Daniel D. Rappa, Sr. v. New Castle County Dennis E. Greenhouse Robert W. O'Brien John C. Carney, Jr. Mark A. Kleinschmidt William S. McIntyre Daniel D. Rappa, Sr. v. State of Delaware Department of Transportation of the State of Delaware Kermit H. Justice, Ann Canby, Secretary, in Her Official Capacity, and Kermit H. Justice, in His Individual Capacity
Docket: 92-7282
Court: Court of Appeals for the Third Circuit; March 10, 1994; Federal Appellate Court
Daniel D. Rappa, Sr. sought the Democratic nomination for the U.S. House of Representatives in 1990 but faced obstacles when state and local authorities removed his campaign signs for allegedly violating Delaware laws and ordinances. In contrast, other types of signs, like "for sale" signs and those promoting local industries, were allowed. Rappa challenged the regulatory schemes in the District Court for the District of Delaware, claiming violations of his First Amendment rights. The court granted partial summary judgment, ruling that the Delaware statute and New Castle County ordinance were facially unconstitutional as they discriminated against political speech based on content. An injunction was issued requiring the defendants to allow political signs to the same extent as commercial signs. The case involved multiple appellants and was presided over by the United States Court of Appeals for the Third Circuit, with significant legal discussions on content neutrality, content discrimination, and qualified immunity among other constitutional issues.
Much of the case against the City of Wilmington was unresolved, but Rappa and the City reached a settlement, leading to the dismissal of the City's appeal regarding certain district court decisions. However, appeals from the County and various state and county officials continue, requiring an examination of First Amendment law concerning outdoor signs. The district court viewed Metromedia, Inc. v. San Diego as controlling, but it is deemed to have limited precedential value due to its fragmented nature and its potential undermining by Cincinnati v. Discovery Network. The analysis diverges from the district court's conclusion that the Delaware regulation is content-based, rendering significant portions unconstitutional.
It is determined that regulations aimed at a legitimate purpose can include content-based exceptions if they are significantly related to the local area and advance an important state interest. However, the exception in Chapter 11 for signs advertising local industries and attractions is found unconstitutional. Although Chapter 11 is ruled facially unconstitutional, some aspects of the state regulatory scheme remain potentially valid pending further factual development. The injunction must be modified, allowing the plaintiff to later challenge these provisions as unconstitutional restrictions.
Rappa's arguments regarding the statute's vagueness and procedural due process violations were not addressed due to insufficient record development. Additionally, the secondary effects doctrine from Renton v. Playtime Theatres does not justify the offending statute and ordinance, as the harmful secondary effects of the prohibited signs are not considered less detrimental than those of the permitted signs.
The individual defendants have appealed the district court's denial of their motions for summary judgment based on claims of qualified immunity regarding damages. The County did not appeal the constitutionality of its ordinance, but this was considered in the qualified immunity assessment. The court found that officials in the defendants' positions could reasonably believe that the relevant state law and county ordinance were constitutional. Consequently, the court reversed the district court's denial of summary judgment for the individual defendants and directed that summary judgment be entered in their favor concerning claims of damages based on facial unconstitutionality.
The factual background involves plaintiff Daniel Rappa's campaign for the 1990 Democratic nomination for a U.S. House seat against incumbent Thomas Carper. Rappa, a businessman and Democratic supporter, launched his campaign on July 26, 1990, focusing on increasing name recognition through campaign signs. He placed signs on supporters' private property near public rights-of-way and adjacent to sidewalks. However, many signs were removed by officials from the Delaware Department of Transportation, New Castle County, and the City of Wilmington prior to the September primary. Following his defeat, Rappa filed three civil rights lawsuits under 42 U.S.C. Sec. 1983 in the District of Delaware, challenging the constitutionality of statutes and ordinances regulating campaign signs under the First and Fourteenth Amendments. The lawsuits named various government entities and officials, with some defendants dismissed on Eleventh Amendment grounds. Notably, Secretary of Transportation Kermit Justice was replaced by Mark McNulty, who was substituted in his official capacity, although Justice remains as a defendant in his individual capacity. Rappa also sued the City of Wilmington and several officials in both individual and official capacities.
The district court consolidated three cases and, after limited discovery, the parties filed cross-motions for summary judgment. The court assessed the facial constitutionality of Chapter 11 and local ordinances, ruling that both the Delaware statute and the New Castle County ordinance were facially unconstitutional under the First and Fourteenth Amendments for impermissibly regulating speech based on content. The court's analysis, influenced by the Metromedia standard, found that both regulations favored commercial speech over noncommercial speech and discriminated among types of noncommercial speech. The court rejected the defendants' argument that the regulations were content-neutral under the secondary effects doctrine from Renton v. Playtime Theatres, asserting this doctrine should not extend to political speech, which warrants heightened First Amendment protection.
To address these constitutional issues, the court issued an injunction requiring the state and county defendants to allow political signs as freely as commercial or other noncommercial signs. The Wilmington ordinance was upheld against an initial facial challenge, but further determinations were permitted regarding its validity as a time, place, and manner restriction and its application. The court denied summary judgment motions from individual defendants claiming qualified immunity concerning the facial unconstitutionality claim. All defendants and Rappa filed timely appeals. Rappa and the City settled before oral argument, while the state defendants appealed the injunction and the denial of qualified immunity for defendant Justice, arguing that the statute was a valid, content-neutral time, place, and manner regulation. The county defendants chose to defer their constitutional arguments regarding the county ordinance to a later stage, and the individual county defendants contended they were entitled to qualified immunity, claiming the facial unconstitutionality was not clearly established during the primary election.
Jurisdiction for the district court is established under 28 U.S.C. §§ 1331, 1343(3), 2201, and 2202. The appellate court has jurisdiction over the appeal from the district court's injunction under 28 U.S.C. § 1292(a)(1) and the denial of qualified immunity for individual defendants under 28 U.S.C. § 1291, with the collateral order doctrine recognizing such denials as final decisions when involving a legal question. The district court's decisions, arising from motions for partial summary judgment, are subject to plenary review, applying the same standards as the district court.
The case addresses the constitutionality of Chapter 11 of Title 17 of the Delaware Code, titled "Regulation of Outdoor Advertising," which consists of three subchapters governing outdoor advertising along state highways. The chapter aims to promote general welfare by ensuring compliance with the Federal Highway Beautification Act, enhancing aesthetic values, and improving driving safety.
Subchapter I, the most extensive regulatory section, applies to all outdoor advertising along state highways, with exceptions for signs within incorporated towns not in controlled areas. "Outdoor advertising" is broadly defined to include various visual displays aimed at attracting public attention. Key provisions include Section 1108, which prohibits signs within 25 feet of the right-of-way line if visible from the highway, and prohibits signs on the right-of-way itself.
Subchapter I prohibits the erection of signs within the right-of-way and 25 feet beyond it on state highways, with exceptions detailed in sections 1108(c), 1108(d), and 1114. Permitted signs include: (1) directional or warning signs, and official notices; (2) signs advertising the sale or lease of the property where they are located; (3) signs for activities on the property; (4) approved signs at school bus waiting shelters; (5) beautification sponsorship signs, subject to approval; (6) legally required notices or advertisements; (7) danger and precautionary signs related to the premises; (8) signs from transportation or communication companies for public safety; and (9) signs announcing towns or local attractions, capped at 6 square feet and maintained at public expense. Subchapter II, which addresses the HBA requirements, mandates additional outdoor advertising restrictions along interstate highways and the primary system, focusing on signs visible from the main traveled way and extending up to 660 feet from the right-of-way, with stricter controls than those in Subchapter I.
Subchapter II of Chapter 11 of the Delaware Code establishes a general prohibition on outdoor advertising in regulated areas, with specific exceptions listed in Del.Code Ann. tit. 17, Sec. 1121. These exceptions include:
1. Directional and official signs related to natural attractions as per state law.
2. Signs advertising the sale or lease of the property on which they are placed.
3. Signs promoting activities conducted on the same property.
4. Signs located in controlled areas adjacent to the interstate system, specifically in municipalities or areas zoned industrial or commercial as of September 21, 1959.
5. Signs in controlled areas adjacent to primary highways that are zoned industrial or commercial.
6. Signs in unzoned commercial and industrial controlled areas adjacent to primary highways, regulated by the Department.
7. Signs on school bus waiting shelters, limited to 32 square feet and two per shelter, terminating if the shelter is deemed unnecessary by the State Department of Instruction.
Subchapter III, effective July 20, 1992, applies the provisions of Subchapter II to state toll roads, maintaining the same analytical framework. The New Castle Ordinance similarly restricts exterior signs, allowing only those explicitly permitted, including various types of directional, warning, and political signs, among others.
The document also addresses content neutrality in First Amendment analysis, highlighting the importance of distinguishing between content-based and content-neutral regulations, as established by the Supreme Court in Police Dep't of Chicago v. Mosley. This distinction is pivotal for evaluating regulations of speech, shaping the framework for First Amendment jurisprudence.
A content-based statute requires the State to demonstrate that the regulation is essential to serve a compelling state interest and is narrowly tailored to achieve that goal. Conversely, a content-neutral statute limits speech by regulating the time, place, or manner of expression, subject to different legal standards. In public forums, the government may enforce reasonable restrictions that do not reference the content of speech, must serve a significant governmental interest, and should leave open ample alternative channels for communication. Chapter 11 distinguishes between different types of signs based on their content, thereby categorizing it as content-based. Under the city’s newsrack policy, the regulation of newsracks is determined by the content of the publications they hold, reinforcing its content-based nature. The Supreme Court's plurality opinion in Metromedia, Inc. v. San Diego found a similar statute content-based due to its broad ban and various subject-specific exemptions. While both Chapter 11 and the San Diego ordinance contain exceptions (e.g., for onsite signs and government signs), they differ in the scope of their exemptions. Notably, the Metromedia plurality interpreted the onsite exception to apply only to commercial signs, whereas Chapter 11’s interpretation includes both commercial and noncommercial signs.
The Court in Metromedia determined that the San Diego ordinance unconstitutionally favored commercial speech over noncommercial speech by allowing onsite commercial signs but prohibiting noncommercial signs at the same locations. The plurality emphasized that noncommercial speech deserves greater protection than commercial speech, and the city failed to justify the distinction. It was asserted that if the city permits any type of billboard, it cannot restrict the content to commercial messages alone, as this discriminates against noncommercial speech.
While acknowledging that distinctions within commercial speech are permissible, the plurality ruled that favoring commercial over noncommercial speech is not allowed. In interpreting the relevant Delaware statute, it was noted that both onsite commercial and noncommercial speech are permitted. However, the statute still exempted certain commercial speech while prohibiting some noncommercial speech, raising constitutional concerns if the Metromedia plurality's reasoning is applied.
The second part of the plurality's rationale, which requires that distinctions within noncommercial speech be justified by a compelling state interest, is applicable here. The statute's exemptions for historical, government, and highway beautification signs could be viewed as unconstitutional under the Metromedia reasoning, aligning with other court decisions that have struck down similar sign ordinances. Conversely, some courts, such as in Messer v. Douglasville, have upheld ordinances with limited content-based exceptions, arguing they do not express a preference among noncommercial messages.
The Metromedia decision presents challenges in determining applicable First Amendment principles due to its fragmented nature, with five separate opinions complicating the establishment of a governing standard. Justice Rehnquist highlighted the ambiguity surrounding what constitutes the law of the land, likening the Court's opinions to a "Tower of Babel." The Supreme Court's decisions are binding, yet when a case lacks a majority opinion, it becomes difficult to discern the standard adopted. The Marks rule offers guidance by stating that in such cases, the ruling can be interpreted as the position taken by the Justices who concurred on the narrowest grounds. This rule aims to promote predictability in the law, ensuring lower courts can adhere to a unified legal standard. The principle emphasizes that if a concurring Justice articulates a legal standard producing consistent results aligned with a majority's agreement, that standard is deemed the law of the land.
The Court adopted Justice O'Connor's "undue burden" standard for evaluating abortion restrictions, establishing a framework where regulations deemed to impose an undue burden would be struck down, while those that did not would be upheld. This standard emerged from Justice O'Connor's moderate position amidst Justices favoring either strict scrutiny or rational basis review. Consequently, the undue burden test became a prevailing standard before the Casey decision. However, determining a single legal standard can be complex, particularly when opinions among Justices diverge significantly. The D.C. Circuit Court illustrates that a narrow opinion is only applicable when it logically aligns with broader opinions, representing a consensus among at least five Justices. In cases of fragmented decisions, where distinct approaches lack mutual exclusivity, no single standard can claim majority support, undermining its authority as law. The case of Metromedia exemplifies this issue, as the plurality and concurring opinions offered incompatible analyses of a San Diego ordinance, resulting in a lack of a common denominator in their reasoning.
Justice Brennan's concurrence in the judgment regarding the San Diego regulation critiques the characterization of the statute as a total ban on signs, arguing this classification necessitates a more rigorous First Amendment analysis. He asserts that such a ban can only be justified if the government demonstrates a substantial interest directly furthered by the ban, and that no narrower restrictions could achieve the same goal. Brennan concludes that San Diego failed to provide adequate justification for the ban, particularly regarding its claims about traffic safety and aesthetics.
He emphasizes that the city's evidence did not sufficiently show billboards impair traffic safety, nor did it prove that the elimination of billboards would significantly enhance aesthetics in commercial and industrial areas. Consequently, he deemed the statute unconstitutional. Brennan also criticized the plurality's reasoning that prohibited favoring commercial speech over non-commercial speech, asserting that such distinctions create significant First Amendment issues. He argues that an ordinance banning commercial billboards while permitting non-commercial ones poses similar constitutional concerns, as it grants city officials the power to classify speech as commercial or non-commercial.
Furthermore, Brennan disagrees with the plurality's second justification that content distinctions within non-commercial speech require a compelling state interest. He suggests that cities should have the flexibility to enact regulations that conflict with a total ban if they can justify these exceptions as necessary to further significant interests. He insists that any content-based distinctions must be subjected to rigorous scrutiny. The dissenting justices also reject the plurality's interpretation of the statute as content-based, contending that the exceptions are too minimal to warrant such classification.
The First Amendment prohibits the government from imposing its viewpoint or restricting public debate. The San Diego ordinance does not violate this principle, as its few exceptions are narrowly tailored to meet specific public needs without threatening free speech. Dissenting opinions argue against the plurality's view that the ordinance is content-based and reject the idea that it constitutes a total ban on communication. The lack of a unifying legal standard from the differing opinions makes it difficult to predict outcomes in similar cases, as hypothetical scenarios could yield conflicting judgments from the Court. While the result in the Metromedia case cannot be directly applied due to significant differences between the ordinances, the principles underlying First Amendment rights must inform any decision regarding the constitutionality of the statute in question. This includes the potential for crafting remedies that allow non-commercial speech while possibly restricting commercial speech, depending on how exceptions are evaluated.
A requirement that distinguishes between non-commercial and offsite commercial speech would create problematic content-based distinctions, potentially leading to the striking down of either the exceptions or the entire statute. Therefore, it is crucial to determine whether Chapter 11 is content-based and the reasons for such a classification. Laws under scrutiny appear to involve content discrimination since they exempt certain signs based on their content, although there is disagreement among the concurrence and dissenters regarding this interpretation. The First Amendment mandates content neutrality to prevent the government from restricting speech based on the fear that it may persuade listeners. Such restrictions indicate distrust in the rationality of citizens and can distort public debate by favoring some viewpoints over others. The government’s ability to limit permissible subjects of public debate risks controlling the narrative on political issues. Even if a government claims to restrict speech for reasons other than content bias, historical attempts at censorship raise suspicion about the true motives behind content-based restrictions. The First Amendment violation does not require proof of illicit intent; rather, content-based differentiation itself can be sufficient for a violation.
The excerpt addresses the implications of content-based discrimination in government regulations, particularly in the context of speech. It argues that simply categorizing permissible speech by subject matter is problematic, as it can distort public debate by limiting the dissemination of certain ideas. The text highlights that even without intent to suppress specific viewpoints, allowing content differentiation undermines the government's position on the importance of free speech. It also notes that if the government acknowledges that some speech does not pose an aesthetic threat, it raises questions about the legitimacy of restricting other speech based on similar interests.
The text cites the Supreme Court's stance that the government should only limit speech when there is a strong justification to do so, thereby deterring it from favoring certain speech over others. It references opinions from Justices Stevens and Brennan, indicating that minimal exceptions to a general ban on speech do not necessarily raise significant concerns regarding viewpoint discrimination or public debate suppression. The San Diego and Delaware ordinances' exceptions are characterized as minor and not likely to skew public discourse or reflect a governmental agenda to shape public opinion. However, the text ultimately cautions against allowing even minimal content-based discrimination without scrutiny.
Judicial analysis of content discrimination risks undermining the benefits of a per se rule against such discrimination. Judges, like legislators, may hold majoritarian views that could influence their decisions on whether content discrimination is minimal. The Metromedia concurrence raises concerns over excessive judicial discretion by suggesting that an exception to a total ban on signs should only be allowed if it significantly furthers an unrelated interest and is narrowly tailored. This could lead to governmental determinations of the importance of certain speech over others, which contradicts the intent of avoiding content-based discrimination.
The concurrence acknowledges that a government should not be limited to a binary choice of banning all signs or none, as some signs may hold contextual importance. For instance, signs like "Speed Limit 55" or "Rest Stop" are critical on highways compared to political advertisements, which lack contextual relevance. The latter may be less necessary as alternative communication methods exist. Thus, permitting context-sensitive signage while banning others can be seen as accommodating essential communication rather than favoring specific content.
A state can exempt specific speech from a general ban if there is a significant relationship between the speech's content and a particular location, provided the exemption does not aim to censor viewpoints or control public debate. To pass the Metromedia concurrence test, the state must demonstrate that the exemption serves an important state interest that is at least as significant as the interests underlying the regulation, is no broader than necessary, and minimally impacts the overall regulation. The requirement for a sign to be significantly related to a property can be satisfied in two ways: by showing its importance to travelers (e.g., directional signs) or by demonstrating that it conveys information more effectively at its location (e.g., an address sign). This approach offers a criterion for evaluating exceptions without requiring courts to assess the value of different speech types. Although this flexibility may lead to increased government restrictions on speech, it does not mandate that the government allow all speech if it perceives some as crucial to a location. Ultimately, when speech is significantly related to a location, the state can exempt it from a ban if the exemption serves a comparable interest. Most exceptions in Delaware’s regulations align with this test, particularly those concerning directional, warning, and official signs, which are essential for public safety and information.
Exceptions to the state’s sign regulation survive intermediate scrutiny when the state's interest in certain signs outweighs its aesthetic and safety concerns related to banning them. Specifically, signs advertising the sale or lease of real property are linked to that property and could facilitate housing market transactions, which may be as important as the state's aesthetic and safety interests. However, the current record lacks sufficient evidence to establish that this exception meets the substantial state interest requirement, necessitating further examination by the district court upon remand. The state must present evidence, potentially including economic testimony, to substantiate its interest in these signs and to demonstrate that this interest surpasses the reasons for banning them, as well as to show that the exception is narrowly tailored.
The exception for onsite signs advertising activities conducted on the premises is constitutional and not content-based, as it does not restrict the type of message but rather regulates the relationship between the sign and its location. This means that the content of onsite signs varies with the nature of the establishments they represent.
Additionally, the exception for signs approved by the State Department of Public Instruction for school bus waiting shelters is not content-based, as there are no specified content restrictions for the signs placed there. Lastly, the exception for beautification and landscape planting sponsorship signs remains to be addressed.
Content-based signs indicating landscaping attributable to a specific company are significantly related to the property they are placed on, as they communicate a direct message about that property. However, the validity of the state's interest in such beautification signs under established legal tests is questionable and will require further examination unless the statute is invalidated for other reasons.
The legal exception for signs mandated by law, such as zoning notices, may be acceptable if they relate to the property and fulfill the substantial state interest requirement. The district court must investigate this unless the statute is struck down on different grounds.
Conversely, the exception allowing signs that promote local towns, industries, and meetings raises issues, as these signs do not pertain to the specific land on which they are placed, nor do they relate to the highway's purpose. Allowing such signs constitutes impermissible content discrimination and violates the adopted legal standards.
As a result, Subchapter I of Delaware's statute is deemed unconstitutional due to the problematic exception for local advertising signs. Although this flaw seems minor, it is significant enough to warrant a declaration of unconstitutionality because any form of content discrimination is unacceptable.
Subchapter II, in contrast, lacks the problematic exception and includes exemptions for directional and official signs, real estate signs, onsite signs, and bus shelter signs, all of which are likely constitutional. However, on remand, the exception for sale/lease signs and potentially bus shelter signs must be evaluated to ensure they meet the important state interest standard. Additionally, the official sign exception in Subchapter II, which encompasses signs related to natural wonders and attractions, must also be interpreted in accordance with these standards.
Directional signs for natural wonders, scenic, and historic attractions are permissible only when they guide travelers to specific sites; general informational signs about these sites do not qualify as they are not related to highway use and are comparable to signs for local businesses or politicians. To maintain constitutional validity, the exception for official signs must be interpreted narrowly to exclude generic descriptive signs. The district court is tasked with determining if the allowable signs serve an important state interest.
While Subchapter I of Chapter 11 fails the content neutrality test due to its local relevance issues, Subchapters II and III do not have the same deficiency, necessitating further evaluation by the district court regarding potential failures in other content neutrality criteria. The County's lack of appeal on the constitutionality of its ordinance means that the qualified immunity of county defendants can be resolved without that analysis.
Regarding the argument for the overall constitutionality of the statute, the state defendants claim that any content distinctions made by Chapter 11 do not undermine its neutrality, as the legislature’s intent was to address the secondary effects of prohibited signs rather than to censor specific speech. This position is contested, referencing the Supreme Court case Renton v. Playtime Theatres, which upheld a content-based ordinance aimed at reducing negative secondary effects associated with adult theaters. The defendants argue that similar reasoning applies here, suggesting that the statute's purpose is to mitigate the adverse effects of certain signs, which are not attributed to their persuasive content.
The analysis justifies upholding a statute regulating signs despite various exemptions, yet raises concerns about applying secondary effects analysis to political speech, as the Supreme Court has not explicitly done so. Even if this analysis could allow content-based restrictions on political speech, the statute fails under it. The required comparison shows that prohibited speech must create greater secondary effects than permitted speech. The case regarding a city's ban on newsracks distributing commercial handbills illustrates that such regulations are content-based, as they depend on the content of the publications. The court finds no secondary effects unique to the prohibited signs compared to those allowed, asserting that any differing treatment relies on sign content. The defendants argue that campaign signs proliferate more than others, causing greater safety and aesthetic issues, but this argument lacks proof and fails to explain why other signs are also banned. The claim of aesthetic interest is unsubstantiated, as evidence presented was weak, and the court discounted it. Additionally, the defendants attempt to classify Chapter 11 as regulating non-public fora, which are not traditionally open for public expression, referencing case law for forum analysis.
In non-public fora, the state can regulate speech in a proprietary capacity, provided the regulations are viewpoint-neutral and reasonable. Discrimination based on content is generally acceptable, and such regulations do not require adherence to standard time, place, and manner analyses. However, defendants' assertion that rights of way are non-public fora is incorrect. The Delaware statute in question regulates sign posting on both public roads and private property, with state defendants acknowledging that rights of way are part of the roads. According to Delaware law, public roads and highways are considered public fora due to their longstanding role as spaces held in trust for public use. Thus, all public streets are treated as traditional public fora without the need for case-by-case evaluations. Furthermore, the statutes apply broadly to all roads, including those classified as public fora. Regulations affecting speech on private property are subject to strict scrutiny akin to that applied in public forums. Ultimately, the court finds that the content discrimination in Chapter 11 renders it unconstitutional, particularly due to an exception for signs promoting local entities and attractions.
The constitutionality of exceptions in Subchapter I, as well as those in Subchapters II and III, remains uncertain and requires further record development. Legal precedent dictates that courts should only invalidate the necessary portions of a statute. There may be grounds to sever problematic provisions from Subchapter I or to sever the entire subchapter while maintaining the rest of the statute. Federal courts assessing the invalidation of state statutes must follow state law regarding severability, specifically Delaware law in this case. Severability hinges on legislative intent, which can be inferred from Delaware's general severance statute, Del.Code Ann. tit. 1, Sec. 308. This statute states that if any provision is deemed invalid, it does not affect the validity of other provisions that can operate independently, unless there is clear intent to the contrary from the legislature. In situations where intent is ambiguous, Delaware courts will evaluate whether the remaining provisions have separate purposes and can function independently. If the exception concerning advertising local industries and meetings were removed, the remaining statute could still function; however, the court hesitates to sever this exception due to constitutional implications, as such action would impose additional restrictions on free speech. The court references the Mosley case, noting it favored striking down a broader statute rather than eliminating an exception without precedent for such an injunction.
The court refuses to strike down the exception in the content discriminatory statute due to the constitutional significance of speech, which generally favors more rather than less speech. Eliminating exceptions would discourage challenges to such statutes, as individuals affected by speech bans would not benefit from remedies, exemplified by Rappa's inability to post signs even if he won his case. The court asserts that the remedy for content discrimination cannot involve severing the statute in a way that restricts more speech without clear legislative intent to eliminate the exception. Without a more explicit severability clause than Section 308, it cannot be assumed that the Delaware legislature would prefer to restrict speech further instead of invalidating Subchapter I entirely.
The court notes that previous rulings on billboard statutes have required states to allow all speech that ranks higher in constitutional protection than speech allowed by statutory exemptions. However, the district court's injunction perpetuates constitutional issues by maintaining broad restrictions on many signs, leading to content discrimination by allowing political speech while restricting other non-commercial speech. Therefore, there is no viable remedy to sustain Subchapter I, necessitating its complete invalidation.
In contrast, the court finds no reason to invalidate Subchapters II and III, as their removal increases permissible speech while ensuring that severability requirements are met. Delaware has demonstrated a legislative preference for severability, and no evidence suggests otherwise. Each subchapter can function independently, serving the state's interests in safety and aesthetics. Subchapter II, in particular, aligns with federal requirements under the Highway Beautification Act, reinforcing its independent state interest. Ultimately, the court remands the case for the district court to evaluate the constitutionality of Subchapters II and III standing alone.
The district court must assess if there are sufficient, independent justifications for the content-based exceptions in Subchapters II and III, specifically regarding signs for sale or lease, official signs for natural and historic attractions, and signs at school bus waiting shelters. It needs to evaluate whether these exceptions are narrowly tailored to serve a substantial state interest that is at least as significant as the state's interests in aesthetics and safety, as previously established. Additionally, the court will determine if Subchapters II and III comply with time, place, and manner regulations.
The Supreme Court allows reasonable restrictions on protected speech in public forums, provided they do not reference the content of the speech, are narrowly tailored to serve significant governmental interests, and leave ample alternative communication channels. The district court recognizes the state's interests in aesthetics and safety as valid. Although Chapter 11 likely meets the narrow tailoring requirement, the adequacy of alternative communication channels remains uncertain.
The state defendants argue that the Delaware statute allows sufficient areas for sign placement and that alternative media can convey political messages. However, Chapter 11 currently permits only limited sign placement, primarily in certain urban areas, and prohibits most signs visible from the covered roads. If Subchapter I is severed from Chapter 11, individuals could post signs on more roads in the state, but whether this constitutes an adequate alternative depends on the importance of the roads under Subchapters II and III for communication purposes.
A ban on most signs near interstate or federal-aid primary highways is being upheld, but the record lacks sufficient facts to fully assess the implications. The state defendants argue that alternative communication channels, such as print, radio, television, and leafletting, remain available under Chapter 11. They reference the case Taxpayers for Vincent, where restrictions on public property signs were deemed acceptable without evidence that such postings were uniquely valuable. However, Rappa has provided compelling expert testimony asserting that other media fails to offer a sufficient alternative for political communication, particularly emphasizing that political signs are crucial for name recognition among lesser-known candidates, while other media options are costly or ineffective.
Defendants countered with an affidavit claiming that radio is the most effective means for name recognition in Delaware. The court noted that alternatives such as radio and television should be evaluated in conjunction with the possibility of posting signs on roads not affected by certain restrictions. Additionally, the restrictions affect not only candidates but also homeowners who wish to express their political views through sign postings. The limitations imposed by the two-sign rule may infringe upon the rights of both candidates and homeowners, as the latter may have limited alternatives for political expression. The court highlighted that posting a sign on one's property is both a practical and unique form of self-expression. Although Subchapter I was struck down, homeowners along restricted roads still face communication barriers, and on remand, the defendants may provide evidence to show that alternatives are adequate despite Chapter 11's restrictions.
For Rappa to claim the First Amendment rights of homeowners, the statute in question must be shown to be substantially overbroad in relation to its legitimate scope, as established in Broadrick v. Oklahoma. Currently, there is insufficient evidence that enough residents live near the affected roads to support an overbreadth challenge. Rappa may present evidence on remand to argue that Subchapters II and III impose invalid time, place, and manner restrictions, limiting communication options for homeowners and politicians.
The individual state and county defendants have appealed the denial of their motions for summary judgment based on qualified immunity concerning the constitutionality of outdoor sign restrictions. The court must assess whether the defendants' actions violated clearly established rights that a reasonable person would recognize.
In evaluating qualified immunity, it is unnecessary for prior cases to be directly on point; rather, the focus is on whether reasonable officials could have believed, based on existing case law, that their conduct was lawful. Rappa contends that following the Metromedia decision, which deemed a similar law unconstitutional, any reasonable official should have recognized Chapter 11's facial unconstitutionality under the First and Fourteenth Amendments. Justice, the former Secretary of Highways, counters with three arguments: the ambiguity of Metromedia's ruling, the assertion that Chapter 11 is content-neutral, and that similar statutes have been found constitutional in other jurisdictions.
Ultimately, the court agrees with Justice, concluding that the split opinions in Metromedia did not set a clear standard for evaluating outdoor advertising regulations. Therefore, Justice is entitled to summary judgment on Rappa's facial challenge based on qualified immunity, as he had to determine Chapter 11's constitutionality through a general First Amendment analysis.
State officials could reasonably conclude that Chapter 11 constitutes a constitutional time, place, and manner restriction on outdoor sign posting. The secondary effects doctrine allows for content-neutral regulations, and this doctrine has been applied beyond zoning for sexually explicit businesses, as shown in the Supreme Court's decision in Ward. Although the court's earlier analysis differed, a reasonable official in Justice's position could view Chapter 11 as constitutional under this doctrine. Furthermore, it was reasonable for Justice to determine that alternative communication channels existed, despite ongoing uncertainty about regulations like Chapter 11. Citing relevant cases, the court noted that a reasonable official could believe their actions were lawful based on established case law. Consequently, the court reversed the district court’s denial of summary judgment for Justice, instructing to enter summary judgment favoring Justice regarding the claim for damages based on Chapter 11's facial invalidity. Similarly, for the individual county defendants, the qualified immunity analysis mirrored that of Chapter 11, leading to a reversal of the district court’s denial of summary judgment and a direction to favor the county defendants on claims related to the facial invalidity of the county ordinance. Lastly, while affirming the district court's summary judgment in favor of Rappa on the facial invalidity of Subchapter I of Chapter 11, the court reached this conclusion through different reasoning than that of the district court.
Subchapter I is deemed unconstitutional due to its discriminatory exception for signs related to local industries or meetings, which unfairly differentiates these signs from others not connected to the property or its use. Consequently, the court vacates the district court's limited injunction regarding Subchapter I and mandates a broader injunction against its enforcement. Subchapters II and III may stand independently, and their constitutional validity must be assessed by the district court. The court vacates the judgment concerning these subchapters and remands for consideration of whether their content-based exceptions comply with established criteria and allow sufficient alternative communication channels.
Regarding qualified immunity, the court finds that the defendant officials could reasonably believe that Chapter 11 and the county ordinance constituted valid time, place, and manner restrictions for outdoor signs. Hence, the court reverses the district court's denial of summary judgment for the individual state and county defendants, directing it to grant summary judgment in their favor concerning Rappa's claims based on the facial invalidity of these regulations. Rappa retains the right to pursue damages against the defendants for alleged unconstitutional application of the statute under the First Amendment or Due Process Clause. The parties are to bear their own costs.
Judge Alito concurs, agreeing with the court's conclusion but expressing a different analytical approach. He views Subchapters I and II as effectively banning signs while allowing two significant exceptions: "for sale" signs and signs for on-site activities. He suggests that both subchapters should be evaluated to determine if they meet the standards of a content-neutral law, noting that Subchapter I does not pass this test, as it fails to be narrowly tailored to serve a significant governmental interest.
Delaware's Subchapter I, which broadly prohibits signs within 25 feet of state highways (with exceptions for incorporated towns), is deemed not narrowly tailored and thus unconstitutional regarding traffic safety and aesthetic concerns. In contrast, Subchapter II's limited application to adjacent areas of the interstate and primary highway system is considered to potentially meet the criteria for content-neutral restrictions. However, the inclusion of exceptions for "for sale" signs raises questions about whether it is content-based, an issue that lacks a clear resolution pending further Supreme Court guidance. Circuit Judge Garth dissents from the majority's decision to uphold Subchapters II and III, arguing that they violate the First and Fourteenth Amendments based on the precedent set in Metromedia, Inc. v. San Diego. Garth concurs with affirming Subchapter I's unconstitutionality, except for directional and warning signs, and supports the reversal of the denial of qualified immunity for individual defendants, advocating for summary judgment in their favor on Rappa's claims for damages. He emphasizes that the Metromedia ruling should govern this case, asserting that it provides a standard for evaluating the constitutionality of the sign regulations.
In National Advertising Co. v. Town of Babylon, the Second Circuit invalidated a content-based ordinance favoring commercial speech over political and noncommercial speech, citing First Amendment violations and applying the Metromedia plurality standard. Conversely, in Major Media of the Southeast v. City of Raleigh, the Fourth Circuit upheld a city signage ordinance that allowed for non-commercial message substitutions where commercial messages were permitted. The Eighth Circuit in Gilleo v. City of Ladue also followed the Metromedia precedent, striking down an ordinance that favored commercial speech and prioritized certain noncommercial messages. The Ninth Circuit, in Outdoor Systems Inc. v. City of Mesa, separately assessed the impact of signage restrictions on commercial versus noncommercial speech, maintaining the commercial-noncommercial distinction. The Ninth Circuit similarly applied the Metromedia standard in National Advertising Co. v. City of Orange, rejecting regulations requiring content examination of noncommercial messages. The Western District of Virginia in Jackson v. City Council of Charlottesville affirmed that the Metromedia plurality is controlling for ordinances that favor commercial over noncommercial speech. Other cases, including Ackerly Communications of Massachusetts and Georgia Outdoor Advertising, reinforced the principle that sign regulations cannot prohibit noncommercial messages where commercial messages are allowed. However, in Wheeler v. Commissioner of Highways, the Sixth Circuit upheld a content-neutral restriction on onsite signage. Metromedia established that government interests in regulating speech must not outweigh the rights to communicate non-commercial messages in the same locations. Delaware's governmental interests in aesthetics and safety regarding sign restrictions were deemed comparable to those in Metromedia, as the state balanced these interests with individual rights to post noncommercial signs.
The Delaware Legislature's distinction between permitted and impermissible signs lacks a valid connection to the state's claimed interests in aesthetics and traffic safety. A "For Sale" sign is equally as unsightly as a political sign, and there is no basis to assert that political signs pose a greater threat to traffic safety than other types of signage. Consequently, the differentiation made by Chapter 11 of the Delaware Code does not effectively address the government's stated interests, rendering it an inappropriate method for addressing legitimate concerns. The comparison to the Supreme Court case City of Cincinnati v. Discovery Network illustrates that a categorical ban on certain signs is unjustifiable when similar signs do not produce differing aesthetic or safety impacts. The majority opinion acknowledges that Delaware's interests do not sufficiently differentiate between types of speech but claims differences between this ordinance and those previously ruled on in Metromedia. However, it is argued that Chapter 11 is fundamentally similar to the San Diego ordinance in Metromedia, which began with a broad ban on outdoor advertising to promote aesthetic and safety values while allowing specific exceptions. This pattern indicates an infringement on freedom of speech, as the general prohibition is the primary issue, not the exceptions that follow. The analysis underscores that the exceptions significantly affect the evaluation of the government's interests in regulating signage.
The city’s allowance for commercial establishments to use billboards indicates a prioritization of on-site commercial advertising over aesthetics and traffic safety. Despite this, the city has banned all noncommercial signs, except those with specific exceptions. This raises the question of whether the city can justify that its interests in aesthetics and safety outweigh private interests in noncommercial speech, a position deemed inconsistent with established case law. The majority opinion incorrectly assumes that the Delaware statute, which does not differentiate between commercial and noncommercial speech, is distinguishable from the precedent set in Metromedia. In Metromedia, it was established that laws favoring commercial speech over noncommercial speech are impermissible, as they restrict noncommercial messages in areas where commercial messages are allowed. The Delaware statute is criticized for similarly favoring commercial speech and discriminating against various forms of noncommercial speech, as it exempts certain noncommercial content based solely on its subject matter. The district court’s analysis concludes that the state cannot dictate which topics are suitable for public discourse, aligning with principles outlined in prior case law.
Allowing a government to choose permissible subjects for public debate grants it control over the pursuit of political truth. The majority's interpretation of First Amendment neutrality diverges from established legal principles and fails to reconcile its conclusions with existing authority. The majority asserts that statutes, while aimed at legitimate ends, can impose content-based exceptions if they relate significantly to the locality of the speech. This introduces a subjective standard for assessing content neutrality, focusing on governmental motivation to suppress speech rather than on the constitutionality of content-based restrictions.
The Supreme Court has consistently maintained that discriminatory treatment under the First Amendment is problematic regardless of legislative intent to suppress specific ideas. Regulations, even if aimed at legitimate concerns, can unduly restrict First Amendment rights. Consequently, government regulation of expressive activities is considered content-based unless justified without referencing the content of the speech.
Under the majority's new test, the permissibility of signs hinges on their conveyed message, rendering the ban in question content-based. Delaware's differential treatment of protected speech does not advance any legitimate state interest, as previously rejected by the Court when state interests do not connect to content distinctions. The lack of neutral justification for exceptions to the general prohibition in Chapter 11 necessitates the statute's invalidation according to established First Amendment jurisprudence. The majority incorrectly claims that these exceptions can be defended as legitimate time, place, or manner restrictions on protected speech.
In time, place, and manner cases, the justification for a regulation is critically examined. Content-based speech restrictions cannot be justified as legitimate time, place, or manner restrictions, even if they allow for alternative channels of communication. A majority standard suggests that the permissibility of a sign on property depends on its message; for example, a sign related to liquor sales may be allowed while a political sign may not, indicating a content preference. This preference can lead to arbitrary enforcement by officials, allowing them to remove signs based on subjective judgments about their relevance to the area, risking discrimination against unpopular viewpoints. The ability of government officials to determine the categorization of speech as commercial or noncommercial can lead to the curtailment of noncommercial speech under the guise of regulating commercial messages. This approach creates potential for discrimination and violates the First Amendment, as it allows the government to favor certain messages or viewpoints over others based on asserted functional relevance, which is unconstitutional.
Limiting noncommercial signs to those advocating onsite activities constitutes an unconstitutional content-based regulation, as established in prior cases such as Boos v. Barry and Linmark Associates, which invalidated ordinances based on content discrimination. The exemption of certain signs under the Delaware statute is similarly impermissible since it relies on the content of the signs for justifications. The majority acknowledges that any differentiation among signs must be grounded in their content, which is a violation of First Amendment principles. Moreover, the Delaware statute fails to meet the standards for content-based restrictions, which require a compelling state interest and narrow tailoring, as highlighted in cases like Perry Education Association and Police Department of Chicago v. Mosley. Thus, the broader exceptions under Chapter 11, despite being interpreted to allow some commercial and noncommercial signs, remain unconstitutional for similar reasons, leading to a conclusion that the statute lacks First Amendment neutrality. The majority's attempt to justify the statute through an unsubstantiated property-compatibility approach disregards established First Amendment jurisprudence, failing to align with the analytical frameworks set forth by the Metromedia decision.
The excerpt critiques a legal test introduced by the majority of a judicial panel, which is based on a two-Justice concurrence from Metromedia. The author argues that this new formulation contradicts established principles of stare decisis and that a three-judge panel lacks the authority to overrule a Supreme Court plurality opinion. The majority admits its approach is unprecedented but claims it is a logical extrapolation of the reasoning in Planned Parenthood v. Casey, despite no precedent supporting such a move. The author highlights that a straightforward application of the Metromedia plurality opinion would likely invalidate the Delaware statute in question, as demonstrated by the Ninth Circuit’s decision in City of Orange, which struck down an ordinance on similar grounds. The author advocates for the complete striking down of the Delaware statute, except for directional and warning signs, as it violates both tests established by the Metromedia plurality: imposing greater restrictions on noncommercial speech than on commercial speech, and regulating noncommercial speech based on content. The author emphasizes that political speech deserves heightened protection under the First Amendment, noting the necessity for vigilance against restrictions on such speech, particularly in election contexts.
The recent ruling in Discovery Network has been interpreted by some as elevating commercial speech to the same status as noncommercial speech under the First Amendment. However, this viewpoint lacks support, particularly regarding the preference of commercial speech over political or other noncommercial speech, and the unjust treatment of different classes of noncommercial speech. The precedent set by Metromedia establishes that the government cannot ban noncommercial billboards where commercial ones are allowed, nor can it discriminate between types of noncommercial speech. Discovery Network reiterates the unconstitutionality of underinclusive restrictions on protected speech, which applies equally to both commercial and noncommercial offsite speech that presents similar aesthetic and safety concerns.
The Delaware statute at issue is criticized for favoring commercial speech by prohibiting political or other noncommercial messages on commercial signs, making it content-based and unconstitutional under Metromedia. Additionally, restrictions on signage on both public and private property are deemed unconstitutional, as private property owners should have control over their property usage. The dissenting opinion argues for the complete invalidation of Chapter 11 of the statute while allowing exceptions for directional and warning signs.
The dissent also references Rappa's case, highlighting the various types of signs he used to promote his political campaign, which included poster signs and bumper stickers, emphasizing the content and diversity of noncommercial speech.
Rappa's campaign signs aimed to promote his candidacy over Carper's in the primary election and to encourage voters to support the Democratic nominee in the general election. The signs also intended to position Rappa as a genuine Democrat, contrasting him with Carper. The defendants involved include County Executive Dennis Greenhouse, Director of the Department of Public Works Robert W. O'Brien, Executive Assistant John Carney, Policy Coordinator Mark Kleinschmidt, and Code Enforcement Officer William McIntyre, collectively referred to as the "County defendants." Additionally, McNulty and Justice are identified as the "State defendants."
The United States Department of Justice has filed an amicus curiae brief regarding the implications of the appeal. Title 17 of the Delaware Code, which governs highways, incorporates the public policy of the Federal Highway Beautification Act (HBA). The HBA aims to control outdoor advertising near highways to protect public investments and preserve natural beauty. A "state highway" includes roads constructed or controlled by the Department of Transportation, while a "controlled area" is defined as regions adjacent to highway rights-of-way, excluding certain urban areas.
Chapter 11 of the Delaware Code contains ambiguities regarding exceptions for sign regulations. Notably, sections 1108 and 1114 overlap but define different limitations on signage. Section 1108(c) exempts signs for activities on real property, while section 1114(1) exempts signs identifying businesses. The potential for constitutional issues arises if the broader term "activities" is interpreted to exclude noncommercial speech, prompting an interpretation that includes both commercial and noncommercial activities in accordance with statutory construction principles.
When a statute's interpretation poses significant constitutional issues, courts will interpret it in a way that avoids such problems, provided this interpretation does not clearly contradict Congressional intent (Frisby v. Schultz). Lower courts incorrectly endorsed a broad interpretation of the ordinance, violating the principle of constitutional avoidance. The U.S. Attorney General was informed that the current case, involving the validity of Subchapter II, may also impact the validity of the Highway Beautification Act (HBA). The U.S. has submitted an amicus curiae brief addressing related issues, although the HBA's constitutionality is not under consideration in this case.
The relevant statute prohibits outdoor advertising signs visible from major highways unless they fall into exempt categories (Del.Code Ann. tit. 17, Sec. 1121). The court will reference Chapter 11 only to address qualified immunity issues, as the constitutionality of the New Castle ordinance is not central to the case. The Supreme Court's decision in Taxpayers for Vincent applied a standard for evaluating content-neutral regulations, which aligns with the standards established in United States v. O'Brien. However, the definition of content-neutral remains somewhat ambiguous, and the classification of regulations has evolved.
For First Amendment purposes, different methods of expression, such as outdoor signs, are treated distinctly, reflecting their unique characteristics and potential issues (Metromedia). Unlike Delaware's statute, the San Diego ordinance targeted only "permanent" outdoor signs, such as billboards, and included broader exemptions for historical signs compared to Chapter 11. The plurality opinion in Metromedia regarding commercial speech was supported by Justice Stevens.
Favoring onsite speech over off-site speech likely results in a preference for commercial speech, as onsite speech is predominantly commercial. However, this effect is deemed too indirect to warrant consideration. The Justice Department's amicus brief highlights that the plurality's reasoning has been undermined by the Supreme Court's decision in Discovery Network, which invalidated an ordinance that restricted commercial newsracks while permitting non-commercial ones, indicating that non-commercial speech is not inherently favored under the First Amendment. This suggests that the distinctions made in the San Diego ordinance, which prioritize commercial speech, may not be problematic if speech categories are not hierarchically favored. Nonetheless, such distinctions could still be impermissible if they are content-based. Commentators note that plurality opinions represent the views of individual justices rather than the authoritative stance of the Court as a whole, raising concerns about their precedential legitimacy. The text also references a more stringent version of the time, place, and manner test related to communication bans, and clarifies that opinions may not have precedential value unless they produce broadly agreeable results among the majority of justices, as discussed in the Casey case.
A narrowest opinion typically aims to invalidate the fewest laws, but this standard does not apply in situations lacking a narrowest opinion, as established in Casey. The reasoning suggests that while it may be feasible to predict outcomes based on the Justices' votes, this approach lacks principled foundation. For example, a statute that discriminates against noncommercial speech could be constitutional, but if it also imposes a total ban on communication methods, it becomes unconstitutional, despite no Justice asserting a special combined effect of these attributes. Such a voting matrix would yield predictable yet superficial rules, diverging from consistent constitutional values. The system's predictability is limited, as significant cases often lead to reexamination by the Supreme Court. Additionally, while a concurrence may propose a narrower test for content discrimination, its applicability beyond total bans is unclear, and it did not definitively address the constitutionality of specific exceptions in the case of Metromedia, which was resolved on independent grounds. Thus, the concurrence's test may not serve as a narrowest view explaining the outcome in that case.
The concurrence's interpretation of content-based exceptions aligns closely with that of the dissenters, suggesting that such exceptions are constitutional if deemed de minimis. However, this interpretation lacks precedential value because it conflicts with the case's outcome, as noted by Novak. Lower courts must follow the principle of 'result' stare decisis, which dictates that a clear majority's specific result should be controlling in similar cases. While a lack of a clear majority rationale allows for some flexibility in lower courts to create justifying rules, it does not permit reasoning that leads to contrary outcomes. Adherence to 'result' stare decisis is crucial for maintaining certainty and uniformity in the law.
Furthermore, the laws in question likely do not impose a complete ban on outdoor signs, as there are still limited areas where they can be posted. Specifically, Chapter 11 is restricted to outdoor advertising and does not apply to signs inside windows or to certain state highways, allowing for some roads in Delaware to remain free from restrictions. Additionally, select urban zones are exempt from these restrictions, and signs are allowed if set back at least 25 feet from the right-of-way.
The Supreme Court is expected to address the issues stemming from its divided opinion in Metromedia during the upcoming case Gilleo v. Ladue. This presents an opportunity for clarification. The concept of distortion in public debate relies on an assumed standard of undistorted discourse, which is challenged by the influence of private economic power on access to ideas. Although governmental censorship can distort debate, it is argued that its impact is often greater than that of private power. Lastly, Dean Stone has outlined the reasons for the differential treatment of content-neutral versus content-based restrictions.
The First Amendment addresses not only the reduction of communication but also the distortion of public debate, improper motivation, and communicative impact, particularly with content-based restrictions. The Supreme Court applies a strict standard of review to content-based restrictions on high-value speech but does not extend the same scrutiny to content-neutral restrictions. Government restrictions on political campaign signs may aim to distort debate by hindering non-incumbents' communication abilities. However, if the restrictions are not explicitly content-based, they should be evaluated as potential illegitimate time, place, and manner restrictions, requiring the availability of ample alternative communication channels.
In the context of the Equal Protection Clause, the Supreme Court has upheld laws that differentiate between types of advertisements based on location while allowing some exceptions. The question of whether effective alternative communication means exist for campaign signs must be analyzed within the time, place, and manner framework, noting that viable alternatives may exist for some signs but not for others, like regulatory signs. The concurrence's proposed test aims to ensure careful state consideration when adopting content-based exceptions, suggesting that such scrutiny should not be limited to total bans on signs. Cases where commercial signs are exempted while others are restricted could indicate impermissible content discrimination if the adopted test is applied straightforwardly.
Content differentiation among categories of commercial speech is generally permissible, as per the Metromedia plurality, provided the regulation does not affect non-commercial speech. However, the statutes in question limit both commercial and non-commercial speech, necessitating a decision on whether content-based distinctions within commercial speech are permissible. This perspective contrasts with the Supreme Court's ruling in City of Cincinnati v. Discovery Network, Inc., which invalidated an ordinance that permitted non-commercial newsracks while banning commercial ones.
The time, place, and manner test dictates that any constitutional speech restriction must allow ample alternative communication channels. In this case, a state can exempt certain signs from these restrictions if alternatives are available, albeit inferior due to their contextual nature. Any such exemption must meet strict scrutiny, demonstrating a compelling state interest that is narrowly tailored to achieve that interest.
The "significantly related to" test allows for case-by-case analysis, which could introduce subconscious biases; however, established criteria limit these biases more effectively than a less structured approach. This standard aligns with the ruling in Mosley, where an ordinance favoring labor picketing over other speech was struck down due to potential viewpoint discrimination.
Further, the precedent set by R.A.V. v. St. Paul indicates that content discrimination, even within generally excluded categories of speech, may be impermissible. Any exceptions to a sign ban must uniformly apply to all similar speech related to the locality. Applying R.A.V. could lead to vagueness in defining allowable signs, complicating enforcement and clarity of statutes.
The court refrains from addressing the issue of sign exemptions since it was not brought up by the parties, and no relevant examples of unexempted signs related to local restrictions were provided. For an exception for official signs or notices to be constitutional, it must pertain to signs directly related to the property they occupy, such as directional signs. An example given is that a sign for "Thomas Carper--Congressman" would only be relevant if placed at Carper's district office. Though the onsite exception is not content-based, it remains pertinent to the broader analysis of time, place, and manner regulations, potentially influencing the relationship between the regulation and the government's interests.
Onsite signs are considered unique media since they convey meaning based on their specific location. There has been no challenge to the Department's approval procedures for signs, thus the court does not evaluate the constitutionality of the sign space allocation rules, associated fees, or the discretion exercised by the State Department of Public Instruction. The exceptions in Subchapter III mirror those in Subchapter II, and signs related to historic or natural sites are permissible if they meet the onsite exception criteria.
The county defendants argue against the clear unconstitutionality of their ordinance. In relevant case law, a three-Justice plurality was open to applying secondary effects analysis to political speech, while the cited case of Texas v. Johnson concluded that even if such analysis were applicable, the statute remained unconstitutional. The case of Kokinda underscores that specific inquiries are necessary to determine the nature of certain public spaces, as the sidewalk in question was deemed not a traditional public forum due to its location entirely within postal property, serving a proprietary purpose rather than facilitating public commerce.
The Court's inquiry into the expressive uses of the sidewalk in Kokinda was necessary because that sidewalk was atypical, unlike the traditional highways involved in the current case. In Kokinda, only a small portion of the sidewalk was deemed outside the traditional public forum category. The state defendants claim that the challenge to Chapter 11 is inappropriate since their actions were authorized by sections 131 and 132 of Title 17 of the Delaware Code, which grant DelDOT jurisdiction over public roads and the responsibility to maintain state highways. Maintenance includes ensuring the right-of-way is free from debris that could affect drainage or the highway's foundation.
Defendants argue that the signs removed were considered debris, supported by historical affidavits indicating safety concerns led to sign removals. However, the district court ruled that the sign removals were conducted under Chapter 11, a finding Rappa contends is beyond the jurisdiction for review since it pertains to summary judgment denials. Nonetheless, jurisdiction exists to review summary judgment denials when linked to cross-motions for summary judgment.
The court agrees with the district court's conclusion that the sign removals were conducted under Chapter 11, stating that sections 131 and 132 do not grant the authority to remove signs as they are limited to obstacles affecting drainage or foundation integrity. Evidence in the record suggests that DelDOT had previously cited Chapter 11 as the authority for sign removal, and a letter from the Attorney General indicated a renewed commitment to enforce Chapter 11. This enforcement implies that Rappa, planning to run for office again, has standing to challenge Chapter 11 facially, supported by precedent that allows for such challenges when there is a genuine threat of future enforcement. Additionally, there is some indication that the legislature may have intended for Subchapter II of the law regarding outdoor advertising to be severable from other provisions.
In Finzer v. Barry, the court noted that if it were to remove only the discrimination element from a statute, leaving a neutral prohibition, it would inadvertently broaden the statute's application to resolve equal protection issues. The case draws parallels to Heckler v. Mathews, where a provision in the Social Security Act was challenged for discriminating against men by providing them lower benefits compared to women. Mathews also contested a severability clause which would limit benefits to new recipients if the discriminatory provision was invalidated. The court opined that enforcing this clause would result in women retaining lower benefits rather than elevating men’s benefits. The court upheld the severability provision, citing Congress's intent for nullification instead of extension of benefits.
In contrast, the current case lacks a severability clause favoring reduced speech, and the First Amendment supports an increase in speech rather than a decrease. Unlike Heckler, where no constitutional value supported fewer benefits, the First Amendment context favors more speech. The court concluded it would be inappropriate to sever the statute in a way that diminishes speech without clearer legislative intent. Additionally, it suggested the possibility of crafting an injunction allowing non-commercial speech while restricting offsite commercial speech, aligning with the precedent set by the Metromedia plurality. This would enable Delaware to permit all non-commercial speech to the same extent as local commercial signage.
The constitutionality of an injunction is weakened by the ruling in Discovery Network, which invalidated a law that banned commercial newsracks while permitting non-commercial ones. The Supreme Court's decision clarified that while Metromedia permitted a complete ban on offsite commercial billboards unrelated to content, it did not support a distinction between commercial and non-commercial billboards facing similar aesthetic and safety concerns. Discovery Network challenges the implication that banning only commercial signs could be constitutional, asserting it is unconstitutional to prohibit commercial speech while allowing non-commercial speech unless there is evidence of more severe secondary effects from the commercial speech.
The goals of the ordinance—traffic safety and city aesthetics—are acknowledged as substantial governmental interests. The Supreme Court has indicated that regulations can be considered narrowly tailored if they effectively promote these interests. Although Delaware could have pursued less restrictive means by regulating sign size and appearance instead of an outright ban, the choice to exempt certain signs suggests that complete elimination was deemed unnecessary by the state. The Court's ruling in Taxpayers for Vincent supports the notion that a total ban can be considered narrowly tailored if it addresses the specific issue it aims to resolve, even if the ordinance is underinclusive by allowing signs on private property.
Chapter 11's minor underinclusiveness does not inherently violate the narrowly tailored requirement. The city’s failure to regulate newsracks regarding their size, shape, and appearance indicates a lack of careful consideration of the associated costs and benefits affecting free speech. The district court is expected to resolve the narrowly tailored inquiry effectively with a more comprehensive record. The focus on Rappa’s specific message and campaign speech stems from the availability of substantial information on those topics. Judicial notice is taken that Delaware's only non-cable TV stations are from Philadelphia and Baltimore, making advertising on them prohibitively expensive.
Case comparisons show that previous ordinances, like in Taxpayers for Vincent, allowed for more alternative communication avenues, unlike Chapter 11's broader restrictions. The exceptions for directional and warning signs in Chapter 11 are deemed defensible under strict scrutiny, as they serve a compelling state interest in public safety and are narrowly tailored to avoid unnecessary infringement on speech. The differential treatment of these signs is justified by public necessity without regard to the content of speech. A contrasting outcome in Messer v. City of Douglasville is acknowledged, illustrating differing interpretations within circuit rulings.
The Messer court's analysis of the Douglasville ordinance, which permits onsite noncommercial messages while prohibiting offsite noncommercial signs, raises concerns regarding First Amendment compliance. The court determined that the ordinance’s preference for onsite over offsite noncommercial speech was not viewpoint-discriminatory, justifying it as a reasonable time, place, and manner restriction. However, the constitutionality of such restrictions hinges on whether they are content-neutral or content-based, as illustrated in cases like Burson v. Freeman and Boos v. Barry. Unlike the ordinances in Metromedia and other cases, the Douglasville ordinance's exemptions were not from an outright ban on off-premise signage, but rather from permit requirements and fees. The Discovery Network case further clarifies that a regulation must be content-neutral to qualify as a valid time, place, and manner restriction. The court in Discovery Network rejected a city's justification for discriminating against commercial use in newsracks, emphasizing that the regulation did not align with government interests. Finally, the author concurs with reversing the district court's denial of summary judgment based on qualified immunity for the individual defendants.
