National Advertising Co. v. City of Orange, s. 86-6552

• Decision Date: 14 November 1988
• Docket Number: 87-5739,Nos. 86-6552,s. 86-6552
• Citation: 861 F.2d 246
• Parties: NATIONAL ADVERTISING COMPANY, Plaintiff-Appellee, v. CITY OF ORANGE, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 246

861 F.2d 246

NATIONAL ADVERTISING COMPANY, Plaintiff-Appellee, v.CITY OF ORANGE, et al., Defendants-Appellants.

Nos. 86-6552, 87-5739.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 6, 1987.

Decided Nov. 14, 1988.

Peter J. Ferguson and Larry J. Roberts, Ferguson, Praet & Sherman, Orange, Cal Bradley C. Withers, Cotkins, Collins & Franscell, Los Angeles, Cal., Furman B. Roberts, City Atty., Orange, California, for defendants-appellants.

Gary S. Mobley and Stephen F. Dial, Case, Schroeder, Knowlson, Mobley & Burnett, Newport Beach, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before BROWNING, FLETCHER and POOLE, Circuit Judges.

JAMES R. BROWNING, Circuit Judge:

National Advertising applied for permits to erect billboards in the City of Orange, California.The City denied the applications, and stipulates it did so "solely because of the provisions of the Sign Ordinance prohibiting off-site signs."

Orange City's Sign Ordinance bars throughout the City "general or billboard advertising signs," defined as "sign[s] which direct[ ] attention to a business, commodity, industry or other activity which is sold, offered or conducted elsewhere than on the premises upon which such sign is located, and which may be sold, offered or conducted on such premises only incidentally, if at all."Orange Municipal CodeSecs. 17.78.030F, 17.78.080A. Excepted from this general prohibition are certain governmental signs and flags, memorial tablets, recreational signs, and temporary political, real estate, construction, and advertising signs.Orange Municipal CodeSec. 17.78.050.

National filed suit alleging the City's ordinance was unconstitutional on its face and seeking declaratory and injunctive relief.Both parties moved for summary judgment.The district court granted National's motion in part, holding the ordinance unconstitutional because it prefers commercial over noncommercial speech, and because, by allowing certain exceptions, it regulates noncommercial speech on the basis of content.The court issued an injunction ordering the City to process National's applications without regard to the unconstitutional provisions.The City denied the applications.National moved for a civil contempt order, which the court granted.The City appeals both the order invalidating its ordinance and the contempt order.

I

The City contends its ordinance prohibits only off-site signs relating to commercial activity.The plain language of the ordinance precludes this construction.

Section 17.78.080, as defined by section 17.78.030, bans advertising signs related to "a business, commodity, industry or other activity which is sold, offered or conducted" elsewhere than on the premises.(emphasis added).The City suggests "activity" means only commercial activity.In Metromedia, Inc. v. City of San Diego, the Supreme Court accepted the California Supreme Court's holding that the word "activity" in a similar ordinance encompassed noncommercial speech.453 U.S. 490, 494 n. 2, 503, 101 S.Ct. 2882, 2885 n. 2, 2890, 69 L.Ed.2d 800(1981)(plurality opinion).The exceptions to the ban allowed by section 17.78.050 support this interpretation; many involve noncommercial speech and would be rendered meaningless by the City's interpretation.¹

We interpret Orange's ordinance as prohibiting all signs relating to activity not on the premises on which the sign is located (except those exempt by section 17.78.050), and permitting all signs relating to activity on the premises.Whether the message on the signs is commercial or noncommercial is irrelevant: both commercial and noncommercial signs are permitted if they relate to activity on the premises and prohibited if they do not.

II

Standards for assessing the constitutionality of billboard restrictions are found in the Supreme Court's opinions in Metromedia and Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 104 S.Ct. 2118, 80 L.Ed.2d 772(1984).

Under these standards, Orange's Sign Ordinance is valid as applied to commercial billboards.The City may prohibit such billboards entirely in the interest of traffic safety and aesthetics, Metromedia, 453 U.S. at 507-10, 101 S.Ct. at 2892-94;Vincent, 466 U.S. at 806-07, 817, 104 S.Ct. at 2129-30, 2135, and may also prohibit them except where they relate to activity on the premises on which they are located.Metromedia, 453 U.S. at 510-12, 101 S.Ct. at 2893-95;see alsoNaegele Outdoor Advertising, Inc. v. City of Durham, 844 F.2d 172, 173-74(4th Cir.1988).

Stricter standards apply to the restriction of noncommercial speech.Under Metromedia, an ordinance is invalid if it imposes greater restrictions on noncommercial than on commercial billboards or regulates noncommercial billboards based on their content.453 U.S. at 513, 516, 101 S.Ct. at 2895, 2897.We need not decide whether the Orange ordinance passes the first test, because it clearly fails the second.

Merely treating noncommercial and commercial speech equally is not constitutionally sufficient.The first amendment affords greater protection to noncommercial than to commercial expression.Metromedia, 453 U.S. at 506-07, 520, 101 S.Ct. at 2982, 2899.Regulations valid as to commercial speech may be unconstitutional as to noncommercial.Id. at 506-07, 101 S.Ct. at 2891-92;Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 65, 103 S.Ct. 2875, 2879, 77 L.Ed.2d 469(1983).

Thus, "[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."Metromedia, 453 U.S. at 514, 101 S.Ct. at 2896.Orange's ordinance breaches this basic principle in a manner expressly proscribed by Metromedia.

The exemptions to the Orange City ordinance's restrictions, like those before the Metromedia Court, require examination of the content of noncommercial messages.In most instances, whether offsite noncommercial signs are exempted or prohibited turns on whether or not they convey messages approved by the ordinance.²

The Constitution forbids the selective prohibition of protected noncommercial speech based on its content."With respect to noncommercial speech, the city may not choose the appropriate subjects for public discourse: 'To allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for political truth.' "Id. at 515, 101 S.Ct. at 2896(quotingConsolidated Edison, Co. v. Public Serv. Comm'n, 447 U.S. 530, 538, 100 S.Ct. 2326, 2333, 65 L.Ed.2d 319(1980));see alsoVincent, 466 U.S. at 816, 104 S.Ct. at 2134.

Because the exceptions to the restriction on noncommercial speech are based on content, the restriction itself is based on content.Metromedia, 453 U.S. at 520, 101 S.Ct. at 2899.It is therefore unconstitutional unless the City establishes the "regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end,"Perry Educational Ass'n v. Perry Local Educators Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794(1983).This did not save the ordinance in Metromedia: the Court relied on San Diego's allowance of some billboards as evidence that its interests in traffic safety and aesthetics, while "substantial," fell shy of "compelling."Compare453 U.S. at 507-08, 101 S.Ct. at 2892-93(finding interests substantial) with id. at 520, 101 S.Ct. at 2899(finding interests insufficient to justify content-based infringement on noncommercial speech).The same evidence condemns Orange's ordinance.

III

Cities are not powerless to regulate billboards containing noncommercial messages.The City of Orange remains free to redraft its ordinance to conform to the Constitution by avoiding content-based distinctions in its treatment of noncommercial billboards.³

Under Metromedia, the City's interests in traffic safety and aesthetics are sufficient to justify continued content-neutral regulation of the noncommunicative aspects of billboards, such as size, spacing and design.See453 U.S. at 502, 101 S.Ct. at 2889.Indeed, banning noncommercial billboards entirely from residential areas is permitted, as long as all such billboards are banned and ample alternative channels exist for communication of the information.Id. at 516, 101 S.Ct. at 2897;seeHeffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 648-49, 654-55, 101 S.Ct. 2559, 2564-65, 2567-68, 69 L.Ed.2d 298(1981).

Accordingly, we hold only that the City cannot analyze the content of outdoor noncommercial messages to determine whether they are allowed, and if so where.Metromedia, 453 U.S. at 515, 101 S.Ct. at 2896("Because 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.").

It does not necessarily follow that the entire ordinance is invalid.As a general rule only the part of an enactment that is constitutionally infirm will be invalidated, leaving the rest intact.SeeAlaska Airlines, Inc. v. Brock, 480 U.S. 678, 107 S.Ct. 1476, 1480, 94 L.Ed.2d 661(1987);Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504, 105 S.Ct. 2794, 2802, 86 L.Ed.2d 394(1985).⁴Whether partial invalidation is appropriate depends on the intent of the City in passing the ordinance and whether the balance of the ordinance can function independently.Alaska Airlines, 107 S.Ct. at 1480;Brockett, 472 U.S. at 506, 105 S.Ct. at 2803 As noted above, the City has consistently argued it intended the ordinance to apply only to commercial signs.Since the ordinance can function effectively if so limited, we invalidate it only as to signs...