FREE SPEECH — The Ninth
U.S. Circuit Court of Appeals yesterday ruled that a Los Angeles city ordinance
regulating the use and placement of billboards and "super graphics" covering entire building walls is constitutional, and threw out
a district court order enjoining enforcement of the law, reports Sheri M.Okamoto for the Metropolitan News-Enterprise in Los Angeles.
Reversing a grant of
summary judgment in favor of World Wide Rush and other advertisers, the panel
concluded that Chief District Judge Audrey B. Collins of the Central District
of California erred in finding the regulations unconstitutionally
under-inclusive and an impermissible prior restraint on speech.
The ordinance
at issue prohibits billboards from being placed within 2,000 feet of and viewed
primarily from a freeway or an on-ramp/off-ramp, with exceptions for billboards
near the Staples Center and in a special use district created near 15th Street.
Although the stated purpose of the ordinance was to promote the public welfare
by provid[ing] reasonable protection to the visual environment and by
ensuring that billboards do not interfere with traffic safety or otherwise
endanger public safety, the city found that the nature of the Staples Centers
use, coupled with its location in the center of a highly urbanized area,
required billboards that could effectively communicate event-related
information.
As for the special use district, the city created this space to
allow the sign owners to relocate their billboards from the Santa Monica
Boulevard traffic corridor and avoid a government taking while also achieving a
net reduction of billboards within the city. Super Graphics Ban
The ordinance
also bans large-format signs projected onto or hung from building walls, known
as super graphics, as well as signs directing attention to a business or
product not located on the same premises as the sign itself.
However, there is
an exception for signs that are specifically permitted pursuant to a legally
adopted specific plan, supplemental use district or an approved development
agreement.
World Wide sued the city to enjoin enforcement of the billboard
ordinance, and Collins granted summary judgment on World Wides First Amendment
claims.
She found that the citys decisions to allow billboards at the Staples
Center and 15th Street undermined its stated interests in safety and aesthetics,
and that preserving even one freeway-facing sign was fatal to the freeway
ban.
Collins also determined that the city had set up a system that allows it
to eliminate speech based on content via the super graphic and off-site bans
since the ordinance provided no standards that could prevent the city from
enacting a specific plan in a certain area because it wished to approve
particular speech or a particular speaker.
The city appealed Collins order
enjoining enforcement of the billboard ordinance, which Judge Kim McLane
Wardlaw said was an abuse of discretion.
As a general matter, there is no
question that restrictions on billboards advance cities substantial interests
in aesthetics and safety, Wardlaw noted. She reasoned that the citys exceptions
to the freeway ban did not undermine Los Angeles interests in aesthetics and
safety because allowing billboards at the Staples Center was an important
element of a project to remove blight and dangerous conditions from downtown
Los Angeles and the creation of the 15th Street special use district was an
outgrowth of the Citys efforts to improve traffic flow, and thereby safety, on
Santa Monica Boulevard while also reducing the total number of billboards
within the city.
Ironically, the most significant denigration to the Citys
interests in traffic safety and aesthetics might result, not from allowing the
freeway facing billboards at the Staples Center and in the Fifteenth Street
SUD, but instead from strict adherence to the Freeway Facing Sign Ban, which
might have severely hampered, if not completely defeated, both projects, she
said. Convincing Rationale
Because the city reasonably determined that safer
and more attractive thoroughfares would result from renovations to Santa Monica
Boulevard and that the benefits of redeveloping the Staples Center Area
outweighed the harm of additional freeway facing billboards, Wardlaw concluded
that it had submitted a convincing rationalewhich was consistent with its
asserted governmental interestfor exempting some signs from its ban.
Turning
then to the super graphic and off-site sign bans, Wardlaw explained that the
prior restraint doctrine was inapplicable because the City Councils authority
to enact special plans, create special use districts, or enter into development
agreements which would allow it to create an exception to the bans derives
from its regular and well-recognized legislative power to regulate land use,
not from the billboard ordinance.
Since the city council had the authority to employ any of those land use
tools allowing it to create exceptions to the bans, Wardlaw concluded the First
Amendment is not implicated by the City Councils exercise of legislative
judgment in these circumstances.
Judge Stephen Reinhardt and Senior Judge Stephen
S. Trott joined Wardlaw in her decision.
