By Sandra Hong, Staff Writer
A city’s ban on mobile billboards that exempts those affixed to “authorized” emergency or construction-related vehicles is a form of a content-based restriction on free speech that must survive strict scrutiny review, the Ninth U.S. Circuit Court of Appeals held yesterday.
Whether the City of Simi Valley’s ordinance regulating the display of advertisements on public property meets that standard, a three-judge panel said, must be determined in the first instance, on remand, by the District Court.
The opinion by Judge Danielle J. Hunsaker reverses, in part, an order by District Court Judge Manuel L. Real of the Central District of California. Real (who died in July 2019) dismissed, without leave to amend, an action brought by resident Bruce Boyer challenging Simi Valley’s ordinance.
He found that the restrictions on mobile billboards were “content neutral” and narrowly tailored.
Circuit Judge Eric D. Miller and District Court Judge Douglas L. Rayes of the District of Arizona, sitting by designation, joined in Hunsaker’s opinion.
Hunsaker agreed with Real that the ordinance, on its face, does not expressly restrict a message based on content. But an exemption that distinguishes who is broadcasting the message does show a preference for certain types of speech, she determined.
“The question the parties disagree on—and the question we must answer—is whether allowing certain speakers to park mobile billboards on public property but not others reflects a content preference,” Hunsaker wrote, concluding:
“Boyer argues the Authorized Vehicle Exemption ‘is inescapably a content-based distinction.’ We agree.”
Boyer, whose bid to be put on the 2019 ballot for Ventura County sheriff was rejected for his lack of law enforcement experience, had set up campaign signs around the county on motorized and non-motorized vehicles, including trailers and bicycles.
His campaign signs included suggestions of a police cover-up in the wake of the November 2018 mass shooting at Borderline Bar and Grill in Thousand Oaks that resulted in the death of a sheriff’s deputy.
The city said Boyer’s signs violated Municipal Code §4-9.601 which makes it “unlawful for any person to park or leave standing a mobile billboard advertising display on any public street, alley or public lands in the City.”
An exemption at §4-9.701 provides such regulations “shall not apply to Authorized Emergency Vehicles while on duty or vehicles authorized by the City Engineer or such other City official as may be authorized by the City Manager for construction, repair or maintenance of public or private property.”
Boyer sued the city in state court in December 2018, arguing the ordinances violated his First Amendment right to freedom of speech and were preempted by California law. The city removed the case to federal court, then moved to dismiss under Federal Rules of Civil Procedure rule 12(b)(6), the federal analogue of a demurrer in state court.
District Court Ruling
In dismissing Boyer’s complaint, Real determined that Simi Valley’s ordinances were “nearly identical” to those dealt with in the 2016 Ninth Circuit case of Lone Star Sec. & Video, Inc. v. City of Los Angeles. There, it was found that such regulations were content neutral and not subject to strict scrutiny.
Real also dismissed Boyer’s state law claims, a part of his order that was affirmed by Hunsaker’s opinion.
Real concluded the exemption for authorized emergency or construction vehicles was not based on the city’s “preference” for a type of speech but an interest in maintaining public safety.
“The Ninth Circuit found in Lone Star that it is indisputable that a city’s ‘interests in traffic control, public safety, and aesthetics are sufficiently weight to justify content-neutral, time, place, or manner restrictions on speech,’ ” Real wrote.
Yet Hunsaker noted that unlike the mobile billboard ban in Lone Star, Simi Valley’s exemption of “authorized vehicles” had the effect of transforming a facially neutral ban into a content-based restriction.
“We struggle to identify a justification for allowing speech only from authorized emergency and construction, repair, or maintenance vehicles that does not rely on content, and the City offers none,” Hunsaker said.
The city cited municipal code §4-9.501 to explain the intent behind its mobile billboard ban. That section states the city’s parking regulations are “reasonable and necessary to protect the health, safety, and welfare of the citizens of the City.”
But Hunsaker said that justification imputes a preference for speakers likely to bear a message consistent with a purpose of promoting the health, safety, and welfare of city residents.
“This is a prudent preference, a reasonable rationale, and a content-based choice that triggers strict scrutiny,” Hunsaker observed.
She added no matter how “perfectly rational” a sign ordinance might be, it must conform to a strict rule of content neutrality to protect freedom of speech.
“That firm rule mandates strict scrutiny review whenever an ordinance allows some messages, but not others, based on content—no matter how sensible the distinction may be,” Hunsaker wrote.
Although neither Boyer nor the city raised the government speech doctrine—which permits a governmental entity to express its own view with no neutrality restriction—Hunsaker determined that it does not justify the city’s exemption, explaining:
“[W]here the Exemption allows authorized vehicles to display messages that are not subject to government control, we do not see how the Authorized Vehicle Exemption can avoid strict scrutiny based on the government speech doctrine.”
The opinion sets forth:
“As the parties have not briefed the strict scrutiny standard here or below, we decline to apply this standard in the first instance and instead instruct the district court on remand to consider Boyer’s claims consistent with this opinion.”
The case is Boyer v. City of Simi Valley, 19-55723.
Counsel for Boyer was George M. Wallace of Wallace Brown & Schwartz in Pasadena. Representing the city of Simi Valley were Danielle C. Foster and Jill Williams of Carpenter Rothans & Dumont in Los Angeles.
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