Wayne Charles v. City of Los Angeles
697 F.3d 1146
9th Cir.2012Background
- Offsite billboard sign ordinance in Los Angeles regulates temporary signs with a permit, except for political/noncommercial messages.
- Appellants Fort Self Storage and Wayne Charles seek to display a temporary E! News sign on Fort Self Storage property without permits.
- City classified the E! News sign as strictly commercial and subject to permitting and others provisions.
- District court held the E! News sign was commercial speech and upheld the City’s classification.
- Appellants sued for declaratory relief and sought TRO/PI; district court dismissed as to E! News sign and found deference appropriate in applying the commercial speech test.
- This appeal presents whether truthful advertisements for expressive works can be noncommercial speech under First Amendment analysis and whether de novo review of the city’s determination is required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the E! News sign is commercial speech | Charles argues advertisements for expressive works may be noncommercial | City contends the sign is a commercial advertisement | E! News sign is commercial speech |
| Whether truthful ads for expressive works are inherently noncommercial | Appellants seek an adjunct/incidental protection for such ads | City urges standard Bolger framework governs only commercial ads | No categorical noncommercial status for ads; Bolger framework controls |
| Whether deference to a city’s classification of speech as commercial is appropriate | Deferential review risks chilling protected speech | City's determinations should be given deference in billboard regulation | Court rejects deference; conducts independent de novo review |
| Whether exceptions extending noncommercial status to ads are warranted | Appellants rely on adjunct/incidental-use theories to protect ads | Exceptions are narrow; not extendable to billboard regulation | No broad adjunct/incidental-use exception to commercial speech doctrine for billboards |
Key Cases Cited
- Bolger v. Youngs Drug Prods. Co., 463 U.S. 60 (U.S. 1983) (framework for classifying ads as commercial or noncommercial; close questions favor commercial if ads propose a transaction)
- Hunt v. City of Los Angeles, 638 F.3d 703 (9th Cir. 2011) (advertisements for noncommercial expressive works may still be commercial; proximity to noncommercial speech matters)
- Metro Lights, L.L.C. v. City of Los Angeles, 551 F.3d 898 (9th Cir. 2009) (distinguishes commercial vs noncommercial signage; city may regulate offsite commercial messages)
- Murdock v. Pennsylvania, 319 U.S. 105 (U.S. 1943) (religious solicitation distinguished from commercial speech; protects noncommercial activity)
- Jamison v. Texas, 318 U.S. 413 (U.S. 1943) (distinguishes religious activity from pure commercial leaflets; supports noncommercial protection for protected activity)
- Cher v. Forum Int’l, Ltd., 692 F.2d 634 (9th Cir. 1982) (advertising to promote protected publication may be protected from tort liability if not falsely implying endorsement)
- Guglielmi v. Spelling-Goldberg Prods., 603 P.2d 454 (Cal. 1979) (California/first amendment; supports rights of promotion of protected works)
- Speiser v. Randall, 357 U.S. 513 (U.S. 1958) ( First Amendment protections force independent judicial review in line-drawing of speech)