Some time ago we came reluctantly to the conclusion that there is some sort evil magic about eminent domain that causes otherwise intelligent and accomplished people to say silly things. Case in point: the ongoing University of Oregon billboard caper.
It seems that the University of Oregon has had a sign on its land for some time, that says “Made in Oregon” in large neon letters. We leave the explanation of what that is supposed to mean, to the locals, but it does seem to us that the message thus displayed would seem more appropriate to an industrial concern than a University (no smart-ass double entendres about making coeds, please). Anyway, it seems that the University too came to wonder how a “Made in Oregon” sign is appropriate for an institution of higher learning, and, sensibly enough, decided to change it to “University of Oregon.”
That sounds reasonable to us, but it only shows how little we know. The local NIMBYs went bananas. Why? We are not sure that we can explain, or even that their attitude is explainable, other than by invoking the observation that by these folks’ lights community stasis is the summum bonum — that greatest public good — and that changing anything that is there to anything they don’t approve of falls somewhere between a sin and a capital offense.
Ah, but this is America, isn’t it? At least it used to be the land where Freedom of Speech is sort of like a fundamentalist religion, and where a fellow can say anything he damn pleases, short of treason, defamation and sexual harassment, none of which appear to be implicated here. So given that standard, you’d think that the University of Oregon can say whatever it damn pleases on its billboard located on its land, and that what it says is none of the city’s business. Right? Wrong.
The city of Portland demanded that the “Made in Oregon” sign be left untouched. But when the university remained unpersuaded, the city threatened to use its power of eminent domain to acquire the sign and keep it as is. Just how that would constitute “public use” is obscure to your faithful servant, but hey man, our black-robed betters have decreed that anything that is “rationally related to the conceivable” is a public use, so this line of defense migh be problematic.
Ah, but here there was a special wrinkle in the form of the First Amendment. The city took the position that it would take the University’s billboard in order to use it to convey the message preferred by it rather than the one preferred by the university. Uh, oh, problem. Even Wild Bill Douglas allowed in his expansive opinion in Berman v. Parker, 348 U.S. 26 (1954) that though the municipal decision to take for what it deems to be public use, is “well nigh conclusive,” the owner has a good defense if an explicit constitutional provision stands in the way of condemnation. So it seems to us that the university would have a pretty good First Amendment defense to the city’s attempt to take that billboard in order to replace the University’s message with its own.
Alas, it looks like we won’t find out because the university and the city have reached a compromise — the university will keep the billboard, but will change its message to say “Oregon.”
Being a unrecostructed consitution lover, we think that this agreement is unenforceable as being againt public policy. There is no way known to us whereby a city can tell the university what to say or not to say on its own billboard. Though the splintered Supreme Court’s decision in Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981), was, in the words of Chief Justice Rehnquist, a doctrinal Tower of Babel (or of babble, if you want to be more accurate), it did establish the rule that a city may not dictate to a billboard owner what may or may not be said on it by way of a non-commercial message.
So what the university should do to strike a blow for the First Amendment and to show the city who’s who, is to erect a genuine Hollyood Angelyne billboard that has been cheering Los Angeles area motorists for lo these many years. Like this:
Now that’s what we call a billboard that strikes a blow for freedom of speech, that the students might actually appreciate.