Loyola University Chicago Law Journal Volume 13 Article 4 Issue 3 Spring 1982 1982 What Happened to the First Amendment: The Metromedia Case Elizabeth H. Cameron Follow this and additional works at: http://lawecommons.luc.edu/luclj Part of the First Amendment Commons Recommended Citation Elizabeth H. Cameron, What Happened to the First Amendment: The Metromedia Case, 13 Loy. U. Chi. L. J. 463 (1982). Available at: http://lawecommons.luc.edu/luclj/vol13/iss3/4 This Note is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Loyola University Chicago Law Journal by an authorized administrator of LAW eCommons. For more information, please contact [email protected]. NOTES What Happened to the First Amendment: The Metromedia Case INTRODUCTION When the United States Supreme Court noted probable jurisdic- tion over Metromedia, Inc. v. City of San Diego,' many national associations, public interest groups, and state and local govern- ments expected that the Court's ruling would clarify the extent to which governmental units could regulate commercial speech.' In that case, two billboard companies had appealed a California Su- preme Court decision upholding San Diego's outdoor advertising ordinance.3 The companies had unsuccessfully argued that the city's ordinance, which prohibited most outdoor advertising signs, violated the free speech clause of the first amendment. The first amendment issue was particularly important because of the general confusion concerning the status of commercial speech. Although the United States Supreme Court had recently held that commercial speech was entitled to constitutional protection,5 the Court also had stated that commercial speech did not merit the 1. 453 U.S. 490 (1980). 2. The case produced a number of amicus curiae briefs arguing both sides of this issue. Parties listed in connection with the case at the U.S. Supreme Court level include: the United States, Pacifica Legal Foundation, American Newspaper Publishers Association, American Civil Liberties Union, City of Alameda, City of Champaign-Urbana, State of Ha- waii, State of Vermont, State of Maine, City of San Francisco, County of San Francisco, National Institute of Municipal Law Officers, and Outdoor Advertising Association. 3. Metromedia, Inc. v. San Diego, 26 Cal. 3d 848, 610 P.2d 407, 164 Cal. Rptr. 510 (1980). For case comments on the California Supreme Court's treatment of Metromedia, see, Note, Aesthetics, the First Amendment, and the Realities of Billboard Control, 9 ECOLOGY L.Q. 295 (1981); Note, City- Wide Prohibitionof Billboards: Police Power and the Freedom of Speech, 30 HASTINGS L.J. 1597 (1979); Recent Developments, Zoning, Bill- boards, and the Exercise of the Police Power of Aesthetics, 47 TENN. L. REV. 901 (1981). 4. U.S. CONsT. amend. I provides in pertinent part, "Congress shall make no law ... abridging freedom of speech or of the press." 5. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976). For a discussion of the case see infra notes 28-33 and accompanying text. 463 Loyola University Law Journal [Vol. 13 same degree of protection as noncommercial speech. 6 For this rea- son, courts were unsure about what constitutional test to apply in determining the validity of commercial speech regulations.7 Adding to the difficulty was the absence of any clear statement as to how commercial speech should be defined.' The Supreme Court decided Metromedia on July 2, 1981. Since then the decision has been greeted with confusion and uncertainty. It has been reported in various publications, 9 yet not explained. Perhaps this should not be surprising due to the peculiar align- ment of the Court and the outcome of the case. Although six jus- tices concluded that San Diego's ordinance violated the first and fourteenth amendments, their varied approaches make it impossi- ble to predict what kinds of restrictions on commercial speech may be upheld in the future.10 In analyzing Metromedia, this note will 6. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557 (1980). For a discussion of the case see infra notes 39-48 and accompanying text. 7. State and federal courts had applied a variety of inconsistent balancing tests. See, e.g., John Donnelley & Sons v. Mallar, 453 F. Supp. 1272 (D. Me. 1978), rev'd sub nom. John Donnelley & Sons v. Campbell, 639 F.2d 6 (1st Cir. 1980)(lower court upheld regula- tion under commercial speech test); Combined Communications Corp. v. City and County of Denver, 542 P.2d 79 (Colo. 1975) (invalidating a city-wide ban on billboards using a reasona- bleness standard); John Donnelley & Sons, Inc. v. Outdoor Advertising Bd., 339 N.E.2d 709 (Mass. 1975)(upholding a city-wide ban using a reasonableness standard); Suffolk Outdoor Advertising Co. v. Hulse, 43 N.Y.2d 483, 373 N.E.2d 263, 402 N.Y.S.2d 368, appeal dis- missed, 439 U.S. 808 (1978)(ban upheld under commercial speech test); Daikeler v. Zoning Board of Adjustment of Montgomery Township, 1 Pa. Commw. Ct. 445, 275 A.2d 696 (1971)(invalidating a city-wide ban using a strict scrutiny test). 8. The Supreme Court has variously defined commercial speech in terms of whether its purpose is commercial, Murdock v. Pennsylvania, 319 U.S. 105, 112 (1943); and as speech that does no more than propose a commercial transaction, Pittsburgh Press Co. v. Pitts- burgh Comm'n on Human Relations, 413 U.S. 376 (1973); and as speech motivated by a desire for personal gain, Breard v. Alexandria, 341 U.S. 622, 642 (1951). For purposes of this article, the term commercial speech will be used to refer only to "speech of any form that advertises a product or service for profit or for [a] business pur- pose." J. NOWAK, R. ROTUNDA & I.N. YOUNG, HANDBOOK ON CONSTITUTIONAL LAW 767 (1978) [hereinafter cited as NOWAK, ROTUNDA & YOUNG]. 9. See R. Young Billboard Advertising Decision Indecisive, 67 A.B.A.J. 1350, 1362-63 (1981); Note, Metromedia v. City of San Diego, LAND USE L. & ZONING DIG. (Sept. 1981). Billboard Regs Hit, L.A. Daily J., p. 1, col. 6 (July 6, 1981); Are Billboards Protected by the First Amendment? L.A. Daily J., p. 4, col. 4 (Oct. 2, 1981); See also, The Supreme Court 1979 Term: Freedom of Speech, 95 HARv. L. REv. 93, 211-21 (1981) (discussing Metromedia and sharply criticizing the plurality opinion). 10. A handful of courts have cited Metromedia in support of tentative and conflicting propositions. See Metromedia, Inc. v. Mayor and City Council of Baltimore, 538 F. Supp. 1183 (D. Md. 1980) (invalidating city billboard ordinance on the basis of the plurality hold- ing); May v. People, 636 P.2d 672, 675 (Colo. 1981) (citing Metromedia for the rule that a litigant with commercial speech interests may assert the noncommercial speech interests of others); Norton Outdoor Advertising v. Village of Arlington Heights, 69 Ohio St. 2d 539, 433 1982] Metromedia Case present a brief overview of traditional limitations on the regulation of noncommercial speech and the manner in which the Court has applied these limitations to the regulation of commercial speech. It will describe the background of Metromedia and the inconsistent bases of the Supreme Court's opinions. The effect of the Court's decision on the content neutrality doctrine and on the Court's traditional first amendment balancing tests will then be examined. The note will conclude with a statement of the reasons why the several opinions have departed significantly from traditional first amendment principles. BACKGROUND: THE SCOPE OF THE FREE SPEECH CLAUSE Limitations on Regulating Protected Speech Notwithstanding its pre-eminent position among constitutionally protected values, the right to individual self-expression is often in direct conflict with a government's right to enact general legisla- tion for the public welfare. This conflict is most often present at the local level and has existed since the Supreme Court held that the free speech clause of the first amendment applied to the states.' 1 To resolve this conflict, the Court has developed a set of guidelines and tests to assist local governments in determining when and how they may regulate various forms of speech. Underly- ing these guidelines and tests is the broad principle that govern- mental regulations should not be used to suppress freedom of expression. 2 The requirement that a regulatory measure be content neutral is N.E.2d 198 (1982) (applying the plurality's bifurcated approach to invalidate a billboard ordinance, but concluding that aesthetic and traffic safety interests do not justify a ban on commercial speech); Maurice Callahan & Sons, Inc. v. Outdoor Advertising Bd., 427 N.E. 2d 25 (Mass. App. 1981) (applying only a commercial speech test to uphold a billboard regula- tion). See also, City of Lakewood v. Colfax Unlimited Ass'n, 634 P.2d 62 (Colo. 1981) (inval- idating the sign code of the city ordinance). The court observed that a total of five justices in Metromedia held that a municipality may value some commercial messages more highly than others. Id. at 67. The court also chose to rely partially on Justice Brennan's concurring opinion that content based distinctions will only be allowed upon a showing of compelling interest. Id. at 69. 11. Gitlow v. New York, 268 U.S. 652, 666 (1925). 12. Members of the Court resorted to numerous images and phrases to explain the im- portance of this principle. Nebraska Press Ass'n. v. Stuart, 427 U.S. 539, 559 (1976) (a con- cern for avoiding potentially "chilling" or "freezing" effects of restraints on expression); New York Times v. Sullivan, 376 U.S.