Ryan Calo, Scylla or Charybdis: Navigating the Jurisprudence of Visual Clutter, 103 Mich. L. Rev. 1877 (2005), https://digitalcommons.law.uw.edu/faculty-articles/643
First amendment, commercial speech, advertising
State and local governments seeking to address the proliferation of billboards and other outdoor advertising must negotiate two obstacles of First Amendment law. The first is the Supreme Court’s 1981 decision in Metromedia, Inc. v. City of San Diego. Following Metromedia, regulators can neither select among noncommercial messages nor privilege commercial messages over noncommercial ones. For years, regulators navigated around Metromedia by drawing a distinction between commercial and noncommercial speech. Then came the Supreme Court’s decision in City of Cincinnati v. Discovery Network, holding that regulators had to account for why they were privileging noncommercial over commercial speech in the context of outdoor advertising. The result of these two holdings – both good law – is a confusing and treacherous straight, through which outdoor advertisers are more than happy to drag state and local governments seeking to regulate them. This Note demonstrates how constitutionally to regulate outdoor advertising in the wake of Metromedia and Discovery Network.