Interstate Outdoor Advertising, L.P. v. Mt. Laurel Tp. Bd. of Adj., 706 F.3d 527 (3d Cir. 2013). The Township of Mount Laurel, best known for its role in a series of affordable housing cases named for the Township, enacted an expressly content-neutral ordinance that prohibited the erection of outdoor advertising displays. That ordinance was adopted after plaintiff filed development applications with the Township’s Zoning Board of Adjustment (“the Board”) seeking approval for nine outdoor advertising signs along Interstate 295. The ordinance set out a list of goals and purposes that related to aesthetics or traffic safety. Though plaintiff presented expert testimony to the Board “on both the aesthetic suitability of the proposed billboards and their negligible impact on traffic safety,” the Board denied plaintiff’s applications.
Plaintiff sued the Board and the Township, asserting (among other things) that the ordinance violated the First Amendment. The district court granted summary judgment in favor of defendants. On plaintiff’s appeal, which was limited to the constitutional claim, the Third Circuit affirmed in an opinion by Chief Judge McKee. The panel exercised plenary review and applied the same standard for summary judgment as is used by district courts.
Chief Judge McKee observed that because the ordinance affects both commercial and non-commercial speech, two different analyses were required. Much of the rest of the opinion dealt with the commercial speech issue, while the non-commercial aspect was handled fairly quickly thereafter.
Under Central Hudson Gas & Electric Corp. v. Public Serv. Comm’n of N.Y., 447 U.S. 557 (1980), the ordinance could stand only “if it serves a substantial governmental interest and is no more extensive than necessary to advance that interest.” Defendants bore the burden of demonstrating that the ordinance met that test.
Before the district court, defendants marshaled extensive evidence that the billboard ban directly advanced the goals of traffic safety and aesthetics. That evidence included a collection of 37 studies or articles on the subject. Plaintiff attacked that evidence with expert testimony of its own, and argued that the mere fact of conflicting expert opinions made the grant of summary judgment improper.
Chief Judge McKee did not agree. Relying heavily on Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981), which had upheld a ban on off-site commercial advertising even though the City had not offered any evidence that the ban advanced San Diego’s interests in traffic safety and aesthetics, the panel here found that “[t]he force of the deference the Court afforded San Diego’s judgments regarding aesthetics and safety is controlling here.” In Metromedia, the Supreme Court had stated that “[i]f the city has a sufficient basis for believing that billboards are traffic hazards and are unattractive, then obviously the most direct and perhaps the only effective approach to solving the problems they create is to prohibit them.” Mount Laurel was thus permitted to do precisely that.
Nor did it matter that the stretch of I-295 on which plaintiff proposed the billboards was “already industrialized and unsightly.” That fact, Chief Judge McKee stated, “may well suggest an even greater need to guard against the deterioration of the Township’s character and evoke a greater concern for safety.” For all those reasons, the ordinance’s effect on commercial speech did not render it unconstitutional.
Turning to the test for non-commercial speech, Chief Judge McKee made short work of the issue. Limits on non-commercial speech are constitutional “provided that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in doing so they leave open ample alternative channels for communication of the information,” a quote from Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976). “The text of the [Mount Laurel] ordinance specifically states that it will be applied in a content-neutral fashion, and we have just explained that it directly advances substantial governmental interests.” Since plaintiff had numerous alternative communication channels, such as the internet, mail, radio, public transportation advertising, and many other outlets, the ordinance was not invalid. The fact that plaintiff could not necessarily reach the specific travelers on I-295 through those alternative means did not make those alternative means insufficient for constitutional purposes.