St. Louis’s Comprehensive Sign Control Regulations regulate the display of “signs” — including on private property, and not limited to commercial ads — and define sign this way:
“Sign” means any object or device or part thereof situated outdoors which is used to advertise, identify, display, direct or attract attention to an object, person, institution, organization, business product, service, event, or location by any means including words, letters, figures, designs, symbols, fixtures, colors, motion illumination or projected images. Signs do not include the following:a. Flags of nations, states and cities, fraternal, religious and civic organization;
b. Merchandise, pictures of models of products or services incorporated in a window display;
c. Time and temperature devices;
d. National, state, religious, fraternal, professional and civic symbols or crests, or on site ground based measure display device used to show time and subject matter of religious services;
e. Works of art which in no way identify a product.
Can this be constitutional? It seems to me impermissibly content-based, since it treats some speech — such as symbols of nations and some but not all organizations, and signs related to religious services — differently from other speech (such as a mural with the words “End Eminent Domain Abuse” inside a red circle, with a slash through them). Compare, for instance, Regan v. Time, Inc., in which the Supreme Court held that a ban on the depiction of currency was unconstitutionally content-based because of the exception for depiction “for philatelic, numismatic, educational, historical, or newsworthy purposes in articles, books, journals, newspapers, or albums.” “Under the statute, one photographic reproduction will be allowed and another disallowed solely because the Government determines that the message being conveyed in the one is newsworthy or educational while the message imparted by the other is not. The permissibility of the photograph is therefore often ‘dependent solely on the nature of the message being conveyed.’ Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment.” The same, I think, would be said of exceptions for national or organization flags or symbols, and of information related to religious services.
But beyond that, the distinction between “[w]orks of art” and signs that somehow are not artistic strikes me as unconstitutionally vague. What is and isn’t art is notoriously indeterminate, just as what constitutes “contemptuous treatment” of a flag is indeterminate. (The Supreme Court held the “contemptuous treatment” language was unconstitutionally vague, even when it seemed possible that clear statutes barring flag desecration would be permitted.) And that the vagueness problem arises in the context of a licensing scheme rather than a criminal prohibition doesn’t make it any better — the indeterminacy and potential for content discrimination within a licensing scheme makes such a scheme an unconstitutional prior restraint. Indeed, the Court’s obscenity test does ask whether a work has “serious artistic value,” but that test is hardly a great success story of the Court’s First Amendment jurisprudence, and the Court has resisted an attempt to extend it beyond the historically accepted obscenity exception.
Earlier this year, Neighborhood Enterprises, Inc. v. City of St. Louis (E.D. Mo.) held the ordinance was content-neutral, and seemed to endorse the “works of art” exception (though apparently no vagueness, as opposed to a content discrimination, challenge was brought). But I don’t think that’s right, for the reasons I gave above. I hope some industrious St. Louis resident decides to further challenge this law, or others decide to challenge any similar laws in other cities; please let me know if you know of anyone who is doing that.
UPDATE: It turns out that the case is being handled by the Washington State branch of the Institute for Justice (IJ is one of the leading libertarian public interest law firms in the country), and that an appeal is now pending before the Eighth Circuit. I’ve uploaded the opening brief and the reply brief.
ChrisTS says:
My house number sign is certainly intended to identify and attract atention to my house. Pretty sure it is not ‘art,’ although I suppose I could find something better.
September 30, 2010, 12:55 pmpete the elder says:
“Works of art which in no way identify a product.” That would ban Andy Wharhol’s soup can paintings and similar art that depicts products.
September 30, 2010, 1:00 pmShag from Brookline says:
Might a beholder see graffiti as art under e?
September 30, 2010, 1:17 pmPine_Tree says:
I admittedly didn’t read the ordinance in the link, but I’ve always wondered when we’d hear of a case of a sign ordinance being wielded against an ordinary tractor-trailer (the trailer part). Great big rolling billboards going around all uncontrolled – surely some nanny wants to neaten up their streetscape by keeping such crass commercialism within proper limits.
September 30, 2010, 1:18 pmSuperSkeptic says:
Thanks for noting that the obscenity test is equally vague BS. Saves me the trouble down here…
September 30, 2010, 1:42 pmBruce Hayden says:
Likely not in Las Vegas. I am amazed every time I am walking on the Strip at the trucks with signs in the back or signs being towed in traffic, up and down the strip, mostly soliciting for stripper clubs. And, frankly, it is better than all the illegals standing on the street handing out cards for the same. The constantly ruffle their stack of cards trying to get your attention. Probably use the signs in traffic because all the billboards are in use by PI attorneys.
September 30, 2010, 2:07 pmCalderon says:
I’m guessing Chicago will get around to it one of these days. There tends to be a lot of rolling billboards downtown on Friday and Saturday, and most of them advertise “adult” clubs. Wouldn’t want to give tourists the wrong impression of the Second City.
September 30, 2010, 2:08 pmdirc says:
House (and building) numbers are exempted from the permitting requirements. See 26.68.030(D).
September 30, 2010, 2:45 pmPine_Tree says:
Hmm. Never knew that about Las Vegas and Chicago (and other places, I suppose).
I was actually referring more to things like Doritos.
September 30, 2010, 3:06 pmToday's Tom Sawyer says:
Or Coca-Cola trucks, especially during Christmas
September 30, 2010, 3:20 pmAgain says:
I grew up in St. Louis (county) and this brings to mind City of Ladue v. Gilleo (Oyez). The Supreme Court held unanimously that a statute banning virtually all yard signs was impermissible. What is it about my home town and signs?
September 30, 2010, 3:31 pmShelbyC says:
I’d love to hear how “Works of art which in no way identify a product.” is content-neutral.
September 30, 2010, 3:39 pmJohn Pack Lambert says:
I have seen moving billboards for apartments. I always take it to mean the naysayers about the high price of fuel are wrong. I specifically remember seeing them in the summer of 2007 when gas prices were hitting all time highs.
September 30, 2010, 4:34 pmJohn Pack Lambert says:
Since the Oyez decision was unanimous, I think the St. Louis ordinance has little chance of surviving.
September 30, 2010, 4:37 pmElemenope says:
I’d love to hear how “Works of art which in no way identify a product.” is content-neutral.
Doesn’t it follow from the (fairly long-held) distinction recognized between commercial speech and other speech?
September 30, 2010, 4:45 pmSuperSkeptic says:
Yeah, they also unanimously said that “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 [...]“. I personally still fail to see why the state’s police powers should extend to the aesthetics of my property, but the Court is totally okay with that.
* * *
As an aside, and just for kicks, compare Justice Stevens in Ladue – *citing Aristotle on Rhetoric, no less* – to Justice Stevens in Citizens United on the identity of the speaker and constricting opportunities for free expression. Ladue at 56.
September 30, 2010, 4:55 pmChrisTS says:
Well, phooey.
(Edit: Actually, I am relieved to see that these legislators are not complete idiots.)
September 30, 2010, 5:24 pmShelbyC says:
Well, my understanding is that commercial speech is speech proposing a commercial transaction. Speech which in any way identifies a product is considerably more broad.
September 30, 2010, 6:53 pmsticky says:
Pine Tree: Ask and ye shall receive. The Supreme Court ruled that a ban on certain types of vehicle-borne advertisements was constitutional. Railway Express Agency v. New York http://www.oyez.org/cases/1940-1949/1948/1948_51
[EV says: The case doesn't discuss the First Amendment, and the First Amendment law related to commercial advertising has in any event changed a lot since then. Now some bans on vehicle-borne commercial advertising may in fact be upheld today, but Railway Express doesn't dispose of that.]
September 30, 2010, 8:47 pmShelbyC says:
Well, let’s not assume too much here.
October 1, 2010, 10:00 amarbitrary aardvark says:
I’m glad to see the state constitution’s free speech clause is also cited.
October 1, 2010, 11:42 amSection 8. That no law shall be passed impairing the freedom of speech, no matter by what means communicated: that every person shall be free to say, write or publish, or otherwise communicate whatever he will on any subject, being responsible for all abuses of that liberty; and that in all suits and prosecutions for libel or slander the truth thereof may be given in evidence; and in suits and prosecutions for libel the jury, under the direction of the court, shall determine the law and the facts.
I recently saw the first part of this graffiti’d onto a building in springfield missouri.
PLR says:
I commute past that particular rat trap every morning, it faces the interstate highway. It’s a great target for condemnation.
October 1, 2010, 12:08 pmLymis says:
How about the thingie in the front garden announcing that the Smiths live there? Again, I suppose the definition of art is subjective.
But if you are going to define a sign as something that (among other things) directs attention to a person, what’s with the “in no way identifies a product” thing?
October 1, 2010, 3:23 pmJim in St Louis says:
Do you roll up the windows as you speed by so that you don’t get contaminated? Its actualy a great building with some cool features, and great part of town that was ripped up and isolated in the 60s so that the feds could build the interstates– so that smug commuters could speed along on every morning. But that is not the real point- City of St Louis is trying to censor speech that they don’t like– by saying that a sign is not a sign when they don’t like what is written on it.
October 2, 2010, 6:24 pmChrisTS says:
Right. I think I’d been drinking.
October 2, 2010, 6:59 pm