City of Ladue v. Gilleo, 512 U.S. 43 (1994)

STEVENS, J., delivered the opinion for a unanimous Court. O’CONNOR, J., filed a concurring opinion.

An ordinance of the City of Ladue prohibits homeowners from displaying any signs on their property except “residence identification” signs, “for sale” signs, and signs warning of safety hazards. The ordinance permits commercial establishments, churches, and nonprofit organizations to erect certain signs that are not allowed at residences. The question presented is whether the ordinance violates a Ladue resident’s right to free speech.1

I

Respondent Margaret P. Gilleo owns one of the 57 single-family homes in the Willow Hill subdivision of Ladue. 2 On December 8, 1990, she placed on her front lawn a 24- by 36-inch sign printed with the words “Say No to War in the Persian Gulf, Call Congress Now.” After that sign disappeared, Gilleo put up another but it was knocked to the ground. When Gilleo reported these incidents to the police, they advised her that such signs were prohibited in Ladue. The City Council denied her petition for a variance. Gilleo then filed this action under 42 U.S.C. 1983 against the City, the Mayor, and members of the City Council, alleging that Ladue’s sign ordinance violated her First Amendment right of free speech.

The District Court issued a preliminary injunction against enforcement of the ordinance. Gilleo then placed an 8.5- by 11-inch sign in the second story window of her home stating, “For Peace in the Gulf.” The Ladue City Council responded to the injunction by repealing its ordinance and enacting a replacement. Like its predecessor, the new ordinance contains a general prohibition of “signs” and defines that term broadly. The ordinance  prohibits all signs except those that fall within one of ten exemptions. Thus, “residential identification signs” no larger than one square foot are allowed, as are signs advertising “that the property is for sale, lease or exchange” and identifying the owner or agent. Also exempted are signs “for churches, religious institutions, and schools,” “[c]ommercial signs in commercially or industrial zoned districts,” and on-site signs advertising “gasoline filling stations.”

… Gilleo amended her complaint to challenge the new ordinance, which explicitly prohibits window signs like hers. The District Court held the ordinance unconstitutional, and the Court of Appeals affirmed. Relying on the plurality opinion in Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981), the Court of Appeals held the ordinance invalid as a “content based” regulation because the City treated commercial speech more favorably than noncommercial speech and favored some kinds of noncommercial speech over others. Acknowledging that “Ladue’s interests in enacting its ordinance are substantial,” the Court of Appeals nevertheless concluded that those interests were “not sufficiently `compelling’ to support a content-based restriction.”

We granted the City of Ladue’s petition for certiorari, 510 U.S. ___ (1993), and now affirm.

II

While signs are a form of expression protected by the Free Speech Clause, they pose distinctive problems that are subject to municipalities’ police powers. Unlike oral speech, signs take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation. It is common ground that governments may regulate the physical characteristics of signs …. However, because regulation of a medium inevitably affects communication itself, it is not surprising that we have had occasion to review the constitutionality of municipal ordinances prohibiting the display of certain outdoor signs.

In Linmark Associates, Inc. v. Willingboro, 431 U.S. 85 (1977), we addressed an ordinance that sought to maintain stable, integrated neighborhoods by prohibiting homeowners from placing “For Sale” or “Sold” signs on their property. Although we recognized the importance of Willingboro’s objective, we held that the First Amendment prevented the township from “achieving its goal by restricting the free flow of truthful information.” In some respects, Linmark is the mirror image of this case. For instead of prohibiting “For Sale” signs without banning any other signs, Ladue has exempted such signs from an otherwise virtually complete ban. Moreover, whereas, in Linmark, we noted that the ordinance was not concerned with the promotion of aesthetic values unrelated to the content of the prohibited speech, here Ladue relies squarely on that content-neutral justification for its ordinance….

III

While surprising at first glance, the notion that a regulation of speech may be impermissibly underinclusive is firmly grounded in basic First Amendment principles. Thus, an exemption from an otherwise permissible regulation of speech may represent a governmental “attempt to give one side of a debatable public question an advantage in expressing its views to the people.” Alternatively, through the combined operation of a general speech restriction and its exemptions, the government might seek to select the “permissible subjects for public debate,” and thereby to “control . . . the search for political truth.”

The City argues that its sign ordinance implicates neither of these concerns, and that the Court of Appeals therefore erred in demanding a “compelling” justification for the exemptions. The mix of prohibitions and exemptions in the ordinance, Ladue maintains, reflects legitimate differences among the side effects of various kinds of signs. These differences are only adventitiously connected with content, and supply a sufficient justification, unrelated to the City’s approval or disapproval of  specific messages, for carving out the specified categories from the general ban. Thus, according to the Declaration of Findings, Policies, Interests, and Purposes supporting the ordinance, the permitted signs, unlike the prohibited signs, are unlikely to contribute to the dangers of “unlimited proliferation” associated with categories of signs that are not inherently limited in number. Because only a few residents will need to display “for sale” or “for rent” signs at any given time, permitting one such sign per marketed house does not threaten visual clutter. Because the City has only a few businesses, churches, and schools, the same rationale explains the exemption for on-site commercial and organizational signs.

… In this case, at the very least, the exemptions from Ladue’s ordinance demonstrate that Ladue has concluded that the interest in allowing certain messages to be conveyed by means of residential signs outweighs the City’s aesthetic interest in eliminating outdoor signs. Ladue has not imposed a flat ban on signs because it has determined that at least some of them are too vital to be banned. …

IV

… Ladue’s sign ordinance is supported principally by the City’s interest in minimizing the visual clutter associated with signs, an interest that is concededly valid but certainly no more compelling than the interests at stake in Linmark. Moreover, whereas the ordinance in Linmark applied only to a form of commercial speech, Ladue’s ordinance covers even such absolutely pivotal speech as a sign protesting an imminent governmental decision to go to war….

Ladue has almost completely foreclosed a venerable means of communication that is both unique and important. It has totally foreclosed that medium to political, religious, or personal messages. Signs that react to a local happening or express a view on a controversial issue both reflect and animate change in the life of a community. Often placed on lawns or in windows, residential signs play an important part in political campaigns, during which they are displayed to signal the resident’s support for particular candidates, parties, or causes.[1]  They may not afford the same opportunities for conveying complex ideas as do other media, but residential signs have long been an important and distinct medium of expression…. Although prohibitions foreclosing entire media may be completely free of content or viewpoint discrimination, the danger they pose to the freedom of speech is readily apparent - by eliminating a common means of speaking, such measures can suppress too much speech.  

Ladue contends, however, that its ordinance is a mere regulation of the “time, place, or manner” of speech, because residents remain free to convey their desired messages by other means, such as hand-held signs, “letters, handbills, flyers, telephone calls, newspaper advertisements, bumper stickers, speeches, and neighborhood or community meetings.” However, even regulations that do not foreclose an entire medium of expression, but merely shift the time, place, or manner of its use, must “leave open ample alternative channels for communication.” In this case, we are not persuaded that adequate substitutes exist for the important medium of speech that Ladue has closed off.

Displaying a sign from one’s own residence often carries a message quite distinct from placing the same sign someplace else, or conveying the same text or picture by other means. Precisely because of their location, such signs provide information about the identity of the “speaker.” As an early and eminent student of rhetoric observed, the identity of the speaker is an important component of many attempts to persuade. A sign advocating “Peace in the Gulf” in the front lawn of a retired general or decorated war veteran may provoke a different reaction than the same sign in a 10-year-old child’s bedroom window or the same message on a bumper sticker of a passing automobile. An espousal of socialism may carry different implications when displayed on the grounds of a stately mansion than when pasted on a factory wall or an ambulatory sandwich board.

Residential signs are an unusually cheap and convenient form of communication. Especially for persons of modest means or limited mobility, a yard or window sign may have no practical substitute. Even for the affluent, the added costs in money or time of taking out a newspaper advertisement, handing out leaflets on the street, or standing in front of one’s house with a hand-held sign may make the difference between participating and not participating in some public debate. Furthermore, a person who puts up a sign at her residence often intends to reach neighbors, an audience that could not be reached nearly as well by other means.16

A special respect for individual liberty in the home has long been part of our culture and our law that principle has special resonance when the government seeks to constrain a person’s ability to speak there. Most Americans would be understandably dismayed, given that tradition, to learn that it was illegal to display from their window an 8- by 11-inch sign expressing their political views. Whereas the government’s need to mediate among various competing uses, including expressive ones, for public streets and facilities is constant and unavoidable, its need to regulate temperate speech from the home is surely much less pressing.

Our decision that Ladue’s ban on almost all residential signs violates the First Amendment by no means leaves the City powerless to address the ills that may be associated with residential signs. It bears mentioning that individual residents themselves have strong incentives to keep their own property values up and to prevent “visual clutter” in their own yards and neighborhoods - incentives markedly different from those of persons who erect signs on others’ land, in others’ neighborhoods, or on public property. Residents’ self-interest diminishes the danger of the “unlimited” proliferation of residential signs that concerns the City of Ladue. We are confident that more temperate measures could in large part satisfy Ladue’s stated regulatory needs without harm to the First Amendment rights of its citizens. As currently framed, however, the ordinance abridges those rights.

Accordingly, the judgment of the Court of Appeals is

Affirmed.

[Justice O’Connor’s concurring opinion is omitted.]

1 The First Amendment provides: “Congress shall make no law … abridging the freedom of speech, or of the press …” The Fourteenth Amendment makes this limitation applicable to the States, see Gitlow v. New York, 268 U.S. 652 (1925), and to their political subdivisions, see Lovell v. Griffin, 303 U.S. 444 (1938).

[1] [note 12] “[S]mall [political campaign] posters have maximum effect when they go up in the windows of homes, for this demonstrates that citizens of the district are supporting your candidate – an impact that money can’t buy.” D. Simpson, Winning Elections: A Handbook in Participatory Politics 87 (rev. ed. 1981).

16 Nor do we hold that every kind of sign must be permitted in residential areas. Different considerations might well apply, for example, in the case of signs (whether political or otherwise) displayed by residents for a fee, or in the case of off-site commercial advertisements on residential property. We also are not confronted here with mere regulations short of a ban.