PEOPLE OF THE CITY OF ROSEVILLE V EDWARD STROSS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE CITY OF ROSEVILLE,
UNPUBLISHED
February 21, 2008
Plaintiff-Appellee,
v
No. 271764
Macomb Circuit Court
LC No. 2005-000694-AR
EDWARD STROSS,
Defendant-Appellant.
Before: Murphy, P.J., and Smolenski and Schuette, JJ.
SCHUETTE, J. (dissenting).
I respectfully dissent from the majority opinion of my very distinguished colleagues,
Judges Murphy and Smolenski.
The majority holds that the City of Roseville (“Roseville”) sign variance restriction on
lettering, as applied, is an unconstitutional restraint on defendant’s First Amendment rights. I
disagree.
In order to determine whether the Roseville variance restrictions violate defendant’s First
Amendment rights, it must first be determined whether defendant’s mural constitutes commercial
or noncommercial speech. Commercial speech has been defined as “speech proposing a
commercial transaction” or “expression related solely to the economic interests of the speaker
and its audience.” Rubin v Coors Brewing Co, 514 US 476, 493; 115 S Ct 1585; 131 L Ed 2d
532 (1995) (internal quotation marks and citations omitted). The United States Supreme Court
has recognized that it may be difficult to determine whether speech is properly classified as
commercial or noncommercial. See Bolger v Youngs Drug Products Corp, 463 US 60, 66; 103 S
Ct 2875; 77 L Ed 2d 469 (1983). The Court has identified three relevant factors to be utilized
when determining whether speech is commercial: “(1) whether the speech in question is
concededly an advertisement; (2) whether it makes reference to a specific product; and (3)
whether it is motivated by economic interest.” US Olympic Committee v American Media, Inc,
156 F Supp 2d 1200, 1207 (D Colo, 2001), discussing Bolger, supra at 66-67.
Although the mural may not be an advertisement in the typical sense of that term, it is
located on the building in which defendant operates his art studio, bears his signature as the
artist, and serves to inform the public of his talent and artistic abilities. The mural itself is an
example of the product that defendant, an artist for hire, offers for sale. Moreover, the obvious
economic motivation for the mural is to draw attention to defendant’s talent in hope of attracting
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persons in need of an artist’s service. In addition, signage not located on the wall works in
association with the mural to promote defendant’s art studio and the sale of his work. Therefore,
I agree with the circuit court that the mural is properly characterized as commercial speech.
As noted in the majority opinion, the Central Hudson test is used when assessing the
constitutionality of commercial speech restrictions. The test has four prongs:
(1) Does the speech concern a lawful activity and is it not misleading, so that it
falls within the protections of the First Amendment, and (2) is the government’s
restriction justified by a substantial governmental interest? If those two questions
are answered “yes,” then we must go on to ask: (3) Does the regulation directly
advance the asserted governmental interest, and (4) is the regulation more
extensive than necessary to serve the governmental interest? [Rochester Hills v
Schultz, 459 Mich 486, 490-91; 592 NW2d 69 (1999), quoting Central Hudson
Gas & Electric Corp v Pub Service Comm of New York, 447 US 557, 566; 100 S
Ct 2343; 65 L Ed 2d 341 (1980) (internal citations omitted).]
The issue in this case concerns the fourth prong; whether the regulation is more extensive
than necessary to serve the governmental interest.
Defendant’s sign variance is a significant deviation from that permitted under the
ordinance. The circuit court noted that “the mural was prominently displayed at a major
intersection [and that the] location appeared to have been uniquely visible” (emphasis added).
Defendant’s mural is very large, apparently nearly eight times the 150-square-foot limit
permitted in Roseville’s ordinance. Given the mural’s size and its unique location at a major
intersection, a variance conditioned on “no lettering” is not too restrictive. The goals of traffic
safety and aesthetics are achieved, and the restriction on lettering is narrowly tailored to achieve
these objectives. Any lettering on a sign nearly eight times larger than that permitted by the
ordinance is necessarily disruptive to the safety pattern at that location.
I would affirm the trial court’s decision.
/s/ Bill Schuette
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