874 F.3d 597
9th Cir.2017Background
- Contest Promotions rents ad space on third-party businesses in San Francisco and posts signs advertising contests that invite passersby into the business to enter and win prizes.
- San Francisco Planning Code Article 6 bans new general advertising signs (billboards) but permits onsite business signs subject to rules; noncommercial signs are exempt from Article 6.
- Plaintiff’s signs are undisputedly commercial; City issued Notices of Enforcement asserting violations of Article 6.
- Plaintiff sued under 42 U.S.C. § 1983, claiming the commercial/noncommercial distinction in Article 6 violates the First Amendment; district court dismissed the complaint.
- The Ninth Circuit reviewed de novo whether intermediate scrutiny (Central Hudson) applies and whether the ordinance survives it, and affirmed the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Level of scrutiny for Article 6 | Sorrell and Reed require heightened scrutiny beyond Central Hudson | Article 6 regulates commercial speech; Central Hudson intermediate scrutiny governs | Central Hudson intermediate scrutiny applies; Sorrell/Reed did not displace Central Hudson (RDN cited) |
| Step 1 (lawfulness/misleading) | Plaintiff’s ads are lawful and non-misleading | — | Ads satisfy Central Hudson’s first prong |
| Step 2 (substantial interest) | City’s aesthetic/safety interests asserted | City defends those interests as substantial | Aesthetic and traffic-safety interests are substantial |
| Steps 3–4 (fit / under-/over-inclusiveness) | Exempting noncommercial signs makes Article 6 underinclusive and fails to directly advance interests (relying on Discovery Network) | Ordinance targets harmful offsite/commercial signs; legislative findings tie ban to safety and clutter; regulation reasonably fits interests | Ordinance directly advances interests and is not unconstitutionally underinclusive; survives intermediate scrutiny |
Key Cases Cited
- Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980) (establishes four-part test for commercial speech intermediate scrutiny)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (addressing speaker- and content-based restrictions on speech)
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (ambient rule on content-based restrictions and strict scrutiny)
- City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993) (struck ordinance treating commercial and noncommercial newsracks differently)
- Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) (plurality) (recognizes aesthetic and safety interests in billboard regulation)
- Retail Digital Network, LLC v. Prieto, 861 F.3d 839 (9th Cir. 2017) (en banc) (affirms continued application of Central Hudson to commercial-speech regulations)
- Outdoor Systems, Inc. v. City of Mesa, 997 F.2d 604 (9th Cir. 1993) (upheld billboard regulation that exempted noncommercial signs)