relates--
John Paul Stevens: Mr. Alperin, may I ask a question following up on Justice Brennan's inquiry about signs on private property? I notice in the complaint they allege that they have been advised by the police officer I guess whoever's duty it was to enforce that they will sometimes verify that the sign has been posted without the consent of the owner, agent or occupant and then make a physical arrest which implies... This, of course, is in the complaint... that sometimes the ordinance is enforced against posting on private property.
Anthony Saul Alperin: --There is another City ordinance which is another section of the Municipal Code, Section 28.03, which prohibits the attachment of signs to buildings and to any private property without the consent of the owner.
John Paul Stevens: I see.
Anthony Saul Alperin: In further answer to Mr. Brennan's question and your question following up on that with regard to the trees, certainly because of the existence of that other section we could construe the reference to trees in Section 28.04 to relate only to trees on public property because we have another section that relates to attachment of signs to private property and that certainly would include trees on private property which would be a reasonable interpretation of both ordinances together.
William H. Rehnquist: Mr. Alperin, if you look at page 16 of the Joint Appendix there you have I believe Exhibit B which you filed as one of your exhibits to your answer in the district court, and as I read it it is a statement which says the policy of the Los Angeles Police Department in enforcing violations and it describes Section 28.03 prohibits the painting or posting of any handbill or sign on private property without the consent of the owner, agent or occupant. Section 28.04 prohibits the painting or posting of any handbill or sign on utility poles, street signs, curbs or other public property.
Anthony Saul Alperin: That is correct.
William H. Rehnquist: Now was that summarizing the way the ordinance is enforced?
Anthony Saul Alperin: Yes, that is true with the only exception that indeed some of the utility poles although used by the public are private property because they belong to privately owned utilities. However, in a general sense Section 28.03 relates to private property and permits signs on private property assuming that the owner of that property or someone in control of that property consents to the attachment of a sign on that property in Section 28.04.
Byron R. White: But the utility may not consent to signs on its poles.
Anthony Saul Alperin: That is correct. The utility may not consent--
Byron R. White: Well, it does not say that in the ordinance.
Anthony Saul Alperin: --The utility... It is not a part of this record. Public utilities in California, private utilities in California are governed by rules and regulations of the Public Utilities Commission of the state and the Public Utilities Commission prohibits the attachment of anything to the upright poles for safety purposes. That regulation is not in any way part of this record.
Byron R. White: Well, we are talking about the legality of these particular prohibitions, and you say that these two, one of the other of these forbids signs on public utility poles, utility poles even if the utility gave its consent. Is that right?
Anthony Saul Alperin: That is correct. Section 28.04 prohibits the attachment of signs on any utility pole--
Byron R. White: And some other section of the law or some other regulation prohibits the utility from giving its consent at all. That is what you suggest.
Anthony Saul Alperin: --A state agency regulation prohibits them from giving its consent at all but so does Section 28.04. It prohibits the attachment of signs to utility poles because the attachment of those signs causes safety hazards and adds to visual clutter. Certainly the government may regulate private property--
Byron R. White: The kind of so-called public property that you are talking about in 28.04 includes utility poles.
Anthony Saul Alperin: --It includes... The public property includes the publicly owned utility properties, but the section also prohibits attachment of signs to the utility poles that are owned by privately owned utility companies. Because the items of property that are regulated by Section 28.04 are not part of a public forum this Court needs to look to see whether or not the regulation is reasonable in light of the circumstances that the City faces and whether or not it leaves open ample channels or avenues of communication. Indeed, the ordinance meets both prongs of those tests. It is certainly reasonable because it directly relates to the achievement of important and significant government interests. If poles cause... If signs cause a safety problem or if signs result in clutter which mars the visual environment then certainly the most logical, most direct and really the only effective way of eliminating those problems is by prohibiting the attachment of those signs which cause the problem. This ordinance does that. This ordinance also leaves open several ample avenues of communication. It leaves open several traditional uses of the streets and sidewalks, giving public speeches, holding parades, distribution of handbills, door-to-door distribution and it also permits signs to be posted on private property and it permits signs to be held, carried by people in the streets. It does not prohibit any of those things. All it does is prohibit the attachment of signs to those items of property which are enumerated in the ordinance. In addition to that, another section of the Municipal Code, Section 62.132, which is found in an appendix to the Appellee's brief on page A-2 in that appendix permits street banners to be attached to the tops of the lighting standards that are found in the streets. This does permit one use of the public property located in the street for expressive purposes under circumstances where the City has determined that problems of traffic safety and visual clutter do not exist. The City would like to reserve the five minutes remaining for rebuttal.
Sandra Day O'Connor: Mr. Alperin, is the sidewalk a public forum in your view?
Anthony Saul Alperin: The sidewalk is indeed a public forum. It is a place where people gather to get from one place to another and also where they gather to discuss public issues.
Warren E. Burger: But if they gather and block traffic--
Anthony Saul Alperin: If they gather and block traffic then the City could certainly enforce an ordinance which would be a reasonable time, place and manner restriction.
Warren E. Burger: --So it is not the place that was established as a public forum for communication was it?
Anthony Saul Alperin: One of the purposes of sidewalks--
Warren E. Burger: Is the purpose to transport people and things from one place to another?
Anthony Saul Alperin: --That is one of its purposes.
Warren E. Burger: Is it not the primary purpose?
Anthony Saul Alperin: It may even be the primary purpose, but one of its purposes just like the street certainly is for people as long as they do not block the use of the sidewalk by people who want to get from one place to another a place of discussion. That does not mean, however, that the concrete, the actual physical concrete is a place where people can make drawings or tape on their signs. It means that the place where people stand in which they stand is the public forum rather than the physical property itself.
Warren E. Burger: Mr. Canterbury.
Wayne S. Canterbury: Mr. Chief Justice, and may it please the Court: Section 28.04 as it is enforced by the Los Angeles Police Department constitutes an absolute ban on all temporary signs on all public property. As such it is a prior restraint on an important form of political expression. That form is the temporary campaign sign that has been with us for centuries.
Sandra Day O'Connor: Do you agree that we should read the ordinance as applying only to public property?
Wayne S. Canterbury: The portion of the ordinance that we challenged on appeal was only Section 28.04. We abandoned a challenge to 28.03, and we believe that the City is entitled to prohibit the posting on private property unless the campaign officials or election committee has the permission of private property owners to post the signs. The one exception--
Sandra Day O'Connor: And you do not think we should read 28.04 as covering privately owned trees and shrubs?
Wayne S. Canterbury: --I do not, Your Honor. It does not say that, and although the City has stretched this ordinance to include many means I do not believe that up until today it has included that mean.
Byron R. White: It is just 28.04 that is involved here.
Wayne S. Canterbury: That is right. That is correct, Your Honor.
Byron R. White: So you are saying that the City may not close down the public property to these signs.
Wayne S. Canterbury: That is correct, Your Honor. It may regulate the place--
William J. Brennan, Jr.: I do not quite understand, Mr. Canterbury. Certainly on its face 28.04 is not limited to installations on public property is it? It says no person shall post or otherwise affix any handbill or sign going down there upon any tree, shrub. Does that not include trees or shrubs on private property?
Wayne S. Canterbury: --It is really unclear from the record, and I do not know how it is enforced. I think that part of the problem here--
William J. Brennan, Jr.: How do I read it just looking at the face of it?
Wayne S. Canterbury: --I would agree, Your Honor. That reading does lend that interpretation of prohibition on that type of property. Frankly we--
William J. Brennan, Jr.: But this is a facial attack is it not?
Wayne S. Canterbury: --It is a facial attack, but our complaint makes it clear that we are also attacking it as it is interpreted by--
William J. Brennan, Jr.: As applied?
Wayne S. Canterbury: --As applied.
Byron R. White: I take it the thrust of your argument is not overbreadth but the fact that even if it were limited strictly to public property it is invalid.
Wayne S. Canterbury: That is correct, Your Honor.
Byron R. White: That the public interest just is not sufficient.
Wayne S. Canterbury: That is correct.
Byron R. White: Even if it were limited strictly to public property which you think it is. At least that is what you said a moment ago.
Wayne S. Canterbury: Frankly, I do think that as enforced and from the record that we have before us that the issue here in my mind is whether it can ban all signs on public property.
William J. Brennan, Jr.: In any event that is the way you want... That is your submission as the way we should decide this case is it not?
Wayne S. Canterbury: Yes, as interpreted and as enforced by the police department. I think part of the confusion stems from the police department's interpretation of the section, and that is Exhibit B to the complaint that was read earlier that the police department has its own idea in Los Angeles what this ordinance means. The police department believes that it prohibits all signs on all public property and apparently as well some trees and other types of objects off of public property and on private property.
Sandra Day O'Connor: I suppose on its face it does not cover all public property, does it, such as parks and other areas?
Wayne S. Canterbury: That is correct, Your Honor. I think that is one of the deficiencies in a sense in the ordinance, that is, that it is underinclusive. Los Angeles argues that the purpose of this ordinance is to protect the City's environment. If that were the case one would suspect that objects that were--
Sandra Day O'Connor: Well, I thought it argued it had safety goals as well.
Wayne S. Canterbury: --That is true, Your Honor. In fact I think that a reading of the Code leads one to suspect that that is the sole purpose that was in the mind of the legislature when it passed that ordinance because the objects that are listed are fire hydrants, traffic directional signals and the like, objects that no one is entitled to post political signs on.
Warren E. Burger: What would you say about an ordinance that required a person to get a license before they put up any signs and the deposit of cash or a bond equivalent to $1 for every sign they put up to provide the cost of taking them down.
Wayne S. Canterbury: Mr. Chief Justice, I think that would be an impermissible restraint on the exercise of this type of political expression. I believe that some monitoring and perhaps even a reasonable permit system might in some situations be permissible. A dollar a sign would be awfully expensive to conduct--
Warren E. Burger: Well, suppose we make it ten cents a sign then. Is it the amount that you are concerned with?
Wayne S. Canterbury: --It is the amount and it is the fact that the candidates running for nation-wide office or even state-wide office would have to go into each town, determine what the particular permit requirements were, learn those, apply them and post their signs after they posted their bonds.
Warren E. Burger: Who is supposed to bear the expense, of taking them down?
Wayne S. Canterbury: The candidates should bear that expense.
Warren E. Burger: Well, would that not be a reasonable way to make the candidate bear the expenses ten cents a sign to remove?
Wayne S. Canterbury: I suggest it would not, Your Honor, because there is no--
Warren E. Burger: All right. Reduce it to one cent sign.
Wayne S. Canterbury: --The principle I think, Your Honor, is that the candidate or the persons responsible for posting the signs should be made to take the sign down after the election and if they do not then a penalty may be imposed at that time.
Warren E. Burger: Then proceed against them criminally?
Wayne S. Canterbury: At that tire that would be appropriate.
William H. Rehnquist: Mr. Canterbury, supposing in the Chief Justice's hypothesis that the cities had a criminal statute and they just cannot get convictions under it. It is hard to locate the candidates after the elections so they decide to go with the Chief Justice's, suggestion and they can prove in court that this one cent or ten cents that they require is actually the cost to the city of having people come around after the election and take down candidates' sign that the candidates themselves forget about and do not take down. Do you still say the city cannot do that?
Wayne S. Canterbury: I believe that that would bear some scrutiny, Your Honor, for this reason that under that situation posited you would essentially have law abiding candidates who took down their signs after the election paying for the misfeasance of those who do not. I do think that an assessment might be appropriate in some cases, a reasonable assessment, for the administration of the program itself, the sign program. If there is a permit or some monitoring to take place presumably that will be of some cost to the city.
William H. Rehnquist: Well, would you put as part of the administration cost the cost to the city of taking the signs down?
Wayne S. Canterbury: I would prefer that it not be. Again, for the reason I mentioned before I do not think that would be appropriate. In Baldwin v. Bedwood City, a 1976 case decided by the Ninth Circuit, the Ninth Circuit did comment that reasonable fees and assessments might be permissible if the city can show that they reasonably relate to the administration of the sign program.
John Paul Stevens: Mr. Canterbury, may I ask a question about the nature of the right that you claim exists? Assume there were no ordinance at all here first of all and you wanted to put up the sign that is shown on Exhibit V on page 136 that says 10> ["] and say someone opposed to Proposition 10 came along and just removed the sign because they were opposed to it and substituted a 10. Would you have any right to complain about that?
Wayne S. Canterbury: I could not complain to the City about that.
John Paul Stevens: Could you complain to him?
Wayne S. Canterbury: Yes.
John Paul Stevens: He preserved your sign. He did not damage it. He folded it up neatly and put it in a plastic case so it did not hurt it.
Wayne S. Canterbury: Well, he has destroyed it for our purposes, Your Honor.
John Paul Stevens: He has assumed the same right that you... Is it the first one that gets there has a right to stay there forever? How long do you have the right to keep that sign up?
Wayne S. Canterbury: You have a right to keep the sign up until the election has passed and the sign has served the purpose.
John Paul Stevens: The first one getting there in effect acquires an easement in the premises?
Wayne S. Canterbury: I would not go so far as to use the term "easement" but I do believe that for the same reason that--
John Paul Stevens: Well, supposing the person who got their first wanted to permanently advertise the sale of his home or something like that or permanent garage sale, he put a sign up there and said I want to leave it there until I sell everything in the house.
Wayne S. Canterbury: --Of course, that would be a form of commercial speech which would not be--
John Paul Stevens: Is that not protected, too?
Wayne S. Canterbury: --It may be protected but not to the same degree that political speech is.
John Paul Stevens: This ordinance does not discriminate between the two.
Wayne S. Canterbury: This ordinance does not. It might well, but it does not.
John Paul Stevens: In other words, you think that there is a right... Supposing early in a primary say now if a democratic candidate wanted to put a sign up there and leave it up there for ten months, would he have the right to keep it there for the entire period of the election?
Wayne S. Canterbury: I think the general rule would be that he would have a right to... I think that the candidate must make that decision ahead of time, yes.
John Paul Stevens: The first one to get there has a constitutional right to keep it there?
Wayne S. Canterbury: He has a constitutional right to use the property, yes. I think he has a private right not to have his property destroyed.
John Paul Stevens: Supposing the utility company which owned the pole said we do not want the sign there. Could it have taken it down? Say there is no ordinance at all just all property law concepts involved.
Wayne S. Canterbury: In that situation I think not, Your Honor. I believe that public utilities are able to erect poles for the public benefit under the public charter and they are for our purposes public utility poles. Los Angeles apparently takes the same position.
William H. Rehnquist: Do you think that our cases would support the notion that a public utility is subject to the same obligation that you contend a city is by way of allowing signs to be posted on its property?
Wayne S. Canterbury: Your Honor, I think that Marsh v. Alabama does support that proposition especially if it is found in any particular town that the utility poles are universally owned.
William H. Rehnquist: Well, there is a lot of water that has flowed under the damns since Marsh v. Alabama so far as our decisions are concerned.
Wayne S. Canterbury: In the shopping center cases that is true, Your Honor, but I believe that the foundational underpinnings of Marsh would apply in the situation--
Byron R. White: Well, if you are right why could the candidate after he is elected looking forward to his next election not just change his sign that he had up during the campaign and say John Jones is doing a good job by the city council and just leave it up all the time just so that the people will keep his name in their minds?
Wayne S. Canterbury: --Well, I think that he could; however, he risks--
Byron R. White: I know but could the city take it down consistent with your views?
Wayne S. Canterbury: --No, Your Honor, the city could not unless that sign became tattered and worn or became a threat.
Byron R. White: No, he keeps it fresh because he wants the public to respect him so he keeps the sign fresh.
Wayne S. Canterbury: I have to answer that I believe that he would be entitled to do that.
Byron R. White: So by getting there first he can permanently occupy that particular place on the cross bar?
Wayne S. Canterbury: No, Your Honor, perhaps that is the answer to this question. I only argue that temporary political signs should be given access to public property. Once a sign is placed for so long as to be characterized as permanent, that I believe is a different matter because that is--
Warren E. Burger: How long would that be? How long would it be to be characterized as permanent?
Wayne S. Canterbury: --I cannot give an arbitrary time period.
Byron R. White: Well, if someone wants to get reelected for the rest of his life and he wants--
Wayne S. Canterbury: It is almost assured, Your Honor, that if he keeps the signs up he will never be elected. Our point here is that political signs are to a great degree self-regulated. Candidates post elections to win elections... post signs to win elections, not to lose them. The candidate who has that in mind in a limited campaign budget as most candidates do will put his sign up during the times that will do him the most good and that is the weeks before the election.
Lewis F. Powell, Jr.: --Could the signs be illuminated without violating any constitutional right?
Wayne S. Canterbury: We do not contend that we would have any right to illuminate the signs if the illumination would involve running wires up the poles. Again, that would look more like a permanent sign but more importantly would very likely interfere with the primary use of the utility pole.
Lewis F. Powell, Jr.: I am thinking, for example, of the type of signs that you sometimes see on highways that are illuminated when light hits them, have reflector lights so that people can read them at night as well as in the daytime. I am just wondering whether there are any limitations on the type of signs that could be put up. You say there is self-regulation. I think there is a good deal to that, but apart from that you have some eccentric candidate who could put any type of sign up I take it under your argument.
Wayne S. Canterbury: Well, Your Honor, again I think that the answer lies in whether the sign constitutes any hazard to the public, interferes with traffic and the like. It cannot I contend be pulled down because the city does not find it attractive.
Lewis F. Powell, Jr.: I think the Court of Appeals suggested some limitation in size. Would you accept that?
Wayne S. Canterbury: Yes, I would, Your Honor.
Lewis F. Powell, Jr.: While we are talking about the courts' decisions, there has been a good deal of discussion as to whether this ordinance covers private property. Did I misread the decisions below? Both of them have treated the ordinance 28.04 as relating only to public property.
Wayne S. Canterbury: That has been the assumption in this case from the very start.
Lewis F. Powell, Jr.: The opinions express this also.
Wayne S. Canterbury: Yes, Your Honor.
Lewis F. Powell, Jr.: The first paragraph of Judge Nelson's opinion as to 28.04 relating to public property and on page 18A paragraph 18 of the trial court's findings of fact one of the other means available was stated to be the posting of signs on private property. I think you have already agreed that the case was tried on the basis that this ordinance was limited to public property.
Wayne S. Canterbury: I believe that is the case.
William J. Brennan, Jr.: Yet in your brief, Mr. Canterbury, you rely on the policy statement of the police department. You quoted. The quote is, "Los Angeles Municipal Code prohibits the unauthorized painting or posting of any handbill of sign upon public or private property. " You rely on that apparently.
Wayne S. Canterbury: Your Honor, the reason that that was quote was to illustrate that the police department considers 28.04 to ban all signs on public property. That was the reason for our--
William J. Brennan, Jr.: That might be but it says more than that, posting of any handbill or sign upon public or private property.
Wayne S. Canterbury: --Your Honor, that is the case and the ordinance might be more offensive than I thought it to be until today.
Sandra Day O'Connor: I take it the only thing you are concerned about at all in the ordinance is the restriction on the use of power lines and specifically the cross arms.
Wayne S. Canterbury: Your Honor, that is the type of property that my clients have traditionally posted these signs on, and when they undertook this--
Sandra Day O'Connor: But I thought you agreed or said anyway that you agreed that no one had a right to post any kind of a sign on a fire hydrant and some of the other items listed here.
Wayne S. Canterbury: --I do agree, Your Honor, but the complaint alleges that my client posts signs over the cross bar in the way that is depicted at page 137--
Byron R. White: How about the utility poles themselves?
Wayne S. Canterbury: --No, Your Honor, we do not contend--
Byron R. White: We do not do that but others do.
Wayne S. Canterbury: --Others do.
William H. Rehnquist: It sounds dirty.
Wayne S. Canterbury: An ordinance prohibiting that--
Byron R. White: The candidates who do not want to get elected.
Wayne S. Canterbury: --That is right. In fact, Your Honor, the record shows that most of the signs posted in that way are not signs at all. All they are are 8 x 11 flyers that are glued or tacked or stapled onto the vertical shaft of the pole itself. Our signs by contrast were actually designed by Mr. Daily of COGS, one of the Plaintiffs in this case, as an alternative to that kind of an abusive posting, and the sign as depicted at page 137 of the record shows how the sign can be placed on the public property--
Byron R. White: But your submission here is I take it that that prohibition of signs or posters on utility poles is also unconstitutional.
Wayne S. Canterbury: --No, Your Honor. Our argument here is that--
Byron R. White: You mean if the ordinance just related to utility poles you would not be here?
Wayne S. Canterbury: --We--
Byron R. White: You would think that ordinance was constitutional?
Wayne S. Canterbury: --In fact, I think--
Byron R. White: Which it probably would be.
Wayne S. Canterbury: --Yes. The reason is this. The district court found that signs posted on the vertical shaft of the pole itself created a danger to repairmen because in climbing the pole they may slip on sign posted on that pole and again the reason that our signs are posted on the cross arms is to avoid that problem. We asked in Interrogatory number 11 which is part of the record in this case whether signs of the type posted by my client created what are described as the overhead problems by the police department and city maintenance folks, and they admitted in that answer that in fact our signs do not constitute that type of a hazard.
Byron R. White: So I take it you would be satisfied then if the Court agreed with you that the ordinance would be be applied to the cross bars but was perfectly constitutional as applied to any other public property?
Wayne S. Canterbury: No, I think that again would be too broad. Of course, the Court will if it decides to affirm the Ninth Circuit's decision in this case will go back and Los Angeles will have an opportunity to follow the guidelines set down by the Ninth Circuit and regulate signs according to size or placement. I believe that signs can be severely limited and aesthetically sensitive--
Byron R. White: But you can make them so small that nobody could read them.
Wayne S. Canterbury: --Well, that would be... We have a right to post--
Byron R. White: No, but as soon as they become large enough to read from any distance... You cannot have it both ways.
Wayne S. Canterbury: --Again, the question is one of reasonableness. The size... We should be able to post signs of sufficient size so that the name of the candidate and the office he is running for which is the theme of these campaign signs can be clearly read.
Warren E. Burger: I asked your friend who was not sure, but I will ask you. In any election in recent times that you are aware of what was the maximum number of candidates who were appealing to the voters in Los Angeles?
Wayne S. Canterbury: I have no idea, Your Honor.
Warren E. Burger: Ten candidates? A hundred candidates?
Wayne S. Canterbury: I simply do not know. There are many elections, local elections in Los Angeles and other cities that--
Warren E. Burger: Do you have written ballots or voting machines out there?
Wayne S. Canterbury: --We have voting machines.
Harry A. Blackmun: You are from San Francisco any way?
Wayne S. Canterbury: Yes, I am, Your Honor. Incidentally San Francisco allows signs on public utility poles and--
Byron R. White: Are you not taking a risk, a San Francisco lawyer going to litigate in Los Angeles? [Laughter]
Wayne S. Canterbury: --Well, the district court apparently came to that conclusion.
Byron R. White: Yes, you lost. But another Los Angeles person bailed you out. No one seriously questions that a city wants to permit these things there is no barrier to their permitting them. The only question before the Court is whether there is a constitutional right of the candidate or even of a commercial enterprise to post signs on public property.
Wayne S. Canterbury: Yes, Your Honor. I am not sure that I understand the question however.
Byron R. White: Well, if you can do it, so can everybody.
Wayne S. Canterbury: Oh, absolutely. Anyone running for public office.
Warren E. Burger: Your position is that that clutter, that impact on the environment is something the city has no right to control?
Wayne S. Canterbury: First of all, I would not characterize it myself as clutter, but assuming that that is the way we wish to characterize it--
Warren E. Burger: I am just looking at the picture that you put in the record.
Wayne S. Canterbury: --Yes, Your Honor. Actually those pictures in large part were put in by Los Angeles. In going back to the record the picture depicted at page 137 I think illustrates our point very vividly. Depicted in the foreground is a temporary political sign. I do not think that the photographer intended to illustrate this point, but in the background there is a virtual montage of permanent signs that are much more offensive and much more a clutter than the temporary political sign in the foreground. These signs, billboards, laundromat signs, fast food signs are located not... They are not attached to public property but they all are placed over public property and certainly within public view.
William H. Rehnquist: Of course, the City's power to regulate the right of a person or property owner to put a sign on his own property may be a good deal more limited than the City's right to regulate the right of others to put signs on property owned by the City. Do you not agree with that?
Wayne S. Canterbury: It is our position that the opposite is true that Los Angeles may very well be able to pass a comprehensive plan to address the visual pollution problem in Los Angeles and take into consideration the visual impact of signs on private property and public property. It has not done so and nothing in this case suggests it has.
William H. Rehnquist: You are saying the City is freer to or has more latitude in telling me if I own a Tastee Freeze along the street that I cannot put up a sign on the building that says Tastee Freeze. You say that very likely it can do that, but that it cannot tell someone from 50 miles away that he cannot put a sign up on a city owned utility pole.
Wayne S. Canterbury: That is our position, Your Honor.
Thurgood Marshall: Could the City of Los Angeles prevent you from putting one of these signs in the public square?
Wayne S. Canterbury: In the public square?
Thurgood Marshall: Yes.
Wayne S. Canterbury: It would depend on the public square. If the public square were not a park or an aesthetically sensitive--
Thurgood Marshall: Do you not know what a public square is?
Wayne S. Canterbury: --I am trying to conjure one in Los Angeles. [Laughter]
Thurgood Marshall: You are trying not to answer the question. You pick what you think is a public square in Los Angeles.
Wayne S. Canterbury: Your Honor--
Thurgood Marshall: My question is can you bar public signs in that square that you pick?
Wayne S. Canterbury: --The answer depends on whether that square or park is aesthetically so sensitive that its character would be destroyed by the placement of signs on or around it. If the character would not be impaired then I think that we have the right to post a sign on or near that public square.
John Paul Stevens: You use two quite different tests. You first said would it be destroyed and secondly you said would it be impaired. Which is the test you recommend?
Wayne S. Canterbury: If the character is substantially impaired.
John Paul Stevens: Substantially impaired. That is a third one.
Wayne S. Canterbury: I had more time to think about that, Your Honor.
Thurgood Marshall: How about the public square in front of the court house?
Wayne S. Canterbury: I think that would be permissible, Your Honor.
Thurgood Marshall: What?
Wayne S. Canterbury: That would be permissible. I do not think a sign could be posted.
Thurgood Marshall: You can put up a sign in the public square of the court house of every candidate who is running for office assuming you have that much room?
Wayne S. Canterbury: I do not believe any sign can be placed on the court house or on the steps even for a period of 24 or 48 hours, but if there are public utility poles that line the street in front of the court house and for the same reason that this Court decided in Grace that persons can walk around the court house--
Thurgood Marshall: I am saying that could they pass a law saying no signs in the public square in front of the court house without the City's permission? Is that a constitutional ordinance?
Wayne S. Canterbury: --I suspect it would not be, Your Honor, because I do not believe that signs would substantially impair the character of the place.
Thurgood Marshall: You mean you can put up any sign in front of the court house you want to put up?
Wayne S. Canterbury: Not any sign, no. The thrust of our argument is that reasonable regulation is quite appropriate.
Thurgood Marshall: So the aesthetic values of the city are to be determined by each individual?
Wayne S. Canterbury: No, Your Honor. Again, I believe that reasonable regulations are appropriate.
Thurgood Marshall: The city has a hearing and they decided that multiple signs of multiple colors involving multiple problems would destroy the aesthetic value of not of the whole city at least of the court house lawn that that would be unconstitutional.
Wayne S. Canterbury: I do not take that position absolutely, Your Honor. If the city had made such findings it may very well be within its right to do that. There is no evidence of such findings in this case.
Warren E. Burger: Let us go back to the priority matter that Justice White mentioned earlier. Suppose one enterprising candidate with considerable cash goes out very early with a crew of people and he covers every pole of every utility all of the places that are involved here, all the cross wires, all the space with his own name "vote for". There is no room for anybody else.
Wayne S. Canterbury: I believe the city can regulate against that type of abuse.
Warren E. Burger: Now the city deals with this when it happens. How do they deal with it when it happens? You mean they have to draw an ordinance in advance that recites standards that would enable the police to deal with that particular problem?
Wayne S. Canterbury: I think it should, yes. In San Francisco, for example, the ordinance reads that only one sign for any one candidate can be posted on a public utility pole. That is the answer I believe to that question.
Byron R. White: Mr. Canterbury, I take it you really are not defending the judgment of the Court of Appeals except insofar as it applies to the places you want to put signs on.
Wayne S. Canterbury: I hope I am defending the--
Byron R. White: Did they declare this statute unconstitutional on its face?
Wayne S. Canterbury: --Yes, they did.
Byron R. White: I thought you were suggesting it is only unconstitutional as applied to these cross bars.
Wayne S. Canterbury: No, Your Honor. I take both positions, that it is unconstitutional as an overbroad restraint because it prohibits the placement of signs on the objects listed which include the wires--
Byron R. White: That is not overbreadth. You can object to that directly. Are you saying it is unconstitutional on its face because it also regulates some other property or what?
Wayne S. Canterbury: --No, Your Honor. Our basic position is that as interpreted by Los Angeles--
Byron R. White: I thought you agreed... Do you think the Court of Appeals would not allow the ordinance if it applied only to the utility poles would it? You say I thought that a utility pole ordinance would be quite constitutional.
Wayne S. Canterbury: --No, again the distinction is whether the sign is allowed to be placed on the cross bar out of harm's way or whether the ordinance prohibits the posting of signs on the pole itself. If the ordinance did--
Byron R. White: You do not think any of your submission today is inconsistent with the Court of Appeals?
Wayne S. Canterbury: --I do not believe it is, Your Honor, no.
Byron R. White: Okay.
Wayne S. Canterbury: If it is I do not see it.
Warren E. Burger: Very well. Do you have anything further, Mr. Alperin?
Anthony Saul Alperin: Mr. Chief Justice, and may it please the Court: We do have some comments in rebuttal. First of all, with regard to the Chief Justice's question of the number of candidates although I do not know the precise number even a guess on the number of candidates who ran at the time Mr. Vincent ran we can tell the Court that it has been our experience that normally for all of the offices we do have several dozen candidates. I do remember back--
Warren E. Burger: How many?
Anthony Saul Alperin: --Several dozen.
Warren E. Burger: Several dozen.
Anthony Saul Alperin: It may be anywhere from 18 up to a larger number. In 1969 for the first time candidates ran for seven districts of a community college board. There were more than 100 candidates who ran for those positions so that there can very well be quite a large number of candidates running in city elections. We also need to understand that in the even numbered years candidates are running for county office, state legislative office, state-wide office, congressional office and for president and vice president. We know that in a city as large as Los Angeles there quite a number of legislative districts. There are quite a number of candidates who are running. This is not just a phenomenon that creeps up every time we have a city election. It also is a phenomenon that we have every time we have a state-wide or national election, and it is a phenomenon that we have all of the time because not only do we have candidates we have people with other views and we have people with commercial messages. Indeed, these signs are not self-regulating as we know because there are indeed so many of them. Indeed because there are so many of them and because the city is so large and spread out and there are so many roadways and objects on which these signs can be attached there is really no way in which the city can reasonably and effectively regulate any other way. If we found that there are... Let's say that the City was to say that you could have one sign on every three poles. The City does not believe that is reasonable for one reason at least because what if the City finds three signs on one pole. How in the world is the City going to know which sign was there first and, therefore, which two signs the City could remove? Is the City required to hold a hearing as to thousands of poles where it finds more than one sign on those poles in order to determine which sign was entitled to be there? Certainly that cannot be the case. Certainly any other regulation would be unreasonable, unworkable, unpoliceable, would impose terrific and expensive administrative burdens on the City. The Court should well recognize that in this area the City of Los Angeles is not like the City of San Francisco that the City of Los Angeles believes that it needs different regulations because of conditions that are specific to the City of Los Angeles which is certainly much larger and much more populous and much different from the City of San Francisco that the City of Los Angeles ought to be entitled to pick those means which it believes will best solve its problems. As long as the City is not limiting speech so that there are no alternative channels of communication and so long as it is not saying to one candidate I will let you put up your signs and to another candidate I will not let you put up your sign, if it is not doing that then the City ought to be entitled to enforce, to enact and keep and enforce this regulation especially because those objects which the City prohibits signs on are not a public forum. This Court ought to reverse the decision of the Ninth Circuit which found the ordinance unconstitutional on its face and granted summary judgment on the constitutional issue to the Plaintiffs. For the reasons that we cited in our briefs and the arguments today, the City submits that its ordinance is unconstitutional and urges this Court to reverse the decision of the Ninth Circuit. Thank you.
Warren E. Burger: Thank you, gentlemen. The case is submitted.