California Plums, Freedom of Speech, Supergraphic Signs

Supergraphic sign by Vanguard Outdoor across street from UCLA campus

A California Supreme Court decision involving the state’s largest plum producer has taken a central place in the latest legal wrangling over L.A.’s effort to ban multi-story supergraphic signs that advertise everything from movies and TV shows to liquor and fast food.

In its ruling a decade ago, the court said that the California constitution affords equal protection to commercial and non-commercial speech.  In fact, the court said, the California constitution’s “liberty of speech” clause is more restrictive than the U.S. Constitution’s 1st amendment, which courts have interpreted as allowing restrictions on commercial speech in the form of regulations and even outright bans on billboards and other types of outdoor advertising.

The ruling is cited in the latest pleadings in the case of Vanguard Outdoor v. City of Los Angeles, a companion lawsuit to the World Wide Rush case in which a federal appeals court this past summer upheld the city’s 2002 ban on new off-site and supergraphic signs.  Vanguard’s attorneys are asking a federal judge to allow the filing of an amended complaint they say raises major constitutional issues that weren’t dealt with in the ruling by the 9th Circuit Court of Appeals.

In addition to the claim that supergraphic signs constitute free speech as defined by the California constitution, Vanguard is seeking to advance several other claims.  Among them are:

-That the city’s ban on off-site and supergraphic signs amounts to an unconstitutional “taking” of private property without compensation.  Referring to the site of unpermitted supergraphic signs on a building at 3000 S. Robertson Blvd., the attorneys argue that the owner, EJLC Robertson, invested in the property with the understanding that supergraphic signs on the building would “drive up the value of the property and  increase its revenue stream.”

-That a U.S. Supreme Court ruling upholding a city’s right to restrict outdoor advertising applies to billboards, not to supergraphic signs that didn’t exist as a sign type when that ruling was handed down 30 years ago.  The court’s reasoning that cities may regulate signs to protect aesthetics shouldn’t apply to supergraphic signs, Vanguard attorneys argue, because they are attached to buildings and don’t obstruct the landscape, whereas billboards are freestanding structures that can interfere with scenic views.

-That the city has applied the off-site and supergraphic sign ban in a discriminatory manner that violates the equal protection clause of the constitution by approving supergraphic signs put up by selected companies in sign districts and elsewhere.

The city has responded by arguing that the 9th Circuit’s World Wide Rush ruling invalidates all these claims, and has asked U.S. District Court Judge Audrey Collins to reject Vanguard’s motion to file an amended complaint.  The city has also asked Judge Collins to lift injunctions she imposed against city enforcement against supergraphic signs put up by Vanguard, World Wide Rush, and several other companies at nearly 50 sites across the city.

The California Supreme Court ruling that the state constitution equally protects commercial speech came in a lawsuit by Gerawan Farming, Inc., against the California Secretary of Food & Agriculture.  The company claimed that the state’s assessment of a fee on plum producers to support a generic advertising program violated its rights under the U.S. and state constitutions by forcing it participate in speech—e.g., advertising—that it didn’t necessarily agree with.

In its answer to Vanguard’s claims, L.A. city attorneys claim that this case isn’t relevant to the supergraphic and off-site ban because the U.S. Supreme Court has already established that such bans are constitutional, and this summer’s 9th Circuit ruling in the World Wide Rush case confirmed that fact.  Attorneys for World Wide Rush haven’t announced whether or not they intend to ask the supreme court for a review of the appellate court decision.

Dennis Hathaway

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