By Michael Wright (September 5, 2018, 1:49 PM EDT) -- The U.S. Supreme Court's 1981 decision in Metromedia Inc. v. City of San Diego[1] is acknowledged as the leading case on sign regulation.[2] Courts routinely cite the Metromedia plurality opinion as authority for deferential review of restrictions or outright bans on offsite commercial signs.[3] But Metromedia is an odd precedent. The court's fractured 4-2-3 decision produced no majority opinion, and nonmajority opinions are not binding.[4] Marks v. U.S.,[5] decided in 1977, is the Supreme Court's leading decision on how lower courts should extract precedent from such fractured decisions.[6] One therefore would expect that before following Metromedia as mandatory authority for 37 years,[7] courts would have validated its status as precedent under Marks. But surprisingly, only one federal appellate decision has applied Marks to Metromedia with respect to commercial signs, and it held Metromedia's "plurality dicta" not controlling.[8] Applied in light of recent case law and scholarship, Marks casts serious doubt on whether Metromedia is binding precedent. And if it is not binding, bans on off-site signs that are routinely upheld today will have to face an "unforgiving brand of intermediate scrutiny"[9] many may fail....