Rappa v. New Castle County

Page 1043

18 F.3d 1043

Daniel D. RAPPA, Sr. v. NEW CASTLE COUNTY; Dennis E. Greenhouse; Robert W.

O'Brien; John C. Carney, Jr.; Mark A.

Kleinschmidt; William S. McIntyre, Appellants.

Daniel D. RAPPA, Sr. v. STATE OF DELAWARE; Department of Transportation of the

State of Delaware; Kermit H. Justice,

^*

Ann Canby, Secretary, in her official

capacity, and Kermit H. Justice, in his individual

capacity, Appellants.

Nos. 92-7282, 92-7293.

United States Court of Appeals Third Circuit.

Argued Jan. 20, 1993.

Decided March 11, 1994.

Carl A. Agostini, Agostini, Levitsky & Agostini, Thomas S. Neuberger (argued), Wilmington, DE, for appellees in 92-7282 and 92-7293.

John A. Parkins, Jr. (argued), Helen M. Richards, Richards, Layton & Finger, William W. Bowser, Julie M. Sebring, New Castle County Dept. of Law, Wilmington, DE, for appellants in 92-7282.

Malcolm S. Cobin (argued), Dept. of Justice, Asst. State Sol., Wilmington, DE, Frederick H. Schranck, Office of Attorney General, Assistant Attorney General, Department of Transportation, Dover, DE, for appellants in 92-7293.

Stuart E. Schiffer, Acting Assistant Attorney General, William C. Carpenter, Jr., United States Attorney, Anthony J. Steinmeyer, John F. Daly, Attorneys, Appellate Staff, Civil Div., Department of Justice, Washington, DC, for the United States as Amicus Curiae.

                               TABLE OF CONTENTS
                                                                           Page
   I.  FACTUAL AND PROCEDURAL BACKGROUND ................................. 1048
  II.  THE DELAWARE STATUTORY SCHEME ..................................... 1050
 III.  CONTENT NEUTRALITY ................................................ 1053
       A.    Introduction ................................................ 1053
       B.    The Metromedia Plurality .................................... 1054
       C.    Analyzing Plurality Opinions--Doubts Cast by the Metromedia
               Concurrence and Dissents .................................. 1056
       D.    Applicability of the Result in Metromedia ................... 1061
  IV.  CONTENT DISCRIMINATION REVISITED .................................. 1062
       A.    A New Test .................................................. 1062
       B.    Application of the Test ..................................... 1066
       C.    Summary ..................................................... 1068
   V.  SECONDARY EFFECTS ................................................. 1069
  VI.  PUBLIC FORUM ANALYSIS ............................................. 1070
 VII.  SEVERABILITY ...................................................... 1072
VIII.  TIME, PLACE AND MANNER ............................................ 1075
  IX.  QUALIFIED IMMUNITY ................................................ 1077
       A.    Qualified Immunity of Defendant Justice ..................... 1077
       B.    Qualified Immunity of the Individual County Defendants ...... 1078
   X.  CONCLUSION ........................................................ 1079
       Before:  BECKER, ALITO and GARTH, Circuit Judges

OPINION OF THE COURT

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, Sec. 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, --- U.S. ----, 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 Sec. 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...