245 Cal. App. 4th 610
Cal. Ct. App.2016Background
- The City of Los Angeles enacted a permanent ban on new "offsite" commercial signs (billboards) in 2002 and expressly banned offsite digital displays in 2009; the ordinance also prohibits conversions of existing offsite signs to digital.
- "Offsite" is defined by message directing attention to commercial activity occurring elsewhere; noncommercial/ideological signs are not prohibited where otherwise permitted.
- The ordinance contains significant exceptions (e.g., transit shelter advertising under a street-furniture contract, permitted street banners for civic events, advertising on city buses, and limited permitted conversions from prior settlements or special plans).
- Lamar Central Outdoor submitted 45 applications (2013) to convert existing offsite signs to digital; the City denied all and Lamar sued under the California Constitution (free speech, equal protection, due process).
- The trial court held the ban violated the California free speech clause as a content-based restriction requiring strict scrutiny and, alternatively, failed intermediate scrutiny (Central Hudson) due to underinclusiveness; it granted a writ ordering the City to process the permits.
- The Court of Appeal reversed, holding the onsite/offsite and commercial/noncommercial distinctions are not content-based for purposes of article I and that the ban survives intermediate scrutiny.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the onsite/offsite and commercial/noncommercial distinctions are content-based under article I | Reed and Sorrell compel treating the distinctions as content-based, triggering strict scrutiny | The distinctions regulate location/type of advertising, not topic or viewpoint; longstanding precedent permits the distinction | Not content-based under California article I; distinctions are permissible regulatory categories |
| Whether California's free speech clause provides greater protection than the First Amendment for billboard regulation | Article I's broader text ("on all subjects") requires strict scrutiny and forbids onsite/offsite distinctions | California precedent respects federal commercial-speech doctrine; Metromedia/California law allows onsite/offsite distinctions | California precedent (and persuasive federal law) supports applying intermediate scrutiny to commercial sign regulation |
| Whether Reed and Sorrell overrule Metromedia/First Amendment line permitting offsite bans | Reed and Sorrell allegedly changed the test to make onsite/offsite distinctions content-based | Reed concerns noncommercial signs; Sorrell concerns speaker- and content-based commercial restrictions and does not eliminate Central Hudson | Reed and Sorrell do not negate Metromedia or Central Hudson; they do not require treating billboards as content-based here |
| Whether the ordinance survives intermediate scrutiny (Central Hudson) given exceptions (underinclusiveness and tailoring) | The many exceptions (transit ads, banners, buses, prior permits) make the ban underinclusive and not narrowly tailored | Exceptions do not defeat a materially direct relationship between the ban and the City’s interests in traffic safety and aesthetics; legislative judgment deserves deference | The ban survives intermediate scrutiny: exceptions do not render it fatally underinclusive and the fit is reasonable (not least-restrictive-means standard) |
Key Cases Cited
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (facial content-based sign restrictions trigger strict scrutiny)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (heightened scrutiny for content- and speaker-based restrictions on commercial speech)
- Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557 (1980) (four-part test for commercial speech regulation)
- Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) (plurality upholding ban on offsite commercial billboards under commercial-speech analysis)
- Metromedia, Inc. v. City of San Diego, 32 Cal.3d 180 (1982) (California Supreme Court ruling on severability/ordinance construction after remand)
- Metro Lights, L.L.C. v. City of Los Angeles, 551 F.3d 898 (9th Cir. 2009) (upholding L.A. offsite ban despite a transit-shelter advertising exception)
- Vanguard Outdoor, LLC v. City of Los Angeles, 648 F.3d 737 (9th Cir. 2011) (rejecting claim that California provides greater protection for commercial signage than the First Amendment)