Scylla or Charybdis: Navigating the Jurisprudence of Visual Clutter
This Note argues that passing close to Discovery Network is the safest route – municipalities can still drastically reduce visual clutter by regulating commercial speech alone without violating the First Amendment. Part I looks at the onsite/offsite distinction, a singularly popular method of sign regulation, and concludes that this distinction runs squarely afoul of Metromedia. Part II looks at the once-accepted alternative route – the commercial/noncommercial distinction – and argues that this distinction does not run afoul of Discovery Network. Rather, a close reading of Discovery Network permits the regulation of exclusively commercial billboards where, as typically, they outnumber noncommercial billboards. Part III acknowledges that other constitutional methods of regulation exist but suggests that the commercial/noncommercial distinction is superior for policy reasons. Specifically, jealous protection of commercial speech dilutes the protection afforded ideas. Part III concludes that the government has a responsibility to offset the dilution of the “marketplace of ideas” that results from excessive commercial speech.