SIGN REGULATION Randal Morrison's www.signlaw.com

Randal R. Morrison's

Sign Regulation / Public Forum Bulletin

Summer 2010

In this issue:

* U.S Supreme Court rulings on sign and other free speech / freedom of expression cases

* Advertising on "street furniture"

* Anonymous political speech

* Insulting signs at military funerals

* The "Sarah Palin Billboad" case

* LA’s billboard settlement invalidated

* Advertising legal brothels

* Billboard cases from NY, CA, more

U.S. Supreme Court

Note: "cert. granted" means U.S. Supreme has accepted the case; "cert. denied" means the court has declined the case, leaving the lower court decision in place.

Christian Law Students. Univ. of California Hastings School of Law, a public law school, imposes an "open membership" rule on all student groups wishing official recognition; all applicants must be accepted, even if they disagree with the group’s core mission. The Christian Legal Society refused to abide by the school’s non-discrimination policy. The Ninth Circuit upheld the school’s decision. Christian Legal Society v. Kane, 319 Fed.Appx. 645, 3/17/2009. Held: the school’s "admit all comers" policy applies equally to all student groups; it is thus content neutral. In this educational context, the RSO policy is reasonable in light of the purpose of the forum. The CLS is free to refuse to admit anyone on any basis, if it gives up the benefits of the RSO program. The policy ensures that no Hastings student is forced to fund a group that would reject her as a member. The school, caught between the CLS desire to exclude and other students’ demands for equal access, can reasonably require that no student group discriminate. The RSO policy is not unconstitutional. Christian Legal Society v. Martinez, No. 08-1371, June 28, 2010, 2010 WL 2555187.

Anonymous Political Speech. In Doe v. Reed, 586 F.3d 671 (2009), the Ninth Circuit held that privacy rights in anonymous political speech overrode a public records act request for names of persons signing a petition for expanding the rights of domestic partners. Held: Anonymous Political Speech. Signing a petition is expression of a point of view on a political question. However, requiring release of petition signatures does not violate the First Amendment because this helps reduce the number of invalid signatures, and promotes transparency and accountability in the electoral process. Doe v. Reed, No. 09-559, June 24, 2010.

"Aiding Terrorists" The law (18 USC 2339B) which makes it a federal crime to "knowingly provide support or resources" to groups officially listed as "designated foreign terrorist organizations" would not violate the free speech, freedom of association, or due process rights of parties wishing to support the "humanitarian and political activities" of the Kurdistan Workers Party or the Liberation Tigers of Tamil Eelam. The government could prohibit providing support in the form of speech. A vagueness challenge was also rejected, in view of narrowing definitions added by Congress over time. Holder v. Humanitarian Law Project, No. 08-1498, 2010 WL 2471055, June 21, 2010, http://www.supremecourt.gov/opinions/09pdf/08-1498.pdf.

Depictions of Animal Cruelty: Robert J. Stevens ran a business, "Dogs of Velvet and Steel," and a website selling videos of pit bulls fighting and attacking other animals. He was convicted of the federal crime (18 USC 48) of selling depictions of animal cruelty. Held (8-1): A few categories of speech are unprotected; they include: obscenity, defamation, fraud, incitement to violence, and speech integral to criminal conduct. We decline to add to this list depictions of animal cruelty for financial gain. The federal law prohibits more than can be justified, and thus is unconstitutional. U.S. v. Stevens, 4/20/2010, 2010 WL 154 0082, www.supremecourt.gov/opinions/ 09pdf/08-769.pdf.

Compare: laws forbidding the ritual sacrifice of animals were unconstitutional violations of religious freedoms. Church of the Lukumi Babalu Aye v. Hialeah FL, 508 U.S. 520 (1993) http://www.law.cornell.edu/supct/html/historics/USSC_CR_0508_0520_ZS.html

Mojave Cross: Retired employee of National Park Service sued to forbid display of Latin cross, on display since the 1930's to honor fallen soldiers from WWI, mounted in a remote section of Mojave National Preserve, as a violation of the Establishment Clause. The federal district court (Buono v. Norton, 364 F.Supp.2d 1175, 2005) ordered that the cross not be displayed on public land. Congress authorized an equal value land exchange of the land and the cross to a private party. The Ninth Circuit held that the land transfer violated the Establishment Clause (Buono v. Kempthorne, 502. F.3d 1069 (2007), amended 537 F.3d 758 (2008)). Held: In five separate opinions, U.S. Supreme sent the case back to the trial court with instructions to reconsider the land transfer authorization in light of the context and reasons for its passage, and a change in circumstances. Justice Kennedy’s lead opinion: "The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society." Salazar v. Buono, No. 08-472, 2010 WL 1687118, 4/28/2010, www.supremecourt.gov/opinions/09pdf/08-472.pdf.

Compare / Ten Commandments: When city accepted private party’s Ten Commandments monument for permanent mounting in city park, it exercised its right of government speech; First Amendment did not apply; city was not required to allow placement in the park of religious monument from another private party. Pleasant Grove v. Summum, U.S. Supreme Ct. No. 07-65, 129 S.Ct. 1125 (2/25/2009), www.supremecourt.gov/opinions/08pdf/ 07-665.pdf . See: www.summum.org ("modern mummification of transference").

Favoring Noncommercial Messages. When Houston TX sued billboard company RTM to force removal of billboards built in the city’s ETJ (extraterritorial jurisdiction) without city permits, the company challenged the city’s sign law, which bans new billboards displaying offsite commercial messages but does not regulate signs used full time and exclusively for noncommercial (politics, religion, etc.) messages. The Fifth Circuit upheld the city law, RTM v. Houston, 584 F.3d. 220, saying that the evidence showed the law was effective at gradually reducing the number of billboards in the city, and thus enhancing the city’s esthetic interest. Cert. denied 3/1/2010. [Disclosure: Randal R. Morrison was a consultant to Houston on this case.]

Street Furniture Advertising. After competitive bidding, the City of Los Angeles entered into an "SFA" (Street Furnitute Agreement), a 20 year contract granting CBS the exclusive right to construct various forms of "street furniture" (bus stop shelters, automated public toilets, news racks, etc.) on city property, and sell advertising. The city was to receive annual payments estimated to total $150m over 20 years. Four months later the city enacted a ban on new off-site advertising structures, but exempted the CBS / SFA deal. After the ban went into effect, Metro Lights installed several new off-site advertising facilities, and was cited. Held: the ban is not unconstitutional, even though it prohibits private parties from doing what the city is doing. The First Amendment does not prohibit governmental monopolies. Metro Lights v. Los Angeles, 9th Cir. No. 07-55179, 07-55207, 1/6/2009, 551 F.3d 898, cert. denied 12/14/2009, No. 09-259.

Commercial v. Noncommercial. Entrepreneur purchased property which included freeway visible sign that had previously been used for on-site advertising. When he used the sign to display off-site commercial messages, he was sued by Caltrans in state court. He then sued in federal court, attacking the California Outdoor Advertising Act as unconstitutional. He won a ruling that the state act was unconstitutional because it forbade noncommercial messages. The state law was then changed, stating that Caltrans would not regulate protected noncommercial messages. The Ninth Circuit upheld the state law; it prevents the sign owner from displaying offsite commercial messages. Maldonado v. Morales, 9^th Cir. No. 07-15535, 556 F.3d 1037, 2/25/2009, cert. denied 1/19/2010, Maldonado v. Iwasaki, 130 S.Ct. 1139, No. 09-359.

"Fag Troops": U.S. Supreme has agreed to review Snyder v. Phelps, 580 F.3d 206, 4^th Cir. 2009. The Fourth Circuit upheld the right of a militantly anti-gay fundamentalist church (Westboro Baptist, Topeka KS) to display highly offensive signs at funerals of military service men and women. Their sign messages include "God Hates Fags," "Priests Rape Boys," "Pope in Hell," "God Hates the U.S.A.," "Thank God for 9/11," etc. Cert. granted 3/8/2010, No. 09-751. Their protest schedule: http://www.godhatesfags.com/.

Polling Places:

1) Voter Solicitation. A Flordia state law banned solicitation of voters within 100 feet of a polling place on election day. The law was challenged by groups seeking signatures to qualify a proposed city charter amendment for a future ballot. The Eleventh Circuit rejected the challenge. Citizens for Police Accountability Political Committee v. Browning, 11^th Cir. No. 08-15115, 572 F.3d 1213. Cert. denied 4/19/2010, No. 09-861.

2) Exit Polling. NJ Supreme Court held that state election law, which prohibited all expressive activity within 100 feet of polls on election day, was valid and applied to news organizations’ attempts to conduct exit interviews with voters. In re ATTORNEY GENERAL'S "DIRECTIVE ON EXIT POLLING:..." (A-47-08), 9/30/2009, 2000 NJ 283. However, a federal court issued a preliminary injunction allowing news organizations to conduct exit polls. American Broadcasting Companies v. Wells, U.S. Dist. Ct. NJ No. 09-5275, 10/23/2009, 669 F.Supp.2d 483.

Video Game Free Speech. The Ninth Circuit invalidated a California state law (Civil Code 1746) which prohibits the sale or rental of violent video games to minors, and imposes a labeling requirement for violent video games. Video Software Ass’n v. Schwarzenegger, 556 F.3d 950 (9^th Cir. 2009). Cert. granted 4/26/2010, No. 08-1448.

Warning Pamphlets in State Park. A private group wanted to display its pamphlet warning of asbestos contamination in a state park; park officials denied permission; the Seventh Circuit upheld the decision. Illinois Dunesland Preservation Society v. Illinois Dept. of Natural Resources, 7^th Cir. No. 09-1535, 10/14/2009, 584 F.3d 719, rehearing denied 11/10/2009. Cert. denied 4/5/2010, No. 09-1004.

Vehicle Leafletting. Immigration protestors placed leaflets under the windshield wipers of private cars parked on city streets, and were threatened with police citations for violating a city law which bans all vehicle leafletting. The trial court refused to order the city to stop enforcing the law. Held: The trial court must issue the "no enforcement" order because the challenger is likely to prevail. The city has not offered enough evidence to show the law satisfies the "time place and manner" standard of justification for preventing clutter and unauthorized use of private property. Klein v. San Clemente CA, 9^th Cir. No. 08-55015, 10/2/2009, 584 F.3d 1196, cert denied 3/1/2010, No. 09-777.

Recent Sign & Billboard Cases

Money Damages for Permit Denial? City denied CUP (conditional use permit) applications for new billboards. Signco sued, claiming sign ordinance was unconstitutional. City then amended the ordinance. Trial court dismissed the case as moot. The 9^th Circuit (506 F.3d 895, 2007), held the sign ordinance challenge had been mooted, but sent the case back to the trial court to determine possible money damages. Held: Sign company admits it never intended to build or operate the signs; it sold all its rights in the permit applications even before the city denied the permit apps. As disappointed speculators in land use permits, the sign company lacks standing to seek damages flowing from a deprivation of free speech. Outdoor Media Group v. Beaumont CA, U.S. Dist. Ct. Cent. Dist. CA, No. 03-1461, 3/22/2010, 2010 WL 1050943. Earlier decision by 9^th Circuit: 506 F.3d 895. Now pending: Motion for extension of time to file appeal. [Disclosure: Randal R. Morrison is defending the City of Beaumont CA in this case.]

NYC Billboard Regulation. In several combined cases, Clear Channel and other billboard companies challenged NYC’s sign regulations as applied to commercial speech. NYC has banned offsite commercial signs since 1940, but for much of this time it did not vigorously enforce its rules; many billboards were erected illegally. When the federal Highway Beautification Act ("HBA") was adopted in 1965, the city granted nonconforming legal status to the billboards that satisfied the federal law; all others remained illegal. In 2001 the city enacted regulations for billboards along arterial streets, which required registration and certification of compliance with current code. False statements on the certifications could lead to revocation or suspension of permits, fines or penalties. "The President of the Outdoor Advertising Group did not dispute that the industry routinely claimed that advertising signs would be used for permissible on-premises accessory business purposes in order to obtain permits from the DOB (Dept. of Buildings). Despite these representations . . . the signs were in fact used for offsite advertising purposes, which were proscribed. . . . Some outdoor advertising companies, including the Plaintiffs, also erected billboards without obtaining permits of any kind." Plaintiff sign companies said the city should have adopted a "size and spacing" system. Held: It is not the Court’s role to second guess the City’s urban planning decisions. Cities may "distinguish between the relative value of different categories of commercial speech." On the city’s contract with a private company for ads on street furniture, this Court follows Metro Lights [covered above]. There is a relationship between the City’s zoning, which regulates the placement of outdoor commercial advertising, and its interest in esthetics and traffic safety. The city’s billboard laws are valid. Clear Channel Outdoor v. City of New York, 2d Cir. Nos. 09-1553, 09-1554, 09-1571, 2/3/2010, 594 F.3d 94.

Billboard Settlements Invalidated. In 2006 the City of Los Angeles reached settlement agreements with three billboard companies (CBS, Clear Channel, Vista Media) which allowed the companies to convert 800+ existing billboards to digital. A non-settling billboard company, denied the same opportunity, sued to invalidate the settlement agreements. Held: The settlements allow the City and the settling companies to circumvent the general ban on alterations to offsite signs in the City’s law. This purpose–exempting only certain companies from the zoning laws– is illegal. A government may not contract away its police power (the power to govern). The settlement agreements are void for all purposes. Summit Media v. City of Los Angeles, CBS Outdoor and Clear Channel, California Superior Court (LA) No. BS116611, 11/4/2009, not officially reported, now on appeal.

Ban With Exceptions. Los Angeles bans Freeway Facing Signs, but has made a few exceptions–digital billboards near the Staples Center (a sports and entertainment complex) and relocation agreements allowing four new billboards in exchange for removal of others, which reduced the number of billboards in the city. The city also bans "supergraphics," which are large-scale signs hung from the sides of buildings, usually for offsite commercial ads. [See skytag.net.] However, either ban can be overridden by a duly approved specific plan, supplemental use district (such as a special sign district) or an approved development agreement. Challenger says the exceptions confer "unbridled discretion to select among preferred speakers because those exceptions lack objective criteria for their application." Held: the exceptions to the Freeway Facing Sign Ban do not undermine the City’s interests in aesthetics and safety, but instead advance those interests. The Staples Center signs were important for a project to remove blight; the other project helped improve the traffic flow, and resulted in a net reduction in billboards. The exceptions do not break the link between the bans and the city’s goals of esthetics and safety. World Wide Rush v. Los Angeles, Ninth Circuit No. 08-56454 (and others), 5/26/2010, 2010 WL 2089520. Now pending: motion for rehearing by a lager panel of judges.

Church Directional. Church without its own sanctuary wished to place temporary directional signs inviting people to their service. The town’s sign ordinance generally banned signs without permits, but made several exceptions, including "Temporary Directional Signs Relating to a Qualifying Event." Church was cited for displaying signs outside the allowed time period, for not listing the date and time of the event, & for placing the signs in the public right of way. Held: The rules on physical characteristics (size, number, construction, location, timing of display) do not relate to message content. "Qualifying events" include "any assembly . . . sponsored, arranged or promoted by a religious, charitable, community service, educational or other similar non-profit organization." Directionals do not distinguish favored from disfavored speech. The rules turn on a triggering event, not message content; they allow an officer to determine who is speaking without assessing the message. The case is returned to the trial court to determine if the city’s code favors certain noncommercial speakers over others. Reed, pastor, v. Gilbert AZ, 9^th Cir. No. 08-17384, 11/20/2009, 587 F.3d 966.

Artistic Mural or Political Protest Sign? Nonprofit organization mounted a 360+ sf image stating "stop eminent domain abuse" on a multi-family dwelling. When told they needed a sign permit, they applied for one; it was denied. On appeal they argued that the image was an artistic mural, not a sign. Held: Nothing shows that the city was opposed to the message. The permit was denied because the image exceeded the 36 sf size limit for that location; the limit applies equally to all messages. By allowing flags, crests, and works of art without permits, the City is not favoring or disfavoring any message. "Because civic crests, works of art and flags are not the ‘stuff’ of public debate, there is no danger that the City-by exempting them from other categories of signs-will ‘give one side of a debatable public question an advantage in expressing its views to the people’ or . . . seek to select the permissible subjects for public debate and thereby to control the search for political truth.’" The permit denial was proper; the City did not deprive the group of their free speech rights. Neighborhood Enterprises v. St. Louis MO, U.S. Dist. Ct., E. Dist. Mo, No. 4:07CV1546, 3/20/2010, 2010 WL 1186344. Appeal now pending at the 8th Circuit.

Junker Car or Sign? City demanded removal of junker car; owner objected that the car had been decorated and thus was protected by Visual Artists Rights Act and free speech right. Held: The junker car rule applies equally to all and is valid; the car must be removed. Kleinman v. San Marcos TX, 5^th Cir. No. 08-50960, 2/10/2010, 597 F.3d 323.

Discretion; Mootness. After planning staff recommended approval of permits for new billboards, Planning Commission denied the permits. County then adopted interim ordinance, banning new billboards until new general plan could be completed. Held: the discretion for a CUP was sufficiently guided by factors stated in the earlier ordinance; adoption of the new ordinance, even if interim in nature, moots the signco’s case; the Board has expressed its intent not to revert to the prior ordinance. Under the new ordinance, new billboards are prohibited as a matter of law, not discretion. There was no "singling out" of this company, because the ban applies countywide. Stott Outdoor v. County of Monterey, U.S. Dist. Ct., No. Dist. CA, No. C-06-00891, 3/10/2009, 601 Fed.Supp.2d 1143. [Disclosure: Randal R. Morrison defended the County of Monterey CA in this case.]

Billboard Ban. Sign company claimed that a CUP under Oakland’s Planning Code authorized a billboard built without a sign permit. Held: The CUP does not authorize a structure which is completely prohibited by the City’s Muni Code. Desert Outdoor v. Oakland, 9^th Cir. No. 09-15530, 4/20/2010, 2010 WL 1544091.

"Sarah Palin Billboard." Outdoor advertising company submitted building permit application for a "pole sign" emblazoned with "Sarah Palin for President 2012." The application was denied because the proposed sign had the dimensions of a typical freeway billboard, and billboards were banned. Signco applied for Temporary Restraining Order (TRO), arguing that political sign rules led to denial and deprived free speech; TRO granted. Sign Ordinance amended; TRO dissolved. Held: The proposed sign violated the size rules that applied to pole signs on the date of application. Those rules are valid. Because the size violation decides the case, the sign company lacks standing to challenge other aspects of the sign law, and has no valid claim for damages. City’s motion for summary judgment is granted. Herson v. San Carlos, ND CA No. 3:09-cv-004187, 6/2/2010, 2010 WL 2196072. [Disclosure: Randal R. Morrison defended the City of Carlos CA in this case.]

Free Speech

Advertising Legal Brothels. Nevada law allows prostitution when conducted inside a brothel licensed by a county with a population under 400,000; 11 counties do so. Advertising prostitution is completely banned in areas where the practice is illegal; in counties that allow it, advertising is banned "[i]n any public theater, on the public streets of any city or town, or on any public highway." Held: the ad ban targets commercial speech, which is reviewed under Central Hudson. 1) Legality. The service is legal in at least some counties; 2) Gov’t interest. The state’s objection is not to sex, but the buying & selling of it; 3) Actual advancement. "As the harm protected against occurs in part from the proposal of the transaction, banning or restricting the advertising directly reduces the harm." 4) Tailoring. The ban lessens demand, and thus advances the state’s interest. The brothel advertising restrictions are consistent with the First Amendment. Coyote Publishing v. Miller, Secretary of State, Ninth Cir. No. 07-16633, 2/13/2010, 598 F.3d 592.

Public Forum / Governmental Speech

"Choose Life" License Plates

1) Avoiding Controversy: New Jersey allows special organization vehicle registration ("SOVR") license plates to members of qualifying non-profit community groups, alumni associations, and service organizations, but prohibits "advocacy messages." A "Choose Life" plate design was refused as "too controversial." Held: A plausible claim is made of viewpoint discrimination, which is presumptively invalid. The case is sent back to the trial court to determine if the denial was for a viewpoint neutral reason. Children First Foundation v. Legreide, 3d Cir. No. 08-3131, 4/9/2010, not officially published, 2010 WL 1408323.

2) Not Taking Sides: No violation when Illinois refused to issue a "Choose Life" specialty plate. The rule was content based, but was viewpoint neutral; the state could avoid the appearance of taking sides in the abortion debate. Choose Life Illinois v. White, 547 F.3d 853 (2008), cert denied 10/5/2009.

Abortion Protest Near White House. Anti-abortion activists notified authorities that they wished to protest President Obama’s position on abortion with a demonstration on the anniversary of Roe v. Wade. They intended "to create a variety of verbal and visual messages, by making chalk drawings on the paved surface of Pennsylvania Avenue" in front of the White House. Permitting officials informed them that chalking the 1600 Block promenade and adjacent sidewalks would constitute defacement of public property in violation of the District’s criminal defacement statute, violate federal law prohibiting defacement of cultural resources. Other than the chalking request, the assembly permit was issued. Held: The anti-defacement rules do not regulate speech, but prohibit conduct which trespasses upon and alters the appearance of the property of another. The demonstrators had adequate opportunity to express their message through public assembly, picketing, etc. Case dismissed. Mahoney v. District of Columbia, 662 F.Supp.2d 74 (Dist. Ct. Dist. Columbia, No. 09-105, 9/30/2009).

Airport Solicitation. Krishna group challenges ban on solicitation at Los Angeles International Airport (LAX). Held: whether LAX is a public forum or not, the rule is a content neutral, time place and manner which does not violate the California State Constitution. International Society for Krishna Consciousness v. City of Los Angeles, Cal. Supreme No. S 164272, 3/25/2010, 48 Cal.4th 446.

Governmental Website. School district set up a website which advocated approval of budgets and spending on schools. Opposed citizens requested a link to their website; the request was denied. Held: The school district’s website is government speech. The First Amendment does not apply; the district had no obligation to link to the opposing website. No constitutional violation. Sutliffe v. Epping School Dist., First Cir. No. 08-2587, 584 F.3d 314, 9/17/ 2009.

_____

This newsletter is intended for general educational purposes, and not as legal advice on any particular issue or case.

Contact Information