Wednesday, January 7, 2009
Court: Los Angeles’ Billboard Advertising Ban Constitutional
By SHERRI M. OKAMOTO, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday upheld the constitutionality of a Los Angeles municipal ordinance curbing the use of commercial billboards within the city.
Holding that the city could prohibit off-site advertising while simultaneously contracting with a private party to permit sale of such advertising at city-owned transit stops without running afoul of the First Amendment, the panel reversed the district court’s grant of partial summary judgment in favor of an outdoor advertising company with directions to dismiss Metro Lights LLC’s claim.
In December 2001, the city entered into a contract with Viacom Decaux LLC, which later became CBS-Decaux LLC, under which CBS could install public facilities at city-owned transit stops in exchange for exclusive advertising rights on those facilities.
Five months later, due to the city’s concern with aesthetics and traffic safety, the city enacted an ordinance generally banning “off-site advertising,” which included common billboards and glass-encased posters affixed to buildings, but exempted “work located primarily in a public way,” such as the city’s estimated 18,500 public transit shelters and facilities.
The city subsequently issued numerous citations to Metro Lights, which owned and operated several outdoor signs within the city, for violating the ordinance by installing new off-site advertising signs.
Metro Lights filed suit alleging that the ordinance violated the First Amendment and sought a preliminary injunction to prevent the city from enforcing the ordinance as to 20 specified signs.
U.S. District Judge Gary A. Feess of the Central District of California granted Metro Lights’ motion for partial summary judgment, finding “[t]he City cannot, on the one hand, preclude Plaintiff from displaying messages on its off-site signs as a supposed legitimate exercise of its police powers while, on the other hand, authorizing its Street Furniture contractor to erect off-site signs in or near the public rights of way throughout the City of Los Angeles.”
Writing for the appellate court, Judge Diarmuid F. O’Scannlain explained that a regulations are unconstitutionally under inclusive if they bar one source of a given harm while exempting another if the exception undermines the interest the government claimed to be furthering, or if there is no logical connection between the interest advanced and the exceptions made.
Citing Metromedia, Inc. v. City of San Diego, 453 U.S. 490, which involved a virtually identical San Diego ordinance subjected to a similar constitutional challenge was controlling, O’Scannlain concluded that the Los Angeles ordinance was not at odds with the city’s stated purpose in enacting the law.
The ordinance “arrests the uncontrolled proliferation of signage and thereby goes a long way toward cleaning up the clutter, which the City believed to be a worth legislative goal,” the jurist noted.
In enacting the ordinance, O’Scannlain reasoned, the city chose to value one kind of commercial speech over another, and such legislative judgment was entitled to deference.
Also, the ordinance allowed the city to supervise a more concentrated supply of off-site advertising, which plausibly contributed to the city’s stated interests, O’Scannlain wrote.
If San Diego’s complete ban on off-site advertising was sufficiently narrowly tailored to survive a constitutional challenge in Metromedia, O’Scannlain concluded, Los Angeles’ partial ban was sufficiently tailored as well.
Judges David R. Thompson and Richard C. Tallman joined O’Scannlain in his opinion.
Deputy City Attorney Kenneth T. Fong argued for the city.
Harvard University law professor Laurence H. Tribe argued on behalf of Metro Lights. Also representing Metro Lights were Santa Ana attorney Paul E. Fisher along with Eric V. Rowen, Scott D. Bertzyk, and Karin L. Bohmhold of Greenberg Traurig LLP.
The case is Metro Lights, L.L.C. v. City of Los Angeles, 07-55179.
Copyright 2009, Metropolitan News Company