Wednesday, October 17, 2012

Sign advertising TV show was commercial speech under sign regulation

Charles v. City of Los Angeles, --- F.3d ---, 2012 WL 4857194 (9th Cir.)

LA’s sign ordinance requires a building permit for all temporary signs other than those containing “a political, ideological or other noncommercial message.”  Plaintiffs sought to install a temporary offsite sign advertising the TV program E! News without a permit.  The question was whether ads for expressive works were noncommercial speech within the meaning of the ordinance and protected as noncommercial under the First Amendment.  Justice Stevens advocated for a commercial speech doctrine that looked to the purpose of a regulation to determine the level of protection—regulation devoted to preserving a fair bargaining process would be treated deferentially, while other kinds of regulation would be more strictly scrutinized. 

This opinion doesn’t take the Stevens approach, but it does look at the purpose of the regulation.  For purposes of regulating where signs can be, though not for other purposes (e.g., where the plaintiff attacks the advertising as a way of attacking the underlying content, as with a right of publicity claim), this ad was commercial speech and thus could be regulated by LA’s sign ordinance.  I think this makes plenty of sense: commercial speech regulation should be sensitive to the reasons underlying the regulation.  The definition of commercial speech can thus depend on the thing in the speech that the government is trying to regulate: here, merely its placement and not its content. 

The ordinance was deliberately written to track the First Amendment commercial/noncommercial distinction.  Plaintiff-appellants also deliberately attempted to work around the ordinance: Fort Self Storage agreed to lease exterior wall space to Charles for signs advertising movies, music, books, etc.  They wanted to display an ad showing the logo for E! News and photos of the show’s hosts:

The court of appeals framed the question as “whether truthful advertisements for expressive works protected by the First Amendment are inherently noncommercial in nature.”  The proposed sign was an ad for a specific “cultural product,” and appellants had an economic motivation in running the ad.  They argued, though, that such ads always go beyond a simple proposal for a commercial transation because they promote the content of the expressive work.

“The test for commercial speech is not so lacking in nuance.”  Certain ads for noncommercial works might contain both an invitation to engage in a commercial transaction (which watching E! News concededly was) and “some amount of noncommercial expression entitled to heightened First Amendment protection.”  If nothing in the nature of things requires the commercial and noncommercial messages to be combined, then the government can restrict the commercial message even despite its proximity to noncommercial messages.  Here, the billboard was not “inextricably intertwined” speech.  It was just photos of the hosts and the program’s name, with no other message.  (This explanation is potentially in tension with my preferred interpretation: pure photos might be protected against right of publicity claims—but I think the court’s other statements make that sufficiently clear.)

Though the underlying program was entitled to full First Amendment protection, “speech inviting the public to watch E! News is not inherently identical to the speech that constitutes the program itself.”  It’s true that the Supreme Court has noted that ads for content itself protected by the First Amendment can be different.  But the Supreme Court’s concern was “the possibility that under certain circumstances, a mechanical application of the test for commercial speech might permit state action that impermissibly restricted political, religious or other protected noncommercial speech.” 

Appellants also cited a series of California state right of publicity cases to argue that truthful ads for expressive works are noncommercial and thus get the same First Amendment protection as the underlying work.  “But the cases Appellants rely on concern only liability for particular state law torts, not regulations of general application, such as the Sign Ordinance here. We agree that in the circumscribed context of specific tort actions, such a rule may apply. We decline, however, to extend this limited exception.”  As Chief Justice Bird noted, it would be illogical and speech-chilling to protect an expressive work against a right of publicity claim but not allow the proprietor to advertise it.  Similar principles apply in false advertising claims based on ads for books: if the ad merely repeats the content of the book, full First Amendment protection applies.  But this rule is aimed at avoiding a chill of the underlying noncommercial speech.  That doesn’t mean that there’s a categorical rule for ads for expressive works.  “Doctrines extending noncommercial status from a protected work to advertising for that work are justified only to the extent necessary to safeguard the ability to truthfully promote protected speech.”  Appellants didn’t show any threat to the ability to advertise protected speech; LA wasn’t seeking to regulate the content of the underlying program or to single out E! News ads, “but only to enforce broadly applicable guidelines that govern the placement of all commercial advertising.”

Though the city wasn’t entitled to deference in defining commercial speech (as opposed to deference about identifying the factual harms of billboard creep), here it was right according to the court’s de novo review.

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