U.S. Supreme Court

CITY COUNCIL v. TAXPAYERS FOR VINCENT, 466 U.S. 789 (1984)

466 U.S. 789

MEMBERS OF THE CITY COUNCIL OF THE CITY OF LOS ANGELES ET AL. v. TAXPAYERS

FOR VINCENT ET AL.

APPEAL FROM UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 82-975.

Argued October 12, 1983

Decided May 15, 1984

Section 28.04 of the Los Angeles Municipal Code prohibits the posting of signs on public property. Appellee Taxpayers for Vincent, a group of supporters of a candidate for election to the Los Angeles City Council, entered into a contract with appellee Candidates' Outdoor Graphics Service (COGS) to fabricate and post signs with the candidate's name on them. COGS produced cardboard signs and attached them to utility pole crosswires at various locations. Acting under 28.04, city employees routinely removed all posters (including the COGS signs) attached to utility poles and similar objects covered by the ordinance. Appellees then filed suit in Federal District Court against appellants, the city and various city officials (hereafter City), alleging that 28.04 abridged appellees' freedom of speech within the meaning of the First Amendment, and seeking damages and injunctive relief. The District Court entered findings of fact, concluded that 28.04 was constitutional, and granted the City's motion for summary judgment. The Court of Appeals reversed, reasoning that the ordinance was presumptively unconstitutional because significant First Amendment interests were involved, and that the City had not justified its total ban on all signs on the basis of its asserted interests in preventing visual clutter, minimizing traffic hazards, and preventing interference with the intended use of public property.

Held:

1. The "overbreadth" doctrine is not applicable here. There is nothing in the record to indicate that 28.04 will have any different impact on any third parties' interests in free speech than it has on appellees' interests, and appellees have failed to identify any significant difference between their claim that 28.04 is invalid on overbreadth grounds and their claim that it is unconstitutional when applied to their signs during a political campaign. Thus, it is inappropriate to entertain an overbreadth challenge to 28.04. Pp. 796-803.

2. Section 28.04 is not unconstitutional as applied to appellees' expressive activity. Pp. 803-817.

(a) The general principle that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas

at the expense of others is not applicable here. Section 28.04's text is neutral - indeed it is silent - concerning any speaker's point of view, and the District Court's findings indicate that it has been applied to appellees and others in an evenhanded manner. It is within the City's constitutional power to attempt to improve its appearance, and this interest is basically unrelated to the suppression of ideas. Cf. United States v. O'Brien,  391 U.S. 367, 377 . Pp. 803-805.

(b) Municipalities have a weighty, essentially esthetic interest in proscribing intrusive and unpleasant formats for expression. The problem addressed by 28.04 - the visual assault on the citizens of Los Angeles presented by an accumulation of signs posted on public property - constitutes a significant substantive evil within the City's power to prohibit. Metromedia, Inc. v. San Diego,  453 U.S. 490 . Pp. 805-807.

(c) Section 28.04 curtails no more speech than is necessary to accomplish its purpose of eliminating visual clutter. By banning posted signs, the City did no more than eliminate the exact source of the evil it sought to remedy. The rationale of Schneider v. State,  308 U.S. 147 , which held that ordinances that absolutely prohibited handbilling on public streets and sidewalks were invalid, is inapposite in the context of the instant case. Pp. 808-810.

(d) The validity of the City's esthetic interest in the elimination of signs on public property is not compromised by failing to extend the ban to private property. The private citizen's interest in controlling the use of his own property justifies the disparate treatment, and there is no predicate in the District Court's findings for the conclusion that the prohibition against the posting of appellees' signs fails to advance the City's esthetic interest. Pp. 810-812.

(e) While a restriction on expressive activity may be invalid if the remaining modes of communication are inadequate, 28.04 does not affect any individual's freedom to exercise the right to speak and to distribute literature in the same place where the posting of signs on public property is prohibited. The District Court's findings indicate that there are ample alternative modes of communication in Los Angeles. P. 812.

(f) There is no merit in appellees' suggestion that the property covered by 28.04 either is itself a "public forum" subject to special First Amendment protection, or at least should be treated in the same respect as the "public forum" in which the property is located. The mere fact that government property can be used as a vehicle for communication - such as the use of lampposts as signposts - does not mean that the Constitution requires such use to be permitted. Public property which is not by tradition or designation a forum for public communication may be reserved by the government for its intended purposes, communicative or otherwise, if the regulation on speech (as here) is

reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view. Pp. 813-815.

(g) Although plausible policy arguments might well be made in support of appellees' suggestion that the City could have written an ordinance that would have had a less severe effect on expressive activity like theirs - such as by providing an exception for political campaign signs - it does not follow that such an exception is constitutionally mandated, nor is it clear that some of the suggested exceptions would even be constitutionally permissible. To create an exception for appellees' political speech and not other types of protected speech might create a risk of engaging in constitutionally forbidden content discrimination. The City may properly decide that the esthetic interest in avoiding visual clutter justifies a removal of all signs creating or increasing that clutter. Pp. 815-817.

 682 F.2d 847, reversed and remanded.

STEVENS, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 818.

Anthony Saul Alperin argued the cause for appellants. With him on the briefs were Ira Reiner and Gary R. Netzer.

Wayne S. Canterbury argued the cause and filed a brief for appellees.^{Footnote *}

A brief of amici curiae urging affirmance was filed by Alan L. Schlosser, Amitai Schwartz, Fred Okrand, and Neil H. O'Donnell for the American Civil Liberties Union et al.

JUSTICE STEVENS delivered the opinion of the Court.

Section 28.04 of the Los Angeles Municipal Code prohibits the posting of signs on public property.[^{Footnote 1} ] The question presented

is whether that prohibition abridges appellees' freedom of speech within the meaning of the First Amendment.[^{Footnote 2} ]

In March 1979, Roland Vincent was a candidate for election to the Los Angeles City Council. A group of his supporters known as Taxpayers for Vincent (Taxpayers) entered into a contract with a political sign service company known as Candidates' Outdoor Graphics Service (COGS) to fabricate and post signs with Vincent's name on them. COGS produced 15- by 44-inch cardboard signs and attached them to utility poles at various locations by draping them over crosswires

which support the poles and stapling the cardboard together at the bottom. The signs' message was: "Roland Vincent - City Council."

Acting under the authority of 28.04 of the Municipal Code, employees of the city's Bureau of Street Maintenance routinely removed all posters attached to utility poles and similar objects covered by the ordinance, including the COGS signs. The weekly sign removal report covering the period March 1-March 7, 1979, indicated that among the 1,207 signs removed from public property during that week, 48 were identified as "Roland Vincent" signs. Most of the other signs identified in that report were apparently commercial in character.[^{Footnote 3} ]

On March 12, 1979, Taxpayers and COGS filed this action in the United States District Court for the Central District of California, naming the city, the Director of the Bureau of Street Maintenance, and members of the City Council as defendants.[^{Footnote 4} ] They sought an injunction against enforcement of the ordinance as well as compensatory and punitive damages. After engaging in discovery, the parties filed cross-motions for summary judgment on the issue of liability. The District Court entered findings of fact, concluded that the ordinance was constitutional, and granted the City's motion.

The District Court's findings do not purport to resolve any disputed issue of fact; instead, they summarize material in the record that appears to be uncontroverted. The findings recite that the principal responsibility for locating and removing

signs and handbills posted in violation of 28.04 is assigned to the Street Use Inspection Division of the city's Bureau of Street Maintenance. The court found that both political and nonpolitical signs are illegally posted and that they are removed "without regard to their content."[^{Footnote 5} ]

After explaining the purposes for which the City's zoning code had been enacted, and noting that the prohibition in 28.04 furthered those purposes, the District Court found that the large number of illegally posted signs "constitute a clutter and visual blight."[^{Footnote 6} ] With specific reference to the posting of the COGS signs on utility pole crosswires, the District Court found that such posting "would add somewhat to the blight and inevitably would encourage greatly increased posting in other unauthorized and unsightly places . . . ."[^{Footnote 7} ]

In addition, the District Court found that placing signs on utility poles creates a potential safety hazard, and that other violations of 28.04 "block views and otherwise cause traffic hazards."[^{Footnote 8} ] Finally, the District Court concluded that the sign prohibition does not prevent taxpayers or COGS "from

exercising their free speech rights on the public streets and in other public places; they remain free to picket and parade, to distribute handbills, to carry signs and to post their signs and handbills on their automobiles and on private property with the permission of the owners thereof."[^{Footnote 9} ]

In its conclusions of law the District Court characterized the esthetic and economic interests in improving the beauty of the City "by eliminating clutter and visual blight" as "legitimate and compelling."[^{Footnote 10} ] Those interests, together with the interest in protecting the safety of workmen who must scale utility poles and the interest in eliminating traffic hazards, adequately supported the sign prohibition as a reasonable regulation affecting the time, place, and manner of expression.

The Court of Appeals did not question any of the District Court's findings of fact, but it rejected some of its conclusions of law. The Court of Appeals reasoned that the ordinance was presumptively unconstitutional because significant First Amendment interests were involved. It noted that the City had advanced three separate justifications for the ordinance, but concluded that none of them was sufficient. The Court of Appeals held that the City had failed to make a sufficient showing that its asserted interests in esthetics and preventing visual clutter were substantial because it had not offered to demonstrate that the City was engaged in a comprehensive effort to remove other contributions to an unattractive environment in commercial and industrial areas. The City's interest in minimizing traffic hazards was rejected because it was readily apparent that no substantial traffic problems would result from permitting the posting of certain kinds of signs on many of the publicly owned objects covered by the ordinance. Finally, while acknowledging that a flat prohibition against signs on certain objects such as fire hydrants and traffic signals would be a permissible method of preventing

interference with the intended use of public property, and that regulation of the size, design, and construction of posters, or of the method of removing them, might be reasonable, the Court of Appeals concluded that the City had not justified its total ban.[^{Footnote 11} ]

In its appeal to this Court the City challenges the Court of Appeals' holding that 28.04 is unconstitutional on its face. Taxpayers and COGS defend that holding and also contend that the ordinance is unconstitutional as applied to their posting of political campaign signs on the crosswires of utility poles. There are two quite different ways in which a statute or ordinance may be considered invalid "on its face" - either because it is unconstitutional in every conceivable application, or because it seeks to prohibit such a broad range of protected conduct that it is unconstitutionally "overbroad." We shall analyze the "facial" challenges to the ordinance, and then address its specific application to appellees.

I

The seminal cases in which the Court held state legislation unconstitutional "on its face" did not involve any departure from the general rule that a litigant only has standing to vindicate his own constitutional rights. In Stromberg v. California,  283 U.S. 359 (1931),[^{Footnote 12} ] and Lovell v. Griffin, 303 U.S.

444 (1938),[^{Footnote 13} ] the statutes were unconstitutional as applied to the defendants' conduct, but they were also unconstitutional on their face because it was apparent that any attempt to enforce such legislation would create an unacceptable risk of the suppression of ideas.[^{Footnote 14} ] In cases of this character a holding of facial invalidity expresses the conclusion that the statute

could never be applied in a valid manner. Such holdings[^{Footnote 15} ] invalidated entire statutes, but did not create any exception from the general rule that constitutional adjudication requires a review of the application of a statute to the conduct of the party before the Court.

Subsequently, however, the Court did recognize an exception to this general rule for laws that are written so broadly that they may inhibit the constitutionally protected speech of third parties. This "overbreadth" doctrine has its source in Thornhill v. Alabama,  310 U.S. 88 (1940). In that case the Court concluded that the very existence of some broadly written statutes may have such a deterrent effect on free expression that they should be subject to challenge even by a party whose own conduct may be unprotected.[^{Footnote 16} ] The Court

has repeatedly held that such a statute may be challenged on its face even though a more narrowly drawn statute would be valid as applied to the party in the case before it.[^{Footnote 17} ] This exception from the general rule is predicated on "a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick v. Oklahoma,  413 U.S. 601, 612 (1973).

In the development of the overbreadth doctrine the Court has been sensitive to the risk that the doctrine itself might sweep so broadly that the exception to ordinary standing requirements would swallow the general rule. In order to decide whether the overbreadth exception is applicable in a particular case, we have weighed the likelihood that the statute's very existence will inhibit free expression.

"[T]here comes a point where that effect - at best a prediction - cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a

statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S., at 615 (citation omitted).[^{Footnote 18} ]

The concept of "substantial overbreadth" is not readily reduced to an exact definition. It is clear, however, that the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.[^{Footnote 19} ] On the contrary, the requirement of substantial overbreadth stems from the underlying justification for the overbreadth exception itself - the interest in preventing an invalid statute from inhibiting the speech of third parties who are not before the Court.

"The requirement of substantial overbreadth is directly derived from the purpose and nature of the doctrine. While a sweeping statute, or one incapable of limitation,

has the potential to repeatedly chill the exercise of expressive activity by many individuals, the extent of deterrence of protected speech can be expected to decrease with the declining reach of the regulation." New York v. Ferber,  458 U.S. 747, 772 (1982) (footnote omitted).

In short, there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds. See Erznoznik v. City of Jacksonville,  422 U.S. 205, 216 (1975). See also Ohralik v. Ohio State Bar Assn.,  436 U.S. 447, 462 , n. 20 (1978); Parker v. Levy,  417 U.S. 733, 760 -761 (1974).

The Court of Appeals concluded that the ordinance was vulnerable to an overbreadth challenge because it was an "overinclusive" response to traffic concerns and not the "least drastic means" of preventing interference with the normal use of public property. This conclusion rested on an evaluation of the assumed effect of the ordinance on third parties, rather than on any specific consideration of the impact of the ordinance on the parties before the court. This is not, however, an appropriate case to entertain a facial challenge based on overbreadth. For we have found nothing in the record to indicate that the ordinance will have any different impact on any third parties' interests in free speech than it has on Taxpayers and COGS.

Taxpayers and COGS apparently would agree that the prohibition against posting signs on most of the publicly owned objects mentioned in the ordinance is perfectly reasonable. Thus, they do not dispute the City's power to proscribe the attachment of any handbill or sign to any sidewalk, crosswalk, curb, lamppost, hydrant, or lifesaving equipment.[^{Footnote 20} ] Their

position with respect to utility poles is not entirely clear, but they do contend that it is unconstitutional to prohibit the attachment of their cardboard signs to the horizontal crosswires supporting utility poles during a political campaign. They have, in short, failed to identify any significant difference between their claim that the ordinance is invalid on overbreadth grounds and their claim that it is unconstitutional when applied to their political signs. Specifically, Taxpayers and COGS have not attempted to demonstrate that the ordinance applies to any conduct more likely to be protected by the First Amendment than their own crosswire signs. Indeed, the record suggests that many of the signs posted in violation of the ordinance are posted in such a way that they may create safety or traffic problems that COGS has tried to avoid. Accordingly, on this record it appears that if the ordinance may be validly applied to COGS, it can be validly applied to most if not all of the signs of parties not before the Court. Appellees have simply failed to demonstrate a realistic danger that the ordinance will significantly compromise recognized First Amendment protections of individuals not before the Court. It would therefore be inappropriate in this case to entertain an overbreadth challenge to the ordinance.

Taxpayers and COGS do argue generally that the City's interest in eliminating visual blight is not sufficiently weighty to justify an abridgment of speech. If that were the only interest the ordinance advanced, then this argument would be analogous to the facial challenges involved in cases like Stromberg and Lovell. But as previously observed, appellees acknowledge that the ordinance serves safety interests in many of its applications, and hence do not argue that the ordinance can never be validly applied. Instead, appellees argue that they have placed their signs in locations where only the esthetic interest is implicated. In addition, they argue that they have developed an expertise in not "placing signs in offensive manners which will alienate its own clientele

or their constituencies,"[^{Footnote 21} ] and emphasize the special value of free communication during political campaigns, see Metromedia, Inc. v. San Diego,  453 U.S. 490, 555 (1981) (STEVENS, J., dissenting in part); id., at 550 (REHNQUIST, J., dissenting). In light of these arguments, appellees' attack on the ordinance is basically a challenge to the ordinance as applied to their activities. We therefore limit our analysis of the constitutionality of the ordinance to the concrete case before us, and now turn to the arguments that it is invalid as applied to the expressive activity of Taxpayers and COGS.[^{Footnote 22} ]

II

The ordinance prohibits appellees from communicating with the public in a certain manner, and presumably diminishes the total quantity of their communication in the City.[^{Footnote 23} ] The application of the ordinance to appellees' expressive activities surely raises the question whether the ordinance abridges their "freedom of speech" within the meaning of the First Amendment, and appellees certainly have standing to challenge the application of the ordinance to their own expressive activities. "But to say the ordinance presents a

First Amendment issue is not necessarily to say that it constitutes a First Amendment violation." Metromedia, Inc. v. San Diego, 453 U.S., at 561 (BURGER, C. J., dissenting). It has been clear since this Court's earliest decisions concerning the freedom of speech that the state may sometimes curtail speech when necessary to advance a significant and legitimate state interest. Schenck v. United States,  249 U.S. 47, 52 (1919).

As Stromberg and Lovell demonstrate, there are some purported interests - such as a desire to suppress support for a minority party or an unpopular cause, or to exclude the expression of certain points of view from the marketplace of ideas - that are so plainly illegitimate that they would immediately invalidate the rule. The general principle that has emerged from this line of cases is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others. See Bolger v. Youngs Drug Products Corp.,  463 U.S. 60, 65 , 72 (1983); Consolidated Edison Co. v. Public Service Comm'n,  447 U.S. 530, 535 -536 (1980); Carey v. Brown,  447 U.S. 455, 462 -463 (1980); Young v. American Mini Theatres, Inc.,  427 U.S. 50, 63 -65, 67-68 (1976) (plurality opinion); Police Department of Chicago v. Mosley,  408 U.S. 92, 95 -96 (1972).

That general rule has no application to this case. For there is not even a hint of bias or censorship in the City's enactment or enforcement of this ordinance. There is no claim that the ordinance was designed to suppress certain ideas that the City finds distasteful or that it has been applied to appellees because of the views that they express. The text of the ordinance is neutral - indeed it is silent - concerning any speaker's point of view, and the District Court's findings indicate that it has been applied to appellees and others in an evenhanded manner.

In United States v. O'Brien,  391 U.S. 367 (1968), the Court set forth the appropriate framework for reviewing a viewpoint-neutral regulation of this kind:

"[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." Id., at 377.

It is well settled that the state may legitimately exercise its police powers to advance esthetic values. Thus, in Berman v. Parker,  348 U.S. 26, 32 -33 (1954), in referring to the power of the legislature to remove blighted housing, this Court observed that such housing may be "an ugly sore, a blight on the community which robs it of charm