Summary
A city ordinance that prohibited mobile billboards except for “authorized vehicles” including emergency vehicles and construction/maintenance vehicles is a content-based restriction on free speech and presumptively invalid.
Discussion
In 2016, the City of Simi Valley (“City”) adopted an ordinance that prohibits the parking or standing of mobile billboard advertising displays on city streets. The ordinance exempts certain “authorized vehicles” from this prohibition, including emergency vehicles and vehicles used for construction, repair, or maintenance of public or private property. Plaintiff Bruce Boyer (“Plaintiff”) uses mobile billboards in the City for speech and expression purposes and sued the City arguing the ordinance violated his First Amendment rights. The federal district court granted the City’s motion to dismiss, finding that the ordinance was a content-neutral and reasonable time, place and manner restriction that did not violate the First Amendment.
On appeal to the Court of Appeals for the Ninth Circuit (“Court”), the Court reversed the district court, finding that the ordinance was a content-based restriction that is presumptively invalid. A content-based restriction can take one of several forms: (1) when the regulation on its face draws a distinction based on the message a speaker conveys; (2) when a facially-neutral regulation cannot be justified without reference to the content; or (3) when a facially-neutral regulation prefers one speaker over another and reflects a content preference. Here, the parties conceded that the City’s ordinance was facially-neutral, but Plaintiff argued that the exemption for “authorized vehicles” reflected a content preference because it allowed these speakers to operate mobile billboards despite the City’s ban.
The Court agreed, finding that under the ordinance, an “authorized vehicle” could display a mobile billboard with a political message, a public safety message, a paid message or another other type of message. Thus, certain speakers, those using “authorized vehicles,” were given preference over those who did not use an “authorized vehicle.” First Amendment analysis requires an inquiry into whether this facially-neutral speaker preference is actually a content-based restriction in disguise. The Court could not identify, and the City could not provide, a justification for allowing speech from emergency and construction, repair or maintenance vehicles that does not rely on the mobile billboard’s content. The stated purpose of the ordinance was to allow “authorized vehicles” to protect the public health, safety and welfare. This purpose only makes sense if these exempted vehicles are more likely to display messages that promote public safety than non-authorized vehicles. The Court reasoned:
“[H]ow else could allowing authorized vehicles to display messages via mobile billboards protect the health, safety, and welfare of City residents if not because those authorized vehicles are likely to display public-safety related messages? Thus, to execute its purpose, the City enacted an ordinance that prefers speakers likely to spread messages consistent with its purpose. This is a prudent preference, a reasonable rationale, and a content-based choice that triggers strict scrutiny.”
The Court also rejected the idea that the “government speech” doctrine could be invoked to save the ordinance from this highest standard of judicial scrutiny. This doctrine applies to speech made by governments that promote safety, but because the City’s ordinance exempts private construction and repair vehicles from the prohibition, it does not apply here. For these reasons, the Court reversed the district court’s motion to dismiss and remanded the case with instructions to evaluate the ordinance as a presumptively invalid content-based restriction.
Conclusion
In ruling against the City, the Ninth Circuit made clear the legal risk posed by crafting regulations on speech that include exceptions. Such regulations may appear facially-neutral but may nonetheless be content-based upon further analysis. All content-based restrictions are presumptively invalid and rarely survive strict scrutiny judicial review. Our office is available to evaluate any existing ordinances that may be questionable based on this decision.
Information on www.jones-mayer.com is for general use and is not legal advice. The posting of this Municipal Law Update is not intended to create, and receipt of it does not constitute, an attorney-client-relationship. Should you have any questions or require further clarification of the above, please contact Keith F. Collins at our office at (714) 446-1400, or by email kfc@jones-mayer.com.