Ad Ban Applies to Noncommercial Speech

Metropolitan News-Enterprise
Wednesday, September 9, 2008
By SHERRI M. OKAMOTO, Staff Writer

This district's court of appeal yesterday rejected a constitutional challenge to a West Hollywood ordinance banning "mobile billboard advertising" by a nonprofit group seeking to broadcast graphic images of animal abuse on large video screens mounted on a truck.

Div. One voted 2-1 to uphold Los Angeles Superior Court Judge John L. Segal's grant of summary judgment in favor of the city, concluding that the ordinance's ban applied to the anti-cruelty message Showing Animals Respect and Kindness sought to promote via a vehicle the group calls the "Tiger." The Tiger is a truck with 100-inch video screens mounted on the front, back, and sides of the vehicle and LED message signs. The screens depict images of animals being injured or killed by humans, while the LED signs proclaim messages protesting animal cruelty.

The truck also broadcasts the cries of the animals being abused, and a City of West Hollywood code enforcement officer issued a citation to the group's president, Steve Hindi, for driving the truck down Santa Monica Boulevard at 11:45 pm.

After Hindi unsuccessfully appealed the citation, he and the group filed suit against the city challenging the constitutionality of the ordinance and seeking injunctive and declaratory relief.

Noncommercial Use

Hindi argued that the city's ordinance only applied to commercial speech, and that his speech was not prohibited because his purpose in operating the Tiger was to publicize entertainer Hilary Duff's involvement in bullfights and rodeos and the animal cruelty involved in such events.

The ordinance makes it unlawful for any person "to conduct, or cause to be conducted, any mobile billboard advertising upon any street or other public place within the city," in order to "promote the safe movement of vehicular traffic, to reduce air pollution, and to improve the aesthetic appearance of the city."

It defines mobile billboard advertising as "any vehicle, or wheeled conveyance which carries, conveys, pulls, or transports any sign or billboard for the primary purpose of advertising." However, it exempts any vehicle "engaged in the usual business or regular work of the owner, and not used merely, mainly or primarily to display advertisements," as well as buses and taxicabs. On appeal from Segal's decision, Justice Frances Rothschild wrote that the meaning of the term "advertise" is not limited to calling the public's attention to a product or a business.

Dictionary Definition

Citing Merriam-Webster's Collegiate Dictionary, she explained that to "advertise" is "to make something known," or "'to announce publicly esp[ecially] by a printed notice or a broadcast." Although the subject of the matter brought to notice may be commercial, she reasoned, messages involving political candidates, religious beliefs or social causes also constitute advertisements.

Rothschild further concluded that the ordinance did not favor commercial speech over noncommercial speech by exempting vehicles displaying an advertisement engaged in the usual business or regular work of the owner because a vehicle would violate the ordinance if the vehicle were being operated "for the primary purpose of advertising."

Accordingly, she wrote, the ordinance applies to all vehicles being driven solely to advertise a message, regardless of whether the message they carry is commercial or noncommercial.

Writing that the content-neutral ordinance served a significant government interest and was narrowly tailored to meet that interest, Rothschild opined that the ordinance did not unconstitutionally interfere with Hindi or the group's freedom of speech.

Retired Los Angeles Superior Court Judge Richard P. Neidorf, sitting by special assignment, joined Rothschild in her opinion, but Presiding Justice Robert M. Mallano dissented.

Mallano cited several dictionaries to support his interpretation of advertising as commercial speech promoting a product or business, including one which indicated that the definition of "advertising" meaning "to inform or advise" is obsolete.

This fact, he contended, illustrated that "advertising," as used in the ordinance, was ambiguous, and that its legislative history should control. Noting that the preamble to the ordinance stated that it would "not unduly burden commercial advertising" within the City," Mallano maintained that the city intended the ordinance to cover commercial speech.

"Otherwise, it could be read as indicating a willingness to unduly burden noncommercial speech," he wrote.

Even assuming that the ordinance regulated commercial and noncommercial speech, Mallano contended that it violated the First Amendment because the Constitution affords greater protection to noncommercial speech than commercial expression.

Citing recent Ninth U.S. Circuit Court of Appeal cases upholding a constitutional right for speakers to display their political opinion on their vehicles, he opined that the First Amendment would require a more narrowly tailored measure to accomplish the city's goals.

San Diego attorney Bryan W. Pease represented Hindi and the group, while Michael Jenkins and J. Stephen Lewis of the City of West Hollywood Legal Services Division represented the city.

Hindi told the MetNews that he and his organization feel "very strongly" about the First Amendment issue and will discuss an appeal with their attorney. The case is Showing Animals Respect and Kindness v. City of West Hollywood, 08 S.O.S. 5409.