978 F.3d 618
9th Cir.2020Background
- In 2016 Simi Valley adopted an ordinance prohibiting mobile billboard advertising displays on public streets, alleys, and public lands, authorizing impoundment for violations and defining “mobile billboard.”
- The ordinance exempts certain “authorized vehicles” (emergency and construction/repair/maintenance vehicles) from vehicle parking/standing restrictions.
- Bruce Boyer used mobile billboard displays parked in otherwise-permitted locations and had displays impounded or threatened with impoundment; he sued claiming the ordinance violated the First Amendment and was preempted by California law.
- The district court dismissed Boyer’s federal First Amendment claims as content-neutral time/place/manner regulations and dismissed his state-law claims; Boyer appealed.
- The Ninth Circuit held the Authorized Vehicle Exemption renders the ordinance content-based because its justifications rely on the expected content of speech (favoring speakers likely to convey public-safety messages), and concluded the government-speech doctrine did not rescue the exemption.
- Result: the court reversed the dismissal of Boyer’s First Amendment claims and remanded for strict-scrutiny analysis; it affirmed the district court’s resolution of the state-law claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the Authorized Vehicle Exemption convert an otherwise content-neutral ban on mobile billboards into a content-based regulation? | Boyer: Exemption prefers authorized vehicles and thus certain speakers, reflecting a content preference that triggers strict scrutiny. | City: The ban and exemption are vehicle-category based and content-neutral; a reasonable time/place/manner restriction. | The court: Exemption is content-based because the City’s justification depends on expected message content (public-safety speech); strict scrutiny must apply. |
| Can the government-speech doctrine justify the exemption? | Boyer: Exemption allows private, non-city-controlled messages, so it is not government speech. | City: (Did not successfully assert a government-speech justification; policy arguments about safety were invoked but not framed under government speech.) | The court: Government-speech doctrine does not apply because the exemption permits private speech that is not effectively controlled by the City. |
| Should the district court have remanded Boyer’s California preemption/state-law claims to state court after dismissing federal claims? | Boyer: District court should have remanded so California appellate courts could revisit controlling state precedent. | City: District court properly dismissed state-law claims (applied California law) and could resolve them on the merits. | The court: Affirmed district court’s dismissal of state-law claims; no remand required because district court had jurisdiction and dismissed them concurrently with federal claims. |
Key Cases Cited
- Reed v. Town of Gilbert, 576 U.S. 155 (establishes strict scrutiny for content-based regulations of speech)
- Lone Star Sec. & Video, Inc. v. City of Los Angeles, 827 F.3d 1192 (discusses when signage and display rules are content-neutral and analyzes speaker-based distinctions)
- In re Nat'l Sec. Letter, 863 F.3d 1110 (explains when a facially neutral rule nevertheless depends on speech content)
- Pleasant Grove City v. Summum, 555 U.S. 460 (government-speech doctrine and the limits of the Free Speech Clause)
- Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622 (consideration of whether speaker preferences reflect content preferences)
- Koala v. Khosla, 931 F.3d 887 (remanding for district court to consider First Amendment claim under proper framework)
- Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 (discusses district-court discretion to retain or remand state-law claims)
- Naruto v. Slater, 888 F.3d 418 (standard for construing pleadings in the light most favorable to plaintiff)
- Showing Animals Respect & Kindness v. City of West Hollywood, 166 Cal. App. 4th 815 (California authority on the breadth of “advertise” in mobile billboard context)