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Therefore,even if the government may constitutionally im- judgment of the city about whether less restrictive means pose content-neutral prohibitions on a particular manner of could have accomplished the same objectives must be ac- speech,it may not condition that speech on obtaining a license cepted if there is no solid evidence to the contrary. or permit from a government official in that official's An apparently complete ban on off-premises signage boundless discretion.(108 S.Ct.at 2147) similar to that at issue in the Metromedia case was the sub- A system of sign control that relies in part upon the ject of recent federal court review.In National Advertising distinction between the commercial and noncommercial Co.v. City of Orange,861 F2d 246(9th Cir.1988),the Court content of the sign necessarily involves some sort of ad- of Appeals upheld a trial court ruling striking down as un- vanced review of proposed signage.Though the distinction, constitutional a portion of the sign ordinance of Orange, in many instances,will be easy to make,in others,it will not. California.The ordinance banned all off-premises signs but The difficult distinctions may turn advance review into a exempted from the general prohibition certain governmental prior restraint upon free expression, which is clearly un- signs and flags, memorial tablets, recreational signs, and constitutional under long-standing judicial doctrines. temporary political,real estate construction,and advertis- e There are other Supreme Court cases addressing free ing signs. 1 speech and expression issues that arguably apply in this area The exemptions required examination of the content of of sign regulation.6 At this juncture, some confuse rather noncommercial messages. Clearly, some noncommercial than enlighten. It is safe to say that those regulations con- messages were allowed and others were prohibited.The ex- cerned primarily with the medium rather than the message emptions prevented the ordinance from being content will pass muster in the Supreme Court.Metromedia clarified neutral:The court could find no compelling government in- the law on several issues.However,some questions about terest in the distinction between the allowed noncommercial the extent of on-premises sign regulation, control of non- speech and that which was prohibited. The ruling rests commercial messages,and the distinction between commer- squarely upon the precedent set by the plurality opinion in cial and noncommercial messages still remain. Metromedia. The court was also mindful of Vincent in A content-neutral sign regulation runs far less risk of reassuring the officials of Orange that: being found to be a prior restraint upon the exercise of First Cities are not powerless to regulate billboards containing non- Amendment freedoms and, thus, less risk of being struck commercial messages.The City of Orange remains free to down as unconstitutional censorship. In addition, the redraft its ordinance to conform to the Constitution by governing body that imposes content-neutral regulations avoiding content-based distinctions in its treatment of non- will face a less serious test if the purpose of the regulation and commercial billboards.(861 F2d at 249) the means used to achieve that purpose are legally chal- lenged.The regulations in the model ordinance in this report In Tauber v. Town of Longmeadow,695 F. Supp.1358 follow from this premise. (D. Mass. 1988), the court ruled unconstitutional an or- dinance that banned all signs but created several exemptions LOWER FEDERAL COURT DECISIONS based upon the content of the message to be portrayed.Ex- Several recent cases in lower federal courts illustrate the -empted were address signs that could include the profession application of the principles established by the Supreme of the owner if the owner was a doctor,lawyer,dentist,ac- Court in the four important sign cases discussed above.Two countant,or architect;temporary real estate signs;on-site stand strongly for the proposition,as did Vincent,that com- business signs;and certain governmental signs.Again,the munities may regulate signage primarily on aesthetic ordinance was clearly based upon distinctions in the content grounds.Lindsay v. City of San Antonio,821 F.2d 1103(5th of signs and particularly upon the content of noncommer- Cir. 1987), U.S.cert. denied 484 U.S.1010, 108 S.Ct. 707 cial signs.The court found no compelling governmental in- (1988), and Dons Porta Signs, Inc. v. City of Clearwater, terest to support the distinction. 829 F.2d 1051 (11th Cir. 1988), U.S. cert. denied OVERVIEW OF FIRST AMENDMENT ISSUES: U.S. ,108 S.Ct.1280(1988),involved constitutional PRACTICAL CONSIDERATIONS challenges to each city's ban on portable signs.The federal trial courts in each case had found that the respective cities The first three questions set forth earlier in this chapter have been addressed by the courts primarily in response to had failed to meet their burden under the Vincent test for i content-neutral regulations(Lindsay)and the Central Hud- challenges predicated upon violations of the First Amend- son test for commercial speech restrictions (Don's Porta ment to the U.S.Constitution.Challenges mounted in the Signs). Specifically, the trial courts found that it was not state courts upon the same or similar grounds generally have shown that portable signs are more offensive to aesthetic been analyzed according to the same or similar standards, concerns than are other signs;there was also no showing that though some states have been slow to accept regulations based solely upon aesthetic objectives. less restrictive measures could not achieve the same basic purpose. In short,courts have been remarkably supportive of sign regulations.However,whether the sign regulations are con- In each case, the appellate court overturned the trial tent neutral or regulate commercial speech, when a sign court's decision,ruling instead that partial solutions to the problem of visual blight are perfectly acceptable and that the owner claims a violation the First Amendment by the sign regulations, the communi ty must show that: 6.See,for example,United States v.O'Brien,391 U.S.367,88S.Ct.1673, 1) There are substantial public purposes for the 20 Led.2d 672(1968);Lehman v.City of Shaker Heights,418 U.S.298,94 S.Ct.2714,41 Led.2d 770(1974);Young v.American Mini-Theatres.Inc., regulation; 427 U.S.50,96 S.Ct.244049 L.ed.2d.310(1976):and Regan v.Tirne,Inc., 468 U.S.641,104 S.Ct.3262.82 L.ed.2d 487(1984). 2) The regulation directly advances the public purposes; 21