Tuesday, January 15, 2002
Sign Ordinance Violates Free Speech Rights, Lawyer Tells Ninth Circuit
By KENNETH OFGANG, Staff Writer/Appellate Courts
A Los Angeles city ordinance restricting off-site advertising signage violates the First Amendment by allowing content-based suppression of free speech, an attorney for two billboard companies told a Ninth U.S. Circuit Court of Appeals panel yesterday.
The restrictions in Division 62 of the Municipal Code, Newport Beach lawyer Paul E. Fisher told the panel, constitute an “impermissible permitting scheme” because the city’s Cultural Affairs Commission can waive all of the restrictions by designating a particular sign as a “mural.”
But Deputy City Attorney Kevin Ryan disputed the characterization. The city’s restrictions on “wall signs” use “objective criteria” based on concerns about aesthetics and traffic, not expression, he told the judges.
Fisher represents Regency Outdoor Advertising, Inc. and Virtual Media Group, Inc. The companies are appealing U.S. District Judge Florence-Marie Cooper’s denial of a preliminary injunction that would have blocked enforcement of the city’s limitations on wall signs.
The restrictions pertain to the size, location, manner of construction, spacing and height of the signs. They also limit the areas of the city in which the signs may be placed.
The ordinance defines a “wall sign” as “[a]ny sign attached to, painted on or erected against the wall of a building or structure, with the exposed face of the sign in a plane approximately parallel to the plane of the wall.”
The Cultural Affairs Commission may designate a sign as a mural, and thus exempt from all of the restrictions on wall signs, if it “is applied to and made integral with a wall” and its text “does not exceed three percent of the total area of the sign.”
Fisher said the scheme is unconstitutional because it gives the commission unfettered discretion to determine whether a particular sign is or is not a mural. In his briefs, he cited a number of comments made by commission members over the years concerning the lack of guidelines for exercising their discretion.
But Senior Judge Richard Cudahy of the Seventh Circuit, sitting on the panel yesterday by designation, questioned whether Fisher’s clients have standing to challenge the ordinance with respect to signs that were not submitted to the commission for its consideration.
Fisher argued that the ordinance is overbroad, so that his clients need not submit to its permitting scheme in order to challenge it. He cited cases dealing with parade permit ordinances, which have been held unconstitutional where they give officials too much discretion in determining who can march and who cannot.
But Cudahy appeared skeptical, as did the other panelists, Chief Judge Mary Schroeder and Judge M. Margaret McKeown.
‘Restriction on Message’
“How is this a restriction on message?” McKeown asked.
Fisher argued that the city was “doling out” free speech rights. None of his clients’ messages, including those dealing with religious, political, or cultural subjects, can be disseminated unless the signs on which they appear meet the city’s restrictions or are approved as murals, he argued.
The commission, he added, has granted the mural designations to some commercial signs, but denied it to others. The governing factors, he said, appear to be “the content of the sign, the artist, and who paid for the sign.”
But Ryan pointed out that many of the signs put up by Fisher’s clients could not be considered by the commission because text takes up more than three percent of the area.
He also pointed out that the Cultural Affairs Commission, unlike police officials in the parade permit cases, has no discretion over regulatory issues, such as whether a particular wall sign meets the criteria. Those matters are resolved by the building and safety and transportation departments, he explained.
Copyright 2002, Metropolitan News Company