
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT          No. 97-1127                   ACKERLEY COMMUNICATIONS OF MASSACHUSETTS, INC.,                                Plaintiff, Appellant,                                          v.                     CITY OF CAMBRIDGE AND ROBERT BERSANI, ETC.,                                Defendants, Appellees.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                                                                      ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                       Godbold* and Cyr, Senior Circuit Judges.                                         _____________________                                                                                      ____________________               Charles  Rothfeld,  with  whom Andrew  L.  Frey,  Kenneth S.               _________________              ________________   __________          Geller, Mayer, Brown & Platt, George A. Berman, Joseph S. Berman,          ______  ____________________  ________________  ________________          Posternak, Blankstein  & Lund, Eric  M. Rubin, Walter  E. Diercks          _____________________________  ______________  __________________          and Rubin,  Winston, Diercks,  Harris & Cooke  were on  brief for              _________________________________________          appellant.               Peter L. Koff,  with whom McGowan, Engel,  Tucker, Garrett &               _____________             __________________________________          Schultz, P.A.,  Arthur  J. Goldberg  and  City of  Cambridge  Law          _____________   ___________________       _______________________          Department were on brief for appellees.          __________                                                                                      ____________________                                   February 5, 1998                                                                                      ____________________                                        ____________________               *Of the Eleventh Circuit, sitting by designation.                    CYR, Senior  Circuit Judge.   In an earlier  opinion we                    CYR, Senior  Circuit Judge.                            _____________________          held that the City of  Cambridge had violated the First Amendment          rights  of Ackerley  Communications  of  Massachusetts, Inc.,  by          requiring it to remove various signs which failed to conform with          a  recently enacted  zoning provision  aimed  at controlling  the          proliferation  of  aesthetically  offensive  signage.    Ackerley                                                                   ________          Communications of  Mass., Inc. v.  City of Cambridge, 88  F.3d 33          ______________________________     _________________          (1st Cir.  1996) ("Ackerley I").   Ackerley now appeals  from the                             __________          judgment entered following our remand, claiming that the district          court erred by refusing to void the offending zoning provision in          its entirety.   We vacate the district court  judgment and remand          with directions to enter judgment for Ackerley.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    Ackerley  owns  forty-six  large  advertising signs  or          billboards, located throughout  Cambridge, which carry "off-site"          messages,  by which  we mean  signs whose  content relates  to no          commercial or noncommercial  activity occurring  at the  premises          where  the sign is  located.1  The City  amended its ordinance in                                        ____________________               1We cannot improve  upon an earlier explication of  the off-          site/on-site distinction:                          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                                          2          1991 to  require removal of  all signs meeting  certain objective                           _______          criteria  relating to  dimension and  location.   See  Cambridge,                                                            ___          Mass., Ordinance 1123,   7.18.1 (June 10, 1991).                    Under  the  amended  criteria, all  forty-six  Ackerley          signs carrying  off-site messages were  to be removed,  since the                          ________          ordinance  contained no  "grandfather"  provision.   The relevant          legal environment  is further  complicated  by the  Massachusetts          Zoning  Enabling  Act  ("MZEA"),  however,  which  prohibits  any          municipal  zoning  ordinance  provision  purporting  to  regulate          existing on-site  signage; that is,  any sign carrying  a message                   _______          relating to a  commercial or noncommercial activity  occurring at          the premises where the sign is located.  See Mass. Gen. Laws Ann.                                                   ___          ch. 40A,   6 (1995).                                        ____________________                    sign may  be deemed either commercial or non-                    commercial.   An  offsite sign--the  category                    into  which  most billboards  fit--carries  a                    message unrelated to its particular location.                    These signs  also may display  either commer-                    cial 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 dis-                    tinction 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  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.          Ackerley Communications of Mass., Inc. v. City of Somerville, 878          ______________________________________    __________________          F.2d 513, 513 n.1 (1st Cir. 1989) (Coffin, J.).                                          3                                          4                    The City  Council which  enacted section 7.18.1  under-          stood from the start that its  effort to curb visual blight would          be thwarted, at least in part, by the MZEA.  Be that as it might,          the City Council  considered off-site signs, such  as Ackerley's,          the  greater aesthetic intrusion,  see Ordinance    7.11.1(F), in                                             ___          the sense that on-site signs at least serve a significant practi-          cal purpose by  assisting consumers to locate a  particular busi-          ness  establishment  or  product ("Joe's  Hardware"),  see  id.                                                                   ___  ___          7.11.1(G).  Accordingly, and since  as a general matter the First          Amendment does  not prefer  commercial speech  over noncommercial          (e.g., political) speech, the Ordinance included a "substitution"           ____          provision  permitting the owner of a "grandfathered" on-site sign          to  substitute a noncommercial message for the commercial message          previously displayed by its on-site sign (e.g., "Smith for Mayor"                                                    ____          replaces "Joe's Hardware").  See id.   7.17.  Finally, it includ-                                       ___ ___          ed  a "severability" clause  saving all "parts"  of the Ordinance          not specifically held invalid.  See id.   7.30.                                          ___ ___                    Until the Ordinance  was amended,  most off-site  signs          owned by Ackerley carried commercial messages, such as advertise-          ments and  promotions concerning "for-profit"  business ventures.          Following its amendment,  however, Ackerley's signs  have carried          only noncommercial  messages, such as election advertisements and          public service announcements.  Ultimately, since the MZEA "grand-          father" provision  does not  cover existing  off-site signs,  the          City directed  Ackerley to  remove all its  signs based  on their          nonconforming physical characteristics, see Ordinance   7.18.1.                                                  ___                                          5                    Ackerley  responded  by  filing the  present  action in          federal district court,  seeking a judicial declaration  that the          Ordinance    on  its face and  as applied    infringed  its First          Amendment  right to  free speech.    At the  same time,  Ackerley          demanded injunctive  relief from the  City order directing  it to          dismantle its signs.                    On appeal  we vacated  the  provisional district  court          ruling  declaring Ordinance   7.18.1 constitutional.  Ackerley I,                                                                __________          88 F.3d at 40.   First, we held that the  Ordinance and the MZEA,          operating in tandem,  distinguished between two types  of noncom-          mercial  speech     on-site  and off-site      (i) by  permitting          nonprofit institutions to display on-site, noncommercial messages          on nonconforming signs located on their own premises, and (ii) by          allowing  on-site sign  owners  to  convert  from  commercial  to          noncommercial messages, while denying off-site sign owners either          option.   We  noted that  noncommercial  speech     for  example,          political discourse     is  accorded the  highest level  of First          Amendment  protection, yet the  distinction adopted by  the Ordi-          nance     though predicated  on no  aesthetic difference  in sign          appearance  (e.g.,  size)      plainly  imposed  unconstitutional                       ____          restrictions upon the  off-site noncommercial speech of  the sign          owner, by countenancing only those political messages espoused by          the owner  or occupant  of the  site where the  sign is  located,          while excluding other political views, such as those held by non-          landowners.  Thus,  we concluded, even though the  City might ban          all noncommercial messages from aesthetically intrusive signs, it                                          6          cannot prefer one  particular category of political  speaker over          another.  Id. at 37-38.2                    ___                    Furthermore,  because the  Ordinance and  the MZEA,  in          tandem,  either  allowed  or denied  "grandfathering"  protection          based  on whether  the sign  carried  an on-site  or an  off-site          message on the date the  Ordinance was enacted, we concluded that          the City had  chilled present speech impermissibly by  relying on          message content to reward on-site speakers for their past speech,          while penalizing off-site  speakers for their past speech.    Id.                                                                        ___          at 38-39 (citing  Ackerley Communications of Mass.,  Inc. v. City                            _______________________________________    ____          of Somerville, 878 F.2d 513, 519 (1st Cir. 1989)).           _____________                    In a separate  discussion captioned "Remedial  Option,"          we went  on to note that the City  could not correct these uncon-          stitutional  effects  unilaterally  simply  by  eliminating   the          "grandfathering" distinction between on-site  and off-site signs.          See  id. at  39-40.    Instead, since  it  was the  Commonwealth,          ___  ___          through  the  MZEA, rather  than  the  City through  Ordinance             7.18.1,  which  established the  distinction between  on-site and          off-site  signs, we stated  that "[r]elief   . . .  is beyond the          scope of  this court's power  in this case[,]"  id. at 39,  since                                                          ___          amendments  to the  MZEA "must  be left  to the  workings of  the          political process."  Id.  Accordingly, we concluded:                               ___                    The Cambridge ordinance contains a severabil-                    ity provision stating that, in the event some                                        ____________________               2Our  reliance on these grounds avoided any need to consider          whether the MZEA "grandfathering" distinction between on-site and          off-site  signs amounted to  a "content-based" speech restriction          subject to strict-scrutiny review.  See id. at 37 & n.7.                                              ___ ___                                          7                    portion  of it is declared invalid, it is the                    City's intent that the remainder of the ordi-                    nance  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  non-                    commercial messages based  on their exclusion                    from  exemption  under the  state  provision.                    Reversed and Remanded.                    _____________________          Id. at 40.          ___                    On  remand, Ackerley  requested a  judicial declaration          determining section 7.18.1  invalid in its entirety,  which would                                                     ________          mean that the  City could not order  the removal of any  off-site          sign,   whether  it  carried  a  noncommercial  message,  as  did          Ackerley's, or  a commercial  message.   The City  responded that          Ackerley I conclusively  ruled out any such  wholesale rescission          __________          of Ordinance   7.18.1.  See id. ("We do not in this decision rule                                  ___ ___          unlawful any  particular section of  the ordinance.").   The dis-          trict  court  ultimately  granted   Ackerley  declaratory  relief          "consistent with the decision [in  Ackerley I]" and enjoined  the                                             __________          City from requiring  Ackerley to remove signs  displaying noncom-          mercial messages.                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.   Law of the Case          A.   Law of the Case               _______________                    First,  the City contends  that the district  court was          powerless to  declare section 7.18.1  invalid in its  entirety on          remand since Ackerley I expressly  stated that we were not ruling                       __________          "unlawful any particular section of the ordinance."   Ackerley I,                                                                __________                                          8          88 F.3d at 40.  In other words, the City proposes to construe the          quoted statement  from Ackerley I  as a binding  pronouncement                                    __________          the "law of the case"    that the unconstitutional effects of the          MZEA "grandfathering" provision  cannot be redressed through  the          judicial  process, and, therefore, that the only relief available          to Ackerley in the present litigation would be an order enjoining          any application of section 7.18.1 to its noncommercial signs.                    We  begin our  analysis with  a review  of the  unusual          procedural posture in Ackerley I.  The Ackerley complaint  sought                                __________          a judicial  declaration that section  7.18.1, on its face  and as          applied, contravened  the First Amendment,  as well as  the Fifth          Amendment  "takings"  clause.    Ackerley  requested  preliminary          injunctive relief only in relation to its  First Amendment claim.          The  district  court  thereafter  denied  preliminary  injunctive          relief, however,  based on  its determination  that Ackerley  had          shown no "likelihood of success" on its First Amendment claim.                    As both parties acknowledged  that no factfinding would          be required to resolve the purely legal issues controlling  their          First Amendment dispute,  at their express request  we decided to          bypass  the  provisional likelihood-of-success  inquiry  normally          undertaken  in interlocutory appeals from orders denying prelimi-          nary  injunctive  relief,  and instead  to  resolve  those issues          finally.  See  Ackerley I, 88 F.3d at 35.  Accordingly, and since                    ___  __________          neither party  had sought a  final determination as to  all other          issues which would  have had to be decided  before final judgment          could be  entered, nor even  briefed the question  regarding what                                          9          remedies might be  available to Ackerley once it  had been deter-          mined that the  City had violated the First  Amendment, we framed          our  inquiry narrowly:   "The  issue  we must  decide is  whether                                    ___  _____          Cambridge may enforce its sign  ordinance to require Ackerley  to          remove its billboards."   Id.  at 36  n.6 (emphasis  added).   We                                    ___          responded in the negative.                    Although we found neither the MZEA nor the Ordinance to          be unconstitutional in isolation, we held that their operation in          tandem  (i)  violated  the First  Amendment  by  favoring on-site          noncommercial speech over off-site  noncommercial speech and (ii)          penalized off-site  speakers based on  the content of  their past          speech.  Id. at 37-39.                   ___                    Importantly, our Section II.D discussion in Ackerley  I                                                                ___________          is captioned "Remedial Option,"  not "Remedial Options."  Id.  at                                 ______                  _______    ___          39.  Moreover,  its context makes clear that  the Remedial Option                                                            _______________          discussion  did not purport to treat with all judicial "remedies"          available upon entry  of final judgment, but with  the more prag-          matic and immediate concern as  to how the First Amendment infir-          mity  might be  avoided, either  unilaterally by  the City  or by                          _______          ____________          "construct[ing]  a  justifiable,  content-neutral  grandfathering          provision"  in cooperation with the  Commonwealth.  Id. at 39-40.                                                              ___          Finally, we  went on to  point out the awkward  legal position in          which the City Council had been placed, in that though it unques-          tionably  possessed a  legitimate interest  in curbing  unsightly          signage, the Commonwealth of Massachusetts alone had the power to          provide a unilateral  legislative remedy for the  First Amendment                                ___________                                          10          infirmity by  eliminating the discrepant  "grandfathering" treat-          ment accorded on-site and off-site  signs.  Thus, nothing we said          in Section II.D  remotely suggested that recourse to the legisla-          tive process was the only avenue open to Ackerley.3                               ____                    We repair once again to Ackerley I, where we prominent-                                            __________          ly noted that the Ordinance contained a severability clause.  The          very next  sentence stated:   "We  do not  in this decision  rule          unlawful  any particular  section of  the ordinance."   Were  the          quoted sentence to mean, as  the City implicitly insists, that no          Ordinance  provision could be  determined invalid on  remand, our                                                            __  ______          express reference to the severability clause    in the immediate-          ly preceding sentence    would be rendered meaningless.                    Instead, the  contextual focus in  the quoted  sentence          from Ackerley I was  upon the word "particular," whose  inclusion               __________          was  a  clear  acknowledgement that  the  forthcoming factfinding          inquiry on remand could lead the district  court to strike one or                                        ____________________               3The contrary interpretation  proposed by the  City presumes          that  the thrust  of our  discussion  in Section  II.D is  fairly          reflected in  the following line  of reasoning:  The  MZEA causes          the  unconstitutional effects; the  court is powerless  to strike          down  the  MZEA; therefore,  the  Ordinance must  be  immune from          judicial invalidation in any part.               The City Council must take  Commonwealth law as it finds it;          the MZEA supersedes   7.18.1;  therefore, either the MZEA must be          modified through  "the workings of  the political process,"  or            7.18.1  must be declared  unconstitutional and void,  at least in          part.               Unless at least part of   7.18.1 was rendered invalid by the          MZEA, there can have  been no legal basis  whatever for the  dis-          trict court order enjoining  the City from directing  Ackerley to          remove  its noncommercial signs.  Finally,  if the district court          injunction,  implicitly  and  necessarily,  was predicated  on  a          partial invalidation of    7.18.1, then  the district court  must          necessarily  have  resolved  the  closely  related   severability          question as well.                                          11          more portions  of the  Ordinance, but not  all.   As severability          disputes  usually turn on  fact-intensive inquiries best  left to          the trial court  in the first instance, see  infra Section II.B,4                                                  ___  _____          and no  factfinding had  occurred at  the preliminary  injunction          stage  in Ackerley  I, we  accordingly  reemphasized the  limited                    ___________          nature of  our holding:   "we hold  only that  Cambridge may  not                                              ____                      ___          require  removal of signs displaying noncommercial messages based          on their  exclusion from  exemption under  the state  provision."          (Emphasis added.)  Thus, Ackerley  I made no pronouncement on the                                   ___________          law of the case with respect to the severability issue.5                                              ____________          B.   Severability          B.   Severability               ____________                    As the MZEA grandfathering provision was not amended in                                        ____________________               4See, e.g., Metromedia, Inc. v.  City of San Diego, 453 U.S.                ___  ____  ________________     _________________          490, 521  (1981) (holding  that zoning  ordinance violated  First          Amendment, but remanding to lower  court to determine if it might          "sustain  the ordinance  by  limiting  its  reach  to  commercial          speech,  assuming the  ordinance is  susceptible  to this  treat-          ment"), on remand, 649 P.2d  908 (Cal. 1982) (holding that uncon-                  __ ______          stitutional  provision could  not be  severed);  see also,  e.g.,                                                           ___ ____   ____          United States Dep't of the Treasury v. Fabe, 508 U.S. 491, 509-10          ___________________________________    ____          (1993)  (remanding   for  severability   determination);  Planned                                                                    _______          Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 901 (1992) (same);          ______________________    _____          FW/PBS, Inc. v. City of Dallas, 493 U.S.  215, 230 (1990) (same);          ____________    ______________          City  of Lakewood  v. Plain Dealer  Pub. Co.,  486 U.S.  750, 772          _________________     ______________________          (1988) (same).               5Lastly, the City  contends that Ackerley  itself understood          Ackerley I as a final  pronouncement on remedy since it requested          __________          attorney fees  on remand.   Its contention  is beside  the point.          Whether or not  Ackerley prevailed on the  severability question,          it  had  already  achieved "prevailing  party"  status  following          Ackerley I by vindicating its constitutional claim and gaining at          __________          least  the  right  to extraordinary  equitable  relief  (i.e., an                                                                   ____          injunction  against the  removal  of its  signs). See  Hensley v.                                                            ___  _______          Eckerhart,  461 U.S. 424, 433 (1983) (defining "prevailing party"          _________          as one  who "succeed[s]  on any  significant issue in  litigation          which achieves some of the benefit the part[y] sought in bringing          suit").                                           12          response to  Ackerley I,  the constitutional infirmity  persists.                       __________          Therefore,  permanent  injunctive  relief   may  not  be  granted          Ackerley without first  determining whether any, and if so which,          portion(s) of the Ordinance may be unlawful.  See, e.g., National                                                        ___  ____  ________          Adver. Co. v. Town of Babylon,  900 F.2d 551, 554 (2d Cir.  1990)          __________    _______________          (de facto effect  of such a targeted injunction  is "to sever the           __ _____          unconstitutional  portions of  the ordinances  and  to leave  the          remainder intact").  Since the district court did not address the          severability  issue  on remand,  the  case must  be  returned for          further proceedings, including  any essential factfinding, unless          we  can make the severability determination now, with confidence,          as a matter of law.                    The severability vel non of a state  statute or munici-                                     ___ ___          pal ordinance is  controlled by state  law.  See Leavitt  v. Jane                                                       ___ _______     ____          L., 116 S. Ct.  2068, 2069 (1997); Exxon Corp. v.  Hunt, 475 U.S.          __                                 ___________     ____          355,  376 (1986).   "'Where a statutory  provision is unconstitu-          tional, if it  is in its nature separable from the other parts of          the statute, so that they may well stand independently of it, and          if there is no such connection between the  valid and the invalid          parts that the [legislative body]  would not be expected to enact          the valid part without the other,  the statute will be held good,          except in that part which is in conflict with the Constitution.'"          Mayor of Boston v. Treasurer & Receiver Gen., 429 N.E.2d 691, 695          _______________    _________________________          (Mass. 1981)  (citation omitted).   On the other hand,  "[i]f the          court  is  unable to  know  whether  the  Legislature would  have          enacted a particular bill without the unconstitutional provision,                                          13          it will not sever the unconstitutional provision, but will strike          the entire statute."  Id.6                                  ___                    At  the very least, Ackerley  is entitled to a judicial          declaration  invalidating section 7.18.1  to the extent  it would          require removal of nonconforming off-site signs  carrying noncom-                                                                    _______          mercial messages.  The  severability issue thus devolves  into an          _______          impressionistic  inquiry into  whether section 7.18.1  would have          been enacted  had the  City Council known  that it  would require          only the removal of nonconforming off-site signs carrying commer-                                                                    _______          cial messages.  As we cannot divine with confidence what the City          ____          Council would have done, Mayor of Boston, 429 N.E.2d  at 695, the                                   _______________          case must  be remanded to  the district court with  directions to          enter a final judgment invalidating section 7.18.1 in its entire-          ty.  We explain.                    Severability clauses,  though probative  of legislative          intent, are not conclusive.  See, e.g., Reno v. ACLU, 117  S. Ct.                                       ___  ____  ____    ____          2329,  2351 n.49  (1997)  ("[A] severability  clause  is 'an  aid          merely;  not  an   inexorable  command.'")  (citation   omitted).          Although  Ordinance    7.30,  see  supra p.  4,  only applies  to                                        ___  _____          invalidated "parts" of the Ordinance, that term begs the question          in the present  context.  Section 7.18.1 was  neither drafted nor          enacted in  separate "parts"  which discretely banned  commercial          and  noncommercial off-site  signs,  either  of  which  might  be                                        ____________________               6Neither party contests the threshold severability  determi-          nation  that Ordinance    7.18.1,  which  applies exclusively  to          existing signs, is  readily severable from the  remaining "parts"          ________          of the Ordinance prospectively regulating the  aesthetic features          of future signs.                                          14          stricken independently of the other.  Neither section 7.18.1, nor          any  other "part"  of  the Ordinance,  alludes in  any  way to  a          substantive  distinction  between  commercial  and  noncommercial          messages.7  Nor  can such a substantive distinction  be read into          section 7.18.1, without in effect gratuitously  supplementing its          language  with  the  phrase "except  for  off-site  signs bearing          noncommercial  messages."   Therefore,  as  we  cannot  say  with          confidence that  the City  Council envisioned  section 7.18.1  as          anything but a unitary "part" of the Ordinance, the  severability          clause avails the City nothing.                    Furthermore, although at first blush it may appear that          settled principles of  federalism and separation of  powers would          counsel that  the explicit severability  presumption contained in          Ordinance    7.30 be given literal sway,  there is more here than          meets  the  eye.   The  severability  principles  controlling the          present decision  were intended  principally to  ensure that  the          courts,  state and federal,  not dissuade or  preempt legislative          bodies  from  debating  and  determining the  appropriate  public          policy in the first instance, within constitutional limits.  See,                                                                       ___          e.g.,  Reno, 117  S. Ct.  at 2351 n.49  ("'It would  certainly be          ____   ____          dangerous  if the  Legislature could  set a  net large  enough to          catch  all possible offenders and leave  it to the courts to step          inside and say who could rightfully be detained and who should be                                        ____________________               7Although Ordinance    7.17  allows on-site  sign owners  to          replace  their commercial  messages with  noncommercial messages,          this  provision is  merely permissive,  and  imposes no  policing                                                                   ________          burden on the  City whatsoever, since on-site  signs were allowed          without regard to their message content.                                          15          set at large.  This  would, to some extent, substitute  the judi-          cial  for the legislative department of the government.'") (cita-          tion omitted).    Thus,  proper respect  for  the  principles  of          federalism and separation  of powers counsels against  construing          section 7.30 as  a "cure all"  for the  severability ills in  the          present Ordinance.                     The  City further contends that the Council enacted the          Ordinance  to eliminate nonconforming signs to the maximum extent          allowed  by law,  and that severance  would prevent  Ackerley and          other sign owners from converting their off-site sign messages to          more lucrative commercial  messages, thereby  providing a  strong          financial  disincentive to maintaining such signs in the future.8          Be that  as  it might,  however, the  suggested distinction  also          would entail significant  administrative burdens and  expense for          the City, which  would be required  to police nonconforming  off-          site signs to  determine whether they carried only  the permitted          "noncommercial"  messages,  articulate   objective  criteria  for          making  the  often blurry  distinction  between  "commercial" and          "noncommercial" speech, and  provide sign owners with  a forum in          which  to address  their  challenges to,  and  appeals from,  any          adverse City determination that a particular message was "commer-          cial."  See Metromedia, Inc. v. City of San Diego, 649  P.2d 903,                  ___ ________________    _________________          908 (Cal. 1982) (rejecting "severability" claim on same ground).                                        ____________________               8Since no factfinding occurred on remand, however, the intu-          itive  premise advanced by the City finds no record support.  For          example,  the record  is devoid  of  evidence that  noncommercial          messages necessarily command less revenue.                                          16                    Moreover, nothing in the  Ordinance indicates that  the          Council ever considered that the City would need to police, hear,          or determine the commercial-noncommercial distinction in order to          implement its  chosen  aesthetic objectives.   Nor  has the  City          pointed to any  probative evidence of such  legislative consider-          ation  which might  be material  on remand.   Thus,  although the          blurriness of the commercial-noncommercial distinction itself may          not render  the amended  ordinance unconstitutional, courts  con-          fronted with severability questions clouded by serious uncertain-          ties  regarding whether  the  appropriate  legislative body  ever          considered the effect of a severability provision in the relevant          context, ought not be anxious to arrogate the legislative prerog-          ative inherent  in determining  the preferred  or more  efficient          means of  pursuing the particular goals chosen by the responsible          legislative body.9                      The  City  Council  may decide  to  adopt  less onerous          initiatives than the presumably burdensome and expensive adminis-                                        ____________________               9In a similar vein,  the City contends that Ackerley  waived          any entitlement to wholesale invalidation  of   7.18.1 by conced-          ing, during  the Ackerley I appeal, that  the City would have had                           __________          the authority to ban off-site commercial signs while allowing on-          site commercial signs.  See Ackerley I, 88 F.3d at 37 n.8 (citing                                  ___ __________          Metromedia, 453 U.S. at 512).   Far from noting any such "conces-          __________          sion" by Ackerley, however, we simply observed that Ackerley "did          not contest" the  point.  Id.    Because the City  had enacted no                                    ___          such  ordinance    i.e.,  one simply banning  off-site commercial                             ____          signs while allowing on-site  commercial signs    but had  chosen          to  ban  off-site  noncommercial signs  as  well,  Metromedia was                                                             __________          wholly  inapposite in  Ackerley's first  appeal.   Moreover,  for          purposes of the present appeal,  the threshold issue no longer is          whether the City has the  authority to enact an ordinance banning          off-site  commercial  signs  while  allowing  on-site  commercial          signs,  but whether  it  envisioned reverting  to  such a  regime          should its ban on off-site noncommercial signs be struck down.                                          17          trative procedures which would be required were we not to invali-          date section  7.18.1 in  toto.  For  example, it  might determine                               __  ____          that  the  municipality's  interests would  be  better  served by          attempting  to persuade the  state legislature to  approve a con-          tent-neutral grandfathering  provision based  exclusively on  the          physical  characteristics of  existing  signs, rather  than their          content.  See Ackerley I, 88 F.3d at 39-40.  Thus, we  think such                    ___ __________          important  policy decisions  are  for the  Council  in the  first          instance.                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    As the City points to no factual circumstance which, if          demonstrated on remand, would affect our severability  determina-          tion,  we  can  discern no  substantial  benefit  from  a further          remand.  Accordingly, the case  is remanded to the district court          for entry of  final judgment declaring section 7.18.1  invalid in                                                                         __          toto, and  enjoining the City  from requiring Ackerley  to remove          ____          signs pursuant  to section  7.18.1  as presently  written.10   So                                                                         So                                                                         __          ordered.          ordered.          _______                                        ____________________               10The  City further requests that we reconsider our holding,          in  Ackerley I,  that  application of  the Ordinance  to Ackerley              __________          would  be unconstitutional.   Such relief is  beyond our preroga-          tives.  See Williams v. Ashland Eng'g  Co., 45 F.3d 588, 592 (1st                  ___ ________    __________________          Cir. 1995) (noting generally that  First Circuit panels are bound          by prior panel decisions directly on point).                                          18
