On March 10, 2016, the California Court of Appeal, Second Appellate District, Division Eight (LA), published an opinion in Lamar Central Outdoor, LLC v. City of Los Angeles (Mar. 10, 2016, B260074) __ Cal.App.4th ___, a case involving another round in the continuing litigation between outdoor advertising companies and the City of Los Angeles over “offsite signs”—billboards with commercial messages in locations other than at a property owner’s business. In 2002, the city established a permanent ban, with some exceptions, on new offsite signs, including a ban on alterations of legally existing offsite signs. A few years later, the city banned offsite signs with digital displays. The Los Angeles Municipal Code “prohibits signs if they ‘[a]re off-site signs, including off-site digital displays, except when off-site signs are specifically permitted pursuant to a relocation agreement’” and also prohibits “alterations, enlargements or conversions to digital displays of legally existing off-site signs, except for alterations that conform to . . . this Code.” (LAMC, § 14.4.4.B.11.)
The sign ban has led to many lawsuits, some of which have been challenged in the Ninth Circuit Court of Appeals with the Ninth Circuit finding no constitutional violation. Undeterred by the sign ban and federal precedent, plaintiff sued after the city denied 45 applications to convert some of plaintiff’s offsite signs to digital signs. Plaintiff contended the sign ban violates the free speech clause of the California Constitution. The trial court agreed with plaintiff finding the sign ban was a content-based regulation that could not withstand strict scrutiny analysis. The court entered judgment prohibiting the city from enforcing the sign ban and ordering the city to process plaintiff’s pending permit applications without regard to the sign ban.
After the city appealed, the Court of Appeal allowed several parties to file amicus curiae briefs in support of the city, including the International Municipal Lawyers Association. The Court of Appeal reversed determining the city’s sign ordinance was not contest-based and therefore not subject to strict scrutiny. The ban was not directed at the content of any commercial sign, or at any particular speaker. The court recognized “that the terms ‘commercial’ and ‘noncommercial’ necessarily refer, in the broadest sense, to the ‘content’ of a sign. But plainly the term ‘content-based,’ in free speech jurisprudence to date, ordinarily does not refer to whether speech is commercial or noncommercial.” Thus, the court rejected plaintiff’s contention that California’s free speech clause requires strict scrutiny of the city’s sign ban.
As to the intermediate scrutiny test, the Court of Appeal agreed with United States Supreme Court precedent that “whether onsite advertising is permitted or not, the prohibition of offsite advertising is directly related to the stated objectives of traffic safety and esthetics.” According to the court, “[t]he high court has plainly held that what is required is not the “least restrictive means,” but rather a reasonable fit between the legislature’s ends and the means chosen to accomplish those ends. [Citation.] That exists here.”
Thus, the Court of Appeal determined that there was no constitutional infirmity under the free speech clause of the California Constitution in the distinction between offsite and onsite signs. The court’s opinion is consistent with the many authorities finding no constitutional infirmity under the First Amendment in the distinction between offsite and onsite signs.