648 F.3d 737
9th Cir.2011Background
- Vanguard Outdoor, LLC seeks to salvage litigation to keep three signs in Los Angeles despite prior Ninth Circuit rulings on city sign bans.
- The case follows World Wide Rush and Metro Lights, which held the city's offsite/supergraphic bans and freeway-facing ban were not unconstitutional as applied or facially underinclusive.
- A pending district court matter involved Vanguard's motion for a preliminary injunction and a motion to amend the complaint, filed September 2010.
- The district court stayed the case and then denied the preliminary injunction; it also denied amending as moot because amendment could occur without leave.
- The Ninth Circuit affirmed the district court’s order, adopting its reasoning and denying the injunction.
- State criminal and civil actions related to Vanguard’s signs remained pending in state court during the federal proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Central Hudson underinclusivity and whether bans advance interests | Vanguard argues the bans are underinclusive and fail to directly advance safety/aesthetics | City contends the scheme, viewed holistically, furthers safety and aesthetic goals and is not underinclusive | Plaintiff fails to raise serious questions; injunction denied |
| Equal protection challenges to offsite vs onsite treatment | Vanguard claims discriminatory treatment of offsite signs vs onsite signs | City's distinctions are content-neutral land-use decisions protected by law | No serious questions; injunction denied |
| California Constitution free speech protection | California Constitution affords greater protection to speech than the First Amendment | California follows federal standard for content-neutral restrictions; Kasky controls commercial speech | California claim fails; injunction denied |
| Aesthetics as pretext for discrimination | Aesthetics rationale is pretext to discriminate against Vanguard | Exceptions are reasonable legislative judgments within World Wide Rush/Metro Lights framework | No serious questions; injunction denied |
Key Cases Cited
- World Wide Rush, LLC v. City of Los Angeles, 606 F.3d 676 (9th Cir. 2010) (sign bans can withstand Central Hudson if exceptions viewed holistically)
- Metro Lights, LLC v. City of Los Angeles, 551 F.3d 898 (9th Cir. 2009) (deference to municipality's graduated response; underinclusivity analysis)
- Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) (deference to legislative judgments in offsite vs onsite regulation)
- Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (U.S. 1980) (four-part test for commercial speech regulation)
- Greater New Orleans Broadcasting Ass'n, Inc. v. United States, 527 U.S. 173 (1999) (exception distinctions must advance the government's interest)
- Ballen v. City of Redmond, 466 F.3d 736 (9th Cir. 2006) (discussed in context of offsite/offsite distinctions; not controlling here)
- Clear Channel Outdoor, Inc. v. City of Los Angeles, 340 F.3d 810 (9th Cir. 2003) (offsite/onsite distinction upheld as content-neutral)
- Kasky v. Nike, Inc., 27 Cal.4th 939 (Cal. 2002) (California commercial speech protections align with First Amendment)