Court: Supreme Court of Virginia; November 18, 1988; Virginia; State Supreme Court
The Supreme Court of Virginia addressed the constitutionality of an ordinance from Newport News regulating billboards, specifically Chapters 13-335 to 344 of the Newport News City Code. Adams Outdoor Advertising challenged the ordinance, arguing it violated the First Amendment and Virginia's Constitution by unlawfully abridging freedom of speech, exercising improper police power, impairing vested rights, and constituting a taking of private property without compensation. The trial court upheld the ordinance's constitutionality, denying Adams' claims and requests for relief.
The ordinance finds that the excessive number of signs creates distractions for motorists and pedestrians, posing traffic hazards and diminishing the city's appearance. It aims to reduce the number of distracting signs, prioritizing those that convey messages directly related to the premises. Definitions provided in the ordinance clarify "off-premises signs" as those advertising entities not on the property, while "on-premises signs" relate to the property’s use. Certain signs, such as activity signs for religious or nonprofit organizations and small bulletin boards, are exempted from the ordinance's restrictions if deemed non-detrimental to public welfare.
Construction signs are restricted to a maximum area of 32 square feet and must be removed upon project completion. Menu boards, either freestanding or wall-mounted, are permitted if not visible from public rights-of-way, limited to 16 square feet in front or side yards, and 24 square feet in rear yards, with a maximum of one per lot. Noncommercial signs for direction and safety, including building numbers, are not counted against the sign area limit. Directional signs under 2 square feet are excluded from area computation, while those over 2 square feet are included. Political signs at campaign headquarters must be removed within 10 days post-election, extendable for an additional 10 days upon approval from the zoning administrator. Professional nameplates on buildings may not exceed 2 square feet. Identification signs for public, institutional, or religious buildings are allowed. Real estate signs are limited to 6 square feet for residential properties with less than 100 feet of frontage and 16 square feet for those with 100 feet or more, with a maximum of two signs per lot. Real estate open house signs in residential zones are restricted to 3 square feet and must comply with specific display guidelines, including location restrictions, the number of signs per intersection, and obtaining permission from adjacent property owners. These signs can only be displayed on weekends and holidays during daylight hours and are limited in content. Violating signs may be confiscated, and those displayed in city rights-of-way require proof of a $500,000 liability insurance policy naming the city as an additional insured.
Residential subdivision development signs are allowed as permanent markers at the entrance, indicating only the development's name. Special event signs can be displayed for public interest, limited to thirty days before an event and removed within ten days after, applicable to civic or cultural events, decorative displays for national holidays, and grand openings of businesses. Municipal signs, including traffic-related signs and urban signs per the Newport Centre Urban Design Plan, are permitted, with specific size and location restrictions for business directories and projecting signs.
Off-premises signs are generally prohibited, with exceptions for signs existing as of August 14, 1984, and new signs along Interstate 64 and 664, subject to conditions such as compliance with Virginia Code, placement on undeveloped properties, and spacing requirements.
The enforcement provisions state that maintaining prohibited signs becomes a violation after set timeframes, with specific deadlines for different sections. The zoning administrator has the authority to remove illegal signs in emergencies or for non-compliance, and costs incurred will become a lien on the property if unpaid within thirty days. Property owners are presumed to own any signs on their property unless proven otherwise.
The definition of "sign" for removal purposes includes all embellishments and supporting structures. This regulation does not apply to signs that comply with existing city sign provisions. Adams owns 38 billboards in the City, featuring 53 poster panels for advertising. Each billboard, measuring 12 by 25 feet, is a permanent outdoor structure anchored in concrete and has a market value of $6,000 to $24,000 with a useful life exceeding five years. Most billboards are on property leased by Adams, and all are classified as off-premise signs since their advertising is unrelated to the properties they occupy. Adams displays a mix of commercial and noncommercial messages, including public service announcements, and charges for some displays while donating much of the noncommercial space. The use of billboards for noncommercial advertising is critical due to the high cost of alternative media. None of the billboards obstructs public rights-of-way or traffic signs, and they are illuminated for quick readability. Adams maintains the billboards structurally sound and has not been linked to any accidents or safety issues, ensuring all messages are lawful and tasteful. Most billboards were built before the relevant ordinance, with permits obtained in compliance with regulations. In June 1984, the City Council began revising its sign ordinance, conducting public hearings and ultimately enacting Ordinance 3213-84 on August 14, 1984, to regulate outdoor advertising and mandate the removal of non-compliant signs.
After the ordinance was enacted, the City's Zoning Administrator informed the owners of the land where Adams' billboards are situated that the billboards must be removed, except those compliant with Section 33.1-370 of the Code of Virginia, which governs signage near interstate and federal-aid primary highways. The billboards' removal is expected to significantly reduce their value and result in substantial costs for Adams, yet the City has declined to provide any compensation for these damages. The ordinance includes a 180-day removal period, designed to offer sufficient time for billboard owners to comply, rather than serving as an amortization period.
The appeal involves a conflict between two rights: (1) the right to free individual self-expression and (2) the government's authority to enact laws for public safety and welfare. This issue has been contentious since the Supreme Court's decision in Gitlow v. New York, affirming that the First Amendment's free speech protections apply at the state level. The Supreme Court mandates that regulatory measures be content-neutral, meaning they cannot restrict expression based on its message or subject matter. However, regulations that impose time, place, and manner restrictions are permissible if they serve a significant government interest and leave alternative communication channels open.
When regulations are content-based rather than time, place, and manner-based, they must undergo strict scrutiny. To withstand a First Amendment challenge, a government must demonstrate a compelling interest in the regulation, that the restrictions effectively serve that interest, and that a narrower restriction would undermine the government’s goal. The distinction between these regulatory approaches reflects the judicial balance between protecting First Amendment rights and allowing legitimate local regulations. The relevant categories of protected speech in this case are commercial speech and noncommercial communications, with historical context provided by the Supreme Court's ruling in Valentine v. Chrestensen, which initially determined that purely commercial advertising does not qualify for First Amendment protection.
The Supreme Court ruled in Virginia Pharmacy that commercial speech is protected under the First Amendment, declaring a Virginia law banning the advertising of prescription drug prices by pharmacists unconstitutional. The Court rejected the time, place, and manner test as inappropriate since the statute targeted specific content for complete suppression. This principle was echoed in Linmark Associates, where an ordinance restricting real estate signs was also found unconstitutional due to its content-based nature. Subsequently, in Central Hudson Gas v. Public Service Commission, the Court established a more lenient standard for commercial speech, allowing greater regulation as long as the speech concerns lawful activity, is not misleading, and the government interest is substantial, directly advanced, and narrowly tailored. In Metromedia, Inc. v. City of San Diego, the Court evaluated a city ordinance that imposed significant restrictions on outdoor advertising, aimed at improving safety and aesthetic appeal. The ordinance allowed onsite signs and specified twelve exemptions, but broadly prohibited other forms of commercial and noncommercial fixed-structure signage. The appellants, engaged in outdoor advertising, argued their billboards conveyed both commercial and noncommercial messages.
In Metromedia, the court recognized the benefits of outdoor advertising, noting its role in enhancing product sales and providing valuable information to the public. The court rejected San Diego's classification of its ordinance as a reasonable time, place, and manner restriction, as it differentiated between permissible and impermissible signs based on content. Instead, a two-tier standard of review was applied; the Central Hudson test assessed the impact on commercial speech, while a stricter balancing test evaluated noncommercial speech. The court found that the ordinance met constitutional standards for commercial speech, as it did not regulate unlawful or misleading advertising and aimed to promote substantial governmental interests like traffic safety and city aesthetics. However, the ordinance was deemed unconstitutional for banning noncommercial communications, as it provided preferential treatment to commercial speech and did not offer equivalent exceptions for noncommercial signs. The court emphasized that the government cannot selectively permit certain subjects for public discourse, affirming the need for equal treatment of noncommercial messages across commercial and industrial zones.
The ordinance defines 'off-premises signs' as structures advertising entities or services not located on the property of the sign, encompassing both commercial and noncommercial advertising. Section 13-339 (e) prohibits all off-premises signs, with limited exceptions. Conversely, 'on-premises signs' are defined as those related to the property's use, and the ordinance allows these signs, regardless of their commercial or noncommercial nature. Upon reviewing relevant Supreme Court precedents, the ordinance cannot be classified as a valid time, place, and manner restriction, as it differentiates between permissible and impermissible signs based on content. The ordinance's constitutionality regarding commercial speech is assumed to meet the Central Hudson test, but noncommercial speech is given greater protection. Although the ordinance prohibits all signs not pertaining to property activities, it lists numerous exemptions, including signs for religious or nonprofit events, construction, political campaigns, and civic functions. However, there is no general exemption for all noncommercial communications, meaning noncommercial messages unrelated to on-premises activities are banned.
An automobile dealer may advertise vehicle sales on a billboard but cannot include noncommercial messages like "Give to the United Way." This limitation on noncommercial speech infringes upon free speech rights protected by both the Federal and Virginia Constitutions. The ordinance exhibits a bias favoring commercial speech, allowing onsite billboards for commercial promotions while prohibiting identical billboards for noncommercial messages. The city fails to justify why noncommercial billboards pose a greater risk to public safety or detract from aesthetic values. Furthermore, the ordinance permits specific commercial exemptions, such as for grand openings or real estate events, but does not allow similar exemptions for noncommercial messages or political signs, which must be confined to campaign headquarters. This preference for commercial over noncommercial speech constitutes an unconstitutional restriction. Consequently, the ordinance is deemed unconstitutional and invalid, leading to a reversal of the trial court's judgment in favor of the plaintiff, Adams. The court does not address other issues as Adams' free speech argument is decisive. The city's claim that the ordinance only regulates commercial advertising is rejected, as its enforcement contradicts this assertion. Although the ordinance includes a severability clause, the intertwined nature of its commercial and noncommercial restrictions precludes any salvaging of its provisions as they pertain to billboards.
