St. Mary's Law Journal


Anne E. Swenson


Evaluation of a billboard ordinance is complicated by the unique properties of this form of expression. The physical structure of the sign is not a form of expression; therefore, a state may regulate the size, height, degree of illumination, and location of the billboard. The sign’s message, on the other hand, is speech and thus protected from government action by the First Amendment. Further, the precise degree of First Amendment protection afforded to a particular message is a function of the character of the speech involved. First Amendment protection attaches if the sign’s message concerns a political, cultural, social, or religious topic. However, if the sign’s message relates “solely to the economic interests” of the speaker and his audience, the expression is commercial, and it receives a lesser measure of First Amendment protection.

Metromedia, Inc. v. City of San Diego provided guidelines for billboard restrictions which are compatible with basic First Amendment principles. Cases decided after Metromedia have demonstrated billboard ordinances should clearly set out the regulation’s objective rather than relying on an all-inclusive statement of purpose. Further, the objectives of the ordinance should be a recognized police power objective. In addition, if aesthetics is the only stated reason for the enactment, the city should be prepared to prove that ordinance is part of a comprehensive plan to improve the attractiveness of the community. The city should next be ready to present evidence demonstrating the ordinance directly furthers that substantial interest. The definition of “sign” in the ordinance should avoid distinctions between types of speech, thus eliminating local discretionary decisions categorizing speech. Finally, the regulation should not extend beyond the sign’s physical attributes, thus avoiding the possibility of a content-based First Amendment challenge.


St. Mary's University School of Law