Lehman v. Shaker Heights, 418 US 298 (1974): a political candidate wanted to buy advertising space inside public transportation vehicles.  The city refused to accept the ads, under their policy that only commercial and public service ads were accepted.  The court upheld the city's policy, with the prevailing plurality explaining that "a city transit system has discretion to develop and make reasonable choices concerning the type of advertising that may be displayed in its vehicles."  

City Council v. Taxpayers for Vincent, 466 US 789 (1984): the court upheld Los Angeles' ordinance which prohibited the posting of signs, including political campaign posters, on city owned property, including public utility poles.  As in Lehman, the key  factor was that the government was managing its own property, not regulating private property.

Boos v. Barry, 485 US 312 (1988).  The Court invalidated a sign display portion of the District of Columbia Code, enacted by Congress, which forbade the display within 500 feet of any foreign embassy of any sign "tending to bring a foreign government into public odium or public disrepute." Without deciding if the protection of the dignity of foreign diplomats was a compelling state interest, the Court concluded that the provision was not narrowly tailored to serve such interest, because a less restrictive alternative – 18 U. S. C. § 112, which prohibits intimidating, coercing, or harassing foreign officials or obstructing them in the performance of their duties – served that purpose with far less restriction on speech.  

Burson v. Freeman, 504 US 191 (1992).  The Court  upheld a 100 foot protection zone -- no signs or electioneering of any kind – around entrances to polling places on election day.  Although this was a total ban on speech at the core of First Amendment protection, in a public forum, the Court approved the law as narrowly tailored to serve compelling state interests in preventing voter intimidation and preventing election fraud. 

Ladue v. Gilleo, 512 US 43 (1994): the court struck down a city ordinance which prohibited the posting of political signs in residential neighborhoods.  As in Linmark (see below), the ordinance restricted too much speech and did not leave adequate alternatives for expressing the same message.  The court said "Residential signs are an unusually cheap and convenient form of communication.  Especially for persons of modest means or limited mobility, a yard or window signs may have no practical substitute."  

Linmark Associates v. Township of Willingboro, 431 US 85 (1977):  the town passed an ordinance which forbade the posting of "For Sale" signs in residential neighborhoods, with the purpose of trying to stop "white flight" panic selling.  The court declared the ordinance unconstitutional, saying that all other options for expressing the same message were inadequate because of cost and lower likelihood of reaching persons who were deliberately seeking the information.  

Although Central Hudson Gas and Electric v. Public Service Commission, 447 US 557 (1980), is not a sign case, it is important in the law of signs because it states the test for constitutionality of restrictions on commercial speech.  The steps are: 1) Is the speech protected by the First Amendment?  If it is false or misleading, or concerns illegal activity, it is not protected.  2) Does the regulation serve a substantial governmental interest?  3) Does the regulation directly advance the substantial governmental interest?  4)  Is the regulation more restrictive than necessary to serve the governmental interest.  [This last element, the "degree of fit" between means and ends was refined in Board of Trustees v. Fox, 492 US 469 (1989), to "a means narrowly tailored to achieve the desired objective."]

Metromedia v. San Diego, 453 US 490 (1981) is the court's only modern case on regulation of billboards ("offsite advertising").  The case produced five different opinions.  Scattered among these opinions were five or more votes (a majority of the 9 votes on the court) for the following points: 

* while the government has a legitimate interest in controlling the non-communicative aspects of billboards, First Amendment concerns place some limits on billboard regulation; 

* commercial speech has less First Amendment protection than noncommercial speech; 

* regulations on commercial speech are measured under the Central Hudson test [described above]; 

* the government's interests in traffic safety and community esthetics are enough to justify a complete ban on offsite commercial billboards. 

* San Diego's sign ordinance is unconstitutional because it has two fatal flaws: 1) it allows commercial messages in certain places where noncommercial messages (advocacy) are not allowed; this is a violation of the principle that noncommercial speech is entitled to a higher degree of First Amendment protection than commercial speech; and 2) the ordinance results in the city showing a preference for certain kinds of noncommercial speech over other kinds of noncommercial speech; this was a violation of the principle that regulations may not be based on message content.  

City of Cincinatti v. Discovery Network, 507 US 410 (1993): The court invalidated a city ordinance which required removal of newsracks for "commercial handbills" but allowed newsracks for traditional newspapers to remain.  The court said the distinction between commercial and noncommercial speech "bears no relationship whatsoever to the particular interests [ensuring safe streets and regulating visual blight] that the city has asserted."  

Facts: Massachusetts Attorney General Tom Reilly established regulations which prohibited tobacco signs within 1,000 feet of schools and playgrounds, and regulated marketing and distribution methods for tobacco products. Several tobacco companies sued to block enforcement of the regulations, claiming that they were pre-empted by FCLAA (the federal cigarette licensing and advertising act, 15 USC 1333) and that they violated the tobacco companies' free speech rights. The trial court upheld most of the regulations (76 Fed.Supp.2d 124 and 84 Fed.Supp.2d 180, 2000), as did the federal court of appeals (218 F.3d 30, 2000).

Issues: Federal pre-emption by the FCLAA and free speech rights of the tobacco companies.

Discussion 1: federal preemption: The FCLAA imposes a requirement that cigarette packages carry specific warning messages, and preempts state or local regulation. When the original FCLAA was adopted in 1965, it said "no statement relating to smoking and health shall be required in the advertising of any cigarettes the packages of which are labeled in conformity with the provisions of this Act." In the 1969 amendment, the language was changed to forbid any "requirement or prohibition based on smoking and health . . . imposed under state law with respect to the advertising or promotion" of cigarettes. The switch in language from "statement relating to smoking and health" to "requirement or prohibition . . . with respect to" smoking and health indicates Congress' intent to broaden the scope of federal pre-emption. Lower court rulings which have held that the pre-emption goes only to message content and not to sign location have no support in the actual text of the federal law, which reaches to all requirements and prohibitions. Although the Massachusetts regulations were adopted to limit youth exposure to cigarette advertising, that concern is intertwined with the concern about cigarette smoking and health.

Conclusion 1: the Massachusetts regulations are pre-empted by the FCLAA, both as to message content and sign location. However, restrictions on the location and size of advertisements that apply equally to other products are outside the federal preemption of the FCLAA.

Discussion 2: free speech rights of tobacco companies. First Amendment protection of commercial speech was recognized in the 1970s; however, since this protection is of a lower level than protection of noncommercial speech (advocacy on topics such as religion and politics), commercial speech restrictions are measured under the test set forth in Central Hudson v. PSC (1980). Even though the tobacco companies and many others urge the Court to apply "strict scrutiny" to truthful commercial speech, the Court again find no reason to change the Central Hudson test, just as it did in Greater New Orleans Broadcasters v. U.S. (1999).

Only steps 3 and 4 of the Central Hudson test apply here. Step three ("actual advancement") requires that the restriction on free speech actually advance some substantial governmental interest. That a restriction on tobacco advertising would reduce underage smoking does not require detailed empirical studies, and is adequately shown by various FDA studies. The fourth step of Central Hudson ("narrow tailoring") requires that the regulation is not more extensive than necessary to serve the governmental interest. The Massachusetts regulations do not consider the impact of the 1,000 foot restriction on commercial speech in major commercial areas, and in some areas, would constitute a nearly total ban on truthful speech about a product which is legal for adults. The uniformly broad sweep of the geographical limitation demonstrates a lack of tailoring.

Conclusion 2: The Massachusetts regulations fail the narrow tailoring requirement of Central Hudson test, and are thus unconstitutional under the First Amendment.

Comment: Although Lorillard is a victory for the tobacco companies, it is a defeat for those who have long argued for a higher level of constitutional protection for commercial speech. In terms of the impact of this case on the field of sign regulation generally, the reaffirmation of the Central Hudson test is the most important aspect of the case.

Disclosure: Randal R. Morrison, webmaster of this site, wrote the amicus ('friend of the court") brief for the American Planning Association in Lorillard.

The US Supreme Court sign cases decided before the First Amendment was extended to actions of state and local governments (1920's) , and then to commercial speech mid-1970's), are:

Fifth Avenue Coach v. City of New York, 221 US 467 (1911): city law forbidding advertising trucks in Manhattan did not violate coach company's property rights; those rights were defined by NY state corporate law, which said the company could use the public streets for transportation, but not general advertising for hire. 

Thomas Cusack Company v. City of Chicago, 242 US526 (1917): city ordinance, requiring consent of majority of residents before billboard could be placed in a residential neighborhood, was a valid exercise of the police power. 

St. Louis Poster v. City of St. Louis, 249 US 269 (1919): billboards properly may be put in a class by themselves and prohibited in residential districts, in the interest of safety, morality, health and decency of the community. 

Packer v. Utah, 285 US 105 (1932): no equal protection violation from state law which made it a misdemeanor to advertise tobacco on billboards, even though such ads could be placed in newspapers and magazines.  

Railway Express Agency v. New York City, 336 US 106 (1949): the court refused to overturn the judgment of city officials who concluded that city's interests in traffic safety were served by regulation which banned advertising on vehicles but allowed advertising for the company which owned the vehicle.  This case was decided after the First Amendment had been extended to state and local governments, but before the extension to commercial speech.