City of Antioch v. CANDIDATES'OUTDOOR GRAPHIC SERV.

• Court: U.S. District Court — Northern District of California
• Writing for the Court: SCHWARZER
• Citation: City of Antioch v. CANDIDATES'OUTDOOR GRAPHIC SERV., 557 F. Supp. 52 (N.D. Cal. 1982)
• Decision Date: 15 October 1982
• Docket Number: C-82-0832-WWS.,No. C-82-0731-WWS,C-82-0731-WWS
• Parties: CITY OF ANTIOCH, a municipal corporation, Plaintiff, v. CANDIDATES' OUTDOOR GRAPHIC SERVICE, a California corporation, et al., Defendants. Cynthia J. FULTON and Candidates' Outdoor Graphic Service, et al., Plaintiffs, v. MEMBERS OF the CITY COUNCIL OF the CITY OF ANTIOCH, et al., Defendants.

557 F. Supp. 52

CITY OF ANTIOCH, a municipal corporation, Plaintiff, v. CANDIDATES' OUTDOOR GRAPHIC SERVICE, a California corporation, et al., Defendants.

Cynthia J. FULTON and Candidates' Outdoor Graphic Service, et al., Plaintiffs, v. MEMBERS OF the CITY COUNCIL OF the CITY OF ANTIOCH, et al., Defendants.

Nos. C-82-0731-WWS, C-82-0832-WWS.

United States District Court, N.D. California.

October 15, 1982.

Wayne S. Canterbury, David W. Greenthal, Canterbury, Raub & Greenthal, San Francisco, Cal., for plaintiff Cynthia J. Fulton, defendant & counterclaimant Candidates' Outdoor Service.

William R. Galstan, City Atty., City of Antioch, Antioch, Cal., Dwight B. Bishop, Inc., Walnut Creek, Cal., for plaintiff and counterdefendant City of Antioch.

MEMORANDUM OF OPINION

SCHWARZER, District Judge.

These consolidated actions bring before the Court the question of the constitutionality of the City of Antioch's ordinance limiting to the 60 day period before an election the posting of political signs that promote candidates for public office or advocate a position on upcoming ballot propositions.

The city, which bears the burden of showing that its ordinance comports with the First Amendment, seeks a declaration affirming the constitutionality of Section 9-5.1115(b)(4)(ii) of its Municipal Code and an injunction requiring defendants Candidates' Outdoor Graphics Service (COGS) and Cynthia Fulton¹ to obey the local law. By counter motion in a related suit, COGS and Fulton seek a declaratory judgment holding the Antioch ordinance violative of the First and Fourteenth Amendments and a permanent injunction against its enforcement.

These suits testing the constitutionality of the Antioch law were brought in the early part of 1982. The city voluntarily agreed to suspend enforcement of its ordinance pending a determination by this Court of the ordinance's validity. With the general election of November 2nd now only weeks away, postering will be permitted under the ordinance's 60 day rule until after the election. Although the issue thus appears temporarily mooted, it may properly be considered as raising a case and controversy within the meaning of Article III since it is one of those issues which is "capable of repetition, yet evading review." Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975); Taxpayers for Vincent v. Members of City Council, 682 F.2d 847, 849 n. 1 (9th Cir.1982).

I. The Local Ordinance

The Antioch ordinance² limits the posting of outdoor political signs publicizing ballot propositions or promoting candidates for public office to a period of 60 days prior to the election to which they relate. The term "political sign" is defined as "any sign which is designed to influence the action of the voters for the passage or defeat of a measure appearing on the ballot at any national, State, or local election." Antioch, California Municipal Code § 9-5.1115(b)(2) (1979).

In effect, the local law imposes a year-round ban on political sign postering which is temporarily suspended 60 days before an election and reinstated after the election has taken place. Candidates and advocates have a sixty day window within which to reach Antioch voters via the medium of the temporary political sign, a medium whose unique advantages have been recognized by other courts. Baldwin v. Redwood City, 540 F.2d 1360, 1368 (9th Cir.1976), cert. denied, 431 U.S. 913, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977); John Donnelly & Sons v. Campbell, 639 F.2d 6, 16 (1st Cir.1980), aff'd, 453 U.S. 916, 101 S.Ct. 3151, 69 L.Ed.2d 999 (1981); Van v. Travel Information Council, 52 Or. App. 399, 628 P.2d 1217, 1226 (1981).

Only Section 9-5.1115(b)(4)(ii) of Antioch's Municipal Code is challenged by defendants; the Court is not asked to decide the constitutionality of the entire portion of the Antioch ordinance dealing with political signs. The Court notes in passing, however, that Section 9-5.1115(b)(4)(v) which purports to prohibit the posting of political signs in any manner that may interfere with, obstruct, confuse, or mislead traffic, or endanger the health, safety, or welfare of people, raises serious questions of vagueness and overbreadth.

II. Standard of Review in First Amendment Cases

The Ninth Circuit has outlined certain general principles which this Court must apply in analyzing legislative enactments, such as Antioch's, which regulate First Amendment rights. Taxpayers for Vincent v. Members of City Council, 682 F.2d 847, 849 (9th Cir.1982) (quoting Rosen v. Port of Portland, 641 F.2d 1243, 1246 (9th Cir.1981)) (citations omitted).

First, the law is presumptively unconstitutional and the state bears the burden of justification .... Second, the law must bear a "substantial relation" to a "weighty" governmental interest .... The law cannot be justified merely by the showing of some legitimate governmental interest.... Third, the law must be the least drastic means of protecting the governmental interest involved; its restrictions may be "no greater than necessary or essential to the protection of the governmental interest."

The city argues that this rigorous standard of review should not be applied to its ordinance because it is merely a "time, place, and manner" restriction which only incidentally burdens those seeking to inform the public about issues and candidates in upcoming elections. It is true that "laws regulating time, place, or manner of speech stand on a different footing from laws prohibiting speech altogether." Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 93, 97 S.Ct. 1614, 1618, 52 L.Ed.2d 155 (1977). Such restrictions are permissible "provided that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in so doing they leave open ample alternative channels for communication of the information." Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976).

The Antioch ordinance is clearly a regulation with respect to time; but it is unlike other regulations traditionally cast as "time, place, and manner" restrictions. See, e.g., Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (silent vigil would not interfere with tranquility of public library, but noisy protest could be banned); Adderly v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966) (jail grounds not an appropriate forum for civil rights demonstration, but state capitol grounds could not be closed to public protest); Grayned v. Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (state could ban noisy protests near school since disruptive of classwork); Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981) (state could confine persons soliciting donations for Krishna religion to one location on state fairgrounds).

The 60 day rule, unlike the typical "time, place, and manner" restriction, does not attempt to determine whether and at what times the exercise of First Amendment rights is compatible or incompatible with the normal uses of a particular forum or place. Grayned v. Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972); Taxpayers, supra, at 850. Rather, it imposes a general ban on the posting of signs promoting the candidacy of certain individuals or advocating a certain viewpoint on an upcoming ballot proposition. This ban is in effect everywhere in the city — on sidewalks, parks, and streets, as well as, apparently, on all private property—throughout the year. The ban is temporarily lifted for only a two-month period prior to an election and is reimposed in its wake. Such a pervasive restriction, which singles out political signs for special treatment, is properly analyzed under the test outlined in Rosen, supra, and reaffirmed by the Ninth Circuit in the Taxpayers case.

One must begin, therefore, with the proposition that the Antioch ordinance, which explicitly restricts and regulates a form of political speech, is presumptively unconstitutional. A heavy burden falls on the city to justify its regulation. Its regulatory goal must not only be a "weighty" governmental interest, but the city must show that no less restrictive alternative can be crafted which will promote that interest in a less onerous fashion.

With these governing principles in mind, the Court turns to the regulation before it. Two specific challenges are made to the Antioch law. First, the ordinance, by creating a classification based on the content or message of the communication conveyed on signs to be posted in the city, is attacked as violating the Fourteenth Amendment's guarantee of equal protection. Second, the local law is challenged as incompatible with the First Amendment's guarantee of freedom of speech because it imposes restrictions on one important medium which candidates and advocates use to inform the public about elections for political office and about state referenda and initiatives — the temporary political sign. Each of these issues will be considered in turn.

III. Equal Protection

The Supreme Court recently gave extensive consideration to the question whether a law which accords disparate treatment to commercial and to noncommercial speech impermissibly discriminates on the basis of content. Metromedia, Inc. v. San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981). The Court reviewed an ordinance of the City of San Diego which permitted a business to erect an on-site billboard identifying its goods and services, but prohibited all off-site billboards. The local law contained a number of exceptions to the general ban on off-site billboards, including one exempting "temporary political campaign signs" erected no earlier than 90 days before an election. Although the San Diego ordinance spoke of temporary campaign "signs," the California Supreme Court provided a...