John Donnelly & Sons v. Campbell , 639 F.2d 6 ( 1980 )

ALDRICH, Senior Circuit Judge.

The question before us of the constitutionality of a Maine statute requires the assessment of a number of general societal values against their cost in First Amendment rights. The statute, 23 M.R.S.A. §§ 1901 et seq., is entitled the Maine Traveler Information Services Act, somewhat euphemistically,¹ since its principal purpose is to abolish billboards altogether and to reduce materially the number, size and content of all other signs viewable by travelers on any public way in the state.² The complainants are two corporations that erect signs, John Donnelly & Sons (billboards) and National Advertising Company (others), and one individual who wishes to read them.³ Rejecting plaintiffs’ claims that the statute impermissibly overrode First Amendment rights, the district court, with an extensive opinion, John Donnelly & Sons v. Mallar, 453 F.Supp. 1272, dismissed the action, and plaintiffs appeal.

The legislature in its preamble asserted three justifications for the statute’s prohibitions: the protection of the state’s landscape, a natural resource; the enhancement of the tourist industry, and the public interest in highway safety. To compensate for its restrictions on signs, the law provides for various informational services. The presently salient aspects include the following.

§ 1902. Policy and purposes

To promote the public health, safety, economic development and other aspects of the general welfare, it is in the public interest to provide tourists and travelers with information and guidance concerning public accommodations, facilities, commercial services and other businesses, and points of scenic, cultural, historic, educational, recreational and religious interest. To provide this information and guidance, it is the policy of the State and the purpose of this chapter to:

1. Official information centers; signs. Establish and maintain official information centers and a system of official business directional signs;

2. Information publications. Provide official directories, guidebooks, maps and other tourist and traveler information publications;

3. Control outdoor advertising. Prohibit and control the indiscriminate use of outdoor advertising; and

4. Protection of scenic beauty. Enhance and protect the natural scenic beauty of the State.

§ 1903. Definitions

14. Sign. “Sign” means any structure, display, logo, device or representation which is designed or used to advertise or call attention to any thing, person, business, activity or place and is visible from any public way. It does not include the flag, pennant or insignia of any nation, state or town. Whenever dimensions of a sign are specified they shall include frames.

§ 1908. Regulation of outdoor advertising

No person may erect or maintain signs visible to the traveling public from a public way except as provided in this chapter.

We begin with a review of the governing principles.

“[A] direct and substantial limitation [on speech can] be sustained [if] it serves a sufficiently strong, subordinating interest that the Village is entitled to protect.” Schaumburg v. Citizens for a Better Environment, 1980, 444 U.S. 620, 636, 100 S.Ct. 826, 836, 63 L.Ed.2d 73.

Time, place, and manner restrictions are permissible if

“they are justified without reference to the content of the regulated speech, . .. they serve a significant governmental interest, and ... in so doing they leave open ample alternative channels for communication of the information.” Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 1976, 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346.

Like most one-liners, these are overly simplistic. In our case, they omit an important consideration: not only must the restrictions serve a “sufficiently strong” or “significant governmental interest,” they must significantly serve that interest. Hence we must evaluate not only the importance of the state’s interests, but also the extent to which the restrictions further those interests, viz., their reasonable relationship to the achievement of the governmental purpose.” Bates v. Little Rock, 1960, 361 U.S. 516, 525, 80 S.Ct. 412, 417, 4 L.Ed.2d 480. Finally, in measuring the effect of the statute on free expression, the freedoms of the First Amendment must be kept “in a preferred position.” Saia v. New York, 1948, 334 U.S. 558, 562, 68 S.Ct. 1148, 1150, 92 L.Ed. 1574, see Schneider v. State, 1939, 308 U.S. 147, 161, 60 S.Ct. 146, 150, 84 L.Ed. 155. In other words, the regulation must be no more restrictive than reasonably necessary to serve the governmental interest. Brown v. Glines, 1980, 444 U.S. 348, 355, 100 S.Ct. 594, 600, 62 L.Ed.2d 540.

In sum, when First Amendment freedoms are on one side of the scale, the balance must be struck by the courts, not by the legislators.

“A legislature appropriately inquires into and may declare the reasons impelling legislative action but the judicial function commands analysis of whether the specific conduct charged falls within the reach of the statute and if so whether the legislation is consonant with the Constitution. Were it otherwise, the scope of freedom of speech and of the press would be subject to legislative definition and the function of the First Amendment as a check on legislative power would be nullified.” Landmark Communications, Inc. v. Virginia, 1978, 435 U.S. 829, 844, 98 S.Ct. 1535, 1544, 56 L.Ed.2d 1.

After determining that the statute is not impermissibly content-directed, the court must gauge the validity and strength of the state’s interest, the extent to which the restrictions further it and the sufficiency of the alternative means or remaining channels of communication, and then determine whether, in their totality, the limitations imposed by the statute are justified. See Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York, 447 U.S. 557, 100 S.Ct. 2343, 2350, 65 L.Ed.2d 341; Baldwin v. Redwood City, 9 Cir., 1976, 540 F.2d 1360, 1365-68, cert. denied, 431 U.S. 913, 97 S.Ct. 2173, 53 L.Ed.2d 223; State v. Lotze, 1979, 92 Wash.2d 52, 593 P.2d 811, appeal dismissed, 444 U.S. 921, 100 S.Ct. 257, 62 L.Ed.2d 177; Note, Less Drastic Means and the First Amendment, 78 Yale L.J. 464, 466-68 (1969).

We are satisfied that the law, generally, is not directed to content. Billboards are banned not because of the messages they convey, but because the medium itself is objectionable. Metromedia, Inc. v. San Diego, 1980, 26 Cal.3d 848, 610 P.2d 407, 418, 164 Cal.Rptr. 510, prob. juris. noted, — U.S. —, 101 S.Ct. 265, 66 L.Ed.2d 127, 1980. Plaintiffs point to the fact that some of the exceptions to the statute’s prohibitions do depend on the message conveyed,⁴ and accordingly argue that the statute is content-oriented. The argument proves too much. Each of the exceptions reflects “an appropriate governmental interest.” Police Department of Chicago v. Mosley, 1972, 408 U.S. 92, 95, 92 S.Ct. 2286, 2289, 33 L.Ed.2d 212; see Carey v. Brown, 1980, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263. See also Gay Students Organization v. Bonner, 1 Cir., 1974, 509 F.2d 652, 660-62 and n.6; People Acting Through Community Effort v. Doorley, 1 Cir., 1972, 468 F.2d 1143, 1145; Karst, Equality as a Central Principle in the First Amendment, 43 U.Chi.L.Rev. 20 (1975). Some — for signs of governmental and quasi-governmental bodies, and for traffic and bus signs and the like — are justified by sheer public necessity. Others — e. g., for signs showing the place and time of meetings, services and events of religious, civic and philanthropic and other public organizations, and, of course, for voter information for elections, primaries and referenda — reflect the important governmental interest in dissemination of information of special public concern. These fall in the category of ideological speech⁵ even though they may involve raising money to carry out the sponsoring group’s primary functions, see Schaumburg v. Citizens, ante, 444 U.S. at 628-33, 100 S.Ct. at 831-834; Murdock v. Pennsylvania, 1943, 319 U.S. 105, 110-12, 63 S.Ct. 870, 873-74, 87 L.Ed. 1292; Jamison v. Texas, 1943, 318 U.S. 413, 416-17, 63 S.Ct. 669, 671-672, 87 L.Ed. 869, which is still accorded fuller rights under the First Amendment than commercial speech. Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York, ante, 100 S.Ct. at 2349; Consolidated Edison Co. of New York v. Public Service Comm’n of New York, 1980, 447 U.S. 530, 538, 100 S.Ct. 2326, 2333 n. 5, 65 L.Ed.2d 319. This being said, it would ill behoove the courts to deny the legislature the power to make the same distinction. “Even within the area of protected speech, a difference in content may require a different governmental response.” Young v. American Mini Theatres, Inc., 1976, 427 U.S. 50, 66, 96 S.Ct. 2440, 2450, 49 L.Ed.2d 310. In sum, we do not find that these exceptions change the statute from a time, place and manner restriction to one impermissibly based on content.

We must, however, charge some of the restrictions with being excessively content-related. To replace some of the multitude of size and styles of signs outlawed by the Act, provision is made for “official business directional signs” (OBDS), to be furnished by the applicant, but to be erected by the Commission of Transportation. Content, as well as size and style is strictly limited.⁶ The state interests offered to support the act, post, may, within limits, justify maximum sizes and uniformity of style. We fail to see the necessity, however, of restricting OBDS content to “route and distance.” (Section 1903, subsection 7). And, while overly large signs can well be objectionable, it seems extreme to set the size so small that there is no room for further information. To limit, for example, a motel having a large amount of luxury equipment to the same announcements as one with none, absent a compelling reason, is contrary to the philosophy of Virginia Bd. of Pharmacy, ante, both with respect to the owner of the sign, and the traveling public. Rather, it seems an over-emphasis on neatness. We do not at all suggest opening the door wide, but on the present record we believe it shut overtight.

The state’s asserted justifications, as we have said, are three. With respect to highway safety, it correctly points out that many courts have found this a sufficient, or at least an important reason for banning billboards. Some consider only whether highway safety is a permissible basis for an exercise of the police power so as to avoid the requirement of compensation for a taking. E. g., E. B. Elliott Advertising Co. v. Metropolitan Dade County, 5 Cir., 1970, 425 F.2d 1141, 1151-52, cert. dismissed, 400 U.S. 805, 91 S.Ct. 12, 27 L.Ed.2d 35; Ghaster Properties, Inc. v. Preston, 1964, 176 Ohio St. 425, 200 N.E.2d 328, 335-37; General Outdoor Advertising Co. v. Department of Public Works, 1935, 289 Mass. 149, 180-84, 193 N.E. 799, 813-15, appeal dismissed, 297 U.S. 725, 56 S.Ct. 495, 80 L.Ed. 385. Others approve a legislative finding that the promotion of highway safety is sufficient to outweigh the burden upon speech. E. g., State v. Lotze, ante, 593 P.2d at 813-14; Metromedia, Inc. v. San Diego, ante, 610 P.2d at 416—20. But see State v. Pile, 1979, Okla., 603 P.2d 337, pet’n for cert. filed sub nom. Oklahoma v. Pile, No. 79-1617 (2/11/80), 48 U.S.L.W. 3699 (opinion by a divided court that there must be a “clear and present danger” to justify “dubious intrusions” on liberties.) Our difficulty is that these courts, as the state here, apparently consider the issue to be simply whether billboards can rationally be said to affect highway safety, reasoning that highway safety is a proper police power matter as to which the state interest is strong, and since billboards could affect highway safety, the legislative determination is to be respected. This approach disregards the question of the substantiality of the connection between the challenged measure and the state interests asserted to support it.

We agree that even under Landmark Communications, ante, once it is concluded that there is a rational connection between means and end, the legislative determination is entitled to weight. How much weight is another matter. This being a motion for summary judgment, plaintiffs’ affidavits have presented an exceptionally strong array of uncontradicted recitals that billboards do not cause accidents. The state’s response that these opinions, although based on studies backed by statistics, are not evidentiary, but merely conclusory, is not well taken. Not only is the record devoid of contrary evidence, see F.R. Civ.P. 56(e), but to the extent that we could take judicial notice from our own observations, we know of nothing to support the state’s claim that there is no factual issue. Cf. Hirschkop v. Snead, 4 Cir., 1979, 594 F.2d 356, 373 (need for “empirical data” where efficacy of rule restricting freedom of speech is not clear.)

There is a further difficulty. The statute’s condemnation is universal, regardless of the nature of the ways, of the extent of the unimpeded view, and of particular traffic conditions. In the interest of workable enforcement some overbreadth is permissible, but the disparity here seems far from minimal. Moreover, we can think of no reason to believe that the signs which the statute permits will be any less distracting than some of those that are prohibited. The contrary may well be supposed. Vehicular signs, permitted under the statute, have long been recognized as posing traffic safety problems. See Railway Express Agency, Inc. v. New York, 1949, 336 U.S. 106, 109, 69 S.Ct. 463, 465, 93 L.Ed. 533. Other types of signs are permitted because they are deemed particularly important, see n.4, ante; these, too, would seem particularly distracting. Finally, and significantly, on-premise signs seem far greater traffic hazards than signs conveying information for future use. One need hardly ask which is more likely to disturb the traffic pattern, a sign that advertises that some product or service is available ahead, or one that causes the passenger or driver to exclaim that the spot is just being passed.

The fact that the statute may retain some dangerous signs and leave some that are not is not determinative, but does diminish the overall importance, from the standpoint of safety, of the restrictions effected. Concededly the purpose of all signs is to attract attention, and it must be that they generally do so or plaintiffs could not operate. Moore v. Ward, Ky., 1964, 377 S.W.2d 881, 886. Nevertheless, it does not follow that the prohibited signs pose a significant threat to highway safety; the record before us strongly suggests the contrary. We hold on the present record that highway safety is not a sufficient ground, standing alone, to support so broad a statute, and we have doubts whether it is even a strong contributing factor.⁷

The far better justifications for the statute are the preservation of the state’s natural beauty for all its inhabitants, and the consequent enhancement of one of its great economic resources, the tourist industry. Here, as distinguished from traffic safety, plaintiffs are inescapably faced with numbers — the more signs, the worse the appearance. While a substantial number of billboards might well be left at selected locations without endangering highway safety, any appreciable number will injure the landscape. An aesthetic justification also fares better than highway safety from the standpoint of judicial notice. While we may feel unqualified on this record to declare the extent of the detrimental effect of billboards as a class upon highway safety, with respect to aesthetics their effect is obvious. One cannot review the billboard exhibits to plaintiffs’ affidavits without a resurgence of unpleasant memories, nor can we doubt that the removal of billboards and large signs as provided for in the act would substantially benefit the state’s attractive landscape.

The question, therefore, is not whether there is a substantial connection between the restriction and the interest intended to be protected, but only whether the interest is one entitled to protection, and whether it is strong enough to justify the act’s restrictions on speech. As to the first, the law is clear. In Berman v. Parker, 1954, 348 U.S. 26, 33, 75 S.Ct. 98, 102, 99 L.Ed. 27, the Court said,

“The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.” (Citation omitted).

The cases are almost uniform that there is a strong governmental interest in preserving the beauties of the landscape. E. g., Berman v. Parker, ante, 348 U.S. at 33, 75 S.Ct. at 102; Metromedia, ante, 592 P.2d at 735-36; Suffolk Outdoor Advertising Co. v. Hulse, 1977, 43 N.Y.2d 483, 402 N.Y.S.2d 368, 373 N.E.2d 263, appeal dismissed, 439 U.S. 808, 99 S.Ct. 66, 58 L.Ed.2d 101; John Donnelly & Sons, Inc. v. Outdoor Advertising Board, 1975, 369 Mass. 206, 216-24, 339 N.E.2d 709, 717-20; Markham Advertising Co. v. State, 1968, 73 Wash. 405, 439 P.2d 248, 259-60, appeal dismissed, 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 512; Cromwell v. Ferrier, 1967, 19 N.Y.2d 263, 225 N.E.2d 749; Ghaster Properties, ante, 200 N.E.2d at 336-37; General Outdoor Advertising, ante, 289 Mass. at 184-89, 193 N.E. at 815-17.

Hand in hand with aesthetics is tourism, one of Maine’s important industries and a substantial economic resource. We would doubt whether the perennial visitor who has a summer residence would be deterred by the unpleasantness of the trip, but for those for whom the trip is the objective — the number of whom is attested to by the quantity of motels, restaurants and roadside attractions — it is a different story. “Because this state relies on its scenery to attract tourists and commerce, aesthetic considerations assume economic value.” Metromedia, ante, 610 P.2d at 413; see also E. B. Elliott, ante, 425 F.2d at 1152; New Orleans v. Pergament, 1941, 198 La. 852, 5 So.2d 129, 131. It cannot be doubted that the legislature has the right to protect this industry, nor can we question, as we did with highway safety, the direct connection between signs, scenery, and tourism. Furthermore, particularly in the absence of any contrary showing the weighing of the pros and cons and determining the net benefits must be a legislative judgmental matter, and not a judicial one.

Concededly, not all members of the tourist industry are pleased by the statute. A small number have furnished support to the plaintiffs by way of affidavits. One is the president of the Maine Mid-Coast Route One Association, who wants no interference with signs on Route One, a principal highway. The others represent tourist attractions located off principal highways, primarily in the Boothbay area, a number of miles from Route One, who, again, want signs on the principal highways. With respect to establishments such as these which cannot be so well served by on-premise signs, we consider them candidates for section 1911(3), which liberalizes the restrictions on Official Business Directional Signs in cases of “unusual hardship due to conditions of topography, access or other physical characteristics.” They will be further assisted if the legislature liberalizes the permissible content of official business directional signs. It will be time enough for off-route businesses to object if they can show specific, unallayed hardship. We will not invalidate an entire statute on the theory that they might not be heard, or on an unsupported inference that the legislature has flouted the wishes of the tourist industry as a whole.

As distinct from highway safety, then, the statute undoubtedly advances the related state interests in aesthetics and tourism. Nor do we agree with plaintiffs that the statute is not narrowly drawn to serve this purpose. It is true that all signs are not equally disfiguring, and that some locations, less attractive to start with, would suffer less than others. But even if one were to concede that some particular locations might be but little hurt by the presence of signs, the legislature could well feel that this overinclusiveness must be tolerated. Assuming the state’s substantial interest in an aesthetic landscape, the question is whether there are any practical alternatives. One can easily imagine the problems involved in attempting to zone the entire state. Few will be satisfied. Urban dwellers, as well as country residents and travelers have an interest in the quality of their surroundings. Berman v. Parker, ante; John Donnelly & Sons, Inc. v. Outdoor Advertising Board, ante, 369 Mass. at 221-24, 339 N.E.2d at 719-20. Quite apart from the work, and expense, there would be substantial difficulties in the determination and application of standards, with the assurance that other plaintiffs, if not these, would be quick to sue. Moreover, to designate one area as, so to speak, second class, might not only inspire complaints, but would tend to impede improvement. On the other hand, as against general zoning, a commission that would decide on a piece-by-piece basis might well experience even greater difficulties.⁸ In short, we feel the statute is as narrowly drawn as is practically and legally possible.

Nor are we moved by the suggestion that it diminishes the state’s aesthetic position to allow on-premise signs while imposing greater restrictions on others. Apart from the necessity of making some commercial allowances, on-premise signs are the least-aesthetically offensive. The advertised structure, whether flea market, gas station, or restaurant, has already violated the landscape, and the act so limits permissible on-premise signs as to ensure that any further damage will be negligible.⁹ From the point of view of aesthetics there is no unfair discrimination in disfavoring off-premise as against on-premise signs. Newman Signs, Inc. v. Hjelle, N.D., 1978, 268 N.W.2d 741, 758-59, appeal dismissed, 440 U.S. 901, 99 S.Ct. 1205, 59 L.Ed.2d 449. Similarly, the permitted signs on common carriers and motor vehicles, section 1913(1)(A), are of a more ephemeral nature; to outlaw them, moreover, would present difficult questions regarding interstate commerce. Compare Southern Pacific Co. v. Arizona, 1945, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915, with South Carolina State Hwy. Dep’t v. Barnwell Bros., 1938, 303 U.S. 177, 58 S.Ct. 510, 82 L.Ed. 734.

On the matter of alternative or remaining means we would divide commercial speech into two categories: general advertising for national brands, and specific advertising by individual purveyors of goods and services. Concededly there is some loss, as is always the case when the public interest conflicts with the private. For general advertising, however, we see no problem. While naturally plaintiffs, particularly the billboard plaintiff, tout the special qualities of roadside promotion, the dollar statistics and judicial notice both point to ample alternatives. For individual purveyors, besides permitted official business directional signs, the statute allows a substantial amount of on-premise notification. In addition, the statute provides for official tourist information centers, section 1905,¹⁰ and for directories and guidebooks and other services, section 1907.¹¹ They are by no means cut off.

We may agree, in spite of all this, that for some persons the statute’s curtailments may effect a noticeable diminution of opportunities. It is to be observed, however, that not only is commercial speech not entitled to full First Amendment protections, but deprivation of highway opportunities is not as legally objectionable as some other curtailments. The use of land adjoining the highway for commercial advertising is really use of the highway itself. New York Thruway Authority v. Ashley Motor Court, Inc., 1961, 10 N.Y.2d 151, 176 N.E.2d 566, 569. Highways are “created for a quite different purpose by the expenditure of public money .... ” General Outdoor Advertising Co. v. Department of Public Works, ante, 289 Mass. at 169, 193 N.E. at 808. As such they are to be distinguished from parks or other facilities created for general use, and weight should be given to the state’s right to restrict the state-created incidental benefits. Cf. Lehman v. Shaker Heights, 1974, 418 U.S. 298, 302-03, 94 S.Ct. 2714, 2716-17, 41 L.Ed.2d 770 (plurality opinion), 305-06 (Douglas, J., concurring in judgment). In sum, we believe the general tenor of the statute, so far as commercial advertising is concerned, is sufficiently supported by the public good.

Plaintiffs seek to distinguish the numerous cases upholding billboard laws by urging that only certain highways or municipalities were involved, and that none was a statewide ban on all billboards. The distinction is misleading. Many of these statutes banned billboards from the interstate and primary systems in the entire state. E. g., Stuckey’s Stores, Inc. v. O’Cheskey, 1979, 93 N.M. 312, 600 P.2d 258, 446 U.S. 930, 100 S.Ct. 2145, 64 L.Ed.2d 783, appeal dismissed; State v. Lotze, ante; Newman Signs, Inc. v. Hjelle, ante; Modjeska Sign Studios, Inc. v. Berle, 1977, 43 N.Y.2d 468, 402 N.Y.S.2d 359, 373 N.E.2d 255, appeal dismissed, 439 U.S. 809, 99 S.Ct. 66, 58 L.Ed.2d 101; Markham Advertising Co. v. State, ante; Ghaster Properties, Inc. v. Preston, ante. Since billboards are profitable only in terms of exposure, one does not see many of them on the secondary roads that concerned the majority in State v. Pile, ante. If plaintiffs lost use of the highways we cannot believe they could subsist on the byways; indeed, they say as much. What plaintiffs, and such tourist industries as support them, see ante, are really seeking is the principal highways, as to which the distinction they attempt to draw is irrelevant. Moreover, two of the cases they cite, Suffolk Outdoor Advertising Co. v. Hulse, ante, and Veterans of Foreign Wars v. Steamboat Springs, 1978, 195 Colo. 44, 575 P.2d 835, appeal dismissed, 439 U.S. 809, 99 S.Ct. 66, 58 L.Ed.2d 101, each sustained an ordinance banning all billboards in an entire town. The advertiser who seeks to reach that audience — for example, a candidate for City Council or a local clothing store — would probably see little difference between a total municipal and a statewide ban.

Plaintiffs complain of the enormity of legislation which would abolish their entire business, per se. Times change, and businesses with them. The iceman no longer cometh, the buggy-whip manufacturer has passed from the scene, and one could name countless enterprises that have failed because of a change in public demand or sentiment. Equally, public concern may overcome the economic interests of private individuals, and a state may wholly prohibit a heretofore lawful business and destroy an entire industry. Mugler v. Kansas, 1887, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205.¹² Nor do we know of any issue of degree; plaintiffs cannot ask the public interest to give way at some economic crossroad in their balance sheets. We note, moreover, that if we were to recognize an economic approach, it would go far beyond a complaint of total abolition. Plaintiffs are already arguing that they could not survive on political speech alone if only commercial speech were restricted. Even as to commercial speech they state that “in order to survive [their signs] must be capable of being located throughout a geographical area.” Plaintiffs’ economic argument is a novel approach to the First Amendment which we decline to adopt.

To summarize, where commercial speech is concerned we would have little reservation in holding that the statute directly serves legitimate state interests and (with the exception of the restrictions in the OBDS provision) that these interests could not be served as well by a more limited restriction on commercial speech. See Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York, ante, 100 S.Ct. at 2350. We note that “[t]he First Amendment’s concern for commercial speech is based on the informational function of advertising.” Id. For those commercial advertisers for whom signs are an essential medium, this function is adequately served by the OBDS provision (as liberalized, ante) and the on-premise exception; we have little doubt that these will be well utilized. See id. at 100 S.Ct. 2350 n.6.

There is more involved here, however, than commercial advertising. We take strong exception to the state’s characterization of the statute’s impact on noncommercial speech as “incidental” and “of no constitutional significance.” The district court found that some 24% of the messages carried on Donnelly’s billboards and 5% on those of National Advertising Company signs are noncommercial in nature. Manifestly the statute affects much ideological communication not accounted for in these figures; signs of all sorts — a candidate’s poster on a telephone pole; “Jesus Saves” painted on the side of a barn — are within the statute’s reach. A great deal of communication on topics of political, social, cultural, and religious import — speech long afforded maximum protection under the First Amendment, see New York Times v. Sullivan, 1964, 376 U.S. 254, 269-70, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 is regulated or prohibited by the law before us.

True, the Maine scheme makes accommodation for some signs of this type. Signs showing the place and time of church services and meetings of civic organizations; signs announcing events of public, civic, philanthropic or religious organizations up to three weeks in advance; signs erected for an election, primary or referendum, again within three weeks of the event; and signs outside the right of way for historical or cultural organizations are all exempted. These exceptions, however, do not go far enough. Initially, we doubt that three weeks is enough time to publicize a campaign, particularly for the little-known or unpopular candidate, or cause, with the greatest need for exposure. Moreover, no exception is available for signs on important public issues as to which no referendum is pending. Messages such as “Abortion is Murder,” “Save the Whales,” “No Nukes,” and “Contribute to your Community Fund” are altogether banned. Not even the exception for on-premise signs is available, since these must “advertise [a] business, facility or point of interest conducted thereon . . . . ” Section 1903(8). The law thus impacts more heavily on ideological than on commercial speech — a peculiar inversion of First Amendment values.

The statute not only provides greater restrictions — and fewer alternatives, the other side of the coin — for ideological than for commercial speech, but in one respect ideological speech seems more dependent upon outdoor advertising to begin with. The record shows that outdoor advertising, based upon cost per exposure, is a far less expensive means of communication than radio, television, newspaper or magazines. The district court’s conclusion that the fact that only 1.2% of advertising expenditures go to outdoor advertising demonstrated the alternatives available for “commercial and noncommercial advertising alike,” 453 F.Supp. at 1280 & n.10, seems to us a non sequitur.¹³ Signs which can be cheaply erected particularly permit advancing “poorly financed causes of little people,” Martin v. Struthers, 1943, 319 U.S. 141, 146, 63 S.Ct. 862, 864, 87 L.Ed. 1313, a prime First Amendment objective. In short, the statute’s impositions are both legally and practically the most burdensome on ideological speech, where they should be the least.

We are obliged to hold the statute unconstitutional. No further hearings could materially assist. Reversed and remanded for an entry of judgment in favor of plaintiffs.

1 . Plaintiffs’ brief reciprocates by naming the law the Maine Anti-Billboard Act. Both sides are following tradition. The restrictions introduced by the Federal Highway Beautification Act are announced as promoting “effective display of outdoor advertising .... ” 23 U.S.C. § 131(d), as if the industry were receiving needed help in running its business. For a cynical account of the non-enforcement of that act, see N. Price, On Billboards, Sierra, Sept.-Oct. 1980, 76.

2 . As a matter of record we note that the 1977 form, which was before the district court, has since been amended, notably a new section 1913, Me.Laws 1979, c. 477, a fact plaintiffs’ brief fails to recognize.

3 . The two companies together own almost 1000 of some 2500 billboards in the state. The individual plaintiff claims that he wishes to see signs reminding him to drive safely and slowly, and to avoid littering the highways. His affection for manmade, over “nature’s symbols and signs,” may possibly be enhanced by the fact that he is an employee of one of the corporate plaintiffs. As this is not a class suit, the size of the class that could adequately be represented by the individual plaintiff is not before us. In this opinion we refer usually to the corporate plaintiffs who, in any event, have full standing to bring suit. See Bigelow v. Virginia, 1975, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600.

4 . § 1913. Categorical signs

1. Types of signs. The following signs may be erected and maintained without license or permit under this chapter as follows:

A. Signs of a duly constituted governmental body, ...;

B. Signs located on or in the rolling stock of common carriers, except those which are determined by the commissioner to be circumventing the intent of this chapter ....;

C. Signs on registered and inspected motor vehicles, except those which are determined by the commissioner to be circumventing the intent of this chapter . ...;

D. Signs, with an area of not more than 260 square inches, identifying stops or fare zone limits of motor buses;

E. Signs showing the place and time of service or meetings of churches and civic organizations in the municipality or township. Each church or civic organization may erect no more than 4 signs. No sign shall exceed in size 24 inches by 30 inches;

F. Signs to be maintained for not more than 3 weeks announcing an auction, public supper, lawn sale, campaign, drive or other like event of a public, civic, philanthropic or religious organization, provided these signs are located within the municipality or township where the activity is located. The date of this event is to be conspicuously posted on each sign;

G. Memorial signs or tablets;

H. Signs erected by fairs and expositions within the county where the activity is located. These signs may be erected and maintained for 3 weeks before this event. The date of the event is to be conspicuously posted on each sign;

I. Signs erected for an election, primary or referendum. These signs shall be erected no sooner than 3 weeks before the date of the election, primary or referendum and shall be removed no later than one week after that date; and

J. Signs erected outside of the public right-of-way by nonprofit historical and cultural institutions. Each institution, who has certified its nonprofit status with the commissioner, may erect no more than 2 signs with a surface area not to exceed 50 square feet per sign.

5 . We hereafter use the adjective “ideological” —“relating to or concerned with ideas,” Webster’s New Int’l Dictionary, Third Ed. (1968)— as a shorthand reference to all noncommercial speech. “Commercial” speech, on the other hand, relates “solely to the economic interests of the speaker and its audience.” Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York, ante, 100 S.Ct. at 2349. That the distinction is viable, see id., is not to suggest it is always easy. See Schaumburg v. Citizens, ante, 444 U.S. at 628-32, 100 S.Ct. at 831-833.

6 . § 1903. Definitions.

7. Official business directional sign. “Official business directional sign” means a sign erected and maintained in accordance with this chapter, to indicate to the traveling public the route and distance to public accommodations, facilities, commercial services for the traveling public and points of scenic, historical, cultural, recreational, educational and religious interest.

§ 1906. Official business directional signs.

1. Erection and maintenance. The commissioner, with the advice of the Travel Information Advisory Council, shall designate locations for and erect official business directional signs licensed under this chapter. The official business directional signs shall be furnished and preserved by the applicant thereafter and shall conform to regulations issued by the commissioner with the advice of the Travel Information Advisory Council. Such regulations shall be consistent with section 1910.

§ 1910. Types and arrangements of signs.

Subject to this chapter, the commissioner, with the advice of the Travel Information Advisory Council, shall regulate the size, shape, color, lighting, manner of display and lettering of official business directional signs. Such regulations shall require uniformity among signs in accordance with the following minimum requirements: No sign shall exceed in size 20 inches by 84 inches; uniform colors shall be specified for each type of service and facility; lettering size shall be uniform; logos shall not exceed a uniform size; and posts shall be a uniform size, shape and color. An appropriate symbol may be specified for each type of eligible service or facility for inclusion upon official business directional signs.

7 . We are without the district court’s appraisal of the record on this point. Having found other grounds for upholding the statute, it did not reach this issue.

8 . It is perhaps not unduly apprehensive to foresee serious First Amendment problems in advance rulings against individual signs. Cf. Shuttlesworth v. Birmingham, 1969, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162; Staub v. Baxley, 1958, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302; Kunz v. New York, 1951, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (cases invalidating permit requirements restricting expression).

9 . Number, height, size, location, lighting, etc. of on-premise signs are carefully regulated. See section 1914, subsection 6. Subject to comments elsewhere in this opinion we generally accept this principle.

10 . § 1905. Official tourist information centers

To the extent funds are available or contracts can be entered into, the commissioner shall establish official tourist information centers near the principal entrance points into the State, as determined by the commissioner, and at such other locations as the commissioner deems appropriate in order to provide information about public accommodations, facilities, commercial services and other business for the traveling public, and points of scenic, historic, cultural, recreational, educational and religious interest.

11 . § 1907. Published information

To the extent funds are available or contracts are entered into, the commissioner shall provide directories, guidebooks, maps and other published information, showing the location of routes and available public accommodations, facilities, commercial services for the traveling public and other businesses and points of scenic, recreational, historic and cultural interest. He may include in those guidebooks, and other published materials, paid advertising, identified as such, and shall make them available to visitors and to the general public at information centers and booths, service stations and garages, hotels, motels and restaurants, historical attractions and educational facilities, and such other places as he may find desirable. The commissioner shall cooperate with other state, federal and local agencies that provide information to travelers in the administration of this section.

12 . Plaintiffs’ statement that “no existing legitimate business has ever been govemmentally excluded from an entire state in the absence of a specific provision in the United States Constitution” is simply wrong on the facts. Moreover, the billboard law contains a feature conspicuously absent in the anti-liquor statute sustained in Mugler; owners of billboards are compensated for the removal of their structures or are allowed to amortize their cost over a specified period. 23 M.R.S.A. §§ 1915-16. The issue of the adequacy of the compensation and amortization provisions is not before us.

13 . It is also fallaciously based. The record shows, for example, that 24% of Donnelly’s gross advertising space, devoted to ideological use, is largely donated. This must substantially affect pro rata cost figures. We remark, in passing, that we do not accept Donnelly’s argument that since its ideological contributions are dependent upon revenues of its commercial advertising, the latter should be afforded the protection due the former.