Gilleo v. City of Ladue
Opinion of the Court
The district court concluded that the City of Ladue’s sign ordinance is unconstitutional and permanently enjoined Ladue from enforcing it, 774 F.Supp. 1564. We affirm the court’s injunction, but modify the court’s award of attorneys’ fees, 791 F.Supp. 238.
I. BACKGROUND
Ladue enacted an ordinance that prohibits most signs within the city (the ordinance).
Margaret P. Gilleo placed an 11 X 8.5 inch sign stating “For Peace in the Gulf” in the front window of her home. Gilleo was informed that her sign violated Ladue’s ordinance. She filed a complaint in federal district court asserting that the ordinance violates her First Amendment right to freedom of speech. Ladue filed a counterclaim for a declaratory judgment that its ordinance is constitutional. Both parties filed motions for summary judgment. The district court entered summary judgment in favor of Gilleo, declaring the ordinance unconstitutional. The court permanently enjoined Ladue from enforcing portions of its ordinance and awarded Gilleo $74,813.25 in attorneys’ fees. On appeal, Ladue challenges both the injunction and the fee award.
II. DISCUSSION
A. CONTENT-BASED RESTRICTIONS
Our method of analyzing the constitutionality of Ladue’s ordinance depends on whether the ordinance is “content-neutral” or “content-based.”
In classifying the ordinance as content-neutral or content-based, we are guided by the Supreme Court’s plurality opinion in Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981). San Diego, in an effort to improve both the safety and the appearance of the city, enacted an ordinance prohibiting billboards in the city. The billboard ordinance excepted on-site billboards identifying the owner or occupant of the premises or advertising goods or services available on the property. Additionally, the billboard ordinance excepted various types of noncommercial signs.
Ladue’s ordinance raises the same concerns. The ordinance favors commercial speech over noncommercial speech,
B. “SECONDARY EFFECTS” DOCTRINE
Under the secondary effects doctrine, a seemingly content-based regulation is analyzed as a content-neutral regulation if the government shows that the regulation is justified by a desire to eliminate a “secondary effect”—an undesirable effect unrelated to the content or communicative impact of the speech. See City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 47-49, 106 S.Ct. 925, 929-30, 89 L.Ed.2d 29 (1986) (articulating a “secondary effects” test for distinguishing content-based from content-neutral regulations). As stated in Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661 (1989), “[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” Ladue asserts that its ordinance is aimed only at preventing the adverse secondary effects caused by an over-abundance of signs in the community. The secondary effects identified by Ladue include visual blight, unsafe conditions, and decreased property values.
Assuming arguendo that the “secondary effects” doctrine extends to cases involving the prohibition of political signs on private property,
C. CONSTITUTIONALITY OF THE CONTENT-BASED RESTRICTION
Content-based restrictions are subject to strict scrutiny. To survive strict scrutiny, content-based restrictions must be necessary to serve a compelling interest and must be narrowly drawn to achieve that end. Simon & Schuster, Inc. v. New York Crime Victims Bd., — U.S. —, —, 112 S.Ct. 501, 509, 116 L.Ed.2d 476 (1991). While Ladue's interests in enacting its ordinance are substantial, see Members of the City Council of Los Angeles v.
We also conclude that the district court did not err in refusing to instate Ladue's back-up plan, which provides that all signs not specifically restricted by other parts of the ordinance must be no greater than six square feet. Neither side argued the constitutionality of such a plan to the district court.
D. ATTORNEYS’ FEES
Pursuant to 42 U.S.C. § 1988, the district court awarded Gilleo $74,813.45 in attorneys' fees. The amount includes a 15% enhancement over the lodestar amount to compensate Gilleo's attorneys for taking the case on a contingency basis. In City of Burlington v. Dague, — U.S. —, —-—, 112 S.Ct. 2638, 2643-44, 120 L.Ed.2d 449 (1992), the Supreme Court held that enhancement for contingency is not permitted under certain fee-shifting statutes. Although Dague concerns the fee-shifting provisions of the Solid Waste Disposal Act and the Clean Water Act, the Court's analysis applies equally to § 1988. See id. at —, 112 S.Ct. at 2641. We vacate the district court's 15% enhancement, thus reducing the fee award from $74,813.25 to $65,055.00.
III. CONCLUSION
Ladue’s ordinance violates the First Amendment by favoring commercial speech over noncommercial speech and by favoring certain types of noncommercial speech over others. We affirm the district court’s permanent injunction, and reduce the court’s attorneys’ fee award to $65,055.00.
AFFIRMED as MODIFIED.
. The ordinance defines the term "sign” to include banners, pennants, insignia, bulletin boards, ground signs, billboards, poster billboards, illuminated signs, projecting signs, temporary signs, marquees, roof signs, yard signs, electric signs, wall signs, and window signs. According to Ladue’s reply brief, the ordinance does not prohibit "rectangular or square shaped flags.”
. The following signs are permitted: municipal signs; subdivision signs; residence identification signs; road signs and driveway signs for danger, direction, or identification; health inspection signs; church, religious institution, and school signs announcing names, services, activities, or functions (limited by number); identification signs for nonprofit organizations; signs identifying the location of public transportation stops; ground signs advertising the sale or rental of real property (one her property); commercial signs in districts zoned for commercial or
. The noncommercial signs excepted were: government signs; signs located at public bus stops; signs manufactured, transported, or stored within the city, if not used for advertising purposes; commemorative historical plaques; religious symbols; signs within shopping malls; "for sale” and “for lease” signs; signs on public and commercial vehicles; signs depicting time, temperature, and news; approved temporary, off-premises, subdivision directional signs; and temporary political campaign signs.
. For example, the ordinance permits commercial signs in districts zoned for commercial or industrial use, but it prohibits most noncommercial signs in those districts.
. We recognize that the ordinance is viewpoint neutral. But viewpoint neutrality does not render the statute content-neutral. Burson v. Freeman, — U.S. —, —, 112 S.Ct. 1846, 1850, 119 L.Ed.2d 5 (1992); Boos v. Barry, 485 U.S. 312, 319, 108 S.Ct. 1157, 1163, 99 L.Ed.2d 333 (1988). "The First Amendment's hostility to content-based regulations extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic." Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 537, 100 S.Ct. 2326, 2333, 65 L.Ed.2d 319 (1980).
. We have some doubt as to Ladue’s argument that the Supreme Court’s adoption of the “secondary effects” doctrine has affected the precedential value of the Court’s plurality decision in Metromedia.
. Ladue asserts that its ordinance prohibits signs that tend to proliferate. According to La-due, the ordinance excepts from the general ban only signs that are naturally limited in number or that are necessary to protect the safety of Ladue’s residents. Ladue, however, has failed to provide sufficient factual support for this proliferation rationale. For example, Ladue’s proliferation rationale might explain why the ordinance limits the number of signs that a commercial business, a church, or a school may erect, but it does not explain why the ordinance additionally restricts the content of those signs. (Under the ordinance, commercial businesses may only erect a limited number of commercial signs, and schools and churches may only erect a limited number of announcement signs.) Cf. Metromedia, 453 U.S. at 513, 101 S.Ct. at 2895 (noting that San Diego did "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”).
Reference
- Full Case Name
- Margaret P. GILLEO v. CITY OF LADUE Edith J. Spink, Mayor of the City of Ladue Thomas R. Remington, as member of the City Council of the City of Ladue George L. Hensley, as member of the City Council of the City of Ladue Gale S. Johnston, Jr., as member of the City Council of the City of Ladue Robert A. Wood, as member of the City Council of the City of Ladue Robert D. Mudd, as member of the City Council of the City of Ladue George Fonyo, as member of the City Council of the City of Ladue
- Cited By
- 6 cases
- Status
- Published