Tuesday, October 16, 2012
Billboard for TV Show Is Commercial Speech—Court
By a MetNews Staff Writer
An advertisement for an expressive activity, such as a television program, may be considered commercial speech with only limited First Amendment protection, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel affirmed a ruling by U.S. District Judge Audrey B. Collins of the Central District of California, who denied declaratory and injunctive relief to plaintiffs seeking to put up an offsite sign advertising the television show “E! News.” Wayne Charles and Fort Self Storage argued that because the program is an expressive work, they have a constitutional right to advertise it without complying with the city’s ordinance requiring a building permit to erect any such sign unless it contains “a political, ideological or other noncommercial message.”
The city contended that the proposed sign would be “strictly commercial.” Collins agreed, concluding that while the program is not commercial speech under First Amendment case law, a sign advertising it would not contain “even arguably noncommercial content.”
Judge Kim M. Wardlaw, writing for the Ninth Circuit, agreed.
The judge said it was “undisputed that the sign refers to a particular cultural product and that Appellants have an economic motivation in encouraging the public to view the program,” and is thus commercial speech under the test set out in Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983).
While a footnote in Bolger suggested an advertisement for an expressive activity may itself contain expressive content qualifying for heightened protection, Wardlaw reasoned, the plaintiffs’ sign does not qualify.
The jurist elaborated:
“Doctrines extending noncommercial status from a protected work to advertising for that work are justified only to the extent necessary to safeguard the ability to truthfully promote protected speech. As Appellants have not shown that applying the Sign Ordinance to advertisements for expressive works threatens the ability of speakers to publicize protected speech, we find no reason to extend the adjunct use exception to the context of billboard regulation. Significantly, the City does not seek to regulate the content of the underlying E! News program or to single out E! News advertisements in particular, but only to enforce broadly applicable guidelines that govern the placement of all commercial advertising.”
Too Much Deference
Wardlaw did find fault with one aspect of Collins’ reasoning, however, saying the district judge erred in saying that the city’s determination that the speech was purely commercial was entitled to deference.
“Because the judiciary has an essential role in safeguarding the First Amendment’s guarantees, we must note our disagreement with the district court’s view of the extent of deference owed City officials,” the appellate jurist explained. “We have explained that deference is due to a city’s legislative decisions addressing the spread of billboard advertising, as these decisions require the balancing of interests such as traffic safety, revenue, and aesthetics….We therefore defer to the City’s choices in creating broad legislative schemes addressing regulation of commercial speech; we have never urged similar deference to City officials’ evaluations as to the constitutional status of particular speech.”
Judges Richard A. Paez and Johnnie B. Rawlinson joined in the opinion.
Attorneys on appeal were Matthew C. Klase of Webb, Klase & Lemond, LLC in Atlanta for the plaintiffs and Deputy City Attorneys Kenneth T. Fong and Kim R. Westhoff for the defendant.
The case is Charles v. City of Los Angeles, 10-57028.
Copyright 2012, Metropolitan News Company