The Los Angeles Municipal Code prohibits some types of billboards and restricts size, placement and illumination of others. A ban on freeway facing signs prohibited billboards with in 2000 feet of a freeway and signs intended to be viewed primarily by motorists. Exceptions were made to allow these types of signs when doing so would promote the City’s goals of creating a safer city with less blight. A separate ban was implemented to prohibit supergraphic and offsite signs. Supergraphic signs are large-format signs projected onto or hung from building walls; Offsite signs display messages directing attention to a business or a product not located on the same premises as the sign itself. These signs are exempted from the ban when certain conditions are met, such as developing a “specific plan” to ensure that the use of the sign comports with the City’s general land use plan.
World Wide Rush, LLC (WWR), a billboard company, sued to prevent enforcement of the City’s Freeway Facing Sign Ban and the Supergraphic and Off-Site Sign Ban on grounds that the former was an unconstitutionally underinclusive restriction on commercial speech due to the City’s exceptions which allowed some signs in the restricted area. Further, they alleged that the latter was a facially unconstitutional prior restraint on speech because the City had “unbridled discretion to select among preferred speakers” due to a lack of “objective criteria for their application. The District Court enjoined the City from enforcing the ban. The City, however, then cited WWR for violations of other Code sections, leading WWR to complain to the district court that since the City was using other code sections as proxy to enforce the portions enjoined from enforcement it was constructively continuing to enforce the bans in violation of the court order. The district court agreed and held the City in contempt, requiring it to dismiss some of the citations issued in this manner.
Other billboard companies put up signs of the variety formerly banned, then sought court decisions similar to the one in WWR I to protect them from enforcement of the bans. To stop the proliferation of signs, the City enacted a moratorium on new supergraphic and off-site signs. The City also appealed the finding that the bans were unconstitutional and the decision to issue an injunction, the finding of civil contempt and a later injunction issued in favor of one of the other billboard companies, Sky Tag. WWR appealed the district court’s refusal to allow an amendment to their pleading after the time for amendment had twice expired.
The Ninth Circuit Court of Appeals applied the four-part Central Hudson test, noting that commercial speech will merit First Amendment review so long as it is not misleading or related to unlawful activity. If the speech can withstand this first requirement it will be reviewed on the three remaining criteria: 1) The state must claim that its restriction on speech achieves a substantial state interest; 2) The restriction must directly advance the state interest involved; and 3) the restriction on speech must not be more extensive than necessary to serve the asserted interest. The court noted that the City had a substantial interest in the safety and aesthetics of the City and that the regulation prohibiting freeway facing signs is one that directly advances the government interest involved.
The question requiring the deepest analysis by the court was whether the exceptions to the Freeway Facing Sign Ban served to allow uses in opposition to the City’s stated reasons for implementing the ban. If use by exception was found detrimental to safety and aesthetics of the area, then the law would be found to be underinclusive. However, the exact opposite was found, that the signs, as essential elements of projects aimed to revitalize downtown LA, promoted the elimination of blight and promoted safety. Since it was determined that the exceptions served to promote the City’s goals, rather than undermine them, the decision of the district court that the ban was unconstitutional was overturned.
Further, the Circuit Court said that the district court had erred in its determination that the Supergraphic and Offsite Signs ban was unconstitutional on the basis that the regulation was a prior restraint on commercial speech. The Court found that the district court failed to make a distinction between the legislative role of the City municipal boards and their ability to reserve executive decision making power. According the prior restraint doctrine, a law cannot condition the free exercise of First Amendment rights on the unbridled discretion of government officials. Regulations concerning licensing or permitting must contain narrow, objective and definite standards and the government official making the decision must be able to provide an explanation for his decision. The court noted that a finding of ‘unbridled discretion’ usually occurs when a single executive official is given decision making power and that such a finding is seldom when the decisions are made by a municipal board. But if a legislative body reserves some aspect of decision making authority for itself, it has entered the realm of more limited executive discretion and may be bound by the restrictions of prior restraint doctrine. The court found that a putting the bans in place was a legislative act, afforded broader discretion and not bound by the prior restraint doctrine of executive acts.
World Wide Rush, LLC v City of Los Angeles, 2010 WL 2089520 (C.A. 9 (Cal) 5/26/2010).
The opinion can be accessed at: http://www.ca9.uscourts.gov/datastore/opinions/2010/05/26/08-56454.pdf
