
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 95-2324                   ACKERLEY COMMUNICATIONS OF MASSACHUSETTS, INC.,                                Plaintiff, Appellant,                                          v.                              CITY OF CAMBRIDGE, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Cyr, Circuit Judge,                                      _____________                      Coffin and Bownes, Senior Circuit Judges.                                         _____________________                                 ____________________               Andrew L. Frey with whom Eric M. Rubin, Walter E. Diercks,               ______________           _____________  _________________          Kenneth S. Geller, Charles Rothfeld, George A. Berman, Steven S.          _________________  ________________  ________________  _________          Broadley, and Joseph S. Berman were on brief for appellant.          ________      ________________               Peter L. Koff with whom Arthur J. Goldberg was on brief for               _____________           __________________          appellees.                                 ____________________                                    July 10, 1996                                 ____________________               COFFIN, Senior Circuit Judge.   We are asked in  this appeal                       ____________________          to  sort  out  the  constitutional  principles  at  play  when  a          municipality, in pursuit of improved  aesthetics, regulates signs          and billboards.   In many respects,  this is a  case of deja  vu.          Seven  years ago,  the same  plaintiff successfully  challenged a          similar  sign ordinance as violative of the First Amendment.  See                                                                        ___          Ackerley Communications of Massachusetts  v. City of  Somerville,          ________________________________________     ___________________          878   F.2d  513  (1st   Cir.  1989).     Although  the  defending          municipality has  changed -- Cambridge now  replaces its neighbor          Somerville -- the central issue remains the same: the validity of          distinctions  drawn  between  "onsite"  and  "offsite" signs  and          between   commercial   and   noncommercial   messages.1      With                                        ____________________               1 We repeat our explanation of the onsite/offsite          distinction from City of Somerville, 878 F.2d at 513 n.1:                           __________________                    An onsite sign carries a message that bears some               relationship to the activities conducted on the               premises where the sign is located.  For example, an               onsite sign may simply identify a business or agency               ("Joe's Hardware" or "YMCA"), or it may advertise a               product or service available at that location               ("Budweiser Beer" at Parise's Cafe or child care at the               Lutheran Church).  Depending upon the business or               agency, the message on the sign may be deemed either               commercial or noncommercial.  An offsite sign -- the               category into which most billboards fit -- carries a               message unrelated to its particular location.  These               signs also may display either commercial or               noncommercial messages.  For example, an offsite sign               may advertise "Great Gifts at Kappy's Liquors," with               Kappy's Liquors being located at some distance from the               sign, or it may say "No one should be left out in the               cold.  Write: Citizens Energy Corp."                     Thus, the onsite/offsite distinction is not a               distinction between signs attached to buildings and               free standing signs.  An offsite sign may be located on               a building rooftop, but because the product, good, or               service it advertises is not available at the sign's                                         -2-          appreciation for the difficulties faced by municipalities in this          complicated  area,   we  nonetheless  conclude  that   the  First          Amendment  bars enforcement  of the  challenged ordinance  in the          circumstances present here.                                I. Factual Background                                   __________________               Plaintiff   Ackerley   Communications  is   a  Massachusetts          billboard  company  that  has  operated  an  outdoor  advertising          business for more than 100  years.  In the City of  Cambridge, it          maintains  46  signs on  32 separate  structures.   All  of these          billboards became nonconforming  when Cambridge amended a  zoning          ordinance  in 1991  to tighten  the restrictions  on the  height,          size, number and  location of signs that may  be displayed in the          city.2    Ackerley,  hoping  to  find  protection  in  the  First          Amendment, has  displayed only  noncommercial messages since  the          amended ordinance went into effect.               The  ordinance itself  makes  no distinctions  based on  the          messages displayed on the signs.  Such differential protection is                                        ____________________               location, it is classified as offsite.  For example, if               a sign advertising the products available at Joe's               Hardware is located atop the Parise Cafe building,               Joe's sign is offsite.          In this opinion, we use the terms on-premise and off-premise          interchangeably with onsite and offsite.               2 Article 7.000 of the Zoning Ordinances of the City of          Cambridge provides, inter alia, that four categories of                              _____ ____          nonconforming signs must be removed within four years from the          statute's enactment, or from the first date that the sign became          nonconforming.  The signs required to be removed are those on          rooftops, freestanding signs exceeding 30 square feet, wall signs          exceeding 60 square feet and projecting signs exceeding 10 square          feet.    7.18.1.  All of Ackerley's signs fall into at least one          of these categories.                                         -3-          conferred instead  by a  state statute, the  Massachusetts Zoning          Act,  Mass.  Gen. L.  ch. 40A,     6, which  mandates grandfather          protection for all nonconforming uses -- including signs  -- that          are in  existence at the  time a zoning  ordinance is enacted  or          amended.   The  statute excludes  from such  protection, however,          billboards, signs  and other  advertising devices subject  to the          jurisdiction  of  the  Massachusetts  Outdoor  Advertising  Board          (OAB).  The OAB regulates so-called "off-premise" signs.3               The combined  effect of the  local ordinance and  state law,          therefore, is to protect signs that do not conform to the amended          Cambridge  ordinance only if they carry onsite messages.  None of                               ____          Ackerley's billboards are grandfathered under this scheme because          all of its messages  are offsite ones -- i.e., they are unrelated          to  the  property  on  which  they  sit.    Thus,  Ackerley's  46          noncommercial, off-premises  messages must be taken  down while a          large number of nonconforming commercial signs are protected.               Cambridge  officials  recognized the  limited nature  of the          grandfather  provision, and, indeed,  endorsed its preference for          onsite signs, finding:               Nonconforming  off-premise  signs, which  traditionally               have been used primarily to  advertise commercial goods               and services not available on the same premises, have a               significantly greater adverse aesthetic impact  than on               premises signs  because of their larger  sizes, greater                                        ____________________               3 Ackerley accurately points out that the descriptive terms          "off-premise" and "on-premise" can be misleading when used to          modify the word "sign", since the applicable category is          determined not by a sign's location, but by its message.  As                                     ________             _______          noted supra, at note 1, a sign attached to a building can carry                _____          either off-premise or on-premise messages.                                           -4-               heights,  less  attractive  appearances,   and/or  more               intrusive locations.          Zoning  Ordinance  Article  7.000,    7.11.1(F).    The  Findings          section  of  the  ordinance  further states  that  "[t]he  public          interest is served  by use of signs by businesses and services to          identify  their  premises,  or  the products  or  services  there          available, or  to display noncommercial  messages."  Id.  at (G).                                                               ___          The  importance  of  noncommercial  messages is  reflected  in  a          "substitution provision"  in the ordinance,  which provides  that          "[a]ny  sign permitted under this Article may contain, in lieu of          or  in addition  to any  other copy, any  noncommercial message."          Article 7.000,   7.17.               Consistent with this scheme,  when the ordinance's four-year          grace period  expired in  1995, Cambridge informed  Ackerley that          its signs would have to come down.  Ackerley sought a preliminary          injunction barring enforcement of  the ordinance, arguing that it          violates  the  First Amendment  because  it favors  nonconforming          signs  that carry  commercial  messages over  similar signs  that          carry  noncommercial  messages.4     The  district  court  denied          injunctive relief.  It found that Ackerley had not demonstrated a          likelihood of success  on the  merits because  the ordinance  "in          effect[] distinguishes between on-site and off-site  signs, which          is  permissible, and  not  between commercial  and non-commercial          messages."                                        ____________________               4 Ackerley also alleged a Fifth Amendment takings claim,          which is not before us at this time.                                         -5-               Ackerley consequently  filed this  appeal, arguing  that the          district  court  misapplied relevant  First  Amendment  law.   It          contends that the Supreme Court's decision in Metromedia, Inc. v.                                                        ________________          San  Diego, 453 U.S. 490 (1981), and  our own decision in City of          __________                                                _______          Somerville,  878  F.2d  at  513, require  a  conclusion  that the          __________          Cambridge  ordinance is unconstitutional as applied to Ackerley's          signs.               Although this case comes to  us as an appeal of a  denial of          preliminary relief,  both parties  at oral  argument urged  us to          resolve the dispute on its merits  because the issue is purely  a          legal  one that needs no  further record development.   We accept          the invitation  to make  the ultimate determination,  and proceed          with our analysis from that perspective.                                       II. Discussion                                        __________          A. Background             __________               The City of Cambridge has been working for a number of years          to  improve  its aesthetic  environment through  the increasingly          restrictive  regulation of signs.  The 1991 revisions to its sign          ordinance  for the  first time required  removal of  certain non-          conforming signs.  Although the ordinance affects many more signs          than  just  the  large,  visually  demanding  --  some would  say          offensive -- ones that most of us would identify as billboards, a          comprehensive  report prepared  in  connection  with the  revised          ordinance  reveals  that  they   are  the  city's  most  pressing                                         -6-          concern.5   Billboards  typically  carry offsite  messages.   The          state's  grandfathering provision --  exempting nonconforming on-                                                                        __          premise  signs  -- therefore  nicely  dovetails  with Cambridge's          priority to eliminate  billboards as soon  as possible.6   Onsite          signs,  most of which are business signs, may stay; offsite signs          --  many of  which  at the  moment  in Cambridge  are  billboards          carrying noncommercial messages -- must go.                   Ackerley offers two primary reasons why this scheme violates          the  First  Amendment.    First, it  claims  that  the  Cambridge          ordinance  directly  conflicts  with  our  decision  in  City  of                                                                   ________                                        ____________________               5 The report on the Cambridge sign environment concluded          that off-premise signs -- a term it equated with billboards --          were more troubling than onsite signs because, inter alia, they                                                         _____ ____          dominate the surrounding environment, both visually and          physically, and are not likely to be removed except as the result          of a total redevelopment of the site on which they are found.           The report found that on-premise signs, in contrast, have a more          "limited and contained" aesthetic impact because "they are placed          low on their host buildings, they are obscured from afar by          street trees and almost without exception they do not approach          the sheer size and dominance of off-premise signs."  In addition,          the report stated that onsite signs were likely to be less          permanent, since businesses are likely to change hands and new          signs would not be grandfathered.               6 For purposes of our discussion, we treat the state          grandfathering provision as part-and-parcel of the Cambridge          ordinance, and certain of our references to "the Cambridge          ordinance" will assume that the grandfathering provision is          contained within it.  Indeed, as noted supra, at pages 4-5, the                                                 _____          ordinance seems to incorporate the state grandfather provision as          part of its regulatory scheme.                 We emphasize that the validity of the state statute, as an          independent matter, is not a question before us.  The issue we          must decide is whether Cambridge may enforce its sign ordinance          to require Ackerley to remove its billboards.  As Cambridge's          counsel acknowledged at oral argument, the impact of the state          grandfathering provision is relevant to that inquiry regardless          of the statute's constitutionality.                                         -7-          Somerville,  where we  found  the ordinance  to be  impermissible          __________          based on a grandfathering provision that exempted only signs that          had  carried  no  offsite   commercial  speech  during  the  year          preceding  the  ordinance's enactment.    We held  that  "[i]t is          without  question that the government may not impose a penalty --          in this case, denying the right to continue speaking  by means of          nonconforming  signs --  because of  a  person's constitutionally          protected past speech."  878 F.2d at 519.                 Ackerley contends  that Cambridge's ordinance,  when applied          in  light of the state statute, suffers from essentially the same          flaw:  the  right to  use nonconforming  signs  in the  future to          express  noncommercial  messages  is  given  by  the substitution          provision only to certain speakers, based on their past speech --          in this instance, to those who were displaying onsite messages on          the  day the  ordinance  was enacted.    Ackerley maintains  that          distributing  the future right to  speak in a  certain way (i.e.,          through  large,  nonconforming signs)  based  on  the content  of          earlier speech  is  impermissible whether  the restriction  looks          back a  year in time,  as it  did in Somerville,  or only  a day.          This must be so, it asserts, because the practical effect  of the          two ordinances  is identical; both  reserve the right  to display          noncommercial  messages  primarily  to   a  limited  category  of          speakers, business owners.               Ackerley's second  theory is  that the ordinance  is invalid          because it imposes an impermissible content-based  restriction on          speech: whether a sign may remain is determined by the message it                                         -8-          carries.      Because   most   content-based   restrictions   are          presumptively  invalid, see City of  Ladue v. Gilleo,  114 S. Ct.                                  ___ ______________    ______          2038,   2047   (1994)   (O'Connor,  J.,   concurring);   National                                                                   ________          Amusements,  Inc. v. Town of  Dedham, 43 F.3d  731, 736 (1st Cir.          _________________    _______________          1995),  and subject to  strict scrutiny, even  Cambridge seems to          acknowledge  that,  if  this  traditional  content-based  inquiry          applies,  its ordinance would fail.   See Burson  v. Freeman, 504                                                ___ ______     _______          U.S. 191, 211 (1992) ("[I]t is the rare case in which . . . a law          survives strict scrutiny.").               Cambridge responds that enforcement  of its ordinance is not          inconsistent with City of  Somerville because the regulation does                            ___________________          not  use "past speech" as  the distinguishing criterion.   In its          view, the grandfather provision permissibly distinguishes between          categories of signs (onsite vs. offsite), and  such a distinction          inevitably  must relate  to  the  signs  as  they  existed  at  a          particular point in  time.  Cambridge  further contends that  its          ordinance  is a  valid content-neutral  regulation that  does not          require strict scrutiny.               Under  traditional First  Amendment  analysis,  we  probably          should address  as a threshold matter  whether the onsite/offsite          grandfathering  restriction is  a  content-based regulation  that          triggers strict scrutiny.7   See  City of  Ladue, 114  S. Ct.  at                                       ___  ______________                                        ____________________               7 In "commonsense" terms, the distinction surely is content-          based because determining whether a sign may stay up or must come          down requires consideration of the message it carries.  The          Supreme Court made such an observation in City of Cincinnati v.                                                    __________________          Discovery Network, Inc., 113 S. Ct. 1505, 1516-17 (1993), which          _______________________          involved a city policy banning newsracks carrying commercial          handbills but not those carrying newspapers.  The Court noted:                                         -9-          2047  (O'Connor, J.,  concurring) ("The  normal inquiry  that our          doctrine dictates is, first, to determine whether a regulation is          content-based or  content-neutral, and then, based  on the answer          to  that  question, to  apply  the proper  level  of scrutiny.");          National Amusements, 43 F.3d at 736.   We choose to sidestep that          ___________________          difficult   question,  however,  because  we  conclude  that  the          Cambridge  scheme  suffers  from two  readily  identifiable First          Amendment flaws that bar its enforcement.          B. Distinguishing Among Categories of Noncommercial Speech             _______________________________________________________                                        ____________________               Under the city's newsrack policy, whether any               particular newsrack falls within the ban is determined               by the content of the publication resting inside that               newsrack.  Thus, by any commonsense understanding of               the term, the ban in this case is "content-based."          See also National Amusements, Inc. v. Town of Dedham, 43 F.3d          ___ ____ _________________________    ______________          731, 738 (1st Cir. 1995); Whitton v. City of Gladstone, Mo., 54                                    _______    ______________________          F.3d 1400, 1403-04 (8th Cir. 1995) ("The Supreme Court has held          that a restriction on speech is content-based when the message          conveyed determines whether the speech is subject to the          restriction.").           (cont'd)          (7 cont'd)               Cambridge acknowledges that the onsite/offsite distinction          indirectly has a content-based effect because most on-premise          signs are commercial in nature and most noncommercial messages          are off-premise.  In Cambridge, the disadvantage to noncommercial          speech is magnified because of Ackerley's decision to change all          of its billboards to noncommercial messages.               Several courts, however, have found the offsite/onsite          distinction to be essentially content-neutral, at least for the          purpose of determining the correct standard.  See, e.g., Rappa v.                                                        ___  ____  _____          New Castle County, 18 F.3d 1043, 1067 (3d Cir. 1994); Messer v.          _________________                                     ______          City of Douglasville, Ga., 975 F.2d 1505, 1509 (11th Cir. 1992).           _________________________          In Rappa, a divided court noted that "[f]avoring 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."  18 F.3d at 1056 n.19.                                         -10-               While  not  facially   preferring  commercial  messages   to          noncommercial ones  -- a preference  barred by Metromedia  -- the                                                         __________          Cambridge   scheme  does  draw  a  line   between  two  types  of          noncommercial speech --  onsite and offsite messages.8  This line          _____________          has the  effect of  disadvantaging the category  of noncommercial          speech that is probably the most highly protected: the expression          of ideas.  The only signs  containing noncommercial messages that          are exempted are  those relating  to the premises  on which  they          stand,  which inevitably  will mean  signs identifying  nonprofit          institutions.               In its report,  the city emphasizes the  important role that          on-premise signs  play "in promoting activities  important to the          well-being of the  City."   But with rare  exceptions, the  First          Amendment  does not permit  Cambridge to  value certain  types of          noncommercial speech more highly  than others,9 particularly when          the speech disfavored includes  some -- like political  speech --          that  is at  the core  of the  First Amendment's  value system.10                                        ____________________               8 Ackerley does not contest the city's authority to require          removal of nonconforming signs that display offsite commercial                                                              __________          messages.  See Metromedia, Inc. v. San Diego, 453 U.S. 490, 512                     ___ ________________    _________          (1981) (a city lawfully may exempt signs bearing onsite          commercial messages without also exempting those bearing offsite          __________          commercial messages).          __________               9 For example, an ordinance that exempted only highway speed          and directional signs, and municipal street signs, probably could          survive strict scrutiny.  See John Donnelly & Sons v. Campbell,                                    ___ ____________________    ________          639 F.2d 6, 9 (1st Cir. 1980).               10 An affidavit from Ackerley's public affairs director          through mid-1994 states that the material displayed on Ackerley's          signs since the 1991 ordinance revisions has included election          campaign information for candidates for City Council and County          Commissioner, artwork created by Cambridge students, promotion of                                         -11-          See  Metromedia, 453  U.S.  at  514-15  ("Although the  city  may          ___  __________          distinguish between the relative value of different categories of          commercial  speech,  the city  does not  have  the same  range of          choice in  the  area  of noncommercial  speech  to  evaluate  the          strength  of,  or  distinguish  between,   various  communicative          interests. . . .  With respect to noncommercial speech,  the city          may  not choose the appropriate subjects for public discourse . .          . .");  see also Rappa v.  New Castle County, 18  F.3d 1043, 1063                  ___ ____ _____     _________________          (3d Cir.  1994) ("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."); National Advertising Co. v.                                                ________________________          City of Orange, 861 F.2d 246, 248-49 (9th  Cir. 1988).11          ______________               Cambridge  does  not  suggest  that there  is  an  aesthetic                                                                  _________          difference  between   a  "Remember  to  Vote"   message  and  one          announcing  the  location  of   the  public  library;  it  simply          maintains that the  physical characteristics of  "Public Library"                                        ____________________          a Cambridge literacy program, information about a Cambridge voter          registration drive, and public service announcements about such          topics as food stamps, the campaign against drunk driving, and          AIDS prevention.               11 The court in National Advertising invalidated the                               ____________________          ordinance at issue because of exemptions for specific types of          noncommercial speech, while reserving judgment on whether a          categorical limitation of noncommercial messages to onsite          activities would be constitutional.  861 F.2d at 249 & n.3.                                         -12-          signs  are more likely to be less objectionable because they tend          to be smaller and less obtrusive than most signs carrying offsite          messages.  The ordinance, however, gives protection based  on the          message  and not  the physical  characteristics, and  it  is that          distinction that the  city must  justify.12  Perhaps  if a  total          ban  of signs were at issue, signs identifying buildings would be          a permissible limited exception  because, like traffic and safety          signs, they would serve a substantial  need that could not be met          in any other way.  In this case, however, we consider not a total          ban,  but only  restrictions on  size, style  and location.   The          identification  interest for  nonconforming signs  cannot satisfy                                        _____________          even  intermediate  scrutiny  when  the  ordinance  presumes that          identification can  be accomplished  adequately in the  future by          smaller signs.          C. The City of Somerville Problem: Penalizing Past Speech             ______________________________________________________               The regulation's second flaw arises from the manner in which          it  seeks  to  protect  ideological  speech.    The  substitution          provision guarantees that noncommercial messages may be placed on          any exempted sign.   What this means, however, is  that Cambridge          is  choosing which  speakers may  in the  future display  offsite          noncommercial messages on nonconforming signs in the way  City of                                                                    _______          Somerville  held was impermissible --  by looking to past speech.          __________                                        ____________________               12 Indeed, although the city's sign report emphasized that,          "almost without exception," on-premise signs have less of a          negative visual and aesthetic impact than billboards, the report          acknowledged that "[m]any on-premise signs are of course          disappointing" and "can at times be too large, too high, too          visually loud."                                         -13-          Only those speakers whose signs displayed onsite messages on  the          day  of the  ordinance's enactment  may substitute  noncommercial          messages  for the previous  ones.  We explored  at some length in          City  of Somerville the dangers  of awarding future speech rights          ___________________          based on past speech.  See 878 F.2d at 519-20.                                 ___               Although  those  dangers  may  seem  less  likely  from  the          Cambridge  regulation  because  it does  not,  like Somerville's,          disqualify speakers based  on only  a single day's  display of  a          non-preferred  message  (i.e.,  offsite  commercial)  during  the          course of a  year, the Cambridge scheme's reliance on the date of          enactment nevertheless eliminates speakers from future  access to          a  particular medium based on their past choice of lawful speech.          If  it is impermissible to  assign future speech  rights based on          the  content of past  speech, the amount of  past speech does not          strike  us as significant.  The chilling effect that results from          linking  future speech to past speech exists even if the pressure          to conform one's speech is compressed into a short time frame.               Moreover, the division drawn here  between those who may and          may not use nonconforming signs in the future, for the most part,          isolates  business and property owners as a privileged class.  As          Cambridge  freely   acknowledges,  onsite  signs   typically  are          commercial in  nature.  Because the  substitution provision gives          the  right to  display  noncommercial  messages on  nonconforming          signs only  to those  individuals whose signs  previously carried          onsite messages, the primary effect of the substitution provision                                         -14-          is  to give only commercial speakers the option of changing their          signs to noncommercial messages.               Giving an identifiable  group virtually exclusive access  to          the use of a  medium is wholly inconsistent with  First Amendment          principles;  it is  doubtful that  the noncommercial  messages of          interest  to business  owners  would reflect  as  broad a  cross-          section  of viewpoints as might  occur in a  marketplace in which          every speaker has  equal footing  to speak.13   Indeed, the  case          law makes it  clear that even  more problematic than the  loss of          all noncommercial messages would be the selective preservation of          them.  See  Turner Broadcasting System, Inc.  v. FCC, 114 S.  Ct.                 ___  ________________________________     ___          2445, 2476 (1994) ("Under the First Amendment, it is normally not          within the government's power to decide who may speak and who may          not,  at  least  on  private property  or  in  traditional public          fora.");14 Somerville, 878 F.2d  at 518 ("Even if a  complete ban                     __________                                        ____________________               13 It should be noted that the Cambridge ordinance does not          ban all noncommercial speech, except for that allowed on              ___          nonconforming signs by the substitution provision.  The ordinance          also permits noncommercial messages on conforming signs, which                                                 __________          are those that do not exceed ten square feet in area.  At issue          here, however, is the selective grant of the right to speak          through the more effective medium of large, nonconforming signs.               14 The Court in Turner Broadcasting further noted that time,                               ___________________          place and manner restrictions are permissible in large part          because they apply to all speakers.  114 S. Ct. at 2476.  It          continued:               Laws that treat all speakers equally are relatively               poor tools for controlling public debate, and their               very generality creates a substantial political check               that prevents them from being unduly burdensome.  Laws               that single out particular speakers are substantially               more dangerous, even when they do not draw explicit               content distinctions.                                         -15-          on  nonconforming signs  would be  permissible, we  must consider          carefully the government's decision to  pick and choose among the          speakers permitted to use such signs.") (citing and quoting First                                                                      _____          National  Bank of Boston v. Bellotti, 435 U.S. 765, 784-85 (1978)          ________________________    ________          ("In  the   realm  of   protected  speech,  the   legislature  is          constitutionally disqualified  from dictating . .  . the speakers          who may address a public issue.")).               What  made  this case  particularly  difficult  is that  the          "offsite"  label,  in practical  terms,  embraces  not only  most          noncommercial  signs  but  also   most  of  the  worst  aesthetic          offenders.   In  addition,  most offsite  signs  tend to  display          commercial   messages;   Ackerley's   present  configuration   in          Cambridge is  a deliberate  departure from  its usual mixture  of          messages (15% noncommercial) in order to place itself in the best          possible  position to  retain use  of its  sign faces.   Limiting          grandfather protection to onsite signs thus is an effective means          of  accomplishing  the city's  legitimate objective  of improving          aesthetics, and typically  would result in the  loss primarily of          offsite commercial messages.               The fact remains,  however, that the  grandfathering benefit          is  conferred  in  content-based  terms that  have  no  aesthetic          justification and  effectively penalizes  a category  of speakers          based on their prior choice of message.  In addition, nearly  all          of the  sign owners  privileged to display  offsite noncommercial          messages on nonconforming signs may be  expected to share similar                                        ____________________          Id.          ___                                         -16-          views on certain matters  of public interest.   We hold that  the          First Amendment does not allow Cambridge to achieve its aesthetic          objective by allocating the right to speak in this way.15          D. Remedial Option             _______________               We  recognize  that  our  conclusion  puts  Cambridge  in  a          peculiar  position  because   the  content-based   grandfathering          derives from state law.  Relief from this disability condition is          beyond the scope of this court's  power in this case.  Any change          in  state  law probably  must  be  left to  the  workings of  the          political process.  As we noted in  Somerville, it is possible to                                              __________          construct  a  justifiable, content-neutral  grandfather provision          that will advance the city's "dual objectives of eliminating most          billboards while  giving substantial protection to onsite signs,"          878 F.2d at  522.   A grandfather provision  could, for  example,          exclude  from  grandfathering all  signs  over  a certain  square                                        ____________________               15 The substitution provision does not cure the problem          because it does not affect eligibility for exemption.  As in                                     ___________          Somerville, a speaker's willingness to display noncommercial          messages in the future is insufficient to qualify that speaker's          signs for exemption; eligibility for future use is based on past                                                                      ____          speech.               Indeed, the substitution provision appears to lead to a          potentially bizarre operation of the sign ordinance.  It seems          that Ackerley could have protected its billboards by changing          them to onsite commercial messages before the ordinance went into          effect.  Although the onsite messages available for some of the          signs likely would be limited, creative possibilities -- such as          "No Trespassing" or "This Property Not for Sale" -- seem to          exist.  The substitution provision apparently would have allowed          Ackerley to revert to noncommercial messages the next day.  Such          a scheme strikes us as irrational.  In addition, First Amendment          values are inverted: Ackerley's signs would be protected if they          contained (onsite) commercial messages but not if they contained          (offsite) noncommercial ones.                                         -17-          footage on the  ground that the larger the  sign, the greater the          aesthetic  harm.16   Indeed, Cambridge's  own ordinance  includes          such a provision.                                   III. Conclusion                                        __________               The  Cambridge ordinance  contains a  severability provision          stating  that,  in  the event  some  portion  of  it is  declared          invalid,  it is  the  City's intent  that  the remainder  of  the          ordinance continue in full force  and effect.  We do not  in this          decision rule  unlawful any particular section  of the ordinance.          Rather,  because  the  constitutional  problem   stems  from  the          interplay  of the ordinance and the state provision, we hold only          that  Cambridge  may  not  require removal  of  signs  displaying          noncommercial  messages based  on their exclusion  from exemption          under the state provision.               Reversed and remanded.               ______________________                                        ____________________               16 "Such an ordinance would fall directly within the time,          place, or manner category of speech regulations, and would need          to meet the three-part test established for content-neutral          regulations. See Heffron v. International Society for Krishna                       ___ _______    _________________________________          Consciousness, Inc., 452 U.S. 640, 647-48, 101 S. Ct. 2559, 2563-          ___________________          64, 69 L.Ed.2d 298 (1981)."  City of Somerville, 878 F.2d at 522                                       __________________          n.15.                                         -18-
