In Metro Lights, LLC v. City of Los Angeles, (— F.3d —, C.A.9 (Cal.), Jan. 6, 2009), the United States Court of Appeals considered a constitutional challenge to a city ordinance that banned offsite advertising signs, primarily billboards, while the city itself was contracting for the sale of offsite advertising at city transit stops.
The court determined the ordinance did not violate the First Amendment’s right to free speech because it directly advanced legitimate government interests in traffic safety and esthetics, and it was narrowly tailored to achieve those ends; and that the city’s sale of advertising space on its own property did not conflict with the ordinance.
Facts
In 2001, the City of Los Angeles (“City”) entered into a contract called the Street Furniture Agreement (“SFA”) with Viacom Decaux LLC, which would later be known as CBS-Decaux LLC (“CBS”). Under the terms of the SFA, CBS agreed to install new public facilities at City transportation stations, and make payments to the City, in exchange for the right to sell advertising space on those facilities, such as bus shelters and benches. In 2002, the City adopted its Sign Ordinance (“Ordinance”), which prohibited offsite advertising signs defined as billboards that advertise a product or service that is sold in a different location from where the sign is located.
In 2003, Metro Lights LLC (“Metro”), which owns and operates outdoor signs in Los Angeles and other areas, received numerous citations from the City for violating the ordinance by installing new offsite signs. Metro sued the City in federal district court claiming the ordinance violated its First Amendment right of free speech and that the City’s SFA undermined the City’s grounds for enacting the ordinance. The district court granted summary judgment for Metro ruling that the City cannot prohibit a private party from exhibiting advertising messages on a street sign while authorizing a contractor to sell advertising on City facilities. However, the district court denied an award of damages to Metro. The City appealed the judgment invalidating its sign ordinance, and Metro appealed the denial of its damage claim.
Decision
Citing Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557 (1980), the court outlined the four-part test for assessing the constitutionality of a restriction on commercial speech: 1) the protection of the communication merits scrutiny if it is not misleading nor unlawful; 2) the state must assert a substantial interest to be achieved by the restriction; 3) the restriction must directly advance the state interest; and 4) it must not be more extensive than is necessary to serve that interest.
In this case, it was undisputed that the communication was neither misleading nor unlawful and the City’s interest in traffic safety and esthetics was a well-settled substantial public interest. Therefore, the third and fourth prongs merited analysis: whether the city’s restriction “directly advances” its interest, and whether it is narrowly tailored to its aim. The answer, the court said, could be found in Metromedia, Inc., v. City of San Diego, 453 U.S. 490 (1981), in which the court upheld a law that was challenged because it prohibited only offsite, but not onsite, signs. The city was free to determine what type of restrictions served its public aim, the court ruled in Metromedia, stating “the ordinance reflects a decision by the city that the former interest, but not the latter, is stronger than the city’s interests in traffic safety and esthetics.” The same is true in this case, the court found. As in Metromedia, the City here is free to determine that its interest in contracting for advertising sales at City facilities trumped its interest in safety and aesthetics while the interest in allowing private offsite advertising signs did not.
The court rejected Metro’s argument that the SFA undermined the City’s grounds for enacting its ordinance. In fact, even with the SFA, the ordinance had the desired effect of reducing the number of signs cluttering roads and restricting vision, thereby advancing the government’s legitimate public interest. Finally, the court found the ordinance to be narrowly tailored. Again quoting Metromedia, the court said, “If the city has a sufficient basis for believing that billboards are traffic hazards and are unattractive, then obviously the most direct and perhaps the only effective approach to solving the problems they create is to prohibit them.”
Having passed the four prongs of Central Hudson, the ordinance was therefore constitutional and the district court erred in finding otherwise. The judgment was reversed and remanded with instructions to dismiss.
Questions
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