Ackerley Communications of Northwest Inc. v. Krochalis

• Citation: 108 F.3d 1095
• Decision Date: 07 March 1997
• Docket Number: No. 95-36211,95-36211
• Parties: 97 Cal. Daily Op. Serv. 1728, 97 Daily Journal D.A.R. 3259 ACKERLEY COMMUNICATIONS OF THE NORTHWEST INC., a corporation, Plaintiff-Appellant, v. R.F. KROCHALIS, Director, Seattle Department of Construction and Land Use; Department of Construction and Land Use, Seattle, an Agency of the City of Seattle, Washington; City of Seattle, a Municipal Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1095

108 F.3d 1095

97 Cal. Daily Op. Serv. 1728, 97 Daily Journal

D.A.R. 3259

ACKERLEY COMMUNICATIONS OF THE NORTHWEST INC., a corporation, Plaintiff-Appellant, v. R.F. KROCHALIS, Director, Seattle Department of Construction and Land Use; Department of Construction and Land Use,

Seattle, an Agency of the City of Seattle, Washington; City

of Seattle, a Municipal Corporation, Defendants-Appellees.

No. 95-36211.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 4, 1997.

Decided March 7, 1997.

Andrew L. Frey, Mayer, Brown, & Platt (argued), Washington, D.C.; Paul R. Taylor, Byrnes & Keller, Seattle, Washington; and Darrin N. Sacks, Rubin, Winston, Diercks, Harris & Cooke, Washington, D.C., for the plaintiff-appellant.

Eleanore S. Baxendale, Assistant City Attorney, Seattle, Washington, for the defendants-appellees.

Appeal from the United States District Court for the Western District of Washington, William L. Dwyer, District Judge, Presiding. D.C. No. CV-94-00487-WLD.

Before: BROWNING, RYMER, and T.G. NELSON, Circuit Judges.

OPINION

RYMER, Circuit Judge.

This appeal requires us to decide whether Seattle's regulation limiting the construction and relocation of billboards passes constitutional muster as a matter of law under Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981), without detailed proof that the billboard regulation will in fact advance the city's interests in traffic safety and esthetics.

Ackerley Communications of the Northwest, Inc., which is in the business of disseminating commercial and public service messages on outdoor advertising signs erected on property leased from private owners, appeals summary judgment in favor of the City of Seattle, its Department of Construction, and R.F. Krochalis, the Department's Director, on its claim that Seattle Municipal Ordinance 116780, prohibiting the construction and relocation of billboards except in certain circumstances, impermissibly restricts commercial speech under the First Amendment. The district court held that Metromedia controls, and we agree. Ackerley contends that the Court's more recent decisions require a searching judicial review of all restrictions on commercial speech, and that Seattle had to (but did not) show that its ordinance in fact advances its goals to a significant degree. However, it is not for us to overrule Supreme Court authority that is squarely on point. Therefore, as we have jurisdiction under 28 U.S.C. § 1291, we affirm.

I

The City of Seattle has banned the construction of new billboards and regulated the relocation of existing billboards since 1977. ¹ Concerned about proliferation despite the cap on legal billboards, the Seattle City Council adopted Municipal Ordinance 116780 ² in 1993 to tighten restrictions on relocation. It did so in the belief that:

because the proliferation and location of billboards in the City can contribute to visual blight, traffic hazards and a reduction of property values, it is in the public interest to further regulate the spacing, dispersion, height, size, location and relocation of billboards.

Addendum 1, p. 1.

The practical effect of the ordinance will be a gradual net reduction in the number of billboards in the city. This reduction will occur because the ordinance permits only the relocation or reconstruction of signs that do not currently conform to the Land Use Code. Conforming signs may not be relocated. Thus, whenever Ackerley loses its lease on property on which a conforming sign now sits, it will lose the right to maintain that billboard forever. Because Seattle's Sign Code prohibits the construction of new billboards, the gradual loss of leases to property accommodating conforming signs will reduce the overall number of billboards in the city.

Both parties offered evidence about whether billboards can be traffic hazards, whether they contribute to visual blight, and whether they reduce property values. But the district court relied on Metromedia to hold that no trial was necessary on whether Ordinance 116780 passes the Central Hudson ³ test as applied to billboard regulation. ⁴ Since the cases Ackerley relied on involved other types of expression, the court granted Seattle's motion for summary judgment.

II

Ackerley urges us to reverse because Seattle made no factual showing that the ordinance advances its goals to a material degree. First, it suggests that Metromedia is distinguishable because it came up on stipulated facts and nothing in the record cast doubt on the city's conclusion about the safety or esthetic effects of billboards, whereas here, Ackerley adduced evidence which, it says, does raise doubts about the reasonableness of Seattle's judgment. More substantively, Ackerley submits that since Metromedia, the Court has imposed a greater evidentiary burden on a municipality trying to justify a restriction on commercial speech, see, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996); Rubin v. Coors Brewing Co., 514 U.S. 476, 115 S.Ct. 1585, 131 L.Ed.2d 532 (1995); Edenfield v. Fane, 507 U.S. 761, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993); and City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993), and that we should follow suit in this case.

We start with Metromedia, where the Supreme Court considered a First Amendment challenge to San Diego's ban on offsite billboards. Like Seattle, San Diego enacted its ordinance "to eliminate hazards to pedestrians and motorists brought about by distracting sign displays" and "to preserve and improve the appearance of the City." 453 U.S. at 490, 101 S.Ct. at 2883. The Court applied the Central Hudson test, though there was little controversy over the application of the first, second and fourth criteria. As the Court explained:

There is no suggestion that the commercial advertising at issue here involves unlawful activity or is misleading. Nor can there be substantial doubt that the twin goals that the ordinance seeks to further--traffic safety and the appearance of the city--are substantial governmental goals. It is far too late to contend otherwise with respect to either traffic safety or esthetics. Similarly, we reject appellants' claim that the ordinance is broader than necessary and, therefore, fails the fourth part of the Central Hudson test. If the city has a sufficient basis for believing that billboards are traffic hazards and are unattractive, then obviously the most direct and perhaps the only effective approach to solving the problems they create is to prohibit them. The city has gone no further than necessary in seeking to meet its ends.

Id. at 507-08, 101 S.Ct. at 2892-93 (citations and footnote omitted).

Turning to the third criterion--whether the ordinance directly advances governmental interests in traffic safety and in the appearance of the city--the Court explicitly rejected Metromedia's argument that the record was inadequate to show any connection between billboards and traffic safety. Instead, it affirmed the California Supreme Court's opinion, which held " 'as a matter of law that an ordinance which eliminates billboards designed to be viewed from streets and highways reasonably relates to traffic safety.' " Id. at 508, 101 S.Ct. at 2893 (quoting Metromedia, Inc. v. City of San Diego, 26 Cal.3d 848, 859, 164 Cal.Rptr. 510, 514, 610 P.2d 407, 412 (1980)). Noting that many other courts agreed that "a legislative judgment that billboards are traffic hazards is not manifestly unreasonable and should not be set aside," the plurality stated:

We likewise hesitate to disagree with the accumulated, common-sense judgments of local lawmakers and of the many reviewing courts that billboards are real and substantial hazards to traffic safety. There is nothing here to suggest that these judgments are unreasonable. As we said in a different context: "We would be trespassing on one of the most intensely local and specialized of all municipal problems if we held that this regulation had no relation to the traffic problem of New York City. It is the judgment of the local authorities that it does have such a relation. And nothing has been advanced which shows that to be palpably false."

Id. at 509, 101 S.Ct. at 2893 (footnote omitted) (quoting Railway Express Agency, Inc. v. New York, 336 U.S. 106, 109, 69 S.Ct. 463, 465, 93 L.Ed. 533 (1949)).

The Court reached a similar result with respect to whether the San Diego ordinance advanced the city's esthetic interests:

It is not speculative to recognize that billboards by their very nature, wherever located and however constructed, can be perceived as an "esthetic harm." San Diego, like many States and other municipalities, has chosen to minimize the presence of such structures. Such esthetic judgments are necessarily subjective, defying objective evaluation, and for that reason must be carefully scrutinized to determine if they are only a public rationalization of an impermissible purpose. But there is no claim in this case that San Diego has as an ulterior motive the suppression of speech, and the judgment involved here is not so unusual as to raise suspicions in itself.

Id. at 510, 101 S.Ct. at 2893-94 (footnotes omitted).

Thus, the Court concluded that the ordinance did not fail directly to advance substantial government interests, and that it met the constitutional requirements of Central Hudson. ⁵ Because Seattle's ordinance is substantially similar to San Diego's, and Ackerley's challenge is virtually identical to Metromedia's, it follows that Seattle's ordinance is likewise constitutional unless Ackerley is correct that Metromedia is no longer good law.

Ackerley argues that the Court's application of Central Hudson to other types of commercial speech restrictions ⁶ has somehow undermined Metromedia 's vitality with respect to billboards. However, the Court itself has never said so. To the contrary, the...