Earlier this month, the Ninth Circuit Court of Appeals in Lone Star Security v. City of Los Angeles revisited an earlier opinion regarding the content neutrality of ordinances in five Southern California cities that banned mobile billboard advertising. In upholding the municipal bans a second time, the court held that the U.S. Supreme Court’s decision in Reed v. Town of Gilbert did not create heightened judicial scrutiny for restrictions on the “manner” of advertising.
Lone Star sued Los Angeles and three other municipalities in 2013, alleging that their bans on “mobile billboard advertising” violated the free speech protections of the First Amendment. Mobile billboards are trucks that have large sign features behind the cab, and are driven around communities for the sole purpose of advertising. The ordinances at issue define mobile billboards as structures “extend[ing] beyond the overall length, width, or height of the vehicle.” However, they do not ban the painted logos or decals commonly found on commercial vehicles.
In the first round of litigation, the federal district court rejected Lone Star’s claim. It determined, and the Ninth Circuit affirmed, that: the bans were content-neutral; the cities’ interests in traffic safety, parking control, and aesthetics were significant; the ordinances were narrowly tailored to achieved these interests; and the laws left open ample alternative channels of communication.
Then last year, the U.S. Supreme Court overruled the Ninth Circuit in a different sign code case, Reed v. Town of Gilbert. Reed emphasized that “facially content based” laws must be analyzed under strict scrutiny. Previous case law in this area focused on viewpoint discrimination, but the Reed opinion stressed that “more subtle” laws that regulate speech by “subject matter,” “function,” “purpose,” or “communicative intent” must likewise be subjected to strict scrutiny. Municipal governments, businesses, and the judiciary are still sorting out exactly what Reed allows and what it prohibits in local sign ordinances.
Lone Star believed that the ordinances, which single-out “advertising,” were facially content-based and that Reed required the court to overrule its 2013 decision. Neither the district court nor the Ninth Circuit were persuaded that Reed changed their previous analysis. The bans still do not “differentiate between categories of speech”; rather, the court analyzed the ordinances as regulations on the size and mobility of vehicles. “Even a regulated vehicle bearing a blank sign could conceivably violate the ordinances,” according to the court. The Ninth Circuit’s opinion relied in part on a footnote from Justice Alito’s concurrence in Reed that rules regulating the “size of signs” or “the locations in which signs may be placed” should not be reviewed under strict scrutiny.
The rest of the court’s opinion focused on the second, third, and fourth steps of the familiar time-place-manner analysis. The Ninth Circuit found the stated governmental interests in traffic control, public safety, and aesthetics are “sufficiently weighty” to justify the ordinances, “the means chosen” are not “substantially broader than necessary” to achieve the interests, and the ordinances left open “ample alternative channels for communication.”
Importantly, Lone Star was a facial challenge to the ordinances. The parties stipulated to all facts, and the court only inquired as to whether the ordinances were “unconstitutional in every conceivable application.” Also, at first blush, this case would appear to fall within the rubric of the commercial speech doctrine, but Lone Star objected to these ordinances in part because it occasionally uses its mobile billboards to convey political messages. In a footnote, the Ninth Circuit noted that “advertising” is broader than commercial speech.