In World Wide Rush LLC v. City of Los Angeles, (— F.3d —-, C.A.9 (Cal.), May 26, 2010), the court of appeals considered whether a city’s ordinance banning billboards was unconstitutional as a result of the city creating certain exceptions to its ban in specific areas. The court ruled that because the exceptions did not undermine the city’s asserted interest in enacting the ban, and because the city’s inherent legislative authority allow it to create certain exceptions, the exceptions did not render the entire ordinance unconstitutional.
The City of Los Angeles (“City”) regulates the placement and appearance of signs for the purposes of protecting the visual environment, and enhancing traffic safety and public safety. Specifically, it bans freeway-facing billboards located within 2,000 feet of and viewed primarily from a freeway or an off-ramp. The City, has, however, carved out exceptions to this ban for an area near the Staples Center for purposes of eliminating blight and dangerous conditions, and also in an area it sought to renovate around a stretch of Santa Monica Boulevard.
The ordinance also bans supergraphic signs, large-format signs projected on or hung from building walls, and off-site billboards which advertise a business not located at the site of the sign itself. The City has excepted from this ban signs “specifically permitted pursuant to a legally adopted specific plan, supplemental use district or an approved development agreement.”
World Wide Rush (“WWR”), an outdoor advertising company, sued to enjoin enforcement of the freeway facing sign ban and the supergraphic and off-site bans. WWR contended that the exceptions to those bans amounted to an unconstitutional restriction on free speech on billboards not so excepted. The district court granted WWR summary judgment on its first amendment claims, and enjoined the City from enforcing its ordinance. When the City continued to enforce its ordinance, the district court held it in civil contempt. The City appealed.
Citing Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, (1980) 447 U.S. 557, the court outlined the four-part test for assessing the constitutionality of a restriction on commercial speech. First, if the communication is neither misleading nor related to unlawful activity, it meets a threshold for First Amendment scrutiny. To withstand that scrutiny, the state must assert a substantial interest to be achieved by the restriction, the restriction must directly advance the interest, and it must not be more extensive than necessary to serve the interest.
The court stated that it is long settled that restrictions on billboards meet the first prong of that test, as they advance the government’s interest in aesthetics and safety. The question is whether the City’s exceptions undermine and denigrate its own interest. Here, the court said, the City’s exception to the freeway facing sign ban at the Staples Center does not undermine its interests in aesthetics and safety because the exception was made for the express purpose of advancing those very interests, removing blight and dangerous conditions from that area. Similarly, the exception for the Santa Monica Boulevard area was also an outgrowth of the City’s effort to improve traffic flow and safety in that area. The City, the court found, offered a convincing rationale for these exceptions, which was entirely consistent with its asserted governmental interest.
The district court also erred, the court of appeal said, when it found the supergraphic and off-site bans to be unconstitutional prior restraint because they vested the City Council with unbridled discretion to allow or reject signs based on content. Quoting its decision in Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1042 (9th Cir. 2009), the court of appeal said such prior restraint exists “where a legislative body has enacted a permitting scheme for expressive conduct but has reserved some decisionmaking authority for itself under that scheme.” But here, the court said, “This is not that rare circumstance in which the legislative body has created a licensing power and reserved it for itself.” To the contrary, the City’s “well-recognized legislative power to regulate land use,” does not stem from the supergraphic and off-site sign bans, but stem from its inherent legislative authority.
The court therefore concluded that the district court erred when it found the Staples Center and Santa Monica Boulevard exemptions to the freeway facing sign ban unconstitutional, when it found the supergraphic and off-site sign bans unconstitutional prior restraints, and when it found the City in civil contempt. The grant of summary judgment to WWR was reversed, the injunction against enforcement of the ban was vacated, and the finding of the City in civil contempt was reversed.
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