City’s Billboard Bans Do Not Violate Free Speech Rights
The Ninth Circuit Court of Appeals has issued a decision that clarifies the current state of the law in balancing a local government’s authority to regulate billboards with First Amendment protections. In World Wide Rush LLC v. City of Los Angeles, the Court held that the City of Los Angeles’ ban on freeway facing billboards does not violate freedom of speech rights where the ban advances the city’s substantial interests in safety and aesthetics. The Court also held that the City’s ban on supergraphics and off-site signs do not constitute unconstitutional prior restraints.
Plaintiffs challenged the City’s ban on freeway facing billboards which prohibited billboards located within 2,000 feet of and viewed primarily from a freeway or ramp, but permitted two exceptions to the general ban – 1) billboards were allowed for effective communication of event-related information for the Staples Center, a complex developed to eliminate blight and dangerous conditions in the downtown area, and 2) a few signs were permitted along Santa Monica Boulevard as part of a compromise to improve traffic flow and avoid takings liability. Recognizing the well established principle that restrictions on billboards advance cities’ substantial interests in aesthetics and safety, the Court of Appeal rejected the trial court’s determination that the ban was unconstitutionally underinclusive finding that exceptions actually advanced the City’s legitimate interests rather than undermining them.
Plaintiffs also challenged the City’s regulations that prohibited massive vinyl signs hung on building faces (known as “supergraphics”) as well as billboards displaying messages directing attention to a product not located on the same premises as the sign (known as “off-site signs”), unless such signs were specifically permitted pursuant to particular land use plans or approved development agreements. The trial court found the regulation to be an unconstitutional prior restraint on speech because the City Council could avoid the ban and approve a particular sign simply by adopting a specific plan or other legislative action. The Court of Appeal reversed, explaining that the exceptions to the ban were rooted in the City Council’s legislative discretion to enact laws and the prior restraint doctrine does not require a city to restrict its legislative functions. Curiously, plaintiff failed to challenge the supergraphic and off-site sign regulations under Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980), the seminal case setting forth a four part test for challenging the constitutionality of a restriction on commercial speech, so the court never reached the issue of the fit between the legislative goal and the means chosen to accomplish it.
This opinion provides guidance for municipalities seeking to craft or revise billboard regulations. It acknowledges that cities have substantial interests in regulating billboards and will be given significant latitude to craft solutions that meet the needs of their jurisdictions when the regulation is content neutral. However, courts will carefully examine exemptions to such regulations to ensure they do not discriminate against particular speech or vest officials with unbridled discretion.
For more information on World Wide Rush LLC v. City of Los Angeles or other First Amendment issues that may impact your community, please contact Deborah Fox at 800.464.3559.