filed: March 11, 1994; As Corrected May 2, 1994.
On Appeal from the United States District Court for the District of Delaware. (D.C. Civil Nos. 90-00608, 90-00609)
Before: Becker, Alito and Garth, Circuit Judges.
I. FACTUAL AND PROCEDURAL BACKGROUND
II. THE DELAWARE STATUTORY SCHEME
B. The Metromedia Plurality
C. Analyzing Plurality Opinions -- Doubts Cast by the Metromedia Concurrence and Dissents
D. Applicability of the Result in Metromedia
IV. CONTENT DISCRIMINATION REVISITED
B. Application of the Test
VI. PUBLIC FORUM ANALYSIS
VIII. TIME, PLACE AND MANNER
A. Qualified Immunity of Defendant Justice
B. Qualified Immunity of the Individual County Defendants
In 1990, plaintiff Daniel Rappa sought the Democratic nomination for Delaware's seat in the United States House of Representatives in a primary election contest which pitted him against the incumbent, Thomas Carper. Rappa was a businessman who had not held public office and had little public name recognition. In an effort to achieve it, he placed a large number of signs along Delaware's roadways, only to have many of them peremptorily removed by state and local authorities on the grounds that they were in violation of laws and ordinances enacted by the State of Delaware ("the State"), the County of New Castle ("the County"), and the City of Wilmington ("the City"). Although Rappa's signs were barred, a number of other types of signs, such as "for sale" signs and highway beautification signs were permitted. Particularly noteworthy is the fact that the state statute, "Chapter 11," allows signs advertising local industries, meetings, buildings historical markers and attractions. See Del. Code Ann. tit. 17, § 1114(6).
Rappa brought suit in the District Court for the District of Delaware challenging these regulatory schemes on First Amendment grounds. After discovery and the submission of extensive affidavits, the district court granted partial summary judgment, holding that the Delaware statute and the New Castle County ordinance were facially unconstitutional under the First and Fourteenth Amendments to the Constitution because they impermissibly restricted speech on the basis of content. The court issued an injunction requiring the state and county defendants to permit political signs to the same extent that commercial or other non-political signs were allowed.
Much of the case against the City of Wilmington remained unresolved but Rappa and the City settled, and the City's appeal of certain aspects of the district court's decision was therefore dismissed. The appeals of the County and various state and county officials remain, however, and impose on us the difficult task of determining the current state of First Amendment law pertaining to outdoor signs. The district court believed that the Supreme Court's leading pronouncement in the area, Metromedia, Inc. v. San Diego, 453 U.S. 490, 101 S. Ct. 2882, 69 L. Ed. 2d 800 (1981) was controlling, but we think that it has little precedential effect. Metromedia was a badly splintered plurality opinion which has arguably been undermined by the recent decision in Cincinnati v. Discovery Network, 123 L. Ed. 2d 99, 113 S. Ct. 1505 (1993). Although our analysis differs significantly from that of the district court, we nonetheless conclude that the Delaware regulation is sufficiently content-based that a significant part of it is unconstitutional.
Based on the principles underlying the First Amendment, we conclude that statutes aimed at a legitimate end unrelated to the suppression of speech but which nonetheless restrict speech in a certain locality may constitutionally contain content-based exceptions as long as the content exempted from restriction is significantly related to the particular area in which the sign is viewed -- for example, a sign identifying the property on which it sits as a restaurant, or a sign alongside a highway which tells drivers how to reach a nearby city. Such exceptions must also be substantially related to advancing an important state interest that is at least as important as the overall goal advanced by the underlying regulation, be no broader than necessary to advance the special interest, and be narrowly drawn so as to impinge as little as possible on the overall goal. Although under this approach some content-based exceptions will pass constitutional muster, the exception in Chapter 11 relating to signs advertising local industries, meetings, buildings, historical markers and attractions, Del. Code Ann. Title 17 § 1114(6), fails the test. As a result, Chapter 11 is facially unconstitutional.
Our finding that Chapter 11 is unconstitutional does not end the matter, however; that is because we find that certain aspects of the state regulatory scheme are not impermissibly content-based, at least absent the development of facts showing these fail the substantial state interest prong of the constitutional test. The injunction must therefore be modified accordingly. However, after the development of more facts, the plaintiff will, on remand, have the opportunity to attack these provisions as content-based and as unconstitutional time, place, and manner restrictions which do not pass constitutional muster.
We decline to reach Rappa's contention that the statute is unconstitutionally vague because of the uncertainty of the location of the right of way, from which the placement of signs is to be measured to determine their lawfulness, and Rappa's argument that the defendants violated his procedural due process rights by the manner in which they removed his signs; the record is insufficiently developed for us to make these determinations. We do, however, note our agreement with the district court that the secondary effects doctrine, explicated in Renton v. Playtime Theatres, 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986), does not save the offending statute and ordinance, for we do not think that the secondary effects of the signs forbidden by the provisions are more harmful than the secondary effects of the signs permitted by the provisions.
We must also confront the individual defendants' appeals from the district court's denial of their motions for summary judgment which were based on their assertions of qualified immunity from damage claims. We note in this regard that while the County has not appealed the district court's decision concerning the constitutionality of its ordinance, we have had to take it into account with respect to the qualified immunity issue. See Brown v. Grabowski, 922 F.2d 1097, 1105 (3d Cir. 1990). We conclude that officials in the position of these individual defendants reasonably could have concluded, based on the existing case law, that the relevant sections of the state law and the county ordinance were facially constitutional. Accordingly, we will reverse the district court's denial of summary judgment to the individual defendants and remand with direction to enter summary judgment in their favor on the claims for damages, to the extent that they are based on the facial unconstitutionality of the respective regulations.
I. FACTUAL AND PROCEDURAL BACKGROUND
These suits were precipitated by events surrounding plaintiff Daniel Rappa's campaign for the 1990 Democratic nomination for Delaware's lone seat in the United States House of Representatives against then Representative Thomas Carper, who is now Governor of Delaware. As Rappa explained, he had been a successful businessman and a long time supporter of and contributor to the Democratic Party in Delaware but had never before sought public office. On July 26, 1990, Rappa declared his candidacy for the House seat and began actively campaigning in preparation for the September 8, 1990 primary election. Because Carper was an established incumbent, Rappa's campaign strategy was dependent upon his ability to establish name recognition in the short period before the primary election. In order to establish it, Rappa attempted to blanket Delaware with campaign signs. He placed signs at various locations along roadsides throughout the state, including the following: (1) on the private property of supporters within twenty-five feet of the public right-of-way; (2) on the rights-of-way abutting the private property of supporters; and (3) on the rights-of-way adjacent to sidewalks or public thoroughfares.*fn1 However, in the period between July 26 and September 8, 1990, many of these signs were removed by employees of the Delaware Department of Transportation ("DelDOT"), employees of New Castle County, and employees of the City of Wilmington.
Shortly after his defeat in the Democratic primary, Rappa filed three civil rights suits under 42 U.S.C. § 1983 in the District Court for the District of Delaware. In these suits, he challenged the constitutionality of the respective statutes and ordinances enacted by the State of Delaware, New Castle County, and the City of Wilmington to regulate the posting of outdoor signs, including political campaign signs. Rappa challenged the statutes and ordinances under the First and Fourteenth Amendments on both facial and as applied grounds, and sought declaratory relief, injunctive relief, damages, and attorneys' fees.
In the first of the three cases, Rappa sued New Castle County and various county officials, both individually and in their official capacities.*fn2 In the second case, Rappa named as defendants the State of Delaware, DelDOT, and Secretary of Transportation Kermit Justice, both individually and in his official capacity. The State and DelDOT were subsequently dismissed on Eleventh Amendment grounds. Additionally, since Justice was subsequently replaced by Mark McNulty as Secretary of Transportation, McNulty was substituted for Justice, in his official capacity, under Fed. R. App. P. 43(c)(1). Justice, however, still remains a defendant in his individual capacity.*fn3 In the third case, Rappa sued the City of Wilmington; Daniel Frawley, individually and in his official capacity as Mayor; Paul Ignudo, individually and in his official capacity as Commissioner of the Department of Licenses and Inspections; and James Dipinto, individually and in his official capacity as Zoning Administrator.
The district court consolidated the three cases and, after (limited) discovery, the parties filed cross-motions for summary judgment. Confining its consideration to the facial constitutionality of Chapter 11 and the county and city ordinances, the district court held that the Delaware statute and the New Castle County ordinance were both facially unconstitutional under the First and Fourteenth Amendments because they impermissibly regulated speech on the basis of its content. More specifically, the court analyzed the statute and ordinance according to its reading of the standard announced by a plurality in Metromedia, see Rappa v. New Castle County, 813 F. Supp. 1074, 1079-80 (1992), and concluded that both the county and state restrictions ran afoul of the First Amendment by favoring commercial over noncommercial speech and by discriminating in favor of some types of noncommercial speech over others. Id. at 1080.
The court rejected the argument of the state and county defendants that the respective regulations were content-neutral under an application of the secondary effects doctrine announced in Renton v. Playtime Theatres, 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986). See Rappa, 813 F. Supp. at 1080-81. The district court believed that the secondary effects doctrine had never been applied outside of "the limited context of zoning ordinances directed at businesses purveying sexually explicit materials," and that it should not be extended to political speech, for "when state action affects political speech it trenches upon an area in which the importance of First Amendment protections is 'at its zenith.'" Id. at 1081 (internal quotation marks and citation omitted). To correct these constitutional infirmities, the court entered an injunction generally requiring the state and county defendants to permit political signs to the same extent that commercial or other noncommercial signs are allowed. Id. at 1082-83.
The court concluded that the Wilmington ordinance survived the initial facial challenge, but allowed the case to continue for determinations of whether the ordinance was a valid time, place, and manner restriction and whether it had been applied in a discriminatory manner. Id. at 1081. The court also denied the motions for summary judgment made by the individual defendants in all three cases, which were based on their assertions of qualified immunity as to the claim of facial unconstitutionality. Id. at 1082. All the defendants and Rappa filed timely appeals. Prior to oral argument, however, Rappa and the City settled.
The state defendants have appealed both the district court's injunction, which was based on the court's holding that the Delaware statute was facially unconstitutional, and the court's refusal to grant qualified immunity to defendant Justice. The state defendants advance a number of arguments as to why the district court erred in finding the relevant enactments unconstitutional. Primarily their argument is that the statute is a valid, content-neutral time, place and manner regulation.*fn4 The county defendants have chosen not to press their arguments as to the constitutionality of the county ordinance on this appeal, deferring them until a later stage. With respect to the denial of summary judgment, the individual defendants argue that they were entitled to qualified immunity because the facial unconstitutionality of Chapter 11 and the New Castle ordinance was not clearly established at the time of the primary election. The district court's jurisdiction was based on 28 U.S.C. §§ 1331, 1343(3), 2201, and 2202. We have jurisdiction over the appeal from the district court's injunction pursuant to 28 U.S.C. § 1292(a)(1). See Hershey Foods Corp. v. Hershey Creamery Co., 945 F.2d 1272, 1276-79 (3d Cir. 1991); Cohen v. Board of Trustees, 867 F.2d 1455, 1463-68 (3d Cir. 1989) (in banc). We have jurisdiction over the district court's denial of the individual defendants' motions for summary judgment on grounds of qualified immunity under 28 U.S.C. 1291; a decision denying a claim of qualified immunity based on a question of law is a final decision under the collateral order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 2817, 86 L. Ed. 2d 411 (1985); Brown v. Grabowski, 922 F.2d 1097, 1105 (3d Cir. 1990). The district court's decisions were made pursuant to motions for (partial) summary judgment, hence we exercise plenary review, applying the same standard the district court was to have applied in the first instance. Kreimer v. Bureau of Police, 958 F.2d 1242, 1250 (3d Cir. 1992).
II. THE DELAWARE STATUTORY SCHEME
The case against the state defendants centers on the constitutionality of Chapter 11 of Title 17 of the Delaware Code,*fn5 Del. Code Ann. tit. 17, §§ 1101-31. Chapter 11, entitled "Regulation of Outdoor Advertising," contains three subchapters, each of which covers a different, though sometimes overlapping, portion of the road system. The stated purpose of Chapter 11 is to promote the general welfare by ensuring full receipt of federal highway funds (which requires compliance with the Federal Highway Beautification Act, 23 U.S.C. § 131 ("HBA"), promoting aesthetic values, and promoting driving safety.*fn6 Del. Code Ann. tit. 17, § 1101. We will describe each of the subchapters in turn.
Subchapter I has the greatest regulatory scope, covering all "outdoor advertising" along "any state highway,"*fn7 except for outdoor advertising that is located both within the corporate limits of an incorporated town or city and is not within a "controlled area" within these towns or cities.*fn8 "Outdoor advertising" is itself defined very broadly:
"Outdoor advertising" or "outdoor advertising signs, displays and devices" shall include any outdoor sign, display, device, picture, emblem, trademark, figure, painting, drawing, message, placard, poster, billboard, light or other thing which is designed, intended or used to advertise, to inform or to attract the attention of the traveling public, which is within 660 feet and visible or beyond 660 feet and visible and erected with the purpose of being read from the main traveled way of any state highway.
Del. Code Ann. tit. 17, § 1102(b)(1).
The key provisions of Subchapter I, at least for the present appeal, are sections 1108 and 1114, which describe the areas from which signs are prohibited and the specific types of signs that are exempted from these general prohibitions. Section 1108(a) prohibits the posting of signs "within 25 feet of the right-of-way line of any public highway if visible from any portion of the same." Del Code Ann. tit. 17, § 1108(a). Additionally, section 1108(b) prohibits, in relevant part, signs placed "on the right-of-way of any public highways." Del. Code Ann tit. 17, § 1108(b)(1).
Thus, Subchapter I prohibits all signs in the right-of-way and within 25 feet of the right-of-way of any state highway (other than those that are both outside of a controlled area and inside of the corporate limits of an incorporated town or city). These general prohibitions, in turn, are limited by a series of often overlapping exceptions set out in sections 1108(c), 1108(d), and 1114. These exceptions are as follows:
(1) Directional or warning signs and official signs or notices are allowed within the restricted zones. Del. Code Ann. tit. 17, §§ 1108(a), 1108(b), 1114(4).
(2) Signs advertising the sale or lease of the real property on which they are located are allowed. Del. Code Ann. tit. 17, §§ 1108(c), 1114(2).*fn9
(3) Signs advertising activities conducted on the real property may be posted on that real property. Del. Code Ann. tit. 17, §§ 1108(c), 1114(1).*fn10
(4) Signs that the State Department of Public Instruction has approved may be displayed on school bus waiting shelters. Del. Code Ann. tit. 17, § 1108(c).
(5) "Beautification/landscape planting sponsorship signs" are allowed in rights-of-way, as long as they meet the approval and construction requirements of the section. Del. Code Ann. tit. 17, § 1108(d).
(6) Notices or advertisements required by law in any legal proceeding or put upon the property by a public authority are allowed within the restricted zones. Del. Code Ann. tit. 17, § 1114(3).
(7) Danger and precautionary signs that relate to the premises are allowed within the restricted zones. Del. Code Ann. tit. 17, § 1114(4).
(8) Signs or notices of a railroad, other transportation, transmission, or communication company that are necessary for the direction, information, or safety of the public are allowed within the restricted zones. Del. Code Ann. tit. 17, § 1114(5).
(9) Signs announcing a town, village, or city and advertising itself or its local industries, meetings, buildings, historical markers, or attractions are allowed within the restricted zones, as long as the signs are no larger than 6 square feet and are maintained at public expense. Del. Code Ann. tit. 17, § 1114(6).
Subchapter II, Del. Code Ann. tit. 17, §§ 1121-26, is a direct response to the HBA. Most relevantly, the HBA requires states, upon penalty of losing ten percent of federal highway funds, to restrict along interstate highways and the state's "primary system" outdoor advertising that is "within six hundred and sixty feet of the nearest edge of the right-of-way and visible from the main traveled way" or "more than six hundred and sixty feet off the nearest edge of the right-of-way, located outside of urban areas, visible from the main traveled way of the system, and erected with the purpose of . . . being read from such main traveled way." 23 U.S.C. § 131(b). Thus, Subchapter II applies to a subset of roads governed by Subchapter I (interstate highways and the primary system) but it restricts signs for a greater distance away from the road.
Subchapter II of Chapter 11 of the Delaware Code tracks generally, but not exactly, the requirements of the HBA.*fn11 Like Subchapter I, there is a general prohibition on outdoor advertising in the regulated area and then a list of enumerated exceptions to this general prohibition. See Del. Code Ann. tit. 17, § 1121.*fn12 Section 1121 exempts the following specific types of signs:
(1) Directional and other official signs and notices, which signs and notices shall include, but not be limited to, signs and notices pertaining to natural wonders, scenic and historic attractions as authorized or required by the laws of this State;
(2) Signs, displays and devices advertising the sale or lease of the real property upon which they are located;
(3) Signs, displays and devices advertising activities conducted on the real property upon which they are located;
(4) Signs, displays and devices located either (i) in controlled areas adjacent to the interstate system and within the boundaries of incorporated municipalities, as such boundaries existed on September 21, 1959, wherein the use of real property is subject to municipal regulation and control, which are zoned industrial or commercial, or (ii) in other controlled areas adjacent to the interstate system zoned industrial or commercial which were zoned industrial or commercial as of September 21, 1959;
(5) Signs, displays and devices located in controlled areas adjacent to highways of the primary system which are zoned industrial or commercial;
(6) Signs, displays and devices located in unzoned commercial and industrial controlled areas adjacent to highways of the primary system and defined by regulations to be promulgated by the Department;
(7) Any school bus waiting shelter displaying a sign provided such sign does not exceed 32 square feet in area and with a limit of 2 signs per shelter. Should the State Department of Instruction determine that there is no longer a need for a waiting shelter at its present location, the exemption provided by this paragraph shall then terminate.
Del Code Ann. tit. 17, § 1121(1)-(7).
Subchapter III, entitled "Limitations on Outdoor Advertising Along Limited Access, State Toll Roads," which became effective on July 20, 1992, simply provides that "the provisions of Subchapter II of this chapter shall be applicable to any limited access, state toll road in this State." Del. Code Ann. tit. 17, § 1131. Thus, the analysis under Subchapter III is the same as that under Subchapter II.
The New Castle Ordinance prohibits all exterior signs "except as permitted." New Castle Co. Code Art. XII, § 23-73. The ordinance contains a very long list of permitted signs including directional signs, warning signs, memorial plaques, address signs, signs attached to gasoline pumps, permanent subdivision signs, noncommercial signs relating to ideological, religious, or political thought, signs advertising grand openings on the site, temporary political campaign signs so long as they are removed within 10 days of an election, and many others. See id.
Ever since the Supreme Court invalidated an ordinance that prohibited all picketing near a school except for peaceful labor picketing on the basis that "the ordinance . . . described impermissible picketing not in terms of time, place, and manner, but in terms of subject matter," see Police Dep't of Chicago v. Mosley, 408 U.S. 92, 99, 92 S. Ct. 2286, 2292, 33 L. Ed. 2d 212 (1972), the first step in First Amendment analysis has been to determine whether a statute is content-neutral or content-based.*fn13 The answer to this question normally determines under which of two very different modes of analysis a statute is to be evaluated. Accordingly, it becomes a (if not the) crucial determination in evaluating a particular regulation of speech. See Mark Tushnet, The Supreme Court and Its First Amendment Constituency, 44 Hastings L.J. 881, 882 (1993) ("Today the central organizing concept of First Amendment doctrine is the distinction between content-based regulations and content-neutral ones.").
If a statute is content-based, then the State is required "to show that the 'regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.'" Boos v. Barry, 485 U.S. 312, 321, 108 S. Ct. 1157, 1164, 99 L. Ed. 2d 333 (1988). On the other hand, if the statute is content-neutral, and merely restricts the total quantity of speech by regulating the time, the place or the manner in which one can speak, a very different test applies. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791; 109 S. Ct. 2746, 2753, 105 L. Ed. 2d 661 (1989); Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 804-05, 104 S. Ct. 2118,2128-29, 80 L. Ed. 2d 772 (1984). As the Supreme Court has explained:
Even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided  the restrictions "are justified without reference to the content of the regulated speech,  that they are narrowly tailored to serve a significant governmental interest, and  that they leave open ample alternative channels for communication of the information."
Ward v. Rock Against Racism, 491 U.S. at 791; 109 S. Ct. at 2753 (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 3069, 82 L. Ed. 2d 221 (1984)); see also Taxpayers for Vincent, 466 U.S. at 789, 104 S. Ct. at 2118.*fn14
Chapter 11 indisputably distinguishes between, and allows the posting of certain signs, (for example, "for sale" signs and directional signs,) based on the subject matter the signs convey. Under a literal understanding of "content based" that fact makes the statute content-based. Cf. Discovery Network, 113 S. Ct. at 1516 ("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.'").*fn15
B. The Metromedia Plurality
A plurality of the Supreme Court analyzed a statute very similar to Chapter 11 and found it content-based in Metromedia, Inc. v. San Diego, 453 U.S. 490, 101 S. Ct. 2882, 69 L. Ed. 2d 800 (1981).*fn16 Like Chapter 11, the San Diego ordinance in Metromedia consisted of a broad ban subject to a series of exceptions. As does Chapter 11, the San Diego ordinance exempted onsite signs, government signs, signs located at public bus stops, historical signs, and "for sale" and "for lease" signs. The San Diego ordinance also contained some exemptions not present in Chapter 11 -- exemptions for signs manufactured, transported, or stored within the city if not used for advertising purposes, for signs within shopping malls, for religious symbols, for signs depicting time, temperature, or news, and for temporary political campaign signs. See Metromedia, 453 U.S. at 494-95, 101 S. Ct. at 2885-86 (plurality opinion). Conversely, ...