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Content-Based Exceptions In Sign Ordinance Are Not Permissible, Court Rules

CP&DR Staff on
Jan 1, 2007

A ruling from the State of Washington by the Ninth U.S. Circuit Court of Appeals suggests that local governments in California may want to review their sign ordinances.

The court struck down the City of Redmond’s ordinance banning portable and offsite signs because the ordinance had content-based exceptions. Those exceptions rendered the ordinance invalid because they showed that the regulation was more extensive than necessary to promote the stated public interests of safety and aesthetics, according to the Ninth Circuit.

Beginning in late 2002, Dennis Ballen, the owner of Blazing Bagels, had an employee stand on a sidewalk while wearing a sign that said, “Fresh Bagels — Now Open.” The city notified Ballen in June 2003 that the sign violated the city’s portable and off-site sign ordinance, and the city ordered Ballen to cease and desist.

Instead, Ballen sued under federal civil rights law, 42 U.S.C. § 1983, and he won a ruling by Western District of Washington Judge Marsha Pechman. He also received $165,000 in attorney fees and costs. The city appealed, and the Ninth Circuit upheld the ruling and the monetary award.

The Ninth Circuit noted that commercial speech enjoys limited First Amendment protection. The U.S. Supreme Court established a four-prong test for determining the validity of restrictions on commercial speech in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557 (1980). A regulation’s validity depends on (1) whether the speech concerns a lawful activity and is not misleading, (2) whether the asserted government interest is substantial, (3) whether the regulation directly advances that interest, and (4) whether the regulation is not more extensive than necessary.

Both sides conceded the first two prongs had been satisfied. The Ninth Circuit, though, determined that the ordinance failed to satisfy the fourth prong.

The city’s ordinance exempted 10 categories: banners on the Redmond Way railroad overpass, construction signs, celebration displays, banners in the city center neighborhood, major land use action notices, political signs, real estate signs, temporary window signs, kiosk placards, and signs related to temporary and secondary uses of schools, churches and community buildings.

“Different signs are treated differently based entirely on a sign’s content,” Judge Richard Tallman wrote for the Ninth Circuit. “The city has failed to show how the exempted signs reduce vehicular and pedestrian safety or besmirch community aesthetics any less than the prohibited signs.”

Tallman continued: “While some of the ordinance’s content-based exceptions are reasonable — political signs are subject to strict scrutiny, construction signs promote traffic and pedestrian safety, banner displays may enhance community aesthetics — others compromise the city’s interests. More specifically, ubiquitous real estate signs, which can turn an inviting sidewalk into an obstacle course challenging even the most dextrous hurdler, are an even greater threat to vehicular and pedestrian safety and community aesthetics than the presence of a single employee holding an innocuous sign that read: ‘Fresh Bagels — Now Open.’”

The city could impose time, place and manner restrictions on all signs, or it could restrict signs with live people holding them, according to the Ninth Circuit. But Redmond’s ordinance “is not a reasonable fit between the restriction and the goal.”

As for the monetary award, the Ninth Circuit ruled that Ballen was entitled to the money under 42 U.S.C. § 1988 and that the lower court did not abuse its discretion in determining the amount.

The Case:
Ballen v. City of Redmond, Nos. 04-35606, 04-35758, 06 C.D.O.S. 8740, 2006 DJDAR 14065. Filed September 15, 2006.
The Lawyers:
For Ballen: Steven Simpson, Institute for Justice, (703) 682-9320.
For the city: J. Zachary Lell, Ogden, Murphy, Wallace, (206) 447-7000.

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