Now that Superior Court judge Luis Lavin has ruled that L.A.’s 2002 ban on new billboards violates the California Constitution, what’s next? Are new billboards going to be sprouting like hothouse mushrooms along the city’s major thoroughfares? Especially digital billboards, with their ability to attract the attention of drivers with their Jumbotron-like graphics and rapidly changing ads for cars, fast food, booze, electronic gadgets, and what seems like every movie and TV show about to hit theaters and home entertainment centers?
Maybe, although a couple of things have to happen first. One, the City Attorney’s office has promised to appeal the ruling, and will surely ask the court to stay any processing of new billboard permit applications pending a ruling on the appeal. So unless the court denies that very reasonable request, the billboard express is still stuck in neutral.
And two, the City Council has to sit on its collective hands and do nothing to prepare for the possibility that justices at the California Appeals Court—and California Supreme Court, if it gets that far—will find that Judge Lavin’s reasoning about the perfidious nature of L.A.’s billboard ban was so powerful that it must be affirmed. Unfortunately, the City Council has shown some aptitude for that very thing when it comes to contentious issues—sitting on its hands.
We’re here to make some suggestions, should those 14 gentlemen and one lady care to listen. But first, some review of the tangled legal history of the billboard wars is in order, since Judge Lavin’s ruling somewhat blithely dismisses federal court precedent and instead leans heavily on a court ruling from Oregon, a state many of us may have assumed actually cares enough about the visual environment to protect it against the predations of the billboard industry. More about that later.
In 2008, a company called Vanguard Outdoor sued the city of Los Angeles in federal court, claiming that the city’s six year-old ban on new off-site signs violated the free speech guarantees of both the U.S. and California constitutions. Lawyers for that company, which had been cited for draping multi-story supergraphic ads from sides of buildings on such prominent streets as Wilshire and Robertson Blvds., argued that the California constitution actually afforded greater free speech protections than the First Amendment.
That case wound its way to the Ninth Circuit Court of Appeals, which handed the city a victory in 2011 with a ruling that, among other things, rejected that constitutional claim. The appeals court cited a 2002 California Supreme Court decision that said commercial speech such as advertisements for products and services could be treated differently than non-commercial speech without violating either the free speech provisions of the state constitution or its federal counterpart.
The Ninth Circuit justices in the Vanguard case included in their ruling this quote from the California Supreme Court: “..in the few cases in which this court has addressed the distinction between commercial and non-commercial speech, we have not articulated a separate test for determing what constitutes commercial speech under the state Constitution, but instead we have used tests fashioned by the U.S. Supreme Court.”
Those tests, articulated by the nation’s high court more than 20 years ago, provide the groundwork for off-site sign bans in L.A. and many other cities. In plain language, the owner of the local hardware store can put a sign in the window proclaiming the imminence of Judgement Day or asserting that Obama is a Muslim without fear of censorship, but if that sign in the window advertises McDonald’s Quarter Pounders he or she could run afoul of the law, assuming that law is crafted to withstand strict legal scrutiny.
Here’s what the court said in a 1981 ruling in a case called Metromedia Inc. v. City of San Diego: In pursuing goals of aesthetics and traffic safety, city could reasonably distinguish between onsite and offsite advertising on same property, in view of fact that city could believe that offsite advertising presented more acute problem and that commercial enterprise as well as interested public had stronger interest in identifying place of business and advertising products or services available there than in using or leasing available space to advertise commercial enterprises located elsewhere.
And in fact, the U.S. Supreme Court declined to hear the California Supreme Court decision when it was appealed, which might be taken as evidence that justices saw no area of disagreement and decided to let prevailing legal precedent stand.
In light of this, the ruling earlier this month by Judge Lavin invalidating L.A’s off-site sign ban on the grounds that it violates the free speech guarantee of the California constitution has struck some people as peculiar, to say the least.
The ruling, which came in a lawsuit by Lamar Advertising seeking permits for 45 new, full-size digital billboards, repeats the claim made by sign company lawyers in the 2008 Vanguard case, the claim that was rejected about the stricter free speech protections of the California consitution. In support, the judge quotes the following from that document: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.”
One might wonder how this is materially different from the First Amendment, which reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, or to petition the government for redress of grievances.”
In both cases, freedom of speech shall not be abridged, which leads to the conclusion that this legal fight is not really about differing free speech protections in the state and federal constitutions, but the question of just how inclusive the legal definition of free speech ought to be. And it’s clear, from the point of view of Lamar Advertising, Clear Channel, CBS Outdoor and the other billboard companies, that advertisements for products and services stuck on a pole or side of a building overlooking a city street deserve the same freedom as you and me to say anything at any time about any subject without fear of government interference. In plain language again, if the owner of the local hardware store wants to replace the “Joe’s Hardware” sign with one urging people to head for the nearest McDonald’s, that should be his or her constitutional right.
Judge Lavin, a Cuban immigrant who was appointed to the bench in 2001 by former Governor Gray Davis, wrote in his ruling: “The court is neither required nor inclined to follow the Ninth Circuit’s decisions in this case…” He did, however, devote considerable space to a 2006 ruling by the Oregon Supreme Court finding that the state’s distinction between “on-premises” and “off-premises” signs on state highways violated the free speech clause of Oregon constitution, which has language similar to California’s.
In that case, brought by a company that put up unpermitted billboards along Interstate 5 in the southern part of the state, the court agreed that the state could require sign permits and set limits on sign size and location but couldn’t treat on-premise and off-premise signs differently. By doing so, the court concluded, the state would be regulating the content of signs, which in turn would violate the state constitution’s free speech guarantee. This ruling opened the door for new billboards and signs that weren’t restricted to advertising goods or services sold on that property.
Unsurprisingly, the billboard companies took full advantage of that opening, as they are likely to do if Judge Lavin’s ruling in L.A. is upheld on appeal. Prior to that time, Oregon had some of the country’s strictest billboard regulations; now new signs, including digital ones, occupy views of forests, mountains, farmland, and other elements of the natural environment.
While Judge Lavin didn’t mention it in his ruling, there was a dissent in that case from one Oregon Supreme Court justice, who argued that the state’s regulations didn’t restrict the content by favoring one subject of speech over another but only the location of the sign—whether on the premises of a business or at another location. The Oregon regulations were “concerned with the medium, not the message,” he concluded.
So what should the city do? In its successful Ninth Circuit arguments, the City Attorney’s office faced off against high-priced legal talent and came away victorious; in the Lamar Advertising case it will go up against Steptoe & Johnson, an international law firm with more than 500 lawyers, but recent history has shown that the city’s lawyers should not be discounted. So the City Council should fully support all needed appeals to a ruling that could have devastating consequences.
Beyond that, the council should direct the City Planning Department to begin studying was to regulate billboards in a way that won’t run into constitutional problems. Even if the city is successful on appeal, many involved in billboard issues are wary of what the U.S. Supreme Court might do on this subject in the future.
Although Vanguard Outdoor didn’t petition the nation’s high court for review, two other companies that brought lawsuits challenging the city’s off-site ban and lost Ninth Circuit appeals did file such petitions. Justices declined to hear those cases, but that was before such rulings as Citizens United which broadened the definition of free speech to include campaign spending by corporations, and if it takes a billboard case like Vanguard in the future it’s conceivable that a majority could rule that billboard advertising has all the protections of individual speech.
One possibility for the city would be to greatly reduce the maximum size allowed for signs, so that a company simply couldn’t put up a new billboard like those now in existence. Even if there was no distinction between off-site and on-site signs, advertisements for products and services not available at a particular site would be much less obtrusive than those now looming over city streets. Another would be a complete ban on digital signs, so that drivers wouldn’t have to run a gauntlet of gaudy, blinking ads while doing battle with the city’s traffic.
But one doesn’t have to listen too hard to hear howls of protest from sign companies, business organizations, developers and others that spend millions in lobbying and campaign contributions to make sure they have the ears of those 15 city councilmembers. They’re accustomed to sign regulations that are actually significantly more liberal than those of big cities like New York and Chicago, and giving any of this up will cause pain that they will be more than eager to share with their council representatives.
Stay tuned.Dennis Hathaway