Posted by: Patricia Salkin | January 1, 2021

Ninth Circuit Holds California City’s Mobile Advertising Ban Content-Based, Subject to Strict Scrutiny

This post originally appeared on Otten Johnson’s the Rocky Mountain Sign Law Blog and is reposted with permission.

Simi Valley, California, like many cities, bans mobile advertising displays on public streets.  It also, however, exempts certain authorized vehicles from the general ban.  The district court considered that scheme a permissible content-neutral regulation of speech and dismissed plaintiff Bruce Boyer’s complaint challenging its constitutionality.

A mobile billboard roaming the streets. Source: Wikimedia Commons, SammySosaa

Last month, the Ninth Circuit reversed in a published opinion reasoning that Simi Valley’s authorized vehicle exemption amounted to a speaker-based—and in turn, content-based—regulation.  Following that conclusion, it returned the case to the district court for further proceedings to determine whether the provision could survive strict scrutiny.

The Ninth Circuit’s opinion is relatively light on facts, but we know this:  Simi Valley’s ordinance prohibits the parking or standing of “mobile billboard advertising display[s] on any public street, alley or public lands in the City.”  A “mobile billboard advertising display” is defined with respect to state law, and is “an advertising display that is attached to a mobile, nonmotorized vehicle, device, or bicycle, that carries, pulls, or transports a sign or billboard, and is for the primary purpose of advertising.”  Simi Valley’s general ban on these displays exempts emergency vehicles and vehicles used “for construction, repair or maintenance of public or private property.”  Mr. Boyer found himself on the receiving end of this ban and sued.

While the district court considered the ban content-neutral and its authorized-vehicle exception unremarkable, the Ninth Circuit took issue with that exception.  It agreed that the ban itself was content neutral.  The appeals court struggled, however, to identify how the speaker preference for authorized vehicles could be justified without reference to content, and the city failed to offer much of an argument.  The panel therefore concluded that the city had adopted the exception as a way to spread messages consistent with the city’s aims—a content-based decision.  What’s more, the court concluded that the messages on authorized vehicles were not (all) government speech because Simi Valley didn’t limit the ordinance’s exemption to governmental messages.  It’s not clear why the panel chose not to address the ordinance as a restriction on commercial speech given its application to “advertising.”

In the end, because it concluded the ordinance was content-based, and because the parties hadn’t presented arguments as to whether the ordinance could satisfy strict scrutiny, the Ninth Circuit remanded the case to the district court to explore that issue.

Boyer v. City of Simi Valley, 978 F.3d 618, 620 (9th Cir. 2020)


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