BRUCE BOYER, аn individual, Plaintiff-Appellant, v. CITY OF SIMI VALLEY, Defendant-Appellee.
No. 19-55723
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
October 14, 2020
D.C. No. 2:19-cv-00560-R-JPR
OPINION
Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding
Argued and Submitted June 11, 2020 San Francisco, California
Filed October 14, 2020
Before: Eric D. Miller and Danielle J. Hunsaker, Circuit Judges, and Douglas L. Rayes,* District Judge.
Opinion by Judge Hunsaker
SUMMARY**
Civil Rights
The panel reversed in part and affirmed in part the district court’s dismissal, pursuant to
The district court found that the City’s ordinances were content-neutral and reasonable time, place, and manner restrictions that did not violate the First Amendment.
The panel inferred, from the
The panel held that the exemption could not be justified as a mere codification of the government speech doctrine because the exemption did not limit authorized vehicles to displaying only those messages made by government entities or that were effectively cоntrolled by the City. Because the exemption allowed authorized vehicles to display messages that were not subject to government control, the exemption could not avoid strict scrutiny based on the government speech doctrine. Noting that the parties had not briefed the strict scrutiny standard on appeal or below, the panel declined to apply this standard in the first instance and instead instructed the district court on remand to consider plaintiff’s claims consistent with its opinion.
The panel affirmed the district court’s dismissal of plaintiff’s state law claims and held that the district court did not err in declining plaintiff’s request to remand the claims to state court. Because the district court had subject matter jurisdiction over plaintiff’s claims under
COUNSEL
George M. Wallace (argued), Wallace Brown & Schwartz, Pasadena, California, for Plaintiff-Appellant.
Danielle C. Foster (argued) and Jill Williams, Carpenter Rothans & Dumont, Los Angeles, California, for Defendant-Appellee.
HUNSAKER, Circuit Judge:
Bruce Boyer challenges the constitutionality of the City of Simi Valley, California’s regulations prohibiting mobile billboards on public property unless they qualify as authorized emergency or construction-related vehicles. The district court dismissed Boyer’s claims on the pleadings, concluding the restrictions are content-neutral, reasonable time, place, and manner restrictions that do not infringe the First Amendment right of freedom of speech. It also dismissed Boyer’s state law claims. We reverse in part, affirm in part, and remand.
I. BACKGROUND
In 2016, defendant-appellee City of Simi Valley (City) adopted an ordinance that prohibits the parking or standing of “mobile billboard аdvertising display[s] on any public street, alley or public lands in the City.”
Viewing the allegations in the light most favorable to Boyer, Naruto v. Slater, 888 F.3d 418, 421 (9th Cir. 2018), he utilizes various “vehicles, including trailers attached to and detached from motor vehicles, and other non-motorized vehicles that may qualify as ‘mobile billboard advertising displays’ within the City of Simi Valley for the purposes of speech and expression.” Boyer рarks his mobile displays “in locations where parking of most any other vehicle is permitted.” And on various occasions, the City has impounded or threatened to impound his vehicles and displays.
In December 2018, Boyer sued the City in state court, targeting the City’s ordinances regulating mobile billboard advertising displays. He argued that the ordinances
The district court granted the City’s motion, concluding the City’s ordinances were content-neutral and reasonable time, place, and manner restrictions that did not violatе the First Amendment. It also dismissed Boyer’s state law claims. Although the district court granted Boyer leave to amend certain claims not at issue here, Boyer chose not to do so. Instead, he asked the district court to dismiss all his federal claims and remand his state law claims back to California court. Shortly thereafter, the district court dismissed Boyer’s case in its entirety. This appeal followed. We have jurisdiction under
II. DISCUSSION
A. Boyer’s First Amendment Claims
The First Amendment, applied via the Fourteenth Amendment, “prohibits state and local governments from enacting laws ‘abridging the freedom of speech.’” Lone Star Sec. & Video, Inc. v. City of Los Angeles, 827 F.3d 1192, 1197 (9th Cir. 2016) (quoting
The Supreme Court has cautioned that speaker-based regulations “are all too often” content-based regulations in disguise. Id. at 170. When a regulation makes speaker-based distinctions, we ask whether that “speaker preference reflects a content рreference.” Id. (quoting Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 658 (1994)). If it does, we treat it the same as any other content-based regulation and apply strict scrutiny. Id.
To determine whether a regulation is content based, we first consider whether, “on its face, it draws distinctions based on the message a speaker conveys.” Lone Star, 827 F.3d at 1198 (internal quotation and citation omitted). If the regulation is facially neutral, we determine whether “it is nevertheless а content-based regulation of speech because it cannot be justified without reference to the content of the regulated speech.” In re Nat’l Sec. Letter, 863 F.3d 1110, 1123 (9th Cir. 2017) (internal quotation and citation omitted).
Boyer concedes the mobile billboard advertising prohibition,
In exempting authorized emergency and construction, repair, or maintenance vehicles, Boyer asserts that the City ordinances prefer certain speakers over others. That is, an authorized vehicle can contain a mobile billboard and park on Simi Valley streets but nonauthorized vehicles containing mobile billboards cannot. The City agrees. The question the parties disagree on—and the question we must answer—is whether allowing certain speakers to park mobile billboards on public property but not others reflects a content preference. Boyer argues the Authorized Vehicle Exemption “is inescapably a content-based distinction.” We agree.
On its face, the Authorized Vehicle Exemption is content neutral. See Lone Star, 827 F.3d at 1200. The Exemption is framed by vehicle category—it does not expressly restrict the topic, idea, or message that an authorized vehicle could display via a mobile billboard advertising2 display. See
public-safety message, a paid message, or an infinite plethora of other messages, all of which would be allowed. Id. An officer determining whether the ordinance was violated would not have to consider the content of the speech. See Lone Star, 827 F.3d at 1200. Instead, the officer would need evaluate only the manner of speech (whether it is part of a mobile billboard); the place of speech (whether it is located on public property); and the speaker (whether the display is an authorized vehicle).
We struggle to identify a justification for allowing speech only from authorized emergency and construction, repair, or maintenance vehicles that does not rely on content, and the City offers none. The City cites
But that justificatiоn makes sense only if we assume that authorized vehicles are more likely to display messages that promote public health, safety, and welfare than nonauthorized vehicles. In other words, how else could allowing authorized vehicles to display messages via mobile billboards protect the health, safety, and welfare of City residents if not because those authorized vehicles are likely to display public-safety related messages?3 Thus, to execute its purpose, the City enacted an ordinance that prefers speakers likely to spread messages consistent with its purpose. This is a prudent preference, a reasonable rationale, and a content-based choice that triggers strict scrutiny. See Reed, 576 U.S. at 170. Even “perfectly rational” sign ordinances must yield to the “clear and firm rule governing content neutrality [that] is an essential means of protecting the freedom of speech.” Id. at 171. That firm rule mandates strict scrutiny review whenever an ordinance allows some messages, but not others, based on content—no matter how sensible the distinction may be. Id.
Although neither party raises the issue, we pause briefly to consider whether the government speech doctrine saves the Authorized Vehicle Exemption. In his Reed concurrence, Justice Alito noted that “government entities may also erect their own signs consistent with the principles that allow governmental speech” and that “[t]hey may put up all manner of signs to promote safety.” Id. at 175 (Alito, J., concurring) (internal citation omitted). Under Justice Alito’s view, a content preference for government speech is not a content-based restriction at all. Id.
Here, however, it does not appear that the Authorized Vehicle Exemption can be justified as a mere codification of the government speech doctrine. See Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009) (“The Free Speech Clause restricts government regulation of private speech; it does not regulate government sрeech.“). Certainly, some of the speech by authorized vehicles covered by the Authorized Vehicle Exemption would qualify as government speech. See
As written, the Exemption does not limit authorized vehicles to displaying only those messages made by government entities or that are “effectively controlled” by the City. See Pleasant Grove City, 555 U.S. at 473 (extending the government speech doctrine to authorized private communication that is “effectively controlled” by the government). Indeed, the exemption neither limits authorized vehicles
If the Exemption subjected every message an authorized vehicle could promote via mobile billboard to City control, it would not matter that the exemption can be justified only with reference to content because the regulation would likely fit within the government speech doctrine. But where the Exemption allows authorized vehicles to display messages that are not subject to government control, we do not see how the Authorized Vehicle Exemption can avoid strict scrutiny based on the government speech doctrine.
In sum, we conclude that exempting certain authorized vehicles from the ban on mobile billboard advertising displays can be justified only based on content. And, as indicated, the City does not advance any other justification. Because the district court concluded the ordinances were content neutral, it evaluated the sufficiency of Boyer’s сomplaint against the wrong standard. We therefore vacate its order granting the City’s motion to dismiss regarding Boyer’s First Amendment claims. As the parties have not briefed the strict scrutiny standard here or below, we decline to apply this standard in the first instance and instead instruct the district court on remand to consider Boyer’s claims consistent with this opinion. Koala v. Khosla, 931 F.3d 887, 904 (9th Cir. 2019) (reversing Rule 12(b)(6) dismissal and remanding for district court to reconsider First Amendment claim under proper framework).
B. Boyer’s State Law Claims
Boyer argues that the district court, after dismissing his federal claims, erred by not remanding his state preemption claims back to California state court or dismissing them without prejudice. Notably, Boyer concedes that the district court correctly applied California law and that several California Court of Appeal cases “bоund” the district court. Nonetheless, he argues that because he seeks to “attack and overturn” prevailing California authority, this court should reverse the district court so that he can “bring this issue” before the California appellate courts. This argument fails.
Because the district court had subject matter jurisdiction over Boyer’s claims under
III. CONCLUSION
The City’s mobile billboard regulations favor certain speakers because the City favors the likely speech of those speakers. Therefore, the district court erred in concluding the regulations are not content based. The district court did not err, however, in declining Boyer’s request to remand his state law claims to state court.
REVERSED IN PART, AFFIRMED IN PART, and REMANDED for further proceedings. The parties shall bear their own costs.