Rtm Media, L.L.C. v. City of Houston

• Citation: 584 F.3d 220
• Decision Date: 28 September 2009
• Docket Number: No. 08-20701.,08-20701.
• Parties: RTM MEDIA, L.L.C., Plaintiff-Appellant, v. CITY OF HOUSTON, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

584 F.3d 220

RTM MEDIA, L.L.C., Plaintiff-Appellant, v. CITY OF HOUSTON, Defendant-Appellee.

No. 08-20701.

United States Court of Appeals, Fifth Circuit.

September 28, 2009.

William W. Ogden (argued), Ogden, Gibson, Broocks & Longoria, Houston, TX, for RTM Media, L.L.C.

Craig Smyser, Justin M. Waggoner (argued), Smyser, Kaplan & Veselka, James R. Moriarty, Moriarty, Leyendecker, Erben, P.C., Martie Roach Yeates, Vinson &

Elkins, L.L.P., Houston, TX, for City of Houston.

William David Brinton, Rogers Towers, Jacksonville, FL, Jonathan M. Day, Andrews Kurth, L.L.P., Houston, TX, for all Amici Curiae.

John M. Baker, Greene Espel, PLLP, Minneapolis, MN, for Amici Curiae: Texas Mun. League, Texas City Attys. Ass'n, Houston Northwest Chamber of Commerce, American Planning Ass'n, Scenic America, Inc. ScenicTexas, Inc. and Scenic Houston.

Appeal from the United States District Court for the Southern District of Texas.

Before HIGGINBOTHAM, SMITH and SOUTHWICK, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

RTM Media appeals a summary judgment for the City of Houston. We affirm.

I.

Houston's sign code threatens to eliminate most of the fifty-nine billboards owned by RTM, an outdoor advertising company. The city sued in state court, accusing RTM of violating the sign code and being a public nuisance; RTM then sued in federal court, alleging that the code violates the First Amendment and that it cannot be enforced against billboards that have been separately licensed by the state.

RTM says that the First Amendment prohibits the sign code's disparate treatment of commercial and noncommercial speech. The code classifies signs as "on-premise" or "off-premise," depending on whether they provide information related to the premises on which they are located;¹ the code requires the abatement of off-premise signs. It excludes from regulation all noncommercial signs, defined as

a structure that is used exclusively and at all times (except when there is no copy at all on the structure) for messages that do not constitute advertising, including, but not limited to, political messages, religious or church related messages, public service, governmental and ideological messages and other copy of a nature that is not commercial advertising . . . .

SIGN CODE § 4619(c).²

RTM also contends that Houston does not have the authority to regulate RTM's signs. The signs in question are located in the city's extraterritorial jurisdiction ("ETJ"), and the state Department of Transportation has issued state permits for them. RTM argues that the city does not have the right separately to regulate the ETJ and that any attempt to supersede the state permits is a due process violation.

At the outset of the federal litigation, the district court granted RTM's request for a preliminary injunction to prevent Houston from enforcing the code. The court determined that the code is probably unconstitutional and that RTM is therefore likely to succeed on the merits. A year later, however, the court reversed course and granted summary judgment for the city, explaining that commercial signs are far more numerous than are noncommercial ones, a fact that provides an adequate rationale for treating them differently given the objective of reducing visual clutter and distraction along public roadways.

Having affirmed the constitutionality of the code, the court abstained on the ETJ issue so that it could be resolved in the pending state court proceedings. RTM appeals, reasserting that the code violates the First Amendment and contending that the district court should not have abstained.

II.

"We review grants of summary judgment de novo, applying the same legal standard used by the district court. Summary judgment is proper when the evidence demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Chacko v. Sabre, Inc., 473 F.3d 604, 609 (5th Cir.2006) (internal citations and quotation marks omitted).

III.

As recognized by the district court and the parties, the First Amendment issue is governed by Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981), and City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993). We therefore apply those decisions to the case at hand.

A.

In Metromedia, the Court addressed the constitutionality of a San Diego ordinance that permitted on-site commercial advertising, banned off-site commercial advertising, and allowed only certain content-specific categories of non-commercial advertising (e.g., "[t]emporary political campaign signs . . . maintained for no longer than 90 days and which are removed within 10 days after election [sic] to which they pertain.").³ The ordinance therefore made three different kinds of speech distinctions: (1) Within commercial speech, it distinguished between on-premise and off-premise commercial speech; (2) within non-commercial speech, it distinguished between various categories of non-commercial speech; and (3) most broadly, it treated commercial speech differently from non-commercial speech. All three of those distinctions were challenged.

A fractured Court unambiguously held that the city could discriminate between on- and off-premise commercial speech.⁴ The Court began by noting that commercial speech enjoys lesser, intermediate-scrutiny constitutional protection. Commercial speech restrictions are evaluated under the four-part framework established in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980):

(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, (3) directly advances that interest, and (4) reaches no further than necessary to accomplish the given objective.

Metromedia, 453 U.S. at 507, 101 S.Ct. 2882 (citing Cent. Hudson, 447 U.S. at 563-66, 100 S.Ct. 2343).

The Court acknowledged that the ordinance targeted signs that advertised lawful activity and were not misleading. It found that the city's goal of ameliorating traffic hazards and aesthetic unpleasantness was a sufficiently substantial interest. On the fourth prong, it concluded that the city had not gone further than necessary to advance its interest.⁵

The Court therefore focused on whether the regulation directly advanced the city's objectives. The plaintiff argued that banning off-site commercial billboards would not further the city's interests, given that indistinguishable on-site advertising was allowed. The Court rejected that argument, holding that the First Amendment does not prohibit the city from choosing to "value one kind of commercial speech— onsite advertising—more than another kind of commercial speech—offsite advertising." Id. at 512, 101 S.Ct. 2882. Accordingly, the city constitutionally could conclude that its interests in aesthetics and safety outweigh low-value offsite advertising but should yield to higher-value onsite advertising. Id.

The plurality struck down the ordinance's attempt to distinguish among various non-commercial messages, explaining that non-commercial speech is afforded greater constitutional protection, and "[a]lthough the city may distinguish between the relative value of different categories of commercial speech, the city does not have the same range of choice in the area of noncommercial speech to evaluate the strength of, or distinguish between, various communicative interests." Id. at 514, 101 S.Ct. 2882 (citations omitted). Therefore, "[b]ecause some noncommercial messages may be conveyed on billboards throughout the commercial and industrial zones, San Diego must similarly allow billboards conveying other noncommercial messages throughout those zones." Id.

Finally, the plurality concluded that the ordinance could not favor on-premise advertising over non-commercial speech, because the First Amendment provides greater protection for non-commercial speech than for commercial speech.⁶ Given San Diego's judgment that on-premise commercial speech outweighed its interest in safety and aesthetics, non-commercial speech must also outweigh that interest. Thus, "[i]nsofar as the city tolerate[d] billboards at all, it [could not] choose to limit their content to commercial messages; the city may not conclude that the communication of commercial information concerning goods and services connected with a particular site is of greater value than the communication of noncommercial messages." Id. at 513, 101 S.Ct. 2882.

In summary, Metromedia established three key propositions. It held that (1) a billboard ordinance may permit on-premise commercial advertisement while banning off-premise commercial advertisement; (2) the ordinance may not distinguish among non-commercial messages on the basis of their content; and (3) where a city permits commercial billboards, it must also permit non-commercial ones.

B.

Twelve years after Metromedia, the Court revisited the issue of discriminating between commercial and non-commercial speech in Discovery Network. There, the City of Cincinnati was concerned about the proliferation of newsracks on city sidewalks. Rather than pass a new ordinance to address the issue, it began aggressively enforcing an old ordinance that outlawed commercial handbills. Discovery Network, 507 U.S. at 417, 113 S.Ct. 1505. The city used the ordinance to remove newsracks that distributed commercial material, but it did not take any action to restrict identical newsracks that contained non-commercial material.

Because the ordinance was a regulation of commercial speech, the Court again applied the Central Hudson four-part test. This time, however, it focused on the fourth prong, which requires the city to demonstrate that the ordinance "is not more...