In Showing Animals Respect and Kindness v. City of West Hollywood, (— Cal.Rptr.3d —, 2008 WL 4182394, Cal.App. 2 Dist., September 9, 2008), a California Court of Appeal considered a challenge to a city’s ordinance banning mobile billboard advertising, which involves a vehicle traveling about with the primary purpose of displaying or delivering a message. The court ruled that because the ban was content-neutral, served a significant government interest, was narrowly tailored, and left available alternate channels for conveying the message, it was constitutional.
Facts
The City of West Hollywood (“City”) has an ordinance that bans mobile billboard advertising. It defines mobile billboard advertising as “any vehicle, or wheeled conveyance which carries, conveys, pulls, or transports any sign or billboard for the primary purpose of advertising.” It exempts messages on vehicles engaged in the usual business or work of the owner, and not used primarily to convey advertising. It also exempts buses and taxicabs.
Showing Animals Respect and Kindness (“SHARK”) is an organization that protests activities that cause animals to suffer or die, specifically bull fighting. SHARK members mounted large video screens and speakers on a truck and then drove the truck through West Hollywood showing images and broadcasting sounds of animals being injured or killed by humans. A City code enforcement officer cited SHARK for violating the City ordinance banning mobile billboard advertising. SHARK appealed the citation at an administrative hearing. The hearing officer sustained the citation and the $1,050 fine against SHARK.
SHARK sued the City claiming the ordinance violated its constitutional right to free speech. The trial court found the ordinance constitutional and granted summary judgment for the City. SHARK appealed.
Decision
The court first rejected SHARK’s contention that the ordinance was not content-neutral because it permitted commercial advertising on vehicles engaged in work or business but banned non-commercial advertising such as SHARK’s message. The ordinance applied equally to any vehicle, commercial or otherwise, the court found, used for the primary purpose of advertising. If a business had driven a vehicle through the City primarily to advertise itself, the ordinance would apply to it in the same manner it applied to SHARK, the court said. The ordinance was therefore content-neutral.
Secondly, the City clearly enacted the ordinance to serve legitimate government purposes: to improve traffic safety, reduce air pollution, and improve the aesthetic appearance of the City. The ordinance was also narrowly tailored to serve the specific purpose of removing from City streets vehicles with no real purpose other than advertising, the court found.
Finally, the ordinance left open many other channels for SHARK to convey its message, such as advertising on buses or taxis, flyers, mailings, newspaper ads, speeches, and the internet, the court said. The fact that the truck may have been more effective and economical than those other means is irrelevant. “The First Amendment does not guarantee an individual the most effective means of communication, only the means to communicate effectively,” the court noted, quoting City Council v. Taxpayers for Vincent (1984) 466 U.S. 812.
The trial court’s ruling finding the ordinance constitutional was affirmed.