TABLE OF CONTENTS |
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I. | FACTUAL AND PROCEDURAL BACKGROUND | 1048 |
II. | THE DELAWARE STATUTORY SCHEME | 1050 |
III. | CONTENT NEUTRALITY | 1053 |
A. | Introduction | 1053 | |
B. | The Metromedia Plurality | 1054 | |
C. | Analyzing Plurality Opinions—Doubts Cast by the Metromedia Concurrence and Dissents | 1056 | |
D. | Applicability of the Result in Metromedia | 1061 |
IV. | CONTENT DISCRIMINATION REVISITED | 1062 |
A. | A New Test | 1062 | |
B. | Application of the Test | 1066 | |
C. | Summary | 1068 |
V. | SECONDARY EFFECTS | 1069 |
VI. | PUBLIC FORUM ANALYSIS | 1070 |
VII. | SEVERABILITY | 1072 |
VIII. | TIME, PLACE AND MANNER | 1075 |
IX. | QUALIFIED IMMUNITY | 1077 |
A. | Qualified Immunity of Defendant Justice | 1077 | |
B. | Qualified Immunity of the Individual County Defendants | 1078 |
X. | CONCLUSION | 1079 |
[O]ur recent commercial speech cases have consistently accorded noncommercial speech a greater degree of protection than commercial speech. San Diego effectively inverts this judgment, by affording a greater degree of protection to commercial than to noncommercial speech.... The city does not explain how or why noncommercial billboards located in places where commercial billboards are permitted would be more threatening to safe driving or would detract more from the beauty of the city. 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 noncommercial messages.
With respect to noncommercial speech, the city may not choose the appropriate subjects for public discourse.... Because some noncommercial messages may be conveyed on billboards throughout the commercial and industrial zones, San Diego must similarly allow billboards conveying other noncommercial messages throughout those zones.
Marks is workable—one opinion can be meaningfully regarded as “narrower” than another—only when one opinion is a logical subset of other, broader opinions. In essence, the narrowest opinion must represent a common denominator of the Court's reasoning; it must embody a position implicitly approved by at least five Justices who support the judgment.
When, however, one opinion supporting the judgment does not fit entirely within a broader circle drawn by the others, Marks is problematic. If applied in situations where the various opinions supporting the judgment are mutually exclusive, Marks will turn a single opinion that lacks majority support into national law. When eight of nine Justices do not subscribe to a given approach to a legal question, it surely cannot be proper to endow that approach with controlling force, no matter how persuasive it may be.
I cannot agree with the plurality's view that an ordinance totally banning commercial billboards but allowing noncommercial billboards would be constitutional. For me, such an ordinance raises First Amendment problems at least as serious as those raised by a total ban, for it gives city officials the right—before approving a billboard—to determine whether the proposed message is ‘commercial’ or ‘noncommercial’.
[O]bviously, a city can have special goals the accomplishment of which would conflict with the overall goals addressed by the total billboard ban. It would make little sense to say that a city has an all-or-nothing proposition—either ban all billboards or none at all.... [I]f a city can justify a total ban, I would allow an exception only if it directly furthers an interest that is at least as important as the interest underlying the total ban, if the exception is no broader than necessary to advance the special goal, and if the exception is narrowly drawn so as to impinge as little as possible on the overall goal. To the extent that exceptions rely on content-based distinctions, they must be scrutinized with special care.
[I]f a city can justify a total ban, I would allow an exception only if it directly furthers an interest that is at least as important as the interest underlying the total ban, if the exception is no broader than necessary to advance the special goal, and if the exception is narrowly drawn so as to impinge as little as possible on the overall goal.
Regardless of the mens rea of the city, it has enacted a sweeping ban on the use of newsracks that distribute ‘commercial *1070 handbills' but not ‘newspapers.’ Under the city's newsrack policy, whether any particular newsrack falls within the ban is determined by the content of the publication resting inside that newsrack. Thus, by any commonsense understanding of the term, the ban in this case is ‘content-based.’ Nor are we persuaded that our statements that the test for whether a regulation is content-based turns on the ‘justification’ for the regulation compel a different conclusion.... In contrast to the speech at issue in Renton, there are no secondary effects attributable to respondent publishers' newsracks that distinguish them from the newsracks Cincinnati permits to remain on its sidewalks.
If any provision of the Code or amendments hereto, or the application thereof to any person, thing or circumstance is held invalid, such invalidity shall not affect the provisions or application of this Code or such amendments that can be given effect without the invalid provisions or application, and to this end the provisions of the Code and such amendments are declared to be severable.
[I]n order for the governing law to be sufficiently well established for immunity to be denied, it is not necessary that there have been a previous precedent directly in point.... The ultimate issue is whether, despite the absence of a case applying established principles to the same facts, reasonable officials in the defendants' position at the relevant time could have believed, in light of what was in the decided case law, that their conduct would be lawful.
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