Filed November 18, 2014
Justice Rehnquist’s dissent lamented, as several courts have since recognized as prophetic, that it was “a genuine misfortune to have the Court’s treatment of the subject be a virtual Tower of Babel, from which no definitive principles can be clearly drawn.” See Metromedia, 453 U.S. at 569 (Rehnquist, J., dissenting); see also Action Outdoor Adver. JV, L.L.C. v. Town of 8 Shalimar, 377 F. Supp. 2d 1178 (N.D. Fla. 2005).
Filed November 18, 2014
See Metromedia, 453 U.S. at 504, 101 S. Ct. at 2890The Supreme Court found that the billboard company had standing to challenge the facial validity of the statue at issue because, although the overbreadth doctrine does not apply to commercial speech, the company nevertheless had a “commercial interest” in the noncommercial speech of others—i.e., it leased billboard space to noncommercial advertisers. See id., 453 U.S. at 504, footnote 11, 101 S. Ct. at 2890. In the matter at bar, by significant contrast, On Sight does not have a “commercial interest” in the noncommercial speech of others.
Filed July 10, 2015
A central rationale of the Metromedia case – the fountainhead of the case law distinguishing on-site from off-site advertising – is that a city may, consistent with the First Amendment, prefer and advantage on-site over off-site advertising, the latter of which is often positioned next to freeways and major traffic arteries. Metromedia, 453 U.S. at 511-12. However, there is no similar justification for giving preference to off-site signs in the manner the City has now 4
Filed March 16, 2015
Ms. Soto’s leafleting Case 1:13-cv-10822-JGD Document 50 Filed 03/16/15 Page 13 of 25 7 activity undoubtedly constitutes noncommercial speech and, as a result, deserves greater First Amendment protection than commercial speech. See Metromedia Inc., 453 U.S. at 506. B. Prohibiting Soto’s noncommercial leafleting activity is an unconstitutional “time, place, and manner” restriction.
Filed March 15, 2016
See, e.g., Declaration of James Fox ¶ 29, ECF No. 50-18 (noting cost of changing vending machine signage if Warning is required); Declaration of Steve Kelly ¶ 31, ECF No. 50-11 (same); Declaration of Matt Johnson ¶ 32, ECF No. 50-5 (same). The facts of this case are therefore almost the opposite of those in Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981), or Metro Lights L.L.C. v. City of Los Angeles, 551 F.3d 898 (9th Cir. 2009), where nearly all of the targeted advertising fell within the scope of the regulation. Here, by contrast, the exceptions dominate the rule, rendering any advancement of the government’s interest incidental.
Filed November 18, 2014
The U.S. Supreme Court affirmed this decision and created a four-prong test for government regulation of commercial speech in Central Hudson Gas & Elec. Corp. v. Public Service Comm’n., 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (USSC, 1980) and Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882 (USSC, 1981) as follows: (1) The First Amendment protects commercial speech only if that speech concerns lawful activity and is not misleading. A restriction on otherwise protected commercial speech is valid only if it: (2) seeks to implement a substantial governmental interest; and (3) directly advances that interest; and (4) reaches no further than necessary to accomplish the given objective.
Filed August 10, 2012
It is not conceivable, even un- der the lenient standard of rational-basis review, that salesmen with direct pecuniary interests in the sale of specific food or nutritional supplements have a stronger incentive to give unbiased advice than does Plaintiff Cooksey when he gives uncompensated advice to friends and family, uncompensated advice through his Dear Abby-style column, or even compensated advice to his life-coaching clients.16 There is no plausible explanation for this statutory distinction other than 16 Indeed, because the Act exempts from regulation dietary information relayed in the course of making a retail sale of food or dietary supplements, it appears to favor commercial over non- commercial speech, which is, in and of itself, fatal under the First Amendment. See, e.g., Metro- media, Inc. v. City of San Diego, 453 U.S. 490, 513 (1981) (plurality) (“[T]he city may not con- clude that the communication of commercial information concerning goods and services con- nected with a particular site is of greater value than the communication of noncommercial mes- sages”); accord Georgia Outdoor Adver., Inc. v. Waynesville, 833 F.2d 43, 45 (4th Cir. 1987) Case 3:12-cv-00336-MOC-DSC Document 22 Filed 08/10/12 Page 30 of 34 24 the obvious one: food and nutritional supplement retailers feared being subject to the Board’s regulatory authority and the Legislature arbitrarily exempted these special-interest groups. The Supreme Court, and the Fifth, Sixth, and Ninth Circuits have recognized that economic regula- tions are unconstitutionally irrational when they do nothing to protect the public and simply re- flect the jockeying of special interests trying to gain strategic financial advantage over the public and each other.
Filed June 29, 2017
“[T]he Supreme Court has recognized that the goals of ‘traffic safety and the appearance of the city[ ] are substantial governmental goals.’” Riel v. City of Bradford, 485 F.3d 736, 751 (3d Cir. 2007) (quoting Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507-08 (1981) (plurality)). In particular with respect to billboards, “[w]hile [they] are a form of expression protected by the Free Speech Clause, they pose distinctive problems that are subject to municipalities' police powers . . . [because they] take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation.”
Filed December 19, 2016
16 distinction consistent with Supreme Court precedent. See Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980); Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981). Finally, the Committee relied on the research of the American Law Division of the Congressional Research Service and the American Civil Liberties Union to conclude that these restrictions justified by the magnitude of the problem and that such restrictions remain faithful to Supreme Court precedent on protections to be accorded “commercial speech.”
Filed October 21, 2016
................................................................................. 7 Johnson v. City of Shelby, Miss. 135 S. Ct. 346 (2014) .................................................................................... 10 Lamar Central Outdoor, LLC v. City of Los Angeles 245 Cal. App. 4th 610 (2016) ....................................................... 15, 16, 17, 18 Levin v. Miller 763 F.3d 667, 671 (7th Cir. 2014) ................................................................. 10 Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent 466 U.S. 789 (1984) ........................................................................................ 4 Mendiondo v. Centinela Hosp. Med. Ctr. 521 F.3d 1097 (9th Cir. 2008) ......................................................................... 4 Metro Lights, LLC v. City of Los Angeles 551 F.3d 898 (2009) ................................................................................ 17, 18 Metromedia v. City of San Diego 453 U.S. 490, 101 S. Ct. 2882 (1981) ................................................... 16, 17 Moss v. U.S. Secret Service 572 F.3d 962 (9th Cir. 2009) ................................................................. 13, 14 Nuveen Mun. Trust ex rel. Nuveen