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Zoning Ordinances and “Free Speech” -


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									                                               P L A N N I N G L AW P R I M E R

       Zoning Ordinances and “Free Speech”
                                                        by Alan C. Weinstein, Esq.

  O ver the past two decades,                  allowing individual plaintiffs to sue local    tions on the communicative aspects of
there has been a marked expan-                 governments for damages and attorneys’         speech – e.g., limit the message to be dis-
sion in legal challenges to local              fees if the plaintiff can show that a local    played on a sign – the Court has adopted
                                               regulation violated any of his individual      the view that, under very limited circum-
land use regulations claiming violations
                                               rights guaranteed under the federal con-       stances, speech may be subject to nar-
of the free speech clause of the First
Amendment to the United States Consti-         stitution. In the other line of decisions,     rowly proscribed regulations. There is no
tution. First Amendment claims can arise                                                      single test that the Supreme Court
                                                                                              employs to determine how much gov-
whenever government enacts or enforces             COURTS HAVE BECOME                         ernment regulation of speech may be tol-
zoning or other regulations that deal                  INCREASINGLY
with uses such as billboards or adult                                                         erated; rather, the Court chooses its
                                                   PROTECTIVE OF “FREE                        analysis based on the manner in which
entertainment businesses. This article
discusses why this litigation is taking
                                                     SPEECH” RIGHTS –                         government is attempting to impose reg-
place, provides an overview of First               INCLUDING “SPEECH”                         ulations on speech. Recent Court deci-
Amendment law, and offers local of cials               THAT IS PURELY                         sions have shown, however, that
some guidelines to help avoid potential           COMMERCIAL IN NATURE                        attempts to regulate the content of speech
legal challenges.                                                                             in any context will trigger the highest
                                                                                              level of scrutiny. Thus, the question of
    WHY ARE THERE SO MANY                                                                     whether a regulation of speech is content-
          TO ZONING?
                                               the Court, in 1974, ruled on its rst zon-      neutral has become the paramount con-
                                               ing case in 46 years and subsequently          cern of courts.
     While no one can provide a de nitive      decided a succession of zoning cases,              A content-neutral regulation will
answer to the question of why the past         many of them dealing with First Amend-         apply to a particular form of expression
two decades have seen a significant            ment claims. These Supreme Court deci-         (e.g., signs or parades) regardless of the
increase in First Amendment challenges         sions, in turn, led to a greater willingness   content of the message displayed or con-
to local zoning, part of the answer can be     on the part of the lower federal courts to     veyed. The most common form of con-
found in several recent changes in both        decide zoning cases involving First            tent-neutral regulation is so-called “time,
our society and legal system. First, a         Amendment claims.                              place or manner” regulation, which, as
number of societal changes have coa-                                                          the name suggests, does no more than
lesced to create a greater potential for        OVERVIEW OF THE “FREE SPEECH”
                                                CLAUSE OF THE FIRST AMENDMENT                 place limits on when, where, and how a
con ict when government r egulates the                                                        message may be displayed or conveyed;
use of land. We have become an increas-            The First Amendment states: “Con-          for example, a sign code that regulates
ingly diverse society and, unfortunately,      gress shall make no law respecting an          the size, location and number of signs,
this has too often resulted in our also        establishment of religion, or prohibiting      regardless of the message they contain.
becoming divided and divisive. At the          the free exercise thereof; or abridging the        Normally, any time government
same time, we have become a more liti-         freedom of speech, or of the press; or the     makes regulatory distinctions based on
gious society. We are much more likely         right of the people peacefully to assem-       the content of the regulated speech,
today to turn to the courts in search of a     ble, and to petition the Government for a      courts will apply a very demanding
resolution for our differences.                redress of grievances.” (Emphases              analysis, known as strict scrutiny. By
     Second, two lines of Supreme Court        added). This article focuses on the “free      contrast, if the regulatory distinctions are
decisions, beginning in the late 1970’s,       speech” clause of the First Amendment.         content-neutral, a somewhat less demand-
have combined to encourage potential               Although the First Amendment               ing analysis, known as intermediate
litigants to bring their “First Amendment      speaks in absolute terms – “Congress           scrutiny, applies.      “Strict versus Intermediate
& Zoning” claims into federal court. In        shall make no law … abridging the free-        Scrutiny.”
one line of decisions, beginning with          dom of speech …” (emphasis added) –                Courts will apply strict scrutiny even
Monell v. Dept. of Social Services, 436 U.S.   the Supreme Court has rejected a literal       to content-neutral regulations, however,
658 (1978), the Court interpreted an           reading of the text. While government          when the regulation imposes a total ban
1871 federal “civil rights” statute as         may not normally impose direct restric-        on a category of speech protected by the


First Amendment. For example, in City          swift judicial review of any denial.                             Strict versus
of Ladue v. Gilleo, 512 U.S. 43 (1994), a          Finally, even where a government
unanimous Supreme Court ruled that an          regulation of speech is otherwise valid,
ordinance banning all residential signs,       it may be struck down if a court finds                             Scrutiny
with certain exemptions, violated the          the language so vague that it is unclear                The strict scrutiny test requires that a
First Amendment rights of homeowners           what type of expression is actually regu-           content-based regulation of speech must
                                               lated or it is so broadly worded that it            be justi ed by a compelling governmental
because it totally foreclosed their oppor-
                                               has the effect of restricting speech to an          interest and be narrowly tailored to
tunity to display political, religious, or
                                               extent that is greater than required to             achieve that interest. Moreover, a content-
personal messages on their own proper-
                                               achieve the goals of the regulation.                based regulation of speech is presumed to
ty. While the Court accepted the city’s                                                            be unconstitutional (i.e., the normal pre-
                                                    “Vagueness & Overbreadth.”
contention that the ordinance was a                                                                sumption that a local government regula-
content-neutral “time, place, and man-                LEARNING TO AVOID                            tion is constitutional is reversed), so that
ner” regulation, it still struck down the        FIRST AMENDMENT “MISTAKES”                        government, rather than the party chal-
                                                   IN LAND USE REGULATIONS
ordinance because the city had fore-                                                               lenging the ordinance, bears the burden of
closed an important and distinct medi-             The legal doctrines and decisions               proof and must af rmatively justify the
um of expression – lawn signs – to             associated with the First Amendment                 regulation to the court’s satisfaction.
political, personal, or religious messages     are quite complex and local government                  The strict scrutiny test is not normally
and had failed to provide adequate sub-        of cials ar e well-advised to consult legal         applied to content-neutral regulations of
stitutes for such an important medium.         counsel with substantial knowledge and              speech, which, as previously discussed,
    Courts are also very concerned             experience in this area before enacting             usually take the form of time, place or
about any land use regulation that             land-use regulations that affect freedom            manner restrictions. Instead, the courts
imposes a “prior restraint” on speech.         of speech or religion. At the same time,            apply a less demanding test known as
“Prior restraint” is the legal term for any    however, there are a number of fairly               intermediate scrutiny. Intermediate scruti-
attempt to condition the right to free-        straightforward principles and policies,            ny has also been applied to regulations
dom of expression on receiving the prior       which, if rigorously followed, should               that are directed at the non-communica-
approval of a governmental of cial.            enable local of cials to avoid the most             tive aspects of speech but, in addition,
                                               common mistakes that can arise when                 have an indirect effect on the message
    In the context of land-use regula-
                                               enacting or enforcing land-use regula-              being communicated. This test requires
tion, a prior restraint may take the form
                                               tions that could give rise to First                 that a content-neutral regulation of
of requiring an applicant to obtain a per-
                                               Amendment challenges.                               speech must be justi ed by a substantial –
mit, license, or conditional use approval
                                                   Among the regulatory areas most                 not a compelling – governmental interest
as a condition to displaying or convey-                                                            and must be narrowly tailored to achieve
                                               likely to create potential problems are:
ing a message. Such attempts are seen as                                                           that interest. Finally, the regulation must
                                               (1) adult entertainment zoning &
posing a particularly serious threat to                                                            leave open “ample alternative avenues of
                                               licensing regulations; and (2) billboard
the values embodied by the First                                                                   communication.”
                                               and sign zoning regulation.
Amendment and will receive the
strictest judicial scrutiny. As with other            ADULT ENTERTAINMENT
forms of strict scrutiny, when a court                ZONING & LICENSING                           Vagueness
 nds a prior r estraint, it will reverse the       The Supreme Court has ruled that
                                                                                                   & Overbreadth
traditional presumption of validity            local governments may single-out adult                  Two important legal principles –
afforded to the actions of government          entertainment businesses for special reg-           termed “void for vagueness” and
and presume that the prior restraint is        ulatory treatment in the form of loca-              “overbreadth” – seek to ensure that
unconstitutional.                              tional restrictions if government can               government regulation of expression is
    In order to overcome the presump-                                                              suf ciently pr ecise so that individuals
                                               show a substantial public interest in reg-
                                                                                                   will know exactly what forms of expres-
tion that a prior restraint is unconstitu-     ulating such businesses unrelated to the
                                                                                                   sion are restricted and that laws which
tional, government must show that the          suppression of speech and if the regula-
                                                                                                   legitimately regulate certain forms of
licensing or permitting scheme: (1) is         tions allow for a reasonable number of
                                                                                                   expression do not also include within
subject to clearly de ned standar ds that      alternative locations.
                                                                                                   their scope other types of expression
strictly limit the discretion of the of -          Local governments may bar such
                                                                                                   that may not permissibly be regulated.
cials administering the scheme, and (2)        businesses from residential areas and
                                                                                                   These two principles are quite closely
meets stringent procedural safeguards to       subject them to “distancing” require-
                                                                                                   related, and courts often nd that an
guarantee that a decision to grant or          ments from churches, schools, play-                 ordinance violates both.
deny the license is rendered within a          grounds, and each other. However, such
determined and short period of time,           businesses must be allowed to open and
with provision for an automatic and                                         continued on page 14


Zoning Ordinances and Free Speech
continued from page 13

operate at locations that are “available”
for such a use; i.e., locations that are
zoned to permit such uses and that are
serviced by roads and utilities.
    Adult entertainment zoning ordi-
nances must also be drafted with meticu-
lous attention to the de nitions used to
determine what constitutes an adult
entertainment business and the legisla-

                                                                                                                                           MIKE LUCKOVICH. REPRINTED WITH PERMISSION CREATORS SYNDICATE
tive record must reflect that the ordi-
nance was enacted to address the negative
“secondary effects” (most typically,
increased crime and lowered property
values) associated with such businesses,
rather than to censor or prohibit the
entertainment itself.
    The Supreme Court has also ruled
that local government may license adult
entertainment businesses and thereby
regulate various operational aspects of
these businesses. However, because              to any sign regulations that go beyond       time limits on political signs might be
licensing ordinances are viewed as a form       “time, place or manner” restrictions on      permissible if they are part of a “compre-
or “prior restraint,” courts will closely       the height, area, number, and location of    hensive” program to address aesthetic
examine them and will not hesitate to           signs.                                       issues, these cases provided little guid-
strike one down if it either fails to contain       This does not mean that localities       ance on how comprehensive the govern-
criteria for city officials to follow in        cannot take steps to regulate commercial     ment program must be to justify the
granting or denying a license or lacks          signs such as billboards. However, to do     restrictions on political signs.
effective time limitations for the issuance     so, local government officials must be           2. Regulation of On-Premise versus
of a decision on a license application.         able to demonstrate that a substantial       Off-Premise Signs. Local sign regula-
    Finally, since requiring an adult busi-     government interest (e.g., aesthetic or      tions often distinguish between on-
ness to obtain a conditional use permit         traf c safety) would be ser ved by regula-   premise and off-premise signs in an effort
raises concerns about a prior restraint         tion and that there is a “reasonable fit”    to restrict the location and number of off-
similar to those raised by a licensing          between the regulation and the interest      premise signs (i.e., billboards). Courts
ordinance, courts have struck down such         to be served by the regulation.              accept as rational a local determination
requirements where they vested over-                1. Political Signs. A sign ordinance     that on-premise signs are an inseparable
broad discretion in city officials or did       prohibiting political or election signs is   part of the business use of a piece of
not provide for specific time limits for        clearly unconstitutional and courts have     property, while off-premise advertising is
deciding on the application.                    struck down prohibitions on political        a separate use unto itself that may be
                                                signs that applied in both residential and   treated differently from on-premise sig-
         ZONING REGULATION OF                   other districts. Courts have also struck
         SIGNS AND BILLBOARDS                                                                nage.
                                                down sign ordinances that discriminated          There is little question that local
    Courts have become increasingly             among different political messages (e.g.,    government may lawfully regulate
protective of “free speech” rights –            an ordinance restricting the content of      off-premise commercial signs more
including “speech” that is purely com-          political signs to the candidates and        strictly than on-premise commercial
mercial in nature (e.g., a billboard adver-     issues being considered at an upcoming       signs. Regulations have also been up-
tising a car, or a sign on a restaurant).       election).                                   held that limit the height, size, and/or
In the past, local governments had to               Ordinances that place unreasonable       number of off-premise signs, or that
exercise the greatest caution only when         limits on the number of political signs      restrict their location.
regulating “non-commercial” signs such          that may be displayed, or that impose            Some off-premise sign regulations
as political (“Vote for Joe”) or personal       restrictive time limits only on political    have been struck down, however. The
(“No Solicitors”) signs. Today, however,        signs, have also been struck down.           U.S. Supreme Court in Metromedia, Inc. v.
such caution should probably be extended        Although some cases have suggested that      City of San Diego, 453 U.S. 490 (1981)

                         PLANNING COMMISSIONERS JOURNAL / NUMBER 37 / WINTER 2000

found San Diego’s ban on off-premise
signs to be invalid because exceptions to
the ban were made for some, but not all,
noncommercial messages. Courts have
followed Metromedia by striking down
off-premise sign regulations that make
distinctions among forms of noncom-
mercial speech as well as those that allow
exceptions for certain commercial mes-
sages but not a general exception for
noncommercial messages. In contrast,
regulations that exempt all noncommer-
cial speech from a general ban on off-
premise signs have been upheld as have
those where the definition of off-premise
signs has been found not to include non-
commercial messages.
    Courts have also invalidated off-
premise sign regulations where the local
government failed to demonstrate what
interests it was seeking to promote
through the regulations. While most
courts merely require that the interests
be mentioned in the ordinance, and then
defer to the governing body’s determina-
tion that the regulations substantially
promote those interests, other courts
have required a higher level of substanti-
ation of the interests involved and the
regulations’ relationship to them.
               SUMMING UP:
    When regulating speech – whether
commercial or noncommercial – local
governments need to act with care. As
with other areas of land use law (e.g.,
property rights) local regulations are
most likely to be upheld when they are
carefully drafted to comport with judicial
decisions and are supported by sound
reasoning. Planners and lawyers can
work together to develop ordinances that
meet community objectives in a manner
consistent with judicial case law. N
    Professor Weinstein, a
lawyer and planner, holds
a joint appointment in the
Cleveland-Marshall Col-
lege of Law and Maxine
Goodman Levin College of
Urban Affairs at Cleveland
State University. His
research and practice both
deal extensively with issues involving land use and
the First Amendment.


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