APPEAL FROM THE SUPREME COURT OF CALIFORNIA
No. 80-195 Argued: February 25, 1981 --- Decided: July 2, 1981
JUSTICE WHITE announced the judgment of the Court and delivered an opinion, in which JUSTICE STEWART, JUSTICE MARSHALL, and JUSTICE POWELL joined.
This case involves the validity of an ordinance of the city of San Diego, Cal., imposing substantial prohibitions on the erection of outdoor advertising displays within the city.
Stating that its purpose was "to eliminate hazards to pedestrians and motorists brought about by distracting sign displays" and "to preserve and improve the appearance of the City," San Diego enacted an ordinance to prohibit "outdoor advertising display signs." [n1] The California Supreme Court subsequently defined the term "advertising display sign" as
a rigidly assembled sign, display, or device permanently affixed to the ground or permanently attached to a building or other inherently permanent structure constituting, or used for the display of, a commercial or other advertisement to the public.
26 Cal.3d 848, 856, n. 2, 610 P.2d [p494] 407, 410, n. 2 (1980). "Advertising displays signs" include any sign that "directs attention to a product, service or activity, event, person, institution or business." [n2]
The ordinance provides two kinds of exceptions to the general prohibition: on-site signs and signs falling within 12 specified categories. On-site signs are defined as those
designating the name of the owner or occupant of the premises upon which such signs are placed, or identifying such premises; or signs advertising goods manufactured or produced or services rendered on the premises upon which such signs are placed.
The specific categories exempted from the prohibition include: government signs; signs located at public bus stops; signs manufactured, transported, or stored within the city, if not used for advertising purposes; commemorative historical plaques; religious symbols; signs within shopping malls; for sale and for lease signs; signs on public and commercial [p495] vehicles; signs depicting time, temperature, and news; approved temporary, off-premises, subdivision directional signs; and "[t]emporary political campaign signs." [n3] Under this scheme, on-site commercial advertising is permitted, [p496] but other commercial advertising and noncommercial communications using fixed-structure signs are everywhere forbidden unless permitted by one of the specified exceptions.
Appellants are companies that were engaged in the outdoor advertising business in San Diego at the time the ordinance was passed. Each owns a substantial number of outdoor advertising displays (approximately 500 to 800) within the city. These signs are all located in areas zoned for commercial and industrial purposes, most of them on property leased by the owners to appellants for the purpose of maintaining billboards. Each sign has a remaining useful income-producing life of over 25 years, and each sign has a fair market value of between $2,500 and $25,000. Space on the signs was made available to "all comers," and the copy on each sign changed regularly, usually monthly. [n4] The nature of the outdoor advertising business was described by the parties as follows:
Outdoor advertising is customarily purchased on the basis of a presentation or campaign requiring multiple exposure. Usually a large number of signs in a variety of locations are utilized to communicate a particular advertiser's message. An advertiser will generally purchase a "showing" which would involve the utilization of a specific number of signs advertising the same message in a variety of locations throughout a metropolitan area. [n5]
Although the purchasers of advertising space on appellants' signs usually seek to convey a commercial message, their billboards have also been used to convey a broad range of noncommercial political and social messages. [p497]
Appellants brought suit in state court to enjoin enforcement of the ordinance. After extensive discovery, the parties filed a stipulation of facts, including:
2. If enforced as written, Ordinance No. 10795 will eliminate the outdoor advertising business in the City of San Diego.
* * * *
28. Outdoor advertising increases the sales of products and produces numerous direct and indirect benefits to the public. Valuable commercial, political and social information is communicated to the public through the use of outdoor advertising. Many businesses and politicians and other persons rely upon outdoor advertising because other forms of advertising are insufficient, inappropriate, and prohibitively expensive.
Joint Stipulation of Facts Nos. 2, 28, App. 42a, 48a. On cross-motions for summary judgment, the trial court held that the ordinance was an unconstitutional exercise of the city's police power and an abridgment of appellants' First Amendment rights. The California Court of Appeal affirmed on the first ground alone, and did not reach the First Amendment argument. Without questioning any of the stipulated facts, including the fact that enforcement of the ordinance would "eliminate the outdoor advertising business in the City of San Diego," the California Supreme Court reversed. It held that the two purposes of the ordinance were within the city's legitimate interests, and that the ordinance was "a proper application of municipal authority over zoning and land use for the purpose of promoting the public safety and welfare." 26 Cal.3d at 858, 610 P.2d at 411 (footnote omitted). The court rejected appellants' argument that the ordinance was facially invalid under the First Amendment. It relied on certain summary actions of this Court, dismissing for want of a substantial federal question appeals from several state court decisions sustaining governmental restrictions [p498] on outdoor sign displays. [n6] Appellants sought review in this Court, arguing that the ordinance was facially invalid on First Amendment grounds and that the city's threatened destruction of the outdoor advertising business was prohibited by the Due Process Clause of the Fourteenth Amendment. We noted probable jurisdiction. 449 U.S. 897.
Early cases in this Court sustaining regulation of and prohibitions aimed at billboards did not involve First Amendment considerations. See Packer Corp. v. Utah, 285 U.S. 105 (1932); St. Louis Poster Advertising Co. v. St. Louis, 249 U.S. 269 (1919); Thomas Cusack Co. v. City of Chicago, 242 U.S. 526 (1917). [n7] Since those decisions, we have not given plenary consideration to cases involving First Amendment challenges to statutes or ordinances limiting the use of billboards, preferring on several occasions summarily to affirm decisions sustaining state or local legislation directed at billboards.
Suffolk Outdoor Advertising Co. v. Hulse, 439 U.S. 808 (1978), involved a municipal ordinance that distinguished between off-site and on-site billboard advertising, prohibiting the former and permitting the latter. We summarily dismissed as not presenting a substantial federal question an appeal from a judgment sustaining the ordinance, thereby rejecting the submission, repeated in this case, that prohibiting [p499] off-site commercial advertising violates the First Amendment. The definition of "billboard," however, was considerably narrower in Suffolk than it is here:
A sign which directs attention to a business, commodity, service, entertainment, or attraction sold, offered or existing elsewhere than upon the same lot where such sign is displayed.
This definition did not sweep within its scope the broad range of noncommercial speech admittedly prohibited by the San Diego ordinance. Furthermore, the Southampton, N.Y., ordinance, unlike that in San Diego, contained a provision permitting the establishment of public information centers in which approved directional signs for businesses could be located. This Court has repeatedly stated that, although summary dispositions are decisions on the merits, the decisions extend only to "the precise issues presented and necessarily decided by those actions." Mandel v. Bradley, 432 U.S. 173, 176 (1977); see also Hicks v. Miranda, 422 U.S. 332, 345, n. 14 (1975); Edelman v. Jordan, 415 U.S. 651, 671 (1974). Insofar as the San Diego ordinance is challenged on the ground that it prohibits noncommercial speech, the Suffolk case does not directly support the decision below.
The Court has summarily disposed of appeals from state court decisions upholding state restrictions on billboards on several other occasions. Markham Advertising Co. v. Washington, 393 U.S. 316 (1969), and Newman Signs, Inc. v. Hjelle, 440 U.S. 901 (1979), both involved the facial validity of state billboard prohibitions that extended only to certain designated roadways or to areas zoned for certain uses. The statutes in both instances distinguished between on-site commercial billboards and off-site billboards within the protected areas. Our most recent summary action was Lotze v. Washington, 444 U.S. 921 (1979), which involved an "as applied" challenge to a Washington prohibition on off-site signs. In that case, appellants erected, on their own property, billboards expressing their political and social views. Although billboards conveying information relating to the commercial [p500] use of the property would have been permitted, appellants' billboards were prohibited, and the state courts ordered their removal. We dismissed as not raising a substantial federal question an appeal from a judgment rejecting the First Amendment challenge to the statute.
Insofar as our holdings were pertinent, the California Supreme Court was quite right in relying on our summary decisions as authority for sustaining the San Diego ordinance against First Amendment attack. Hicks v. Miranda, supra. As we have pointed out, however summary actions do not have the same authority in this Court as do decisions rendered after plenary consideration, Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 180-181 (1979); Edelman v. Jordan, supra, at 671; see also Fusari v. Steinberg, 419 U.S. 379, 392 (1975) (BURGER, C.J.. concurring). They do not present the same justification for declining to reconsider a prior decision as do decisions rendered after argument and with full opinion.
It is not at all unusual for the Court to find it appropriate to give full consideration to a question that has been the subject of previous summary action.
Washington v. Yakima Indian Nation, 439 U.S. 463, 477, n. 20 (1979); see also Tull v. Griffin, Inc., 429 U.S. 68, 74-75 (1976); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 14 (1976). Probable jurisdiction having been noted to consider the constitutionality of the San Diego ordinance, we proceed to do so.
This Court has often faced the problem of applying the broad principles of the First Amendment to unique forums of expression. See, e.g., Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530 (1980) (billing envelope inserts); Carey v. Brown, 447 U.S. 455 (1980) (picketing in residential areas); Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980) (door-to-door and on-street [p501] solicitation); Greer v. Spock, 424 U.S. 828 (1976) (Army bases); Ernoznick v. City of Jacksonville, 422 U.S. 205 (1975) (outdoor movie theaters); Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (advertising space within city-owned transit system). Even a cursory reading of these opinions reveals that, at times, First Amendment values must yield to other societal interests. These cases support the cogency of Justice Jackson's remark in Kovacs v. Cooper, 336 U.S. 77, 97 (1949): each method of communicating idea is "a law unto itself," and that law must reflect the "differing natures, values, abuses and dangers" of each method. [n8] We deal here with the law of billboards.
Billboards are a well established medium of communication, used to convey a broad range of different kinds of messages. [n9] As Justice Clark noted in his dissent below:
The outdoor sign or symbol is a venerable medium for expressing political, social and commercial ideas. From the poster or "broadside" to the billboard, outdoor signs have played a prominent role throughout American history, rallying support for political and social causes.
26 Cal.3d at 888, 610 P.2d at 430-431. [p502] The record in this case indicates that, besides the typical commercial uses, San Diego billboards have been used
to publicize the "City in motion" campaign of the City of San Diego, to communicate messages from candidates for municipal, state and national offices, including candidates for judicial office, to propose marriage, to seek employment, to encourage the use of seat belts, to denounce the United Nations, to seek support for Prisoners of War and Missing in Action, to promote the United Crusade and a variety of other charitable and socially related endeavors, and to provide directions to the traveling public. [n10]
But whatever its communicative function, the billboard remains a "large, immobile, and permanent structure which, like other structures, is subject to . . . regulation." Id. at 870, 610 P.2d at 419. Moreover, because it is designed to stand out and apart from its surroundings, the billboard creates a unique set of problems for land use planning and development.
Billboards, then, like other media of communication, combine communicative and noncommunicative aspects. As with other media, the government has legitimate interests in controlling the noncommunicative aspects of the medium, Kovacs v. Cooper, supra, but the First and Fourteenth Amendments foreclose a similar interest in controlling the communicative aspects. Because regulation of the noncommunicative aspects of a medium often impinges to some degree on the communicative aspects, it has been necessary for the courts to reconcile the government's regulatory interests with the individual's right to expression.
"[A] court may not escape the task of assessing the First Amendment interest at stake and weighing it against the public interest allegedly served by the regulation."
Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 91 (1977), quoting Bigelow v. [p503] Virginia, 421 U.S. 809, 826 (1975). Performance of this task requires a particularized inquiry into the nature of the conflicting interests at stake here, beginning with a precise appraisal of the character of the ordinance as it affects communication.
As construed by the California Supreme Court, the ordinance restricts the use of certain kinds of outdoor signs. That restriction is defined in two ways: first, by reference to the structural characteristics of the sign; second, by reference to the content, or message, of the sign. Thus, the regulation only applies to a "permanent structure constituting, or used for the display of, a commercial or other advertisement to the public." 26 Cal.3d at 856, n. 2, 610 P.2d at 410, n. 2. Within that class, the only permitted signs are those (1) identifying the premises on which the sign is located, or its owner or occupant, or advertising the goods produced or services rendered on such property, and (2) those within one of the specified exemptions to the general prohibition, such as temporary political campaign signs. To determine if any billboard is prohibited by the ordinance, one must determine how it is constructed, where it is located, and what message it carries.
Thus, under the ordinance, (1) a sign advertising goods or services available on the property where the sign is located is allowed; (2) a sign on a building or other property advertising goods or services produced or offered elsewhere is barred; (3) noncommercial advertising, unless within one of the specific exceptions, is everywhere prohibited. The occupant of property may advertise his own goods or services; he may not advertise the goods or services of others, nor may he display most noncommercial messages.
Appellants' principal submission is that enforcement of the ordinance will eliminate the outdoor advertising business in San Diego, and that the First and Fourteenth Amendments [p504] prohibit the elimination of this medium of communication. Appellants contend that the city may bar neither all off-site commercial signs nor all noncommercial advertisements, and that, even if it may bar the former, it may not bar the latter. Appellants may raise both arguments in their own right because, although the bulk of their business consists of off-site signs carrying commercial advertisements, their billboards also convey a substantial amount of noncommercial advertising. [n11] Because our cases have consistently distinguished between the constitutional protection afforded commercial, as [p505] opposed to noncommercial speech, in evaluating appellants' contention, we consider separately the effect of the ordinance on commercial and noncommercial speech.
The extension of First Amendment protections to purely commercial speech is a relatively recent development in First Amendment jurisprudence. Prior to 1975, purely commercial advertisements of services or goods for sale were considered to be outside the protection of the First Amendment. Valentine v. Chrestensen, 316 U.S. 52 (1942). That construction of the First Amendment was severely cut back in Bigelow v. Virginia, supra. In Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), we plainly held that speech proposing no more than a commercial transaction enjoys a substantial degree of First Amendment protection: a State may not completely suppress the dissemination of truthful information about an entirely lawful activity merely because it is fearful of that information's effect upon its disseminators and its recipients. That decision, however, did not equate commercial and noncommercial speech for First Amendment purposes; indeed, it expressly indicated the contrary. See id. at 770-773, and n. 24. See also id. at 779-781 (STEWART, J., Concurring). [n12] [p506]
Although the protection extended to commercial speech has continued to develop, commercial and noncommercial communications, in the context of the First Amendment, have been treated differently. Bates v. State Bar of Arizona, 433 U.S. 350 (1977), held that advertising by attorneys may not be subjected to blanket suppression, and that the specific advertisement at issue there was constitutionally protected. However, we continued to observe the distinction between commercial and noncommercial speech, indicating that the former could be forbidden and regulated in situations where the latter could not be. Id. at 379-381, 383-384. In Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978), the Court refused to invalidate on First Amendment grounds a lawyer's suspension from practice for face-to-face solicitation of business for pecuniary gain. In the course of doing so, we again recognized the common sense and legal distinction between speech proposing a commercial transaction and other varieties of speech:
To require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the Amendment's guarantee with respect to the latter kind of speech. Rather than subject the First Amendment to such a devitalization, we instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression.
Id. at 456. In Young v. American Mini Theatres, Inc., 427 U.S. 50, 69, [p507] n. 32 (1976), JUSTICE STEVENS stated that the difference between commercial price and product advertising and ideological communication permits regulation of the former "that the First Amendment would not tolerate with respect to the latter." See also Linmark Associates, Inc. v. Willingboro, 431 U.S. at 91-92, and Friedman v. Rogers, 440 U.S. 1, 8-10 (1979).
Finally, in Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557 (1980), we held:
The Constitution . . . accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. The protection available for a particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation.
Id. at 562-563 (citation omitted). We then adopted a four-part test for determining the validity of government restrictions on commercial speech, as distinguished from more fully protected speech. (1) The First Amendment protects commercial speech only if that speech concerns lawful activity and is not misleading. A restriction on otherwise protected commercial speech is valid only if it (2) seeks to implement a substantial governmental interest, (3) directly advances that interest, and (4) reaches no further than necessary to accomplish the given objective. Id. at 563-566.
Appellants agree that the proper approach to be taken in determining the validity of the restrictions on commercial speech is that which was articulated in Central Hudson, but assert that the San Diego ordinance fails that test. We do not agree.
There can be little controversy over the application of the first, second, and fourth criteria. There is no suggestion that the commercial advertising at issue here involves unlawful activity or is misleading. Nor can there be substantial doubt that the twin goals that the ordinance seeks to further -- traffic safety and the appearance of the city -- are substantial [p508] governmental goals. [n13] It is far too late to contend otherwise with respect to either traffic safety, Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949), or esthetics, see Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978); Village of Belle Terre v. Boraas, 416 U.S. 1 (1974); Berman v. Parker, 348 U.S. 26, 33 (1954). Similarly, we reject appellants' claim that the ordinance is broader than necessary and, therefore, fails the fourth part of the Central Hudson test. If the city has a sufficient basis for believing that billboards are traffic hazards and are unattractive, then obviously the most direct, and perhaps the only, effective approach to solving the problems they create is to prohibit them. The city has gone no further than necessary in seeking to meet its ends. Indeed, it has stopped short of fully accomplishing its ends: it has not prohibited all billboards, but allows on-site advertising and some other specifically exempted signs.
The more serious question, then, concerns the third of the Central Hudson criteria: does the ordinance "directly advance" governmental interests in traffic safety and in the appearance of the city? It is asserted that the record is inadequate to show any connection between billboards and traffic safety. The California Supreme Court noted the meager record on this point, but held "as a matter of law that an ordinance which eliminates billboards designed to be viewed from streets and highways reasonably relates to traffic safety." 26 Cal.3d at 859, 610 P.2d at 412. Noting that "[b]illboards are intended to, and undoubtedly do, divert a driver's attention from the roadway," id. and that [p509] whether the "distracting effect contributes to traffic accidents invokes an issue of continuing controversy," ibid., the California Supreme Court agreed with many other courts that a legislative judgment that billboards are traffic hazards is not manifestly unreasonable, and should not be set aside. We likewise hesitate to disagree with the accumulated, common sense judgments of local lawmakers and of the many reviewing courts that billboards are real and substantial hazards to traffic safety. [n14] There is nothing here to suggest that these judgments are unreasonable. As we said in a different context, Railway Express Agency, Inc. v. New York, supra, at 109:
We would be trespassing on one of the most intensely local and specialized of all municipal problems if we held that this regulation had no relation to the traffic problem of New York City. It is the judgment of the local authorities that it does have such a relation. And nothing has been advanced which shows that to be palpably false. [p510]
We reach a similar result with respect to the second asserted justification for the ordinance -- advancement of the city's esthetic interests. It is not speculative to recognize that billboards, by their very nature, wherever located and however constructed, can be perceived as an "esthetic harm." [n15] San Diego, like many States and other municipalities, has chosen to minimize the presence of such structures. [n16] Such esthetic judgments are necessarily subjective, defying objective evaluation, and for that reason must be carefully scrutinized to determine if they are only a public rationalization of an impermissible purpose. But there is no claim in this case that San Diego has a an ulterior motive the suppression of speech, and the judgment involved here is not so unusual as to raise suspicions in itself.
It is nevertheless argued that the city denigrates its interest [p511] in traffic safety and beauty and defeats its own case by permitting on-site advertising and other specified signs. Appellants question whether the distinction between on-site and off-site advertising on the same property is justifiable in terms of either esthetics or traffic safety. The ordinance permits the occupant of property to use billboards located on that property to advertise goods and services offered at that location; identical billboards, equally distracting and unattractive, that advertise goods or services available elsewhere are prohibited even if permitting the latter would not multiply the number of billboards. Despite the apparent incongruity, this argument has been rejected, at least implicitly, in all of the cases sustaining the distinction between off-site and on-site commercial advertising. [n17] We agree with those cases and with our own decisions in Suffolk Outdoor Advertising Co. v. Hulse, 439 U.S. 808 (1978); Markham Advertising Co. v. Washington, 393 U.S. 316 (1969); and Newman Signs, Inc. v. Hjelle, 440 U.S. 901 (1979).
In the first place, whether on-site advertising is permitted or not, the prohibition of off-site advertising is directly related to the stated objectives of traffic safety and esthetics. This is not altered by the fact that the ordinance is underinclusive because it permits on-site advertising. Second, the city may believe that off-site advertising, with its periodically changing content, presents a more acute problem than does on-site advertising. See Railway Express, 336 U.S. at 110. [p512] Third, San Diego has obviously chosen to value one kind of commercial speech -- on-site advertising -- more than another kind of commercial speech -- off-site advertising. The ordinance reflects a decision by the city that the former interest, but not the latter, is stronger than the city's interests in traffic safety and esthetics. The city has decided that, in a limited instance -- on-site commercial advertising -- its interests should yield. We do not reject that judgment. As we see it, the city could reasonably conclude that a commercial enterprise -- as well as the interested public -- has a stronger interest in identifying its place of business and advertising the products or services available there than it has in using or leasing its available space for the purpose of advertising commercial enterprises located elsewhere. See Railway Express, supra, at 116 (Jackson, J., concurring); Bradley v. Public Utilities Comm'n, 289 U.S. 92, 97 (1933). It does not follow from the fact that the city has concluded that some commercial interests outweigh its municipal interests in this context that it must give similar weight to all other commercial advertising. Thus, off-site commercial billboards may be prohibited while on-site commercial billboards are permitted.
The constitutional problem in this area requires resolution of the conflict between the city's land use interests and the commercial interests of those seeking to purvey goods and services within the city. In light of the above analysis, we cannot conclude that the city has drawn an ordinance broader than is necessary to meet its interests, or that it fails directly to advance substantial government interests. In sum, insofar as it regulates commercial speech, the San Diego ordinance meets the constitutional requirements of Central Hudson, supra.
It does not follow, however, that San Diego's general ban on signs carrying noncommercial advertising is also valid [p513] under the First and Fourteenth Amendments. The fact that the city may value commercial messages relating to on-site goods and services more than it values commercial communications relating to off-site goods and services does not justify prohibiting an occupant from displaying its own ideas or those of others.
As indicated above, our recent commercial speech cases have consistently accorded noncommercial speech a greater degree of protection than commercial speech. San Diego effectively inverts this judgment by affording a greater degree of protection to commercial than to noncommercial speech. There is a broad exception for on-site commercial advertisements, but there is no similar exception for noncommercial speech. The use of on-site billboards to carry commercial messages related to the commercial use of the premises is freely permitted, but the use of otherwise identical billboards to carry noncommercial messages is generally prohibited. The city does not explain how or why noncommercial billboards located in places where commercial billboards are permitted would be more threatening to safe driving or would detract more from the beauty of the city. Insofar as the city tolerates billboards at all, it cannot choose to limit their content to commercial messages; the city may not conclude that the communication of commercial information concerning goods and services connected with a particular site is of greater value than the communication of noncommercial messages. [n18] [p514]
Furthermore, the ordinance contains exceptions that permit various kinds of noncommercial signs, whether on property where goods and services are offered or not, that would otherwise be within the general ban. A fixed sign may be used to identify any piece of property and its owner. Any piece of property may carry or display religious symbols, commemorative plaques of recognized historical societies and organizations, signs carrying news items or telling the time or temperature, signs erected in discharge of any governmental function, or temporary political campaign signs. [n19] No other noncommercial or ideological signs meeting the structural definition are permitted, regardless of their effect on traffic safety or esthetics.
Although the city may distinguish between the relative value of different categories of commercial speech, the city does not have the same range of choice in the area of noncommercial speech to evaluate the strength of, or distinguish between, various communicative interests. See Carey v. Brown, 447 U.S. at 462; Police Dept. of Chicago v. Mosley, [p515] 408 U.S. 92, 96 (1972). With respect to noncommercial speech, the city may not choose the appropriate subjects for public discourse:
To allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for political truth.
Consolidated Edison Co., 447 U.S. at 538. Because some noncommercial messages may be conveyed on billboards throughout the commercial and industrial zones, San Diego must similarly allow billboards conveying other noncommercial messages throughout those zones. [n20]
Finally, we reject appellees' suggestion that the ordinance may be appropriately characterized as a reasonable "time, place, and manner" restriction. The ordinance does not generally [p516] ban billboard advertising as an unacceptable "manner" of communicating information or ideas; rather, it permits various kinds of signs. Signs that are banned are banned everywhere and at all times. We have observed that time, place, and manner restrictions are permissible if
they are justified without reference to the content of the regulated speech, . . . serve a significant governmental interest, and . . . leave open ample alternative channels for communication of the information.
Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. at 771. Here, it cannot be assumed that "alternative channels" are available, for the parties stipulated to just the opposite:
Many businesses and politicians and other persons rely upon outdoor advertising because other forms of advertising are insufficient, inappropriate and prohibitively expensive. [n21]
A similar argument was made with respect to a prohibition on real estate "For Sale" signs in Linmark Associates, Inc. v. Willingboro, 431 U.S. 85 (1977), and what we said there is equally applicable here:
Although, in theory, sellers remain free to employ a number of different alternatives, in practice [certain products are] not marketed through leaflets, sound trucks, demonstrations, or the like. The options to which sellers realistically are relegated . . . involve more cost and less autonomy than . . . signs[,] . . . are less likely to reach persons not deliberately seeking sales information[,] . . . and may be less effective media for communicating the message that is conveyed by a . . . sign. . . . The alternatives, then, are far from satisfactory.
Id. at 93. It is apparent as well that the ordinance distinguishes in several ways between permissible and impermissible signs at a particular location by reference to their content. [p517] Whether or not these distinctions are themselves constitutional, they take the regulation out of the domain of time, place, and manner restrictions. See Consolidated Edison Co. v. Public Service Comm'n, supra.
Despite the rhetorical hyperbole of THE CHIEF JUSTICE's dissent, there is a considerable amount of common ground between the approach taken in this opinion and that suggested by his dissent. Both recognize that each medium of communication creates a unique set of First Amendment problems, both recognize that the city has a legitimate interest in regulating the noncommunicative aspects of a medium of expression, and both recognize that the proper judicial role is to conduct "‘a careful inquiry into the competing concerns of the State and the interests protected by the guarantee of free expression.'" Post at 556. Our principal difference with his dissent is that it gives so little weight to the latter half of this inquiry. [n22]
THE CHIEF JUSTICE writes that,
[a]lthough we must ensure that any regulation of speech "further[s] a sufficiently substantial government interest" . . . given a reasonable approach to a perceived problem, this Court's duty . . . is to determine whether the legislative approach is essentially neutral to the messages conveyed and leaves open other adequate means of conveying those messages.
Post at 561. [n23] [p518] Despite his belief that this is "the essence of . . . democracy," this has never been the approach of this Court when a legislative judgment is challenged as an unconstitutional infringement of First Amendment rights. [n24]
By "essentially neutral," THE CHIEF JUSTICE may mean either or both of two things. He may mean that government restrictions on protected speech are permissible so long as the government does not favor one side over another on a subject of public controversy. This concept of neutrality was specifically rejected by the Court last Term in Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. at 537. There, the Court dismissed the Commission's contention that a prohibition of all discussion, regardless of the viewpoint expressed, on controversial issues of public policy does not [p519] unconstitutionally suppress freedom of speech.
The First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic.
Ibid. On the other hand, THE CHIEF JUSTICE may mean by neutrality that government restrictions on speech cannot favor certain communicative contents over others. As a general rule, this, of course, is correct, see, e.g., Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972); Carey v. Brown, 447 U.S. 455 (1980). The general rule, in fact, is applicable to the facts of this case: San Diego has chosen to favor certain kinds of messages -- such as on-site commercial advertising and temporary political campaign advertisements -- over others. Except to imply that the favored categories are for some reason de minimis in a constitutional sense, his dissent fails to explain why San Diego should not be held to have violated this concept of First Amendment neutrality.
Taken literally, THE CHIEF JUSTICE's approach would require reversal of the many cases striking down antisolicitation statutes on First Amendment grounds: in each of them, the city would argue that preventing distribution of leaflets rationally furthered the city's interest in limiting litter, applied to all kinds of leaflets, and hence did not violate the principle of government neutrality, and left open alternative means of communication. See, e.g, Martin v. Struthers, 319 U.S. 141 (1943); Schneider v. State, 308 U.S. 147 (1939). Despite the dissent's assertion to the contrary, however, it has been this Court's consistent position that democracy stands on a stronger footing when courts protect First Amendment interests against legislative intrusion, rather than deferring to merely rational legislative judgments in this area:
Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so [p520] vital to the maintenance of democratic institutions. And so, as cases arise, the delicate and difficult task falls upon the courts to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights.
Id. at 161.
Because THE CHIEF JUSTICE misconceives the nature of the judicial function in this situation, he misunderstands the significance of the city's extensive exceptions to its billboard prohibition. He characterizes these exceptions as "essentially negligible," post at 562, and then opines that it borders on the frivolous to suggest that, in "allowing such signs but forbidding noncommercial billboards, the city has infringed freedom of speech." Post at 565. That, of course, is not the nature of this argument.
There can be no question that a prohibition on the erection of billboards infringes freedom of speech: the exceptions do not create the infringement; rather, the general prohibition does. But the exceptions to the general prohibition are of great significance in assessing the strength of the city's interest in prohibiting billboards. We conclude that, by allowing commercial establishments to use billboards to advertise the products and services they offer, the city necessarily has conceded that some communicative interests, e.g., on-site commercial advertising, are stronger than its competing interests in esthetics and traffic safety. It has nevertheless banned all noncommercial signs except those specifically excepted.
THE CHIEF JUSTICE agrees that, in allowing the exceptions to the rule, the city has balanced the competing interests, but he argues that we transgress the judicial role by independently reviewing the relative values the city has assigned to various communicative interests. He seems to argue that, although the Constitution affords a greater degree of protection to noncommercial than to commercial speech, a legislature [p521] need not make the same choices. Post at 567. This position makes little sense even abstractly, and it surely is not consistent with our cases or with THE CHIEF JUSTICE's own argument that statutes challenged on First Amendment grounds must be evaluated in light of the unique facts and circumstances of the case. Governmental interests are only revealed and given concrete force by the steps taken to meet those interests. If the city has concluded that its official interests are not as strong as private interests in commercial communications, may it nevertheless claim that those same official interests outweigh private interests in noncommercial communications? Our answer, which is consistent with our cases, is in the negative.
Because the San Diego ordinance reaches too far into the realm of protected speech, we conclude that it is unconstitutional on its face. [n25] The judgment of the California Supreme Court is reversed, and the case is remanded to that court. [n26]
It is so ordered.
1. San Diego Ordinance No. 10795 (New Series), enacted March 14, 1972. The general prohibition of the ordinance reads as follows:
B. OFF-PREMISE OUTDOOR ADVERTISING DISPLAY SIGNS PROHIBITED
Only those outdoor advertising display signs, hereinafter referred to as signs in this Division, which are either signs designating the name of the owner or occupant of the premises upon which such signs are placed, or identifying such premises; or signs advertising goods manufactured or produced or services rendered on the premises upon which such signs are placed shall be permitted. The following signs shall be prohibited:
1. Any sign identifying a use, facility or service which is not located on the premises.
2. Any sign identifying a product which is not produced, sold or manufactured on the premises.
3. Any sign which advertises or otherwise directs attention to a product, service or activity, event, person, institution or business which may or may not be identified by a brand name and which occurs or is generally conducted, sold, manufactured, produced or offered elsewhere than on the premises where such sign is located.
2. The California Supreme Court noted that the ordinance, as written, might be interpreted
to apply to signs of a character very different from commercial billboards -- for example, to a picket sign announcing a labor dispute or a small sign placed in one's front yard proclaiming a political or religious message.
26 Cal.3d at 856, n. 2, 610 P.2d at 410, n. 2. For this reason, the court adopted the narrowing definition (quoted in the text). That definition, however, focused on the structure, not the content, of the billboard: it excluded "picket signs," but not billboards used to convey a noncommercial message. Cf. State ex rel. Dept. of Transportation v. Pile, 603 P.2d 337 (1979) (Oklahoma Supreme Court construed a state statute prohibiting outdoor advertising signs as not covering noncommercial speech in order to avoid constitutional problems). The court explicitly recognized this continuing burden on noncommercial speech:
The relatively few noncommercial advertisers who would be restricted by the an Diego ordinance . . . possess a great variety of alternative means of communication.
26 Cal.3d at 869, 610 P.2d at 418-419. Furthermore, the city continues to contend that the ordinance prohibits the use of billboards to convey a noncommercial message, unless that message falls within one of the specified exemptions contained in the ordinance. Brief for Appellees 6.
3. Section 101.0700(F) provides as follows:
The following types of signs shall be exempt from the provisions of these regulations:
1. Any sign erected and maintained pursuant to and in discharge of any governmental function or required by any law, ordinance or governmental regulation.
2. Bench signs located at designated public transit bus stops; provided, however, that such signs shall have any necessary permits required by Sections 62.0501 and 62.0502 of this Code.
3. Signs being manufactured, transported and/or stored within the City limits of the City of San Diego shall be exempt; provided, however, that such signs are not used, in any manner or form, for purposes of advertising at the place or places of manufacture or storage.
4. Commemorative plaques of recognized historical societies and organizations.
5. Religious symbols, legal holiday decorations and identification emblems of religious orders or historical societies.
6. Signs located within malls, courts, arcades, porches, patios and similar areas where such signs are not visible from any point on the boundary of the premises.
7. Signs designating the premises for sale, rent or lease; provided, however, that any such sign shall conform to all regulations of the particular zone in which it is located.
8. Public service signs limited to the depiction of time, temperature or news; provided, however, that any such sign shall conform to all regulations of the particular zone in which it is located.
9. Signs on vehicles regulated by the City that provide public transportation including, but not limited to, buses and taxicabs.
10. Signs on licensed commercial vehicles, including trailers; provided, however, that such vehicles shall not be utilized as parked or stationary outdoor display signs.
11. Temporary off-premise subdivision directional signs if permitted by a conditional use permit granted by the Zoning Administrator.
12. Temporary political campaign signs, including their supporting structures, which are erected or maintained for no longer than 90 days and which are removed within 10 days after election to which they pertain.
4. This account of appellants' businesses is taken from the joint stipulation of facts entered into by the parties and filed with their cross-motions for summary judgment in the California Superior Court. See Joint Stipulation of Facts Nos. 12-20, App. 44a-45a.
5. Joint Stipulation of Facts No. 24, App. 47a.
6. Suffolk Outdoor Advertising Co. v. Hulse, 439 U.S. 808 (1978); Newman Signs, Inc. v. Hjelle, 440 U.S. 901 (1979); Lotze v. Washington, 444 U.S. 921 (1979).
7. These cases primarily involved due process and equal protection challenges to municipal regulations directed at billboards. The plaintiffs claimed that their method of advertising was improperly distinguished from other methods that were not similarly regulated, and that the ordinances resulted in takings of property without due process. The Court rejected these claims, holding that the regulation of billboards fell within the legitimate police powers of local government.
8. The uniqueness of each medium of expression has been a frequent refrain: see, e.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975) ("Each medium of expression . . . must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems"); FCC v. Pacifica Foundation, 438 U.S. 726, 748 (1978) ("We have long recognized that each medium of expression presents special First Amendment problems"); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503 (1952) ("Each method tends to present its own peculiar problems").
9. For a description of the history of the use of outdoor advertising in this country and the use of billboards within that history, see F. Presbrey, The History and Development of Advertising 497-511 (1929); Tocker, Standardized Outdoor Advertising: History, Economics and Self-Regulation, in Outdoor Advertising: History and Regulation 11, 29 (J. Houck ed.1969).
10. Joint Stipulation of Facts No. 23, App. 46a-47a.
11. The California Supreme Court suggested that appellants, owners of billboard businesses, did not have standing to raise the argument that billboards may, for some individuals or groups, be the only affordable method of communicating to a large audience. 26 Cal.3d at 869, n. 14, 610 P.2d at 419, n. 14. In so holding, the California court seems to have confused the category of "commercial speech" with the category of individuals who have a "commercial interest" in protected speech. We have held that the overbreadth doctrine, under which a party whose own activities are unprotected may challenge a statute by showing that it substantially abridges the First Amendment rights of parties not before the court, will not be applied in cases involving "commercial speech." Bates v. State Bar of Arizona, 433 U.S. 350, 381 (1977). However, we have never held that one with a "commercial interest" in speech also cannot challenge the facial validity of a statute on the grounds of its substantial infringement of the First Amendment interests of others. Were it otherwise, newspapers, radio stations, movie theaters and producers -- often those with the highest interest and the largest stake in a First Amendment controversy -- would not be able to challenge government limitations on speech as substantially overbroad. As the opinion in Bates observed, id. at 363:
[O]ur cases long have protected speech even though it is in the form of a paid advertisement, Buckley v. Valeo, 424 U.S. 1 (1976); New York Times Co. v. Sullivan, 376 U.S. 254 (1964); in a form that is sold for profit, Smith v. California, 361 U.S. 147 (1959); Murdock v. Pennsylvania, 319 U.S. 105 (1943); or in the form of a solicitation to pay or contribute money, New York Times Co. v. Sullivan, supra; Cantwell v. Connecticut, 310 U.S. 296 (1940). If commercial speech is to be distinguished, it "must be distinguished by its content." 425 U.S. at 761.
See also Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 761 (197).
12. JUSTICE STEWART's comments in Virginia Pharmacy Board are worth quoting here:
The Court's determination that commercial advertising of the kind at issue here is not "wholly outside the protection of" the First Amendment indicates, by its very phrasing, that there are important differences between commercial price and product advertising, on the one hand, and ideological communication, on the other. Ideological expression, be it oral, literary, pictorial, or theatrical, is integrally related to the exposition of thought -- thought that may shape our concepts of the whole universe of man. Although such expression may convey factual information relevant to social and individual decisionmaking, it is protected by the Constitution, whether or not it contains factual representations and even if it includes inaccurate assertions of fact. . . .
Commercial price and product advertising differs markedly from ideological expression, because it is confined to the promotion of specific goods or services. The First Amendment protects the advertisement because of the "information of potential interest and value" conveyed, rather than because of any direct contribution to the interchange of ideas.
Id. at 779-780 (references and footnotes omitted).
13. The California Supreme Court had held in Varney Green v. Williams, 155 Cal.318, 100 P. 867 (1909), that a municipal ordinance prohibiting all advertising billboards purely for esthetic reasons was an unconstitutional exercise of municipal police power. The court specifically overruled Varney in upholding the San Diego ordinance at issue here. California's current position is in accord with that of most other jurisdictions. See n. 15, infra.
14. See E. B. Elliott Advertising Co . v. Metropolitan Dade County, 425 F.2d 1141, 1152 (CA5 1970); Markham Advertising Co. v. Washington, 73 Wash.2d 405, 420-421, 439 P.2d 248, 258 (1968); New York State Thruway Authority v. Ashley Motor Court, Inc., 10 N.Y.2d 151, 155-156, 176 N.E.2d 566, 568 (1961); Ghaster Properties, Inc. v. Preston, 176 Ohio St. 425, 438, 200 N.E.2d 328, 337 (1964); Newman Signs, Inc. v. Hjelle, 268 N.W.2d 741, 757 (N.D.1978); Lubbock Poster Co. v. City of Lubbock, 569 S.W.2d 935, 939 (Tex.Civ.App.1978); State v. Lotze, 92 Wash.2d 52, 59, 593 P.2d 811, 814 (1979); Inhabitants, Town of Boothbay v. National Advertising Co., 347 A.2d 419, 422 (Me.1975); Stuckey's Stores, Inc. v. O'Cheskey, 93 N.M. 312, 321, 600 P.2d 258, 267 (1979); In re Opinion of the Justices, 103 N.H. 268, 270, 169 A.2d 762, 764 (1961); General Outdoor Advertising Co. v. Department of Public Works, 289 Mass. 149, 180-181, 193 N.E. 799, 813-814 (1935). But see John Donnelly & Sons v. Campbell, 639 F.2d 6, 11 (CA1 1980); State ex rel. Dept. of Transportation v. Pile, 603 P.2d at 343; Metromedia, Inc. v. City of Des Plaines, 26 Ill.App.3d 942, 946, 326 N.E.2d 59, 62 (1975)
15. See John Donnelly & Sons v. Campbell, supra, at 11-12; E. B. Elliott Adverting Co. v. Metropolitan Dade County, supra, at 1152; Newman Signs, Inc. v. Hjelle, supra, at 757; Markham Adverting Co. v. Washington, supra, at 422-423, 439 P.2d at 259; Stuckey's Stores, Inc. v. O'Cheskey, supra, at 321, 600 P.2d at 267; Suffolk Outdoor Adverting Co. v. Hulse, 43 N.Y.2d 483, 489, 373 N.E.2d 263, 265 (1977); John Donnelly & Sons, Inc. v. Outdoor Advertising Bd., 369 Mass. 206, 219, 339 N.E.2d 709, 717 (1975); Cromwell v. Ferrier, 19 N.Y.2d 263, 269, 225 N.E.2d 749, 753 (1967); State v. Diamond Motors, Inc., 50 Haw. 33, 35-36, 429 P.2d 825, 827 (1967); United Advertising Corp. v. Metuchen, 42 N.J. 1, 6, 198 A.2d 447, 449 (1964); In re Opinion of the Justices, supra, at 270-271, 169 A.2d at 764. But see State ex rel. Dept. of Transportation v. Pile, supra, at 342; Sunad, Inc. v. Sarasota, 122 So.2d 611, 614-615 (Fla.1960).
16. The federal Highway Beautification Act of 1965, Pub.L. 89-285, 79 Stat. 1028, as amended, 23 U.S.C. § 131 (1976 ed. and Supp. III), requires that States eliminate billboards from areas adjacent to certain highways constructed with federal funds. The Federal Government also prohibits billboards on federal lands. 43 CFR § 2921.0-6 (a) (1980). Three States have enacted statewide bans on billboards. Maine, Me.Rev.Stat.Ann., Tit. 23, § 1901 et seq. (1980); Hawaii, Haw. Rev.Stat. § 264-71 et seq., § 44111 et seq. (1976); Vermont, Vt.Stat.Ann., Tit. 10, § 488 et seq. (1973).
17. See Howard v. State Department of Highways of Colorado, 478 F.2d 581 (CA10 1973); John Donnelly & Sons v. Campbell, supra; John Donnelly & Sons, Inc. V. Outdoor Advertising Bd., supra; Donnelly Advertising Corp. v. City of Baltimore, 279 Md. 660, 668, 370 A.2d 1127, 1132 (1977); Modjeska Sign Studios, Inc. v. Berle, 43 N.Y.2d 468, 373 N.E.2d 255 (1977); Suffolk Outdoor Advertising Co. v. Hulse, supra; Ghaster Properties, Inc. v. Preston, supra; Newman Signs, Inc. v. Hjelle, supra; United Advertising Corp. v. Borough of Raritan, 11 N.J. 144, 93 A.2d 362 (1952) (Brennan, J.); United Advertising Corp. v. Metuchen, supra; Stuckey's Stores, Inc. v. O'Cheskey, supra.
18. In John Donnelly & Son v. Campbell, 639 F.2d 6 (1980), the Court of Appeals for the First Circuit considered a statewide limitation on billboards, which similarly afforded a greater degree of protection to commercial than to noncommercial messages. That court took a position very similar to the one that we take today: it sustained the regulation insofar as it restricted commercial advertising, but held unconstitutional its more intrusive restrictions on noncommercial speech. The court stated:
The law thus impacts more heavily on ideological than on commercial speech -- a peculiar inversion of First Amendment values. The statute . . . provides greater restrictions -- and fewer alternatives, the other side of the coin -- for ideological than for commercial speech. . . . In short, the statute's impositions are both legally and practically the most burdensome on ideological speech, where they should be the least.
639 F.2d at 15-16. Other courts, however, have failed to give adequate weight to the distinction between commercial and noncommercial speech, and to the higher level of protection to be afforded the latter. See Donnelly Advertising Corp. v. City of Baltimore, 279 Md. 660, 370 A.2d 1127 (1977); State v. Lotze, 92 Wash.2d 52, 593 P.2d 811 (1979). To the extent that this decision is not consistent with the conclusion reached in Lotze, we overrule our prior summary approval of that decision in 444 U.S. 921 (1979).
19. In this sense, this case presents the opposite situation from that in Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), and Greer v. Spock, 424 U.S. 828 (1976). In both of those cases, a government agency had chosen to prohibit from a certain forum speech relating to political campaigns, while other kinds of speech were permitted. In both cases, this Court upheld the prohibition, but both cases turned on unique fact situations involving government-created forums, and have no application here.
20. Because a total prohibition of outdoor advertising is not before us, we do not indicate whether such a ban would be consistent with the First Amendment. But see Schad v. Mount Ephraim, 452 U.S. 61 (1981), on the constitutional problems created by a total prohibition of a particular expressive forum, live entertainment in that case. Despite JUSTICE STEVENS' insistence to the contrary,post, at 540, 541, and 548, n. 16, we do not imply that the ordinance is unconstitutional because it "does not abridge enough speech."
Similarly, we need not reach any decision in this case as to the constitutionality of the federal Highway Beautification Act of 1965. That Act, like the San Diego ordinance, permits on-site commercial billboards in areas in which it does not permit billboards with noncommercial messages. 23 U.S.C. § 131(c) (1976 ed., Supp. III). However, unlike the San Diego ordinance, which prohibits billboards conveying noncommercial messages throughout the city, the federal law does not contain a total prohibit.ion of such billboards in areas adjacent to the interstate and primary highway systems. As far as the Federal Government is concerned, such billboards are permitted adjacent to the highways in areas zoned industrial or commercial under state law or in unzoned commercial or industrial areas. 23 U.S.C. § 131(d). Regulation of billboards in those areas is left primarily to the States. For this reason, the decision today does not determine the constitutionality of the federal statute. Whether, in fact, the distinction is constitutionally significant can only be determined on the basis of a record establishing the actual effect of the Act on billboards conveying noncommercial messages.
21. See Joint Stipulation of Facts No. 28, App. 48a.
22. JUSTICE STEVENS' suggested standard seems to go even further than THE CHIEF JUSTICE in ignoring the private interests protected by the First Amendment. He suggests that regulation of speech is permissible so long as it is not biased in favor of a particular position and leaves open "ample" means of communication. Post at 552. Nowhere does he suggest that the strength or weakness of the government's interests is a factor in the analysis.
23. THE CHIEF JUSTICE correctly notes that traditional labels should not be substituted for analysis and, therefore, he correctly rejects any simple classification of the San Diego ordinance as either a "prohibition" or a "time, place, and manner restriction." These "labels" or "categories," however, have played an important role in this Court's analysis of First Amendment problems in the past. The standard THE CHIEF JUSTICE himself adopts appears to be based almost exclusively on prior discussions of time, place, and manner restrictions. See Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981); Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 535 (1980); California v. LaRue, 409 U.S. 109, 117, n. 4 (1972); Adderley v. Florida, 385 U.S. 39 (1966); Kovacs v. Cooper, 336 U.S. 77 (1949). But this Court has never held that the less strict standard of review applied to time, place, and manner restrictions is appropriately used in every First Amendment case, or that it is the most that the First Amendment requires of government legislation which infringes on protected speech. If this were the case, there would be no need for the detailed inquiry this Court consistently pursues in order to answer the question of whether a challenged restriction is in fact a time, place, and manner restriction -- the same standard of review would apply regardless of the outcome of that inquiry. As we demonstrated above, the San Diego ordinance is not such a restriction, and there is, therefore, no excuse for applying a lower standard of First Amendment review to that ordinance.
24. Nor has this Court ever accepted the view that it must defer to a legislative judgment that a particular medium of communication is "offensive" and "intrusive" merely because "other means [of communication] are available." Post at 561.
25. Appellants contend that the ordinance will effectively eliminate their businesses, and that this violates the Due Process Clause. We do not know, however, what kind of ordinance, if any, San Diego will seek to enforce in place of that which we invalidate today. In any case, any question of unconstitutional "takings" aside, the Due Process Clause does not afford a greater degree of protection to appellants' business than does the First Amendment. Since we hold that the First Amendment interests in commercial speech are not sufficient to prevent the city from prohibiting off-site commercial advertisements, no different result should be reached under the Due Process Clause.
26. Although the ordinance contains a severability clause, determining the meaning and application of that clause is properly the responsibility of the state courts. See Dombrowski v. Pfister, 380 U.S. 479, 497 (1965) ("The record suffices . . . to permit this Court to hold that, without the benefit of limiting construction, the statutory provisions on which the indictments are founded are void on their face; until an acceptable limiting construction is obtained, the provisions cannot be applied"); Liggett Co. v. Lee, 288 U.S. 517, 541 (1933) ("The operation of this [severability clause] consequent on our decision is a matter of state law. While we have jurisdiction of the issue, we deem it appropriate that we should leave the determination of the question to the state court"); Dorchy v. Kansas, 264 U.S. 286, 291 ("In cases coming from the state court, this Court, in the absence of a controlling state decision, may, in passing upon the claim under the federal law, decide also the question of severability. But it is not obliged to do so. The situation may be such as to make it appropriate to leave the determination of the question to the state court"). This rule is reflected in the different approaches this Court has taken to statutory construction of federal and state statutes infringing on protected speech. Compare United States v. Thirty-seven Photographs, 40 U.S. 363 (1971), with Freedman v. Maryland, 380 U.S. 51, 60 (1965). Since our judgment is based essentially on the inclusion of noncommercial speech within the prohibitions of the ordinance, the California courts may sustain the ordinance by limiting its reach to commercial speech, assuming the ordinance is susceptible to this treatment.