Norton Outdoor Advertising, Inc. v. Village of Arlington Heights

Clifford F. Brown, J. The issue presented herein is whether the ordinance in question unconstitutionally regulates the content of protected speech by restricting billboard advertising to the product or business conducted on the premises. We hold that it does. I. Appellants assert that the ordinance in question is a valid exercise of the police powers of local self-government. The authority of the municipality to regulate the erection of signs and billboards within its boundaries is not questioned. See R. C. 715.27(A). The control of the non-communicative aspects of the medium is a legitimate governmental interest. [541] See, e.g., Hilton v. Toledo (1980), 62 Ohio St. 2d 394, in which this court held that the city had the power to prohibit the display of flashing portable advertising signs while allowing the display of permanent electric signs. However, the First and Fourteenth Amendments to the United States Constitution and Section 11, Article I of the Ohio Constitution foreclose a similar interest in controlling the communicative aspects. Metro-Media, Inc., v. San Diego (1981), — U. S. — , 69 L. Ed. 2d 800, 811. By enacting Section 33(c), the village has exercised its general police powers in a manner that brings it into irreconcilable conflict with the constitutional protection accorded free speech. We are presented with an ordinance which, on its face, attempts to regulate the content of protected speech. The ordinance requires the content of the proposed expression to conform to the provisions of Section 33(c), (viz., “[t]he advertisement * * * shall pertain only to the [on-site] business ***”). In prohibiting all forms of offsite billboard advertising, the ordinance is thus inescapably directed to the content of protected speech. Strictures designed to stifle the free flow of information by regulating the content of expression are inherently inimical to the First Amendment’s avowed purpose of preserving an uninhibited marketplace of ideas. See Consolidated Edison Co., v. Public Service Comm. (1980), 447 U. S. 530; Virginia State Pharmacy Bd. v. Virginia Citizens Consumer Counsel (1976), 425 U. S. 748; Cincinnati v. Black (1966), 8 Ohio App. 2d 143. The ordinance in question infringes upon both the plaintiff-appellee’s right to communicate and the public’s right to receive a variety of political, economic, social, and philosophical messages. The presumption of validity traditionally accompanying local government’s exercise of its police power must therefore fail. II. The village’s ban on off-premise advertising has consequences on both commercial and non-commercial speech. Due to the different treatment accorded commercial and noncommercial speech, we will consider the effect of the ordinance on each. [542] A. By excluding all but one type of content, the ordinance proscribes not only commercial advertisements but has the operable effect of banning those messages traditionally characterized as “pure speech” as well. The result is a total ban on non-commercial speech. Under the present regulatory scheme, a greater degree of protection is afforded to commercial speech than is afforded to non-commercial speech. The use of on-site billboards to carry commercial messages related to the commercial use of the premises is freely permitted, but the use of otherwise identical billboards to carry non-commercial messages is prohibited. This result clearly cannot be tolerated. As the United States Supreme Court recently stated, at page 818, in Metro-Media v. San Diego, supra: “ * * *Insofar as the city tolerates billboards at all, it cannot choose to limit their content to commercial messages; the city may not conclude that the communication of commercial information concerning goods and services connected with a particular site is of greater value than the communication of non-commercial messages.” B. Not only does the ordinance in question unduly limit noncommercial speech, it also fails to meet the test governing restrictions on commercial speech articulated by the United States Supreme Court in Central Hudson Gas & Elec. v. Pub. Service Comm. (1980), 447 U. S. 557. Commercial speech has consistently been accorded a lesser degree of protection than non-commercial speech. Ohralik v. Ohio State Bar Assn. (1978), 436 U. S. 447, at 456. However, absent a claim of misleading or unlawful communication, the government must still assert a substantial interest to be achieved by the restriction on commercial speech. Central Hudson Gas & Elec., supra, at 566. This the village failed to do. The proper approach to be taken in determining the validity of any restriction on commercial speech is that which was articulated in Central Hudson Gas & Electric, supra, i.e., “ * * * [t]he protection available for [a] particular commercial [543] expression turns on the nature both of the expression and of the governmental interests served by its regulation.” (447 U. S. at 563.) The village offered no proof — either demonstrative or testimonial — which bore on the issue of the substantial goals the ordinance sought to implement. Nor was any rationale articulated as to how the ordinance furthered any substantial governmental interest. This court refuses to speculate as to the purpose or intended effect sought to be achieved by the village legislators. Because the ordinance in question reaches too far into the realm of protected speech, we conclude that it is unconstitutional on its face. The judgment of the Court of Appeals is therefore affirmed. Judgment affirmed. Celebrezze, C. J., W. Brown and Sweeney, JJ., concur. Holmes and Krupansky, JJ., concur in part and dissent in part. Locher, J., dissents.