Monday, June 7, 2004
Ninth Circuit Will Review Ruling on Oregon Billboard Law
By DAVID WATSON, Staff Writer
An en banc panel of the Ninth U.S. Circuit Court of Appeals will review a ruling upholding the constitutionality of a billboard law similar to a Los Angeles ordinance, the court said Friday.
In a brief order, Chief Judge Mary M. Schroeder said a majority of the court’s active, nonrecused judges had voted to reconsider the December decision of a three-judge panel in Lombardo v. Warner, 02-35269. That 2-1 ruling said James Lombardo’s challenge to the Oregon law was foreclosed by the Ninth Circuit’s ruling last year in Clear Channel Outdoor Inc. v. City of Los Angeles, 340 F.3d 810.
Both Clear Channel and Lombardo involved regulatory schemes which distinguish between on-site signs, which relate to activities conducted on the premises where the sign is located, and off-site signs, which do not. Lombardo contended the Oregon law barred him from putting up a 36-foot square sign reading “For Peace in the Gulf” outside his home.
Since Lombardo was not doing anything in his home related to that message, the sign did not qualify for the exemption available for signs calling attention to on-site activities. Lombardo argued that the exemption effectively preferred commercial over non-commercial speech.
A district court judge dismissed the suit, and the three-judge panel affirmed.
Judge A. Wallace Tashima, writing for the majority, said Clear Channel was “controlling.”
“The primary argument raised by Lombardo is that the billboard law negatively affects noncommercial speech because fewer residents will be able to display signs that relate to activity conducted on the premises, whereas commercial establishments will be able to display their signs advertising their activity with relative ease. This argument fails under our precedent.”
Like the Los Angeles ordinance upheld in Clear Channel, the Oregon scheme was content-neutral since it distinguished between billboards based on location, not message, Tashima said.
“The key consideration is whether the sign relates to activity conducted on the premises,” the judge wrote. “Although commercial billboards may prevail under the [Oregon] legislative scheme, neutrality is nonetheless maintained because the regulation allows noncommercial messages on either onsite or offsite signs.”
Senior Judge Warren J. Ferguson concurred, but Senior Judge Betty B. Fletcher dissented, arguing the distinction in the statute between signs relating to activities conducted on the premises and other types of signs imposed “substantial restrictions on core protected speech.”
“James Lombardo could erect a 60-square-foot sign that says ‘Lombardo Lives Here,’ but he cannot erect a 60-square-foot sign that says ‘Vote Bush.’”
Speech regulation preferring commercial over political speech presumptively violates the First Amendment, Fletcher said, and “inverts” the hierarchy of constitutional speech protection.
The Oregon law “does not allow noncommercial speech wherever a commercial message would be permissible,” Fletcher said. “....The owner of an Oregon hardware store could not replace his ‘Buy Hammers Here’ sign with a ‘Lower Taxes!’ message unless he conducted some tax-related activity in his hardware store.”
The dissenting jurist said her colleagues were relying on “non-precedential dicta” in the Clear Channel decision.
“Because Clear Channel read an amendment to the Los Angeles ordinance at issue as having exempted noncommercial messages from any onsite/offsite distinction, Clear Channel’s analysis of whether such a distinction would be permissible under Metromedia[, Inc. v. City of San Diego, 453 U.S. 490 (1981)] was not necessary to the court’s holding,” she asserted.
The variance provision of the Oregon law was also constitutionally defective, Fletcher contended, since while the regulation adopted to implement it included “a non-comprehensive list of two factual situations that ‘may’ constitute good cause,” for a variance, it did not “set out any clear or definite standards.”
Copyright 2004, Metropolitan News Company