TABLE OF CONTENTS
(Click Any Table of Contents Link Below to go Directly to that Section)

I. FACTUAL AND PROCEDURAL BACKGROUND
 
II. THE DELAWARE STATUTORY SCHEME

III. CONTENT NEUTRALITY
    A. Introduction
    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
    A. A New Test
    B. Application of the Test
    C. Summary

V. SECONDARY EFFECTS
 
VI. PUBLIC FORUM ANALYSIS
 
VII. SEVERABILITY

VIII. TIME, PLACE AND MANNER

IX. QUALIFIED IMMUNITY
    A. Qualified Immunity of Defendant Justice
    B. Qualified Immunity of the Individual County Defendants

X. CONCLUSION

BECKER, Circuit Judge.

    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

United States 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, 507 U.S. 410,

113 S.Ct. 1505, 123 L.Ed.2d 99 (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. tit.

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 contentbased,

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-ofway

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.

FN1. According to Rappa's "Verified Complaint," the signs he utilized were of several

types. There were typical poster signs, approximately 2' x 2'; larger signs, either 4' x 4' or

4' x 8', which were of wooden construction and may or may not have been driven into the

ground; and posters, 2' x 2', which were fixed to trees, utility poles, fences, or buildings.

Additionally, Rappa also made use of bumper stickers affixed to automobiles.

While the messages on particular signs may have varied somewhat, the typical Rappa

sign stated: "Dan Rappa 'The' Democrat for Congress." According to Rappa, in addition

to creating name recognition, these signs were intended to convey a dual message; first,

that voters should vote for Rappa, rather than Carper, in the primary, and that they should

vote for the Democratic nominee in the general election; and second, that the campaign

§ 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.

FN2. The individual defendants are Dennis Greenhouse, County Executive; Robert W.

O'Brien, Director of the Department of Public Works; John Carney, Jr., Executive

Assistant; Mark Kleinschmidt, Policy Coordinator; and William McIntyre, Code

Enforcement Officer, Department of Public Works. We sometimes refer to these

defendants, together with the County, as the "County defendants."

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 (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 "[w]hen 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 county 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.

FN4. This argument has been amplified by the United States Department of Justice in an

amicus curiae brief, which was filed in response to notice from this court that the

interests of the United States might be implicated by the present appeal. See infra p. 1052

n. 12.

     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.

FN5. Title 17 of the Delaware Code is entitled "Highways" and governs a variety of

issues relating to Delaware's system of roads.

FN6. The public policy behind the Federal Highway Beautification Act, 23 U.S.C. § 131,

is incorporated by reference as a policy basis for the enactment of Chapter 11. See

Del.Code Ann. tit. 17, § 1101. The HBA, in turn, describes the public policy animating

the Act as follows:

The Congress hereby finds and declares that the erection and maintenance of outdoor

advertising signs, displays, and devices in areas adjacent to the

Interstate System and the primary system should be controlled in order to protect the

public investment in such highways, to promote the safety and recreational value of

incorporated town or city and is not within a "controlled area" within these towns or cities. FN8

"Outdoor advertising" is itself defined very broadly:

FN7. A "state highway" is defined by Title 17 to include "any road or highway or portion

thereof which the Department has constructed or of which the Department has taken or

assumed control or jurisdiction." Del.Code Ann. tit. 17, § 101(a)(8).

FN8. A "controlled area" is defined as "any area inside the boundaries of this State which

is adjacent to the right-of-way of a highway of the interstate or primary systems, except

that areas beyond 660 feet of the right-of-way inside urban areas shall be excluded from

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 "[o]n the right-ofway

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

FN9. We note at this point that Chapter 11 is quite unclear in a number of respects. The

specific exceptions in sections 1108 and 1114 often overlap, but, because their terms are

not identical, the exact scope of the exception is not always clear. Section 1114(2), for

example, includes a limitation on the size of sale and rent signs that is not present in

Del.Code Ann. tit. 17, §§ 1108(c), 1114(1). FN10

FN10. Here the drafting of the overlapping sections presents a potential problem. Section

1108(c) exempts signs "which advertise ... activities conducted upon[ ] the real property."

Section 1114(1), in contrast, exempts signs "placed on the premises to identify a business

conducted thereon." The question thus becomes whether the term activities is limited to

commercial activities (businesses), or also encompasses noncommercial activities

conducted on the site. As a matter of general statutory construction, the more specific

provision--"business"--might well limit the more general, ambiguous term--"activities,"

thus limiting the exception to commercial speech. However, because this interpretation

would raise significant constitutional questions by preferring commercial over

noncommercial speech, we will interpret the exception to allow signs advertising both

commercial and noncommercial activities conducted on the property. See Edward J.

DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568,

575-76, 108 S.Ct. 1392, 1397-98, 99 L.Ed.2d 645 (1988) ("[W]here an otherwise

acceptable construction of a statute would raise serious constitutional problems, the Court

will construe the statute to avoid such problems unless such construction is

plainly contrary to the intent of Congress."); Frisby v. Schultz, 487 U.S. 474, 483, 108

S.Ct. 2495, 2501, 101 L.Ed.2d 420 (1988) ("To the extent they endorsed a broad reading

of the ordinance, the lower courts ran afoul of the well-established principle that statutes

will be interpreted to avoid constitutional difficulties.").

    (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:

FN11. For this reason, the United States Attorney General was notified that the present

action, to the extent it addresses the validity of Subchapter II, might bear upon the

validity of the HBA as well. In response, the United States has filed an amicus curiae

brief addressing many of the issues raised in this appeal. While there are clearly parallels

between the requirements of the HBA and the requirements of Subchapter II, the HBA is

not directly before us, and we therefore do not consider its constitutionality.

FN12. Specifically, the prohibition provides:

Subject to § 1122 of this title, no outdoor advertising sign, display or device, any part of

the advertising, informative or attention attracting contents of which is visible from the

main traveled way of a highway of the interstate system or primary system, shall be

erected or maintained within a controlled area, unless it shall come within 1 or more of

    (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 "[t]he 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.

III. CONTENT NEUTRALITY

A. Introduction

    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 ... describe[d] 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

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.").

FN13. We will refer to Chapter 11 throughout, because the constitutionality of the New

Castle ordinance is not before us except as necessary to decide the qualified immunity

issues.

    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., *1054 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:

[E]ven in a public forum the government may impose reasonable restrictions on the time, place, or

manner of protected speech, provided [1] the restrictions "are justified without reference to the

content of the regulated speech, [2] that they are narrowly tailored to serve a significant governmental

interest, and [3] 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

FN14. In Taxpayers for Vincent, the Supreme Court applied the standard established in

United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), for evaluating content -neutral regulations of expressive

conduct. The two standards, however, are essentially equivalent. See, e.g., Clark, 468 U.S. at 298 n. 8, 104 S.Ct. at 3071 n. 8.

on the subject matter the sign conveys (for example, "for sale" signs and directional signs). Under a

literal understanding of "content-based," that fact makes the statute content -based. Cf. Discovery

Network, 507 U.S. at ---- , 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 'contentbased.'"). FN15

FN15. Whether or not a literal understanding is the appropriate mode of interpretation is

    A plurality of the Supreme Court analyzed a statute very similar to Chapter 11 and found it contentbased

in Metromedia, Inc. v. San Diego, 453 U.S. 490, 101 S.Ct. 2882 (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, Chapter 11 contains some exemptions not present in the San Diego ordinance,

including exemptions for highway beautification signs, signs advertising local industries, notices

required by law, and signs necessary for the safety of the public.

FN16. It is generally understood, for First Amendment purposes, that each method ofexpression is " 'a law unto itself'

and that law must reflect the 'differing natures, values, abuses and dangers' of each method." Metromedia,453 U.S. at 501, 101 S.Ct. at 2889

    There are other distinctions between the two ordinances. Most important, the Metromedia plurality

deemed the onsite exception in the San Diego ordinance to apply only to commercial signs, meaning

that the ordinance permitted onsite commercial signs but not onsite non-commercial signs. Id. at 494,

101 S.Ct. at 2886 (plurality opinion). But see id. at 535-36, 101 S.Ct. at 2906-07 (Brennan, J.,

concurring in the judgment) (concluding that the onsite exception in the San Diego ordinance should

have been interpreted in such a way that "[i]f the occupant is an enterprise usually associated with

noncommercial speech, the substance of the identifying sign would be noncommercial."). In

contrast, we have interpreted the onsite exception, the exception for signs advertising "activities

conducted upon state real property," Del.Code Ann. tit. 17, §§ 1108(a), 1114(1), to apply to both

commercial and noncommercial signs. See supra note 11. FN17

FN17. Additionally, unlike the Delaware statute, the San Diego

ordinance did not purport to regulate all outdoor signs, but only those which were

"permanent" in nature, i.e., billboards. See Metromedia at 493, 101 S.Ct. at 2885

(plurality opinion). Finally, the exemption for historical signs in the San Diego ordinance

applied not just to signs involving nearby historical attractions, as does Chapter 11, but

also to "commemorative plaques of recognized historical societies and organizations." Id.

types of speech based on content. First, the plurality concluded that by allowing onsite commercial

signs but not noncommercial ones on the same site, the ordinance impermissibly discriminated in

favor of commercial over noncommercial speech. More specifically, the plurality remarked:

[O]ur recent commercial speech cases have consistently accorded noncommercial speech a greater

degree of protection than commercial speech. San Diego effectively inverts this judgment, by

affording a greater degree of protection to commercial than to noncommercial speech.... The city does

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. Insofar as the city tolerates billboards at all, it cannot choose to limit their content to commercial

messages; the city may not conclude that the communication of commercial information concerning

goods and services connected with a particular site is of greater value than the communication of

noncommercial messages. Id. at 513, 101 S.Ct. at 2895 (plurality opinion). Second, the plurality concluded

that the ordinance impermissibly favored certain types of non- commercial speech over other types of non-commercial

speech by exempting religious signs, historical signs, and temporary political signs but not exempting

other non-commercial signs. The plurality stated:

With respect to noncommercial speech, the city may not choose the appropriate subjects for public

discourse.... Because some noncommercial messages may be conveyed on billboards throughout the

commercial and industrial zones, San Diego must similarly allow billboards conveying other

noncommercial messages throughout those zones.

Id. at 514-15, 101 S.Ct. at 2896 (plurality opinion) (citation omitted).

However, the plurality concluded that the statute's regulation of commercial signs was constitutional

because the statute met the test for regulation of non-misleading commercial speech articulated in

Central Hudson Gas & Elec. Corp. v. Public Serv. Comm., 447 U.S. 557, 563-66, 100 S.Ct. 2343,

2350-51, 65 L.Ed.2d 341 (1980) , namely that the regulation reached no further than necessary to

advance a substantial governmental interest and it directly advanced that interest. See Metromedia,

453 U.S. at 507-12, 101 S.Ct. at 2892-95 (plurality opinion). Moreover, the plurality concluded that

the statute's content-based distinctions within the category of commercial speech-- between onsite and

offsite commercial advertising, and between "for sale" signs and other signs--did not undercut the

city's argument that the ordinance directly advanced its aesthetic and safety interests. Id. at 511-12,

101 S.Ct. at 2894-95 (plurality opinion). FN18

FN18. The plurality's decision as to the regulation of commercial speech was expressly

joined by Justice Stevens. See Metromedia, 453 U.S. at 541, 101 S.Ct. at 2909-10

(Stevens, J., dissenting in part).

    Thus, the plurality opinion indicated that content-based distinctions within the category of

commercial speech were permissible; however, similar distinctions favoring commercial over noncommercial

speech or favoring certain speech within the category of non-commercial speech were

impermissible. A straightforward application of the plurality opinion would probably lead to an

invalidation of the Delaware statute at issue in this case--although it would do so on only one

of the two grounds articulated by the plurality.

    The plurality's first rationale may well not apply in this case. Because we have interpreted the onsite

exception to apply to onsite non- commercial as well as to onsite commercial speech, the statutes at

issue here do not favor commercial over non-commercial speech within the same category of speech.

Both onsite commercial and onsite non-commercial speech are permitted. FN19 Of course, even

after we interpret the statute in this way, Chapter 11 still exempts some commercial speech (onsite

commercial speech, "for sale" signs) while prohibiting some non-commercial speech (offsite noncommercial

speech that does not fall into any exemption). Thus, if the Metromedia plurality meant to

indicate that a statute that allowed any commercial speech could not prohibit any non-commercial

speech, then the statute at issue here would fail the test. But we interpret the Metromedia plurality to

be concerned with the fact that the San Diego ordinance allowed a broad type of commercial speech

(onsite speech) while not allowing non- commercial speech even of the same type. That concern is not

implicated here given our interpretation of the statute to allow commercial and non-commercial onsite

speech. FN20

FN19. Favoring 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. See

Outdoor Systems, Inc. v. Mesa, 997 F.2d 604, 612 (9th Cir.1993).

FN20. Moreover, as the Justice Department strongly argues in its amicus brief, the first

basis of the plurality's holding has been significantly called into question by the Court's

recent holding in Discovery Network, 507 U.S. 410, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993).

 In that case, the Court struck down as content-based an ordinance that banned

newsracks for commercial papers but allowed newsracks for non- commercial papers on

public property. The Court's refusal to uphold a distinction based on the higher status of

non-commercial speech in the First Amendment firmament indicates that, in certain

contexts, non- commercial speech is not favored over commercial speech. If the First

Amendment does not favor non-commercial speech over commercial speech, the

have struck down sign ordinances based on just such reasoning. See, e.g., Gilleo v. Ladue, 986 F.2d

1180 (8th Cir.1993), cert. granted, 510 U.S. 809, 114 S.Ct. 55, 126 L.Ed.2d 24 (1993); National

Advertising Co. v. Babylon, 900 F.2d 551, 557 (2d Cir.1990), cert. denied, 498 U.S. 852, 111 S.Ct.

146, 112 L.Ed.2d 112 (1990); Fisher v. Charleston, 188 W.Va. 518, 425 S.E.2d 194 (1992). But see

Messer v. Douglasville, 975 F.2d 1505, 1511-13 (11th Cir.1992) (finding the ordinance at issue

constitutional despite limited content-based exceptions because these exceptions did not "express a

preference between different noncommercial messages"), cert. denied, 508 U.S. 930, 113 S.Ct. 2395,

124 L.Ed.2d 296 (1993).

C. Analyzing Plurality Opinions--Doubts Cast by the
Metromedia Concurrence and Dissents

    The second Metromedia rationale would seem to dispose of the merits of the case: not only is it the

rationale of a Supreme Court plurality, but it seems to flow easily out of the Court's general First

Amendment jurisprudence on content neutrality. Nonetheless, this is a hard case, because the

concurrence and dissents in Metromedia call into question whether the specific reasoning of the

plurality is the governing law with respect to First Amendment analysis of sign prohibitions

and also whether the Court's general First Amendment jurisprudence clearly dictates a particular

result here.

    The Metromedia decision was badly splintered, producing five separate opinions. As Justice

Rehnquist observed, it is difficult to divine what, if any, principles from Metromedia became the

governing standard for future cases, i.e., "the law of the land." See Metromedia, 453 U.S. at 569, 101

S.Ct. at 2924 (Rehnquist, J., dissenting). He lamented that it was "a genuine misfortune to have the

Court's treatment of the subject be a virtual Tower of Babel, from which no definitive principles can

be clearly drawn." Id. at 569, 101 S.Ct. at 2924 (Rehnquist, J., dissenting). See generally Linda

Novak, Note, The Precedential Value of Supreme Court Plurality Decisions, 80 Colum.L.Rev. 756

(1980) (discussing the difficulties inherent in interpreting plurality opinions).

    Obviously, the decisions of the Supreme Court are binding on this Court and constitute the law of the

land. This statement is deceptively simple, however, because when a Supreme Court decision fails to

garner a majority, it is often difficult to determine what standard the Court has adopted. Aware of this

difficulty, the Court has provided some guidance, "When a fragmented Court decides a case and no

single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may

be viewed as that position taken by those Members who concurred in the judgment on the narrowest

grounds.' " Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977)

(quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 2923 n. 15, 49 L.Ed.2d 859

(1976) (opinion of Stewart, Powell, and Stevens, JJ.)).

    In Planned Parenthood of Southeastern Pa. v. Casey, 947 F.2d 682 (3d Cir.1991), modified on other

grounds, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), we had an opportunity to consider

the Marks rule and explain its application in some depth. We wrote:

    The principle objective of this Marks rule is to promote predictability in the law by ensuring lower

court adherence to Supreme Court precedent. This objective requires that, whenever possible, there be

a single legal standard for the lower courts to apply in similar cases and that this standard, when

properly applied, produces results with which a majority of the Justices in the case articulating the

standard agree.... [W]here no single rationale "enjoys the assent of five Justices," the situation

becomes more complex, but the controlling principle is the same. Where a Justice or Justices

concurring in the judgment in such a case articulates a legal standard which, when applied, will

necessarily produce results with which a majority of the Court from that case would agree, that

standard is the law of the land.  Id. 947 F.2d at 693 (citation omitted) (emphasis added).

     Applying the rule, in Casey, this Court

adopted Justice O'Connor's "undue burden" standard to analyze abortion restrictions. See id. at 697. In

a series of cases, Justice O'Connor had taken the middle, and swing, position between Justices who

favored more severe tests such as strict scrutiny to evaluate abortion restrictions and other Justices

who had favored the less restrictive rational basis review. But any time a regulation constituted an

undue burden, Justice O'Connor and those Justices who favored more severe tests would form a

majority to strike down the statute. Any time a regulation did not constitute an undue burden, Justice

O'Connor and those Justices who favored rational basis review would form a majority to uphold the

statute. Thus, the undue burden test had become the law of the land even before Casey.

However, it is not always possible to discover a single standard that legitimately constitutes the

narrowest ground for the decision. The Court of Appeals for the D.C. Circuit explains:

Marks is workable--one opinion can be meaningfully regarded as "narrower" than another--only when

one opinion is a logical subset of other, broader opinions. In essence, the narrowest opinion must

represent a common denominator of the Court's reasoning; it must embody a position implicitly

approved by at least five Justices who support the judgment.  King v. Palmer, 950 F.2d 771, 781 (D.C.Cir.1991)

(en banc); see also Casey, 947 F.2d at 694

(recognizing that the opinions considered had "a common denominator standard"). The court in King

realized that there would not always be such a common denominator in the Court's reasoning. In some

splintered decisions, there will be three or more distinct approaches, none of which is a subset of

another; instead, each approach is simply different. See King, 950 F.2d at 782-83; John F. Davis &

William L. Reynolds, Juridical Cripples: Plurality Opinions in the Supreme Court, 1974 Duke L.J.

59, 72; Novak, supra, at 763.

    In such cases, no particular standard constitutes the law of the land, because no single approach can

be said to have the support of a majority of the Court. As the court stated in King:

When, however, one opinion supporting the judgment does not fit entirely within a broader circle

drawn by the others, Marks is problematic. If applied in situations where the various opinions

supporting the judgment are mutually exclusive, Marks will turn a single opinion that lacks majority

support into national law. When eight of nine Justices do not subscribe to a given approach to a legal

question, it surely cannot be proper to endow that approach with controlling force, no matter how

persuasive it may be.  950 F.2d at 782. FN21

FN21. A number of commentators have noted the same concern. For instance, Davis and

Reynolds have stated:

Traditionally, of course, the Court's primary function has been that of a tribunal whose

institutional pronouncements guide and bind the process of adjudication both in the state

courts and in the lower federal courts. In that context a plurality opinion is not, strictly

speaking, an opinion of the Court as an institution; it represents nothing more than the

views of the individual justices who join in the opinion. A plurality opinion does not,

therefore, essentially differ in character from either a concurring opinion or a dissenting

opinion. Those joining in a plurality opinion may speak with authority accorded wise

men, but their voices do not carry the authority of the Supreme Court as an institution.

Davis & Reynolds, supra, at 61-61 (footnotes omitted); see also Ken Kimura, Note, A

Legitimacy Model for the Interpretation of Plurality Decisions, 77 Cornell L.Rev. 1593,

1594-1600 (1992) (discussing tension between plurality decisions and principles of

precedential legitimacy); Novak, supra, at 757-58 (discussing the values underlying a

precedential system).

    Metromedia is such a case. Simply stated, the plurality and the concurrence took such markedly

different approaches to the San Diego ordinance that there is no common denominator between them.

Like the plurality, Justice Brennan, in a concurring opinion joined by Justice Blackmun, found the

San Diego ordinance unconstitutional. Unlike the plurality, however, the concurrence did not think

that the relevant issue was the constitutional effect of the exceptions to the general prohibition. The

concurrence viewed the San Diego ordinance as a total ban on billboards because it believed that the

ordinance would have the practical effect of eliminating the billboard industry in San Diego and

thereby would eliminate billboards as an effective medium of communication. Id. 453 U.S. at 525-36,

101 S.Ct. at 2901-02 (Brennan, J., concurring in the judgment). This understanding of the ordinance,

in turn, led to a method of analyzing its constitutionality very different from the plurality's. Id. at 526,

101 S.Ct. at 2902 (Brennan, J., concurring in the judgment) ("The characterization of the San Diego

regulation as a total ban of a medium of communication has more than semantic implications, for it

suggests a First Amendment analysis quite different from the plurality's.").

    Under the concurrence's view, a total ban of signs could be upheld only on a showing that the

governmental interest was substantial, that the governmental interest was directly furthered by the

total ban, and that any more narrowly drawn restriction would not further that interest as well. Id. at

528, 101 S.Ct. at 2903 (Brennan, J., concurring in the judgment). FN22  Justice Brennan concluded

that San Diego had failed to establish adequate justification for the ban. In particular, the concurrence

concluded that "the city ha[d] failed to come forward with evidence demonstrating that

billboards actually impair traffic safety." Id. at 528, 101 S.Ct. at 2903 (Brennan, J., concurring in the

judgment). Additionally, the concurrence concluded "that the city ha[d] failed to show that its asserted

interest in aesthetics [was] sufficiently substantial in the commercial and industrial areas of San

Diego" because in these areas the elimination of billboards would not necessarily have had more than

a negligible effect on aesthetics. Id. at 530-33, 101 S.Ct. at 2904-06 (Brennan, J., concurring in the

judgment). Thus, the concurrence determined that the San Diego statute was unconstitutional.

    The concurrence also disagreed with the plurality's second justification for its decision--namely, that

distinctions within the category of non-commercial speech require justification by a compelling state

interest:

[O]bviously, a city can have special goals the accomplishment of which would conflict with the

overall goals addressed by the total billboard ban. It would make little sense to say that a city has an

all-or-nothing proposition-- either ban all billboards or none at all.... [I]f a city can justify a total ban, I

would allow an exception only if it directly furthers an interest that is at least as important as the

interest underlying the total ban, if the exception is no broader than necessary to advance the special

goal, and if the exception is narrowly drawn so as to impinge as little as possible on the overall goal.

To the extent that exceptions rely on content-based distinctions, they must be scrutinized with special

care.  Id. at 532 n. 10, 101 S.Ct. at 2905 n. 10 (Brennan, J., concurring in the judgment).

    Even more so than the concurrence, the dissenters rejected the plurality's analysis of the San Diego

statute as content-based. The dissenters felt that the exceptions in the statute were so de minimis that

they should not count as content-based. See id. at 553, 101 S.Ct. at 2916 (Stevens, J., dissenting in

part) ("The essential concern embodied in the First Amendment is that government not impose its

viewpoint on the public or select the topics on which public debate is permissible. The San Diego

ordinance simply does not implicate this concern."); id. at 564, 101 S.Ct. at 2922 (Burger, C.J.,

dissenting) ("The exceptions San Diego has provided--the presence of which is the plurality's sole

ground for invalidating the ordinance--are few in number, are narrowly tailored to peculiar public

needs, and do not remotely endanger freedom of speech."); id. at 570, 101 S.Ct. at 2925 (Rehnquist,

J., dissenting) ("Nor do I believe that the limited exceptions contained in the San Diego ordinance are

the types which render this statute unconstitutional."). Not only did the dissenters disagree with the

plurality's view that the San Diego ordinance was content-based, the three dissenters also disagreed

with the concurrence's view that the San Diego ordinance constituted an unconstitutional ban of an

entire medium of communication. See id. at 552-53, 101 S.Ct. at 2916-17 (Stevens, J., dissenting in

part); id. at 562-63, 101 S.Ct. at 2921 (Burger, C.J., dissenting); id. at 570-71, 101 S.Ct. at 2924-25

(Rehnquist, J., dissenting).

    Thus, neither the plurality nor the concurrence "articulates a legal standard which, when

applied, will necessarily produce results with which a majority of the Court from that case would

agree." Casey, 947 F.2d at 693 (emphasis added).FN23  If a statute banned signs on some but not all

roads so that the concurrence did not see it as a total ban of signs, and if it crafted content-based

exceptions to the ban justifiable under the test articulated by the concurrence, the concurring Justices

would probably join the dissenters to form a majority upholding the statute with members of the

plurality dissenting. In contrast, if a statute banned all commercial signs but no other signs along all

roads, neither the plurality nor the dissents would see it as content-based. Thus, the plurality would

join with the dissenters to uphold the statute; the concurring Justices would dissent. Cf. Outdoor Sys.,

Inc. v. City of Mesa, 997 F.2d 604 (9th Cir.1993) (upholding a statute that allowed any

noncommercial message anywhere a sign was allowed, but prohibited all offsite commercial signs).

Thus, in a significant number of hypothetical cases, the Court would reach a result at odds with the

reasoning of either the plurality or the concurrence; neither approach would necessarily produce a

majority result in every case.FN24 Since the opinions in Metromedia share no common

denominator, they do not establish a governing standard for future cases.FN25

FN23. We do not mean to imply that Casey squarely asserts that an opinion has

precedential value only when it would "necessarily produce results with which a majority

of the Court from that case would agree." 947 F.2d at 694. Casey did not address whether

an opinion has precedential effect when none of its holdings would necessarily garner the

support of a majority; Casey was addressing whether a concurring opinion had

precedential effect when it would necessarily produce results with which a majority

would agree. See id. at 697. That is why Casey concluded that, "in a constitutional case

where (1) there is a 5-4 split or there are only two opinions in the majority and (2) the

majority strikes down a law as unconstitutional, the authoritative standard will be that

which would invalidate the fewest laws as unconstitutional." Id. at 694. Based on the

general reasoning of Casey, and that which we have employed above, this conclusion

generally follows, because, when there is a narrowest opinion, it will be the one that

would strike down the

fewest laws. However, the opinion that strikes down the fewest laws is not the governing

standard in those cases in which there is no narrowest opinion--Casey does not dictate a

contrary result, because Casey was not addressing such a situation and its general

reasoning of looking for a "common denominator" is consistent with our conclusion that

in such cases there is no governing standard. See id.

FN24. Of course, it would be possible to predict the outcome in almost every case simply

by counting the votes of the Justices. Thus, a statute that discriminated among types of

noncommercial speech and constituted a total ban of a means of communication would

be unconstitutional, but a statute that did neither of these things--or only one of them

would probably be constitutional. If we were to count votes in this manner and give them

precedential value, it would have the advantage of creating some predictability.

However, such a system would be unprincipled. Even though a statute that discriminated

among types of non-commercial speech would be constitutional in and of itself, it would

somehow be magically transformed into an unconstitutional statute if it also completely

banned a means of communication. This would be true even though not one Justice

would have argued that there was any special synergistic effect of the two attributes.

Thus, giving precedential value to a matrix predicting results would produce a system of

low level, fairly predictable, formal rules but a system not rooted in any consistent

constitutional values. Moreover, the predictability of such a system is not a significant

advantage. First, it is only rare cases in which there is no least common denominator in

the view of a majority of the Justices. Second, the predictability of such a system is lower

than it appears, because the Supreme Court is likely to reconsider any case which

produces a splintered result. This means that the ability of a legislature to rely on the

decision when attempting to enact constitutional legislation is relatively small, even if

lower courts always decide cases by counting votes in the Supreme Court decision.

FN25. One might argue that the concurrence's test for content discrimination is a

narrower version of the test proposed by the plurality and thus has precedential value for

us; five Justices seemed to agree that any statute that fails the concurrence's test is

unconstitutional. However, it is not at all clear that the concurrence thought that its test

for content based exceptions applied outside the context of a total ban on a means of

communication. See Metromedia, 453 U.S. at 533 n. 10, 101 S.Ct. at 2905 n. 10.

Moreover, Metromedia was not a prototypical case in which the concurrence proposed a

test that was a narrower version of the

test proposed by the plurality and then applied the test to come to the same conclusion as

the plurality (that the statute was unconstitutional). The concurrence did not reach the

issue of whether the San Diego ordinance failed the test it proposed for content-based

exceptions to sign ordinances; rather, it concluded that the ordinance was impermissible

for independent reasons. If it had needed to reach a decision on the constitutionality of

the exceptions, it might well have concluded that the exceptions were constitutional

under the test it proposed in n. 10. Thus, even if the concurrence's test in n. 10 is the

narrowest view of 5 Justices about content based exceptions from sign bans, it is not a

narrowest view that explains the result in Metromedia. It is as if the concurrence's view

of content based exceptions was the same as that of the dissenters--in such a case, the

"narrowest" view of five Justices would be that content based exceptions are

constitutional so long as they are de minimis. Such a view could not have precedential

value as the precedential meaning would then be inconsistent with the result in that case.

D. Applicability of the Result in Metromedia

    While we are unable to derive a governing standard from the splintered opinions in Metromedia we

are still, at a minimum, bound by its result. See Novak, supra, at 779.FN26 If Chapter 11 is

substantially identical to the San Diego ordinance at issue in Metromedia then we are bound to strike

it down. However, as explained on p. 1054 & n. 18 supra, there are significant differences between

the ordinance at issue here and that at issue in Metromedia. FN27 Thus, the result in Metromedia

does not control our decision here.

FN26. Novak stated in this context:

[I]t seems clear that lower courts must adhere at the minimum to the principle of 'result'

stare decisis, which mandates that any specific result espoused by a clear majority of the

Court should be controlling in substantially identical cases. The absence of a clear

majority rationale supporting the result may give a lower court some flexibility to

formulate a justifying rule, it does not, however, justify a court in embracing a line of

reasoning that will lead to a contrary result.... Adherence to 'result' stare decisis is

essential if principles of certainty and uniformity are to have any meaning at all

....  Id. (footnote omitted).

FN27. One fundamental difference is that the laws in question here, even when

considered in combination, probably would not effectively

constitute a complete ban on outdoor signs in the view of the concurrence. There remain

limited areas in which outdoor signs may still be posted. In particular, Chapter 11 applies

only to "outdoor advertising," see Del.Code Ann. tit. 17, § 1103(c) (limiting the scope of

Chapter 11 to outdoor advertising and thus, for example, excluding signs posted inside

windows), on "state highways," see Del.Code Ann. tit. 17, § 1102(b)(1) (limiting the

application of the statute to "any state highway" meaning those roads constructed or

controlled by DelDOT), which probably leaves some, albeit minimal, portion of the roads

in Delaware free from restriction. Additionally, the restrictions of Chapter 11 do not

apply to certain select zones within urban areas. See Del.Code Ann. tit. 17, §§ 1102(b)(4),

1103(c). Finally, at least within certain regulated areas, signs are permissible as long as

explicating the First Amendment principles that justify that decision. For example, if we determine

that it is impermissible for the statute to distinguish among types of non-commercial speech, we could

craft an order requiring the state to permit all types of non- commercial speech while still restricting

commercial speech. But if we determine that specific exceptions in the statute are unconstitutional

because they fail to meet the test proposed by the Metromedia concurrence for content-based

exceptions, then we could not rescue the statute by requiring the State to permit more non-commercial

speech. In the view of the concurrence, such a requirement would create new content-based

distinctions between the non- commercial speech permitted and offsite commercial speech which

would continue to be prohibited. In such a case, we would either have to strike down the offending

exceptions or strike down the statute. Thus, we must ourselves determine whether Chapter 11 is a

content-based statute, and, if it is, what makes it so. FN28

FN28. We note that the Supreme Court will soon hear argument in Gilleo v. Ladue, 986

F.2d 1180 (8th Cir.1993), cert. granted, 510 U.S. 809, 114 S.Ct. 55, 126 L.Ed.2d 24

(1993). This case at least offers the Court the opportunity to clarify and rectify the

problems created by its splintered opinion in Metromedia, as evidenced by the foregoing

21 pages of discussion. We hope that the Court will do so.

    A. A New Test

discrimination. After all, they each exempted some signs from regulation based on the content of

those signs. Yet neither the concurrence nor the dissenters in Metromedia agreed that this was

dispositive, suggesting that the question of whether the laws are content-based is more difficult than it

initially appeared to us. In order to understand and evaluate the difficulties, we must explain why the

First Amendment requires content neutrality.

    At the heart of the First Amendment is the concern that government should not restrict speech based

on the fear that the speech will persuade listeners that a particular view is correct. Restricting speech

on such a basis indicates a fundamental distrust in the rationality of listeners that is incompatible with

the notion of an autonomous democratic citizenry. Moreover, such restriction often distorts debate on

particular issues by allowing speech on one side of an issue while preventing speech on another side.

As the Supreme Court has explained, "[t]here is an 'equality of status in the field of ideas,' and

government must afford all points of view an equal opportunity to be heard." Police Dep't of Chicago

v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 2290 (citation omitted).FN29 Distortion of debate can

occur even if the restriction does not differentiate by viewpoint but only by subject matter--for

example, if the government bans all speech on labor issues regardless of viewpoint but allows speech

on other issues. By limiting debate on a particular issue, government can focus speech on other issues

and thus shape the agenda for political action. "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." Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 538, 100 S.Ct. 2326, 2333,

65 L.Ed.2d 319 (1980). FN30

FN29. The idea of distortion of public debate assumes that there is some background

notion of undistorted public debate against which distortion can be judged. The idea that

an absence of governmental censorship leads to undistorted public debate has been

accurately criticized as wrongly assuming that private economic power, which leads to

differential access to the marketplace of ideas based, for example, on ability to buy

television time, does not itself distort debate. See, e.g., Owen Fiss, Why the State?, 100

Harv.L.Rev. 781 at 787-88. Nonetheless, governmental intervention in the marketplace of

ideas to restrict speech often has a significantly greater potential to distort public debate

than does private economic power. Cf. John Hart Ely, Democracy and Distrust, 106 (1980).

FN30. Dean Stone has summarized explanations for the distinct treatment accorded

content-neutral and content-based restrictions as follows:

[T]he first amendment is concerned not only with the extent to which a law reduces the

total quantity of communication, but also--and perhaps even more fundamentally--with at

least three additional factors: distortion of public debate, improper motivation, and

communicative impact. These three factors, which are most clearly presented by contentbased

restrictions, explain both why the Court tests virtually all content-based restrictions

of high-value speech with a single, strict standard of review, and why it does not apply

that same standard to all content-neutral restrictions.

Revenue, 460 U.S. 575, 595, 103 S.Ct. 1365, 1376, 75 L.Ed.2d 295 (1983) (striking down a statute

that singled out a small group of newspapers to tax despite the absence of explicit evidence of illicit

governmental motivation, because "[i]llicit legislative intent is not the sine qua non of a violation of

the First Amendment"); Mosley, 408 U.S. at 95, 92 S.Ct. at 2290 (not bothering to look for evidence

of illicit governmental motivation, because the "central problem" with such an ordinance was merely

that it "describe[d]" permissible speech "in terms of its subject matter") (emphasis added). *1063

Moreover, even if government is not intending to limit speech expressing a particular idea, content

differentiation can still distort public debate merely by limiting the dissemination of some ideas

within that debate.

    A final justification for prohibiting content discrimination is that when the government creates

content-based exemptions from a general ban, it implies that it does not have as great an interest in

limiting speech as the general ban suggests. If some newsracks do not pose enough of an aesthetic

threat to justify banning them, perhaps the government's aesthetic interest in banning other newsracks

is not that momentous. See Discovery Network, 507 U.S. 410, 113 S.Ct. at 1505; cf. Metromedia, 453

U.S. at 521, 101 S.Ct. at 2899 ("If the city has concluded that its official interests are not as strong as

private interests in commercial communications, may it nevertheless claim that those same official

interests outweigh private interests in noncommercial communications? Our answer, which is

consistent with our cases, is in the negative.") (plurality opinion). 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.

    As we have seen, the Metromedia dissenters did not think that any of these concerns were implicated

by exceptions like those at issue here. As Justice Stevens explained, "[t]he essential concern

embodied in the First Amendment is that government not impose its viewpoint on the public or select

the topics on which public debate is permissible. The San Diego ordinance simply does not implicate

this concern." See Metromedia, 453 U.S. at 553, 101 S.Ct. at 2916 (Stevens, J., dissenting in part).

The concurrence, while not going as far as the dissent, also thought that minimal exceptions to a

general ban could be justified. Otherwise, a legislature would essentially be faced with a choice

between banning all speech or none. See Metromedia, 453 U.S. at 532 n. 10, 101 S.Ct. at 2905 n. 10

(Brennan, J., concurring in the judgment).

    We agree with the concurrence and the dissents that the exceptions at issue in the San Diego

ordinance, and those at issue in the Delaware ordinance, do not raise many of the concerns that

mandate limiting government's ability to discriminate based on content. The exceptions are quite

small; they are not for particular subjects likely to generate much debate and so are not likely to focus

debate on that subject matter at the expense of other subject matter; and they do not discriminate by

viewpoint. Thus, they do not appear to be motivated by a desire to suppress certain speech, and they

do not eliminate certain issues from discussion in a way that makes it likely that government is aiming

to shape the public agenda or is in fact significantly affecting the shape of that agenda. FN31 Cf.

Scadron v. Des Plaines, 734 F.Supp. 1437, 1446 (N.D.Ill.1990) (basing a decision that a sign

regulation was content neutral on the reasoning of the Metromedia concurrence and dissents).

such a conclusion would require undermining many of the advantages of what has been largely

a per se rule against content discrimination. Judges are human, like legislators, and often share

majoritarian views. Allowing judges to make a case by case determination that content discrimination

is de minimis risks allowing judges' subconscious judgments about the worth of particular speech to

affect whether they deem a limitation on speech to be permissible.

Likewise, the test posited by the Metromedia concurrence poses a concern about excessive judicial

discretion. The concurrence states:

[I]f a city can justify a total ban, I would allow an exception only if it directly furthers an interest that

is at least as important as the interest underlying the total ban, if the exception is no broader than

necessary to advance the special goal, and if the exception is narrowly drawn so as to impinge as little

as possible on the overall goal.  Metromedia, 453 U.S. at 532 n. 10, 101 S.Ct. at 2905 n. 10

(Brennan, J., concurring in the judgment).

    Although the concurrence's test does not allow government to justify restricting speech based on its

antipathy towards certain speech but only based on an interest unrelated to content (e.g. aesthetic

interests), it does allow government to exempt certain speech from a ban if government justifiably

thinks that the speech is important enough to outweigh its general interest in a ban. This would allow

government to make a judgment that speech regarding some issues is more important than speech

regarding other issues--and would require courts to ratify that abstract judgment. For example,

government could decide that it is especially important that the public be informed about health care

policy and thus aesthetic interests that justify banning all other signs do not justify banning signs

related to health care. This is exactly the sort of case by case analysis of the importance of speech that

the ban on content discrimination test is supposed to prevent.

    The Metromedia concurrence, however, is correct that when government has a significant interest in

limiting speech that is unrelated to the content of that speech, government should not be left with a

choice of enacting a regulation banning all signs in a particular geographic area or none. Some signs

are more important than others not because of a determination that they are generally more important

than other signs, but because they are more related to the particular location than are other signs.

Allowing such "context-sensitive" signs while banning others is not discriminating in favor of the

content of these signs; rather, it is accommodating the special nature of such signs so that the

messages they contain have an equal chance to be communicated. FN32

FN32. In the Equal Protection context, the Supreme Court has upheld laws permitting

advertisements related to a particular location but not permitting general purpose

advertising. See Packer Corp. v. Utah, 285 U.S. 105, 107, 52 S.Ct. 273, 273, 76 L.Ed.

643 (1932) (rejecting Equal Protection challenge to ban on cigarette billboards,

excepting, inter alia, the premises of any dealer in such products); Railway Express

Agency, Inc. v. New York, 336 U.S. 106, 109-10, 69 S.Ct. 463, 465, 93 L.Ed. 533 (1949)

(upholding ordinance banning advertisements on vehicles, except for those relating to a

business in which the vehicle is engaged).

    A sign that says "Speed Limit 55" or "Rest Stop" is more important on a highway than is a sign that

says "Rappa for Congress." A sign identifying a commercial establishment is more important on its

premises than is a sign advertising an unrelated product. If the former signs are banned from the

highway or the place of business, there is no other means of communication that can provide

equivalent information. In contrast, placing a sign that says "Rappa for Congress" or "Drink Pepsi" on

a highway, while it may be an important means of communication because of the number of travellers

on the highway, has no relationship to the property on which it is placed or to the fact that it is next to

a highway. Banning these signs potentially leaves many alternative means of communicating the same

information. FN33

FN33. Whether alternative means of communication actually exist for signs such as

"Rappa for Congress" is a question that must be assessed in a time, place, and manner

inquiry. The point here is that equally effective alternatives may exist. In contrast, there

are no possible effective alternatives to signs such as "Speed Limit 55."

109 S.Ct. at 2753, 105 L.Ed.2d 661 (1989). Here, we allow the state to constitutionally

criterion by which legislatures and courts can evaluate particular exceptions. FN37 Courts will not

speech if it has to restrict that speech. FN39 Thus, restating the major components of the test we

be used to replace signs as a means to convey political campaign messages. We will address