As a consequence of an amendment in 2008, the California Outdoor Advertising Act bars offsite commercial advertising, but does not restrict non-commercial speech. The plaintiff, Maldonado, had a long-running dispute with the California Department of Transportation (Caltrans) over the use of a billboard on his property, adjacent to U.S. Highway 101, classified as “landscaped freeway.” In 1993, Maldonado applied to Caltrans for a permit to use his billboard for offsite advertising. Caltrans denied the application, as California’s Outdoor Advertising Act (COAA) barred property owners from using billboards along a landscaped freeway to advertise for offsite businesses. Because Maldonado continued using the billboard for offsite advertising despite numerous citations, Caltrans sued him in California state court for nuisance, and obtained an injunction that prohibited him from using the billboard for offsite advertising. Maldonado responded by challenging the validity of the COAA in federal court. The district court held (1) that the COAA unconstitutionally favored commercial speech over non-commercial speech because it permitted onsite commercial speech but barred onsite non-commercial speech, (2) enjoined enforcement against non-commercial speech on billboards where onsite advertising was allowed; and (3) ruled that the COAA, as amended by the injunction, was constitutional and granted summary judgment against Maldonado on his other claims. Maldonado appealed, arguing that the district court’s injunction was not an appropriate remedy for the statute’s unconstitutional preference for commercial speech; he also claimed that the state court injunction barring him from violating the COAA imposed a separate unconstitutional restraint on his First Amendment rights.
The Ninth Circuit affirmed, in part. It first addressed whether the amendment to the COAA mooted Maldonado’s claims, whether he had standing, and whether his claims about the criminal enforcement provisions were ripe. It held in favor of the plaintiff on all these issues. While the amendment “incorporate[d] the same solution to the constitutional problem that the district court implemented via the injunction, specifically carving out non-commercial speech from regulation,” Maldonado’s other claims (that the Act was overbroad and vague, and was enforced via unconstitutional prior restraints) were unaffected. Further, Maldonado appeared to be “locked in a continuing battle with the state over this billboard. The result is not hypothetical.” Turning to the merits, the court ruled that the distinction between commercial and noncommercial speech was not vague. The COAA was not a violation of the “suppression doctrine” (content-neutral limitations on speech that foreclose or nearly foreclose an entire medium of expression) because not all signs, or even nearly all signs, were banned – only off premises, commercial billboards. The content-neutral state court injunction barring the plaintiff from continuing to violate the COAA was not an unconstitutional prior restraint on speech: it did no more “than provide court-ordered compliance with the statute,” and barred Maldonado from engaging in conduct that was itself illegal. Lastly, the equal protection challenge to the grandfathering provision failed, as the law satisfied review on an intermediate level of scrutiny. The state’s interest was substantial – without the exemption, the state would have to pay just compensation to the billboard owners or risk losing the state’s full allotment of federal highway money.
Maldonado v. Kempton, 556 F.3d 1037 (9th Cir. 2/25/2009)
The opinion can be accessed at: http://www.ca9.uscourts.gov/datastore/opinions/2009/02/25/0615657.pdf
This abstract first appeared in IMLA News on March 11, 2009. See, www.imla.org
