Ninth Circuit Upholds Los Angeles Law on Billboard Placement
By SHERRI M. OKAMOTO, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday ruled that a Los Angeles city ordinance regulating the use and placement of billboards is constitutional and threw out a district court order enjoining enforcement of the law.
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 Center’s 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 Wide’s First Amendment claims.
She found that the city’s 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 city’s 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 City’s 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 City’s 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.
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 rationale—which was consistent with its asserted governmental interest—for 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 Council’s 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 Council’s exercise of legislative judgment in these circumstances.”
Judge Stephen Reinhardt and Senior Judge Stephen S. Trott joined Wardlaw in her decision.
The city was represented by Deputy City Attorneys Jeri L. Burge, Kenneth T. Fong, Tayo A. Popoola, and Michael J. Bostrom.
Rex S. Heinke, Michael C. Small, L. Rachel Helyar, Maria Ellinikos, and Christopher Blanchard of Akin, Gump, Strauss, Hauer & Feld LLP joined with Paul E. Fisher of the Law Offices of Paul E. Fisher to represent Word Wide. Gary S. Mobley of Case, Knowlson & Jordan LLP represented Sky Tag.
The cases are World Wide Rush, LLC v. City of Los Angeles, 08-56454, 08-56523, 09-55494; Sky Tag, Inc. v. City of Los Angeles, 09-55792; and Wilshire Center, LLC v. City of Los Angeles, 09-55791.
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