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Ackerly v. City of Cambridge, 95-2324 (1996)

Court: Court of Appeals for the First Circuit Number: 95-2324 Visitors: 16
Filed: Jul. 10, 1996
Latest Update: Mar. 02, 2020
Summary: Cambridge ordinance only if they carry onsite messages.(cont'd), (7 cont'd), Cambridge acknowledges that the onsite/offsite distinction, indirectly has a content-based effect because most on-premise, signs are commercial in nature and most noncommercial messages, are off-premise.any speech at all.
USCA1 Opinion






United States Court of Appeals
For the First Circuit

____________________


No. 95-2324

ACKERLEY COMMUNICATIONS OF MASSACHUSETTS, INC.,

Plaintiff, Appellant,

v.

CITY OF CAMBRIDGE, ET AL.,

Defendants, Appellees.

____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge] ___________________

____________________

Before

Cyr, Circuit Judge, _____________

Coffin and Bownes, Senior Circuit Judges. _____________________

____________________


Andrew L. Frey with whom Eric M. Rubin, Walter E. Diercks, ______________ _____________ _________________
Kenneth S. Geller, Charles Rothfeld, George A. Berman, Steven S. _________________ ________________ ________________ _________
Broadley, and Joseph S. Berman were on brief for appellant. ________ ________________
Peter L. Koff with whom Arthur J. Goldberg was on brief for _____________ __________________
appellees.


____________________

July 10, 1996

____________________



















COFFIN, Senior Circuit Judge. We are asked in this appeal ____________________

to sort out the constitutional principles at play when a

municipality, in pursuit of improved aesthetics, regulates signs

and billboards. In many respects, this is a case of deja vu.

Seven years ago, the same plaintiff successfully challenged a

similar sign ordinance as violative of the First Amendment. See ___

Ackerley Communications of Massachusetts v. City of Somerville, ________________________________________ ___________________

878 F.2d 513 (1st Cir. 1989). Although the defending

municipality has changed -- Cambridge now replaces its neighbor

Somerville -- the central issue remains the same: the validity of

distinctions drawn between "onsite" and "offsite" signs and

between commercial and noncommercial messages.1 With
____________________

1 We repeat our explanation of the onsite/offsite
distinction from City of Somerville, 878 F.2d at 513 n.1: __________________

An onsite sign carries a message that bears some
relationship to the activities conducted on the
premises where the sign is located. For example, an
onsite sign may simply identify a business or agency
("Joe's Hardware" or "YMCA"), or it may advertise a
product or service available at that location
("Budweiser Beer" at Parise's Cafe or child care at the
Lutheran Church). Depending upon the business or
agency, the message on the sign may be deemed either
commercial or noncommercial. An offsite sign -- the
category into which most billboards fit -- carries a
message unrelated to its particular location. These
signs also may display either commercial or
noncommercial messages. For example, an offsite sign
may advertise "Great Gifts at Kappy's Liquors," with
Kappy's Liquors being located at some distance from the
sign, or it may say "No one should be left out in the
cold. Write: Citizens Energy Corp."

Thus, the onsite/offsite distinction is not a
distinction between signs attached to buildings and
free standing signs. An offsite sign may be located on
a building rooftop, but because the product, good, or
service it advertises is not available at the sign's

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appreciation for the difficulties faced by municipalities in this

complicated area, we nonetheless conclude that the First

Amendment bars enforcement of the challenged ordinance in the

circumstances present here.

I. Factual Background __________________

Plaintiff Ackerley Communications is a Massachusetts

billboard company that has operated an outdoor advertising

business for more than 100 years. In the City of Cambridge, it

maintains 46 signs on 32 separate structures. All of these

billboards became nonconforming when Cambridge amended a zoning

ordinance in 1991 to tighten the restrictions on the height,

size, number and location of signs that may be displayed in the

city.2 Ackerley, hoping to find protection in the First

Amendment, has displayed only noncommercial messages since the

amended ordinance went into effect.

The ordinance itself makes no distinctions based on the

messages displayed on the signs. Such differential protection is
____________________

location, it is classified as offsite. For example, if
a sign advertising the products available at Joe's
Hardware is located atop the Parise Cafe building,
Joe's sign is offsite.

In this opinion, we use the terms on-premise and off-premise
interchangeably with onsite and offsite.

2 Article 7.000 of the Zoning Ordinances of the City of
Cambridge provides, inter alia, that four categories of _____ ____
nonconforming signs must be removed within four years from the
statute's enactment, or from the first date that the sign became
nonconforming. The signs required to be removed are those on
rooftops, freestanding signs exceeding 30 square feet, wall signs
exceeding 60 square feet and projecting signs exceeding 10 square
feet. 7.18.1. All of Ackerley's signs fall into at least one
of these categories.

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conferred instead by a state statute, the Massachusetts Zoning

Act, Mass. Gen. L. ch. 40A, 6, which mandates grandfather

protection for all nonconforming uses -- including signs -- that

are in existence at the time a zoning ordinance is enacted or

amended. The statute excludes from such protection, however,

billboards, signs and other advertising devices subject to the

jurisdiction of the Massachusetts Outdoor Advertising Board

(OAB). The OAB regulates so-called "off-premise" signs.3

The combined effect of the local ordinance and state law,

therefore, is to protect signs that do not conform to the amended

Cambridge ordinance only if they carry onsite messages. None of ____

Ackerley's billboards are grandfathered under this scheme because

all of its messages are offsite ones -- i.e., they are unrelated

to the property on which they sit. Thus, Ackerley's 46

noncommercial, off-premises messages must be taken down while a

large number of nonconforming commercial signs are protected.

Cambridge officials recognized the limited nature of the

grandfather provision, and, indeed, endorsed its preference for

onsite signs, finding:

Nonconforming off-premise signs, which traditionally
have been used primarily to advertise commercial goods
and services not available on the same premises, have a
significantly greater adverse aesthetic impact than on
premises signs because of their larger sizes, greater

____________________

3 Ackerley accurately points out that the descriptive terms
"off-premise" and "on-premise" can be misleading when used to
modify the word "sign", since the applicable category is
determined not by a sign's location, but by its message. As ________ _______
noted supra, at note 1, a sign attached to a building can carry _____
either off-premise or on-premise messages.

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heights, less attractive appearances, and/or more
intrusive locations.

Zoning Ordinance Article 7.000, 7.11.1(F). The Findings

section of the ordinance further states that "[t]he public

interest is served by use of signs by businesses and services to

identify their premises, or the products or services there

available, or to display noncommercial messages." Id. at (G). ___

The importance of noncommercial messages is reflected in a

"substitution provision" in the ordinance, which provides that

"[a]ny sign permitted under this Article may contain, in lieu of

or in addition to any other copy, any noncommercial message."

Article 7.000, 7.17.

Consistent with this scheme, when the ordinance's four-year

grace period expired in 1995, Cambridge informed Ackerley that

its signs would have to come down. Ackerley sought a preliminary

injunction barring enforcement of the ordinance, arguing that it

violates the First Amendment because it favors nonconforming

signs that carry commercial messages over similar signs that

carry noncommercial messages.4 The district court denied

injunctive relief. It found that Ackerley had not demonstrated a

likelihood of success on the merits because the ordinance "in

effect[] distinguishes between on-site and off-site signs, which

is permissible, and not between commercial and non-commercial

messages."


____________________

4 Ackerley also alleged a Fifth Amendment takings claim,
which is not before us at this time.

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Ackerley consequently filed this appeal, arguing that the

district court misapplied relevant First Amendment law. It

contends that the Supreme Court's decision in Metromedia, Inc. v. ________________

San Diego, 453 U.S. 490 (1981), and our own decision in City of __________ _______

Somerville, 878 F.2d at 513, require a conclusion that the __________

Cambridge ordinance is unconstitutional as applied to Ackerley's

signs.

Although this case comes to us as an appeal of a denial of

preliminary relief, both parties at oral argument urged us to

resolve the dispute on its merits because the issue is purely a

legal one that needs no further record development. We accept

the invitation to make the ultimate determination, and proceed

with our analysis from that perspective.

II. Discussion __________

A. Background __________

The City of Cambridge has been working for a number of years

to improve its aesthetic environment through the increasingly

restrictive regulation of signs. The 1991 revisions to its sign

ordinance for the first time required removal of certain non-

conforming signs. Although the ordinance affects many more signs

than just the large, visually demanding -- some would say

offensive -- ones that most of us would identify as billboards, a

comprehensive report prepared in connection with the revised

ordinance reveals that they are the city's most pressing






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concern.5 Billboards typically carry offsite messages. The

state's grandfathering provision -- exempting nonconforming on- __

premise signs -- therefore nicely dovetails with Cambridge's

priority to eliminate billboards as soon as possible.6 Onsite

signs, most of which are business signs, may stay; offsite signs

-- many of which at the moment in Cambridge are billboards

carrying noncommercial messages -- must go.

Ackerley offers two primary reasons why this scheme violates

the First Amendment. First, it claims that the Cambridge

ordinance directly conflicts with our decision in City of ________
____________________

5 The report on the Cambridge sign environment concluded
that off-premise signs -- a term it equated with billboards --
were more troubling than onsite signs because, inter alia, they _____ ____
dominate the surrounding environment, both visually and
physically, and are not likely to be removed except as the result
of a total redevelopment of the site on which they are found.
The report found that on-premise signs, in contrast, have a more
"limited and contained" aesthetic impact because "they are placed
low on their host buildings, they are obscured from afar by
street trees and almost without exception they do not approach
the sheer size and dominance of off-premise signs." In addition,
the report stated that onsite signs were likely to be less
permanent, since businesses are likely to change hands and new
signs would not be grandfathered.

6 For purposes of our discussion, we treat the state
grandfathering provision as part-and-parcel of the Cambridge
ordinance, and certain of our references to "the Cambridge
ordinance" will assume that the grandfathering provision is
contained within it. Indeed, as noted supra, at pages 4-5, the _____
ordinance seems to incorporate the state grandfather provision as
part of its regulatory scheme.
We emphasize that the validity of the state statute, as an
independent matter, is not a question before us. The issue we
must decide is whether Cambridge may enforce its sign ordinance
to require Ackerley to remove its billboards. As Cambridge's
counsel acknowledged at oral argument, the impact of the state
grandfathering provision is relevant to that inquiry regardless
of the statute's constitutionality.



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Somerville, where we found the ordinance to be impermissible __________

based on a grandfathering provision that exempted only signs that

had carried no offsite commercial speech during the year

preceding the ordinance's enactment. We held that "[i]t is

without question that the government may not impose a penalty --

in this case, denying the right to continue speaking by means of

nonconforming signs -- because of a person's constitutionally

protected past speech." 878 F.2d at 519.

Ackerley contends that Cambridge's ordinance, when applied

in light of the state statute, suffers from essentially the same

flaw: the right to use nonconforming signs in the future to

express noncommercial messages is given by the substitution

provision only to certain speakers, based on their past speech --

in this instance, to those who were displaying onsite messages on

the day the ordinance was enacted. Ackerley maintains that

distributing the future right to speak in a certain way (i.e.,

through large, nonconforming signs) based on the content of

earlier speech is impermissible whether the restriction looks

back a year in time, as it did in Somerville, or only a day.

This must be so, it asserts, because the practical effect of the

two ordinances is identical; both reserve the right to display

noncommercial messages primarily to a limited category of

speakers, business owners.

Ackerley's second theory is that the ordinance is invalid

because it imposes an impermissible content-based restriction on

speech: whether a sign may remain is determined by the message it


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carries. Because most content-based restrictions are

presumptively invalid, see City of Ladue v. Gilleo, 114 S. Ct. ___ ______________ ______

2038, 2047 (1994) (O'Connor, J., concurring); National ________

Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 736 (1st Cir. _________________ _______________

1995), and subject to strict scrutiny, even Cambridge seems to

acknowledge that, if this traditional content-based inquiry

applies, its ordinance would fail. See Burson v. Freeman, 504 ___ ______ _______

U.S. 191, 211 (1992) ("[I]t is the rare case in which . . . a law

survives strict scrutiny.").

Cambridge responds that enforcement of its ordinance is not

inconsistent with City of Somerville because the regulation does ___________________

not use "past speech" as the distinguishing criterion. In its

view, the grandfather provision permissibly distinguishes between

categories of signs (onsite vs. offsite), and such a distinction

inevitably must relate to the signs as they existed at a

particular point in time. Cambridge further contends that its

ordinance is a valid content-neutral regulation that does not

require strict scrutiny.

Under traditional First Amendment analysis, we probably

should address as a threshold matter whether the onsite/offsite

grandfathering restriction is a content-based regulation that

triggers strict scrutiny.7 See City of Ladue, 114 S. Ct. at ___ ______________
____________________

7 In "commonsense" terms, the distinction surely is content-
based because determining whether a sign may stay up or must come
down requires consideration of the message it carries. The
Supreme Court made such an observation in City of Cincinnati v. __________________
Discovery Network, Inc., 113 S. Ct. 1505, 1516-17 (1993), which _______________________
involved a city policy banning newsracks carrying commercial
handbills but not those carrying newspapers. The Court noted:

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2047 (O'Connor, J., concurring) ("The normal inquiry that our

doctrine dictates is, first, to determine whether a regulation is

content-based or content-neutral, and then, based on the answer

to that question, to apply the proper level of scrutiny.");

National Amusements, 43 F.3d at 736. We choose to sidestep that ___________________

difficult question, however, because we conclude that the

Cambridge scheme suffers from two readily identifiable First

Amendment flaws that bar its enforcement.

B. Distinguishing Among Categories of Noncommercial Speech _______________________________________________________
____________________

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."

See also National Amusements, Inc. v. Town of Dedham, 43 F.3d ___ ____ _________________________ ______________
731, 738 (1st Cir. 1995); Whitton v. City of Gladstone, Mo., 54 _______ ______________________
F.3d 1400, 1403-04 (8th Cir. 1995) ("The Supreme Court has held
that a restriction on speech is content-based when the message
conveyed determines whether the speech is subject to the
restriction.").

(cont'd)
(7 cont'd)
Cambridge acknowledges that the onsite/offsite distinction
indirectly has a content-based effect because most on-premise
signs are commercial in nature and most noncommercial messages
are off-premise. In Cambridge, the disadvantage to noncommercial
speech is magnified because of Ackerley's decision to change all
of its billboards to noncommercial messages.

Several courts, however, have found the offsite/onsite
distinction to be essentially content-neutral, at least for the
purpose of determining the correct standard. See, e.g., Rappa v. ___ ____ _____
New Castle County, 18 F.3d 1043, 1067 (3d Cir. 1994); Messer v. _________________ ______
City of Douglasville, Ga., 975 F.2d 1505, 1509 (11th Cir. 1992). _________________________
In Rappa, a divided court noted that "[f]avoring onsite over off- _____
site speech probably leads to the effect of favoring commercial
speech over non-commercial speech as most conspicuous onsite
speech is probably commercial, but this effect is too attenuated
for us to take into account." 18 F.3d at 1056 n.19.


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While not facially preferring commercial messages to

noncommercial ones -- a preference barred by Metromedia -- the __________

Cambridge scheme does draw a line between two types of

noncommercial speech -- onsite and offsite messages.8 This line _____________

has the effect of disadvantaging the category of noncommercial

speech that is probably the most highly protected: the expression

of ideas. The only signs containing noncommercial messages that

are exempted are those relating to the premises on which they

stand, which inevitably will mean signs identifying nonprofit

institutions.

In its report, the city emphasizes the important role that

on-premise signs play "in promoting activities important to the

well-being of the City." But with rare exceptions, the First

Amendment does not permit Cambridge to value certain types of

noncommercial speech more highly than others,9 particularly when

the speech disfavored includes some -- like political speech --

that is at the core of the First Amendment's value system.10
____________________

8 Ackerley does not contest the city's authority to require
removal of nonconforming signs that display offsite commercial __________
messages. See Metromedia, Inc. v. San Diego, 453 U.S. 490, 512 ___ ________________ _________
(1981) (a city lawfully may exempt signs bearing onsite
commercial messages without also exempting those bearing offsite __________
commercial messages). __________

9 For example, an ordinance that exempted only highway speed
and directional signs, and municipal street signs, probably could
survive strict scrutiny. See John Donnelly & Sons v. Campbell, ___ ____________________ ________
639 F.2d 6, 9 (1st Cir. 1980).

10 An affidavit from Ackerley's public affairs director
through mid-1994 states that the material displayed on Ackerley's
signs since the 1991 ordinance revisions has included election
campaign information for candidates for City Council and County
Commissioner, artwork created by Cambridge students, promotion of

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See Metromedia, 453 U.S. at 514-15 ("Although the city may ___ __________

distinguish between the relative value of different categories of

commercial speech, the city does not have the same range of

choice in the area of noncommercial speech to evaluate the

strength of, or distinguish between, various communicative

interests. . . . With respect to noncommercial speech, the city

may not choose the appropriate subjects for public discourse . .

. ."); see also Rappa v. New Castle County, 18 F.3d 1043, 1063 ___ ____ _____ _________________

(3d Cir. 1994) ("The rule against content discrimination forces

the government to limit all speech -- including speech the

government does not want to limit -- if it is going to restrict

any speech at all. By deterring the government from exempting

speech the government prefers, the Supreme Court has helped to

ensure that government only limits any speech when it is quite

certain that it desires to do so."); National Advertising Co. v. ________________________

City of Orange, 861 F.2d 246, 248-49 (9th Cir. 1988).11 ______________

Cambridge does not suggest that there is an aesthetic _________

difference between a "Remember to Vote" message and one

announcing the location of the public library; it simply

maintains that the physical characteristics of "Public Library"

____________________

a Cambridge literacy program, information about a Cambridge voter
registration drive, and public service announcements about such
topics as food stamps, the campaign against drunk driving, and
AIDS prevention.

11 The court in National Advertising invalidated the ____________________
ordinance at issue because of exemptions for specific types of
noncommercial speech, while reserving judgment on whether a
categorical limitation of noncommercial messages to onsite
activities would be constitutional. 861 F.2d at 249 & n.3.

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signs are more likely to be less objectionable because they tend

to be smaller and less obtrusive than most signs carrying offsite

messages. The ordinance, however, gives protection based on the

message and not the physical characteristics, and it is that

distinction that the city must justify.12 Perhaps if a total

ban of signs were at issue, signs identifying buildings would be

a permissible limited exception because, like traffic and safety

signs, they would serve a substantial need that could not be met

in any other way. In this case, however, we consider not a total

ban, but only restrictions on size, style and location. The

identification interest for nonconforming signs cannot satisfy _____________

even intermediate scrutiny when the ordinance presumes that

identification can be accomplished adequately in the future by

smaller signs.

C. The City of Somerville Problem: Penalizing Past Speech ______________________________________________________

The regulation's second flaw arises from the manner in which

it seeks to protect ideological speech. The substitution

provision guarantees that noncommercial messages may be placed on

any exempted sign. What this means, however, is that Cambridge

is choosing which speakers may in the future display offsite

noncommercial messages on nonconforming signs in the way City of _______

Somerville held was impermissible -- by looking to past speech. __________

____________________

12 Indeed, although the city's sign report emphasized that,
"almost without exception," on-premise signs have less of a
negative visual and aesthetic impact than billboards, the report
acknowledged that "[m]any on-premise signs are of course
disappointing" and "can at times be too large, too high, too
visually loud."

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Only those speakers whose signs displayed onsite messages on the

day of the ordinance's enactment may substitute noncommercial

messages for the previous ones. We explored at some length in

City of Somerville the dangers of awarding future speech rights ___________________

based on past speech. See 878 F.2d at 519-20. ___

Although those dangers may seem less likely from the

Cambridge regulation because it does not, like Somerville's,

disqualify speakers based on only a single day's display of a

non-preferred message (i.e., offsite commercial) during the

course of a year, the Cambridge scheme's reliance on the date of

enactment nevertheless eliminates speakers from future access to

a particular medium based on their past choice of lawful speech.

If it is impermissible to assign future speech rights based on

the content of past speech, the amount of past speech does not

strike us as significant. The chilling effect that results from

linking future speech to past speech exists even if the pressure

to conform one's speech is compressed into a short time frame.

Moreover, the division drawn here between those who may and

may not use nonconforming signs in the future, for the most part,

isolates business and property owners as a privileged class. As

Cambridge freely acknowledges, onsite signs typically are

commercial in nature. Because the substitution provision gives

the right to display noncommercial messages on nonconforming

signs only to those individuals whose signs previously carried

onsite messages, the primary effect of the substitution provision




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is to give only commercial speakers the option of changing their

signs to noncommercial messages.

Giving an identifiable group virtually exclusive access to

the use of a medium is wholly inconsistent with First Amendment

principles; it is doubtful that the noncommercial messages of

interest to business owners would reflect as broad a cross-

section of viewpoints as might occur in a marketplace in which

every speaker has equal footing to speak.13 Indeed, the case

law makes it clear that even more problematic than the loss of

all noncommercial messages would be the selective preservation of

them. See Turner Broadcasting System, Inc. v. FCC, 114 S. Ct. ___ ________________________________ ___

2445, 2476 (1994) ("Under the First Amendment, it is normally not

within the government's power to decide who may speak and who may

not, at least on private property or in traditional public

fora.");14 Somerville, 878 F.2d at 518 ("Even if a complete ban __________
____________________

13 It should be noted that the Cambridge ordinance does not
ban all noncommercial speech, except for that allowed on ___
nonconforming signs by the substitution provision. The ordinance
also permits noncommercial messages on conforming signs, which __________
are those that do not exceed ten square feet in area. At issue
here, however, is the selective grant of the right to speak
through the more effective medium of large, nonconforming signs.

14 The Court in Turner Broadcasting further noted that time, ___________________
place and manner restrictions are permissible in large part
because they apply to all speakers. 114 S. Ct. at 2476. It
continued:

Laws that treat all speakers equally are relatively
poor tools for controlling public debate, and their
very generality creates a substantial political check
that prevents them from being unduly burdensome. Laws
that single out particular speakers are substantially
more dangerous, even when they do not draw explicit
content distinctions.


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on nonconforming signs would be permissible, we must consider

carefully the government's decision to pick and choose among the

speakers permitted to use such signs.") (citing and quoting First _____

National Bank of Boston v. Bellotti, 435 U.S. 765, 784-85 (1978) ________________________ ________

("In the realm of protected speech, the legislature is

constitutionally disqualified from dictating . . . the speakers

who may address a public issue.")).

What made this case particularly difficult is that the

"offsite" label, in practical terms, embraces not only most

noncommercial signs but also most of the worst aesthetic

offenders. In addition, most offsite signs tend to display

commercial messages; Ackerley's present configuration in

Cambridge is a deliberate departure from its usual mixture of

messages (15% noncommercial) in order to place itself in the best

possible position to retain use of its sign faces. Limiting

grandfather protection to onsite signs thus is an effective means

of accomplishing the city's legitimate objective of improving

aesthetics, and typically would result in the loss primarily of

offsite commercial messages.

The fact remains, however, that the grandfathering benefit

is conferred in content-based terms that have no aesthetic

justification and effectively penalizes a category of speakers

based on their prior choice of message. In addition, nearly all

of the sign owners privileged to display offsite noncommercial

messages on nonconforming signs may be expected to share similar
____________________

Id. ___

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views on certain matters of public interest. We hold that the

First Amendment does not allow Cambridge to achieve its aesthetic

objective by allocating the right to speak in this way.15



D. Remedial Option _______________

We recognize that our conclusion puts Cambridge in a

peculiar position because the content-based grandfathering

derives from state law. Relief from this disability condition is

beyond the scope of this court's power in this case. Any change

in state law probably must be left to the workings of the

political process. As we noted in Somerville, it is possible to __________

construct a justifiable, content-neutral grandfather provision

that will advance the city's "dual objectives of eliminating most

billboards while giving substantial protection to onsite signs,"

878 F.2d at 522. A grandfather provision could, for example,

exclude from grandfathering all signs over a certain square
____________________

15 The substitution provision does not cure the problem
because it does not affect eligibility for exemption. As in ___________
Somerville, a speaker's willingness to display noncommercial
messages in the future is insufficient to qualify that speaker's
signs for exemption; eligibility for future use is based on past ____
speech.
Indeed, the substitution provision appears to lead to a
potentially bizarre operation of the sign ordinance. It seems
that Ackerley could have protected its billboards by changing
them to onsite commercial messages before the ordinance went into
effect. Although the onsite messages available for some of the
signs likely would be limited, creative possibilities -- such as
"No Trespassing" or "This Property Not for Sale" -- seem to
exist. The substitution provision apparently would have allowed
Ackerley to revert to noncommercial messages the next day. Such
a scheme strikes us as irrational. In addition, First Amendment
values are inverted: Ackerley's signs would be protected if they
contained (onsite) commercial messages but not if they contained
(offsite) noncommercial ones.

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footage on the ground that the larger the sign, the greater the

aesthetic harm.16 Indeed, Cambridge's own ordinance includes

such a provision.

III. Conclusion __________

The Cambridge ordinance contains a severability provision

stating that, in the event some portion of it is declared

invalid, it is the City's intent that the remainder of the

ordinance continue in full force and effect. We do not in this

decision rule unlawful any particular section of the ordinance.

Rather, because the constitutional problem stems from the

interplay of the ordinance and the state provision, we hold only

that Cambridge may not require removal of signs displaying

noncommercial messages based on their exclusion from exemption

under the state provision.

Reversed and remanded. ______________________














____________________

16 "Such an ordinance would fall directly within the time,
place, or manner category of speech regulations, and would need
to meet the three-part test established for content-neutral
regulations. See Heffron v. International Society for Krishna ___ _______ _________________________________
Consciousness, Inc., 452 U.S. 640, 647-48, 101 S. Ct. 2559, 2563- ___________________
64, 69 L. Ed. 2d 298 (1981)." City of Somerville, 878 F.2d at 522 __________________
n.15.

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Source:  CourtListener

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