Thursday, August 17, 2017
Ninth Circuit Upholds San Francisco Billboard Ordinance
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday reversed a First Amendment challenge to a San Francisco ordinance banning new commercial billboards, except those mounted on buildings relating to the businesses within the buildings, while exempting signs with noncommercial messages.
The challenge was brought by Contest Promotions, LLC, which rents advertising space from businesses and places third-party advertising signs in the spaces. It contended that the ordinance is rendered invalid by virtue of excluding noncommercial messages.
Yesterday’s decision affirms the dismissal of the action by Senior District Court Judge Susan Illston of the Northern District of California. Ninth Circuit Judge Susan P. Graber wrote the opinion.
Applying the United States Supreme Court’s four-step approach in Central Hudson Gas & Electric Corp. v. Public Service Commission, Graber quickly disposed of the first two inquiries. She said it was undisputed that the advertisements the plaintiff wants to post “concern lawful, non-misleading activity” and that San Francisco’s “asserted interests in safety and aesthetics…are substantial.”
The third step, she said, is to determine whether the restriction advances “the state interest involved” and the fourth is to gage whether the restriction is narrowly tailored to meet the objective.
‘No Connection’ Argued
Contest Promotions argued that the ordinance fails to meet the last two tests because the exemption of noncommercial signs has no connection to San Francisco’s concern for safety and aesthetics. Graber expressed disagreement.
She said the Planning Code explains “that, when the ordinance was adopted, the ‘increased size and number of general advertising signs’ in particular were ‘creating a public safety hazard,’ that such signs ‘contribute to blight and visual clutter as well as the commercialization of public spaces,’ ‘that there was a ‘proliferation’ of such signs in ‘open spaces all over the City,’ and that there was ‘currently an ample supply of general advertising signs within the City.’ ”
Graber added that it “is well established that a law need not deal perfectly and fully with an identified problem to survive” the level of scrutiny required for commercial speech.
The judge declared that the ordinance’s distinctions “between commercial and noncommercial speech directly advance Defendant’s substantial interests.” Adding:
“We find no constitutional infirmity in the ordinance’s failure to regulate every sign that it might have reached, had Defendant (or its voters) instead enacted another law that exhausted the full breadth of its legal authority.”
The case is Contest Promotions v. San Francisco, No. 17-15909.
Two Other Appeals
It was one of three appeals resolved yesterday in the ongoing dispute between Contest Promotions—which has nationwide operations—and the city/county.
In a memorandum—signed by Graber, Ninth Circuit Judge Michelle T. Friedland, and District Judge Consuelo B. Marshall of the Central District of California, sitting by designation— it affirmed, in Case No. 15-16682, a dismissal by Illston of an earlier action by Contest Promotions.
There, it argued that the ordinance is unconstitutionally vague and violates equal protection and substantive due process.
The judges responded to the vagueness contention by saying: “[B]ecause Plaintiff’s conduct is ‘clearly proscribed’ by the challenged regulation, no vagueness challenge is available.”
With respect to equal protection, they said:
“To the extent that Plaintiff advanced a ‘selective prosecution’ claim in the operative complaint, that claim was abandoned on appeal….And to the extent that Plaintiff advances a ‘class of one’ claim, it fails on its merits….The ordinance that Plaintiff challenges applies to all, and Plaintiff does not argue otherwise.”
(At oral argument, Graber told Contest Promotions’ lawyer, Michael Wright, that the contention was akin to a child coming home and saying, “I took candies from the store, but all of my friends are doing it, too.)
Addressing the substantive due process claim, the memorandum says:
“Defendant has legitimate interests in safety and aesthetics….The ordinance bears a rational relationship to those interests.”
In Case No. 17-15213, the court dismissed as moot the denial of a preliminary injunction.
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