LONE STAR SECURITY AND VIDEO, INC., a California corporation, Plaintiff-Appellant, v. CITY OF LOS ANGELES; City of Santa Clarita; City of Rancho Cucamonga; City of Loma Linda, Defendants-Appellees. Sami Ammari, an individual, Plaintiff-Appellant, v. City of Los Angeles, Defendant-Appellee.
No. 14-55014, No. 14-55050
United States Court of Appeals, Ninth Circuit.
July 7, 2016
827 F.3d 1192
Silva appealed the IJ‘s decision to the BIA and contested the IJ‘s determination that he failed to meet his burden under CAT. However, Silva‘s arguments focused exclusively on the likelihood that he will suffer torture in either El Salvador or Guatemala. At no point did Silva argue to the BIA, nor has he argued to us, that he would likely suffer torture if removed to Nicaragua “the proposed country of removal.”
VI
For the foregoing reasons, the petition for review is
DENIED.
George M. Wallace (argued), Wallace, Brown & Schwartz, Pasadena, California, for Plaintiffs-Appellants.
Kimberly A. Erickson (argued), Deputy City Attorney; Ronald S. Whitaker, Assistant City Attorney; Thomas H. Peters, Chief Assistant City Attorney; Michael N. Feuer, City Attorney; Office of the City Attorney, Los Angeles, California, for Defendant-Appellee City of Los Angeles.
Joseph P. Buchman (argued), Brian A. Pierick, and Joseph M. Montes, City Attorney; Burke, Williams & Sorensen LLP, Los Angeles, California, for Defendant-Appellee City of Santa Clarita.
Richard E. Holdaway (argued), City Attorney, Robbins & Holdaway, Ontario, California, for Defendant-Appellee City of Loma Linda.
Before: STEPHEN REINHARDT, MARY H. MURGUIA, and JOHN B. OWENS, Circuit Judges.
Concurrence by Judge OWENS
OPINION
MURGUIA, Circuit Judge:
These consolidated appeals concern the constitutionality of five city ordinances that regulate mobile billboards. One of the ordinances limits the type of sign that may be affixed to motor vehicles parked or left standing on public streets; the other ordinances prohibit non-motorized, “mobile billboard advertising displays” within city limits. Appellants, who have been subject to enforcement under the ordinances, brought suit against the municipalities arguing that the mobile billboard laws impermissibly restrict their freedom of speech in violation of the First Amendment. We have jurisdiction under
BACKGROUND
Between 2010 and 2012, the California Legislature enacted a series of amendments to the Vehicle Code empowering local municipalities to regulate mobile billboards, which the Legislature found to blight city streets, endanger residents, and
In response, the cities of Los Angeles, Santa Clarita, Rancho Cucamonga, аnd Loma Linda passed virtually identical ordinances banning one or both types of mobile billboards and permitting public officials to exact civil penalties and impound vehicles sporting signs that violate the ordinances. The cities’ ordinances mirror and explicitly reference the California Legislature‘s amendments to the Vehicle Code. For example, section 87.54 of the Los Angeles Municipal Code (the “motorized mobile billboard ordinance“) provides, in pertinent part:
A motor vehicle may contain advertising signs that are рainted directly upon or are permanently affixed to the body of, an integral part of, or fixture of a motor vehicle for permanent decoration, identification, or display and that do not extend beyond the overall length, width, or height of the vehicle. Advertising signs that are painted directly upon or permanently affixed to a motor vehicle shall not be painted directly upon or permanently affixed in such a manner as to make the motor vehicle unsafe to be driven, moved, parked or left standing on any public street or public lands in the City. Motor vehicles that pose a safety hazard shall be impounded pursuant to [the] California Vehicle Code . . . .
L.A. Mun. Code § 87.54 (2012). The other four ordinances (the “non-motorized mobile billboard ordinances“) make it unlawful to park a “mobile billboard advertising display” on any public street within city limits. See L.A. Mun. Code § 87.53 (2013); Loma Linda Mun. Code § 10.36.070 (2011); Rancho Cucamonga Mun. Code § 10.52.080 (2011); Santa Clarita Mun. Code § 12.84 (2011). The non-motorized mobile billboard ordinances all incorporate the definition of “mobile billboard advertising display” codified at California Vehicle Cоde section 395.5: “advertising display[s]” that are attached to non-motorized vehicles, carry a sign or billboard, and are “for the primary purpose of advertising.”
Appellants Lone Star Security & Video, Inc. and Sami Ammari own mobile billboards that are subject to the cities’ bans. Lone Star Security operates a fleet of
Lone Star Security was last before this court in 2013, when a panel affirmed the district court‘s denial of a preliminary injunction blocking the cities from enforcing the non-motorized mobile billboard ordinances. See Lone Star Sec. & Video, Inc. v. City of Los Angeles, 520 Fed.Appx. 505 (9th Cir. 2013). Upon remand, the district court consolidated Lone Star Security‘s case with Ammari‘s, who had filed his complaint shortly before Lone Star Security‘s first appeal. On cross-motions for summary judgment, the district court concluded that the mobile billboard bans were content-neutral, reasonable, time, place, and manner restrictions on speech that did not violate the First Amendment. Accordingly, the court entered judgment in favor of the cities and against Lone Star Security and Ammari. These appeals followed.
DISCUSSION
The First Amendment, as applied to the states through the Fourteenth Amendment, prohibits state and local governments from enacting laws “abridging the freedom of speech.” Reed v. Town of Gilbert, 576 U.S. 155, 135 S. Ct. 2218, 2226, 192 L. Ed. 2d 236 (2015) (quoting
The cities bear the burden of proving the constitutionality of the ordinances at issue. See United States v. Playboy Entm‘t Grp., Inc., 529 U.S. 803, 816, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000) (“When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.“). Because Appellants raise facial challenges to the municipal ordinances, we will strike down the mobile billboard regulations if they are “unconstitutional in every conceivable application,” or if they “seek[] to prohibit such a broad range of protected conduct that [they are] unconstitutionally overbroad.” See Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998) (quoting Members of City Council of City of Los Angeles v. Tаxpayers for Vincent, 466 U.S. 789, 796, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984)). The parties have stipulated to the facts in this case, so “the only question we must determine is whether the district court correctly applied the
I. Content Neutrality
The parties concede that all of the ordinances at issue bear upon interests that the First Amendment protects. Thus, we consider first whether the regulations are content neutral or content based.2 See Reed, 135 S. Ct. at 2226-27.
A regulation is content based if, “on its face,” it “draws distinctions based on the message a speaker conveys.” Id. at 2227. A regulation that defines regulated speech by a particular subject matter or that discriminates between viewpoints is plainly content based. Id. at 2227, 2230. For example, the Supreme Court recently held that an ordinance that imposed more stringent restrictions on signs directing the public to a church meeting than on “political” signs was content based. See id. at 2232. In addition, an ostensibly viewpoint-neutral law is content based if it was “adopted by the government because of disagreement with the message the speech conveys.” Id. at 2227 (internal quotation marks and alterations omitted).
By its terms, the motorized billboard ordinance regulates the way in whiсh “advertising signs” may be affixed to motor vehicles on city streets. The non-motorized billboard ordinances likewise apply to “mobile billboard advertising displays” within the meaning of California Vehicle Code section 395.5, which includes as part of the definition that the vehicle be “for the primary purpose of advertising.” Neither the California Vehicle Code nor the mobile billboard ordinances define “advertising,” however, and Appellants insist that the ordinances are content based because they distinguish between billboards that “advertise” and all other signs, such as those that do not advertise. Appellants’ argument, in essence, is that the only signs that “advertise” are those that propose a commercial transaction.3
We disagree that the word “advertising” renders the challenged regulations
The term “advertise” is not limited to calling the public‘s attention to a product or a business. The definition of “advertise” is more general: “to make something known to[;] ... to make publicly and generally known[;] ... to announce publicly esp[ecially] by a printed notice or a broadcast ....” (Merrian [sic]-Webster‘s Collegiate Dict. (10th ed., 1995) p. 18; italics added.) Thus, although the subject of the matter brought to notice may be commercial, it is not necessarily so. Messages endorsing a political candidate, a social cause or a religious belief would also fall within the term “advertise.”
Id. at 819-20, 83 Cal. Rptr. 3d at 138. The California Court of Appeal further noted that the ordinance defined “mobile billboard advertising” as “any vehicle or wheeled conveyance which carries, conveys, pulls, or transports any sign or billboard,” and reasoned that these active verbs demonstrated that “the ordinance [was] concerned with the speaker‘s acts, not the content of the speech.” Id. at 823, 83 Cal. Rptr. 3d at 140-41.
In evaluating a facial challenge we “must consider the [municipality‘s] authoritative constructions of the ordinance, including its own implementation and interpretation of it.” Forsyth County v. Nationalist Movement, 505 U.S. 123, 131, 112 S. Ct. 2395, 120 L. Ed. 2d 101 (1992); see also Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir. 1989) (holding that we defer to a state court‘s interpretation of its own laws unless that interpretation is “untenable or amounts to a subterfuge to avoid federal review of a constitutional violation“). We will “follow the decision of the intermediate appellate courts of the state unless there is convincing evidence that the highest court of the state would decide differently.” In re Schwarzkopf, 626 F.3d 1032, 1038 (9th Cir. 2010) (quoting Owen ex rel. Owen v. United States, 713 F.2d 1461, 1464 (9th Cir. 1983)). The definition of “advertising” that the California Court of Appeal articulated in Showing Animals Respect is nеither untenable nor an obvious subterfuge to avoid federal review. See 166 Cal.App.4th at 819-20, 83 Cal. Rptr. 3d at 138 (holding that the term
The Supreme Court‘s recent decision in Reed does not alter our conclusion.5 Unlike Reed, the mobile billboard ordinances do not single out a specific subject matter for differential treatment, nor is any kind of mobile billboard exempted from regulation based on its content. There has been no suggestion that the ordinances apply differently to Lone Star Security‘s political endorsements than to its commercial promotional campaigns, for example. Rather, an officer seeking to enforce the non-motorized billboard ordinances must decide only whether an offending vehicle constitutes a prohibited “advertising display” because its primary purpose is to display messages, as opposed to transporting passengers or carrying cargo. Cf. S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1145 (9th Cir. 1998) (holding that a county ordinance that prohibited canvassing on public streets and sidewalks within the Las Vegas resort district was content based, for First Amendment purposes, because any officer seeking to enforce the ordinance would need to examine the contents of a leaflet to determine whether the ordinance prohibited its distribution). In the case of the motorized billboard ordinance, an enforcing officer would simply need to distinguish between signs that are permanent or non-permanent, and larger or smaller than the vehicles to which the signs are affixed to determine whether the vehicle violates the ordinance. See id. Therefore, the district court appropriately found the ordinances to be content neutral.
II. Narrowly Tailored to a Significant Government Interest
The parties do not dispute that the cities’ stated interests in traffic control, public safety, and aesthetics are sufficiently weighty to justify content-neutral, time, place, or manner restrictions on speech, nor could they. The Supreme Court and this Court have repeatedly confirmed that local governments may exercise their police powers to advance these goals by prohibiting intrusive or unsightly forms of expression. See Taxpayers for Vincent, 466 U.S. at 808; G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064, 1072-73 (9th Cir. 2006). Instead, we focus on whether the mobile billboard regulations are narrowly tailored to the cities’ interests.
A speech regulation is narrowly tailored if it “promotes a substantial government interest that would be achieved less effectively absent the regulation.” Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989) (citation omitted). The fact that “the government‘s interest could be adequately served by some less-speech-restrictive alternative” will not invalidate an otherwise
None of the ordinances in this case are “substantially broader than necessary” to accomplish the cities’ goals of eliminating visual blight and promoting the safe and convenient flow of traffic. Controlling case law compels our conclusion that the cities’ interest in aesthetics alone justifies the ordinances. See Taxpayers for Vincent, 466 U.S. at 808 (holding that a total restriction on a certain type of visual advertising is narrowly tailored because, by banning the type of signs that the city determined to constitute “visual cluttеr and blight,” the city “did no more than eliminate the exact source of the evil it sought to remedy“). Under this binding precedent, it is therefore enough that the Appellees believed that the advertising displays prohibited by the mobile billboard regulations detract from the cities’ overall appearance; the outright ban directly serves this stated interest.
Further, by removing from city streets vehicles that have no purpose other than advertising, the mobile billboard regulations are narrowly tailored to the cities’ interests in parking control and reducing traffic hаzards. Because the utility of mobile billboards stems from owners’ ability to park them for periods of hours or days at a time, they reduce available on-street parking. Non-motorized mobile billboards are also likely to impair pedestrians’ and drivers’ visibility and pose a safety risk to motorists who are forced to veer around them into the next lane of traffic to bypass them. And, they may roll onto the roadway after being parked.
In addition, the motorized billboard ordinance serves Los Angeles‘s asserted interest in public safety by prohibiting non-permаnently affixed signs and permanently affixed signs that are larger than the dimensions of a vehicle. Temporary signs, by their nature, are impermanent and thus pose a greater danger to pedestrians and motor vehicles because of the risk that they will come detached.6 Signs larger than the dimensions of the vehicle are also more likely to obstruct traffic and impede drivers’ field of vision. For instance, some of Ammari‘s billboards blocked the side and rear windows of his vans, reducing the operator‘s ability to see passing cars, pedestrians, or оther roadside hazards.
The cities’ goals would be achieved less effectively absent the challenged regulations. See Ward, 491 U.S. at 799. Mobile billboards are difficult to control precisely because they can be moved in and out of a jurisdiction with ease. As the Supreme Court has noted, if a municipality “has a sufficient basis for believing that billboards are traffic hazards and are unattractive, then obviously the most direct and perhaps the only effective approach to solving the problems they create is to prohibit them.” See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 508 (1981).
III. Alternatives
Lastly, tо satisfy the First Amendment, a time, place, and manner regulation must “leave open ample alternative channels for communication.” Clark, 468 U.S. at 293. “[T]he First Amendment does not guarantee the right to communicate one‘s views at all
The mobile billboard ordinances leave open adequate alternative opportunities for advertising. The challenged regulations foreclose only one form of expressiоn—mobile billboards—by placing limited restrictions on the types of vehicles to which mobile billboards may be affixed (vehicles whose primary purpose is something other than advertising), and the manner in which billboard advertisements can be displayed on a motor vehicle (in a permanent fashion and no larger than the dimensions of the vehicle). Appellants are free to disseminate their messages through myriad other channels, such as stationary billboards, bus benches, flyers, newspapers, or handbills. Appellants may also paint signs on vehicles and attach decals or bumper stickers. Although mobile billboards are a unique mode of communication, nothing in the record suggests that Appellants’ overall “ability to communicate effectively is threatened.” Taxpayers for Vincent, 466 U.S. at 812. Therefore, given the ample alternative modes of advertising available in the Appellee cities, we will not invalidate the mobile billboard bans merely because they restrict Appellants’ preferred method of communication. Id.; G.K. Ltd. Travel, 436 F.3d at 1074. The remaining alternatives for expressive conduct are sufficient to vindicate Apрellants’ First Amendment interests.
Because the mobile billboard ordinances are content neutral, narrowly tailored to serve the governments’ significant aesthetic and safety interests, and leave open ample alternative channels of communication, the judgment of the district court is AFFIRMED.
OWENS, Circuit Judge, concurring:
I concur in the majority‘s opinion, as it faithfully follows the current controlling case law. I write separately because, in my view, the Supreme Court should take a second look at an important aspect of Members of City Council of City of Los Angelеs v. Taxpayers for Vincent, 466 U.S. 789 (1984).
This case is about ugly signs on vehicles, and no doubt I would not want these vehicles and their signs parked in front of my house. But under the ordinances at issue, a car with equally ugly decals—including a decal of a vehicle with an ugly sign—would not “go to jail,” but instead treat my curb like the upper left corner of a Monopoly board.
If “aesthetics” are to play a part in speech restriction, then such aesthetics should apply equally, decal or sign. Yet under Taxpayers for Vincent, the Court rejected the very point that I now make. See 466 U.S. at 810-12, 104 S. Ct. 2118 (rejecting the Ninth Circuit‘s holding that “a prohibition against the use of unattractivе signs cannot be justified on esthetic grounds if it fails to apply to all equally unattractive signs wherever they might be located“). I think our court was right then, and the Supreme Court should reconsider this portion of Taxpayers for Vincent. As it currently stands, politicians can use Taxpayers for Vincent and its beholderish “aesthetics” to covertly ensure homogeneous thinking and political discourse. That is a dimension we should avoid. See The Twilight Zone: Eye of the Beholder (CBS television broadcast Nov. 11, 1960).