Posted by: Patricia Salkin | November 18, 2012

9th Circuit Court of Appeals Holds Government May Regulate Billboard for TV Show as Commercial Speech

The city of Los Angeles enacted a sign ordinance regulating commercial speech far more extensively than it does non-commercial speech. Their ordinance required a building permit for all temporary signs other than those containing “a political, ideological, or other noncommercial message.”

Plaintiffs sought to install a temporary sign advertising the television program “E” news without obtaining the required permit. The content of the sign was to relate to motion pictures, theatrical productions, television and radio programming, music, books, newspapers, paintings, and other works of art. The plaintiffs argued that they were exempt from the sign ordinance’s permit requirements because it was to display a noncommercial message. The city deemed the sign “strictly commercial in nature” and notified the plaintiffs that installing the proposed sign would violate several provisions of the sign ordinance. The plaintiffs believed that the city would enforce the ordinance against them, and instead of installing it, they sued the city in federal district court claiming that the city’s decision to classify their sign as commercial speech violated the First Amendment and equal protection rights. They also sought a temporary restraining order barring the city from taking any action against them for posting the sign, or any other signs related to expressive works. The district court granted judgment for the city and denied the temporary restraining order.

The Ninth Circuit Court of Appeals considered whether truthful advertisements for expressive works protected by the First Amendment are inherently noncommercial in nature. The court used the analysis of Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983), “strong support” that the speech should be characterized as commercial speech is found where the speech is an advertisement, the speech refers to a particular product, and the speaker has economic motivation.

The plaintiffs conceded that the sign was an advertisement referring to a particular cultural product and that they have an economic motivation in encouraging people to view the program advertised, and that advertisements for noncommercial expressive works technically propose a commercial transaction but said that such advertisements always go beyond a bare proposal for the commercial transaction, and also promote ideas, expression, and content contained in the works and thus are entitled to First Amendment protection.

The court recognized that certain advertisements may contain both an invitation to participate in a commercial transaction as well as some amount of noncommercial expression entitled to heightened First Amendment protection. If “nothing prevents the speaker from conveying, or the audience from hearing…noncommercial messages, and nothing in the nature of things requires them to be combined with commercial messages” then the government may permissibly restrict the commercial message regardless of its proximity to the noncommercial speech. Hunt v. City of Los Angeles, 638 F.3d 703, 715 (9th Cir. 2011).

Charles v. City of Los Angeles, No. 10-57028 (9th Cir. October 15, 2012)

The opinion can be accessed at: http://www.ca9.uscourts.gov/datastore/opinions/2012/10/15/10-57028.pdf

The abstract appears in the Illinois Municipal League Bulletin (10/30/2012) available at:  http://legal.iml.org/page.cfm?key=9536


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