Regulating outdoor advertising has been a controversial topic for cities ever since billboards gained popularity in the 1870s. Balancing a property owner’s use rights, the free speech rights of individuals and organizations, and the public’s interest in maintaining their hometown’s appearance has created a patchwork of legal frameworks throughout the country.
A recent case before the Ninth Circuit Court of Appeals highlighted the complex intersection of advertising with the First Amendment’s free speech protections. The case of Boyer v City of Simi Valley, No. No. 19-55723(Oct. 14, 2020), involved a city ordinance that sought to ban the use of mobile billboard advertising displays on parked or standing vehicles. The ordinance made an exception for “authorized vehicles,” which included emergency vehicles and those used for construction, repair, or maintenance of public or private property.
The plaintiff in the case, Bruce Boyer, had attempted to run for Ventura County Sherriff on the 2019 ballot. As part of his campaign effort, he placed campaign signs throughout the county on a variety of vehicles, including trailers and even bicycles. He sued the City of Simi Valley arguing that its ordinance violated his First Amendment rights.
First Amendment implications for local ordinances
The First Amendment’s prohibition against state and local laws abridging the freedom of speech presents a significant hurdle for local efforts to regulate advertising. Content-based regulations must overcome an especially high bar. A regulation is content based if it targets speech based on its topic, idea, or message. A content-based restriction can take one of several forms:
- When the regulation on its face draws a distinction based on the message a speaker conveys;
- When a facially neutral regulation cannot be justified without reference to the content; or
- When a facially neutral regulation prefers one speaker over another and reflects a content preference.
Content-based regulations are presumptively invalid. To overcome the presumption, an agency must meet the strict scrutiny standard by proving that the restrictions “are narrowly tailored to serve compelling state interests.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).
Boyer highlights the challenge of navigating content-based restrictions
In Boyer the District Court held that Simi Valley’s ordinance was content-neutral and a reasonable time, place, and manner restriction that did not violate the First Amendment. The Ninth Circuit reversed the District Court’s ruling, finding that the ordinance was a content-based restriction and presumptively invalid.
The Court reasoned that the City’s ordinance provided individuals and organizations with “authorized vehicles” preferential treatment over users of vehicles that did not meet the “authorized vehicle” requirements. The stated purpose of the ordinance was to allow emergency and construction personnel to post messages to protect public health, safety and welfare.
“How 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 City’s argument that the “government speech” doctrine protected its ordinance from strict scrutiny. The government speech doctrine applies to speech by government entities that promotes public safety. Here, the Court held that because the City’s ordinance exempts private construction and repair vehicles, the government speech doctrine does not apply.
Implications for local ordinances
Local agencies must take care when crafting regulations of speech to ensure they are likely to avoid the strict scrutiny standard of review. As Boyer shows, a regulation may appear neutral on its face, but may nevertheless be found to be content-based on further analysis.
Jones & Mayer supports local agencies in their efforts to navigate these complex areas of law. If you have questions about how your agency’s policymaking could be affected by the Boyer decision, please reach out to Jones & Mayer associate Keith F. Collins by calling (714) 446-1400 or emailing kfc@jones-mayer.com.