Law Restricting Commercial Advertising On Freeway Billboard Signs Is Constitutional

In Maldonado v. Morales, (— F.3d —, C.A.9 (Cal.), Feb. 25, 2009), the United States Court of Appeals considered a challenge from the owner of a billboard sign to a law that bans off-site commercial advertising on billboards alongside landscaped freeways. The court ruled that because the law furthers the state’s interest in improving highway aesthetics and safety, and is no more burdensome than necessary to further that interest, it is constitutional.

Facts

Nano Maldonado owns a billboard on property alongside a stretch of U.S. Highway 101 in Redwood City that is classified by the California Department of Transportation (“Caltrans”) as a “landscaped freeway.” The California Outdoor Advertising Act (“COAA”) bars property owners from using billboards along a landscaped freeway for off-site commercial advertising. Maldonado sought a permit from Caltrans to use his billboard to advertise an off-site business. Caltrans denied the permit, citing COAA. When Maldonado posted off-site commercial advertising on his billboard anyway, Caltrans sought and obtained an injunction ordering Maldonado to cease the advertising.

Maldonado filed suit in federal district court charging that COAA violates the United States Constitution because it is overbroad and vague, is a prior restraint on speech, violates equal protection, and violates substantive due process. The district court initially ruled that COAA was unconstitutional because it imposed a greater restraint on non-commercial speech; however, that issue became moot when the Legislature amended the COAA in 2008 to bar only off-site commercial speech. Maldonado appealed.

Decision

The court first addressed whether COAA was overbroad and vague. The standard for unconstitutional vagueness is whether the statute “provides a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement,” the court said, citing United States v. Williams, U.S. 128 S.Ct. 1830 (2008). Settled law is that commercial/non-commercial and on-site/off-site distinctions are not unconstitutionally vague and therefore those distinctions in COAA did not render it unconstitutional.

Citing City of Ladue v. Gilleo, 512 U.S. 43 (1994), the court noted that an ordinance unconstitutionally restricts speech if it has the effect of “foreclosing or nearly foreclosing an entire medium of expression.” COAA, the court added, does not ban all signs or nearly all signs, but only off-site, commercial ads on billboards. Maldonado remained free to post any non-commercial or on-site advertising on his billboard, and as such, the ordinance did not violate his constitutional right of free speech, the court concluded.

In Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994), the Supreme Court held that the test of whether injunctions limiting speech are constitutional is “whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest.” California’s interest in improving aesthetics and safety along its highways is significant, the court said, and COAA burdens no more speech than necessary to further that interest.

Finally, the court dismissed Maldonado’s claim that COAA violated his equal protection rights because billboards that existed prior to the law’s enactment in 1967 were allowed “grandfather” exceptions. Because of the cost of compensating owners of grandfathered billboards to remove them, the state has a significant financial interest in granting them exemptions to remain. Since Maldonado’s billboard was never legally permitted, he is not similarly situated to the owners of grandfather billboards and his equal protection claim fails.

The district court ruling that COAA was constitutional was affirmed.

Questions

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