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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