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Although a city may distinguish between the relative value of different categories of commercial speech, it 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: To allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for political truth. Because some noncommercial messages may be conveyed on billboards throughout commercial and industrial zones, a city must similarly allow billboards conveying other noncommercial messages throughout those zones.
The city of San Diego, California, enacted an ordinance imposing substantial prohibitions on the erection of outdoor advertising displays within the city, the ordinance permitting on-site commercial advertising, but forbidding other commercial advertising and noncommercial communications using fixed-structure signs everywhere unless permitted by one of several specified exceptions. Several companies that were engaged in the outdoor advertising business in the city at the time the ordinance was passed brought suit in California state court to enjoin enforcement of the ordinance. On cross-motions for summary judgment, the trial court held that the ordinance was an unconstitutional exercise of the city's police power and an abridgement of the companies' First Amendment rights. The California Court of Appeal affirmed on the first ground alone and did not reach the First Amendment argument. The Supreme Court of California reversed, holding that the two purposes of the ordinance, i.e., to eliminate hazards to pedestrians and motorists brought about by distracting sign displays, and to preserve and improve the appearance of the city, were within the city's legitimate interests. The State Supreme Court further held that the ordinance was not facially invalid under the First Amendment.
Was the ordinance in question facially invalid under the First Amendment?
In reversing the finding, the Court held that the ordinance was unconstitutional on its face, since it prohibited noncommercial signs while allowing commercial signs on business premises. The ordinance reached too far into the realm of protected speech by allowing on-premise signs advertising goods and services while it prohibited noncommercial messages on the same signs. The ordinance contained a severability clause, and it was the responsibility of the state courts to determine its meaning and application, so the case was remanded to determine if the ordinance could be sustained by limiting its reach to commercial speech.