Wayne Charles v. City of Los Angeles , 697 F.3d 1146 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WAYNE CHARLES; FORT SELF 
STORAGE, INC., No. 10-57028
Plaintiffs-Appellants, D.C. No.
v.  2:10-cv-07260-
CITY OF LOS ANGELES, a California ABC-PLA
municipal corporation, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
Argued and Submitted
May 7, 2012—Pasadena, California
Filed October 15, 2012
Before: Kim McLane Wardlaw, Richard A. Paez, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Wardlaw
12341
CHARLES v. CITY OF LOS ANGELES 12343
COUNSEL
Matthew C. Klase, Webb, Klase & Lemond, LLC, Atlanta,
Georgia, for the plaintiffs-appellants.
Carmen A. Trutanich, City Attorney, Kenneth T. Fong, Dep-
uty City Attorney, and Kim R. Westhoff, Deputy City Attor-
ney, Los Angeles, California, for the defendant-appellee.
12344 CHARLES v. CITY OF LOS ANGELES
OPINION
WARDLAW, Circuit Judge:
We are called upon to write another chapter in “the story
of billboards.” See World Wide Rush, LLC v. City of Los
Angeles, 606 F.3d 676, 680 (9th Cir. 2010). After decades of
litigation concerning the scope of permissible restrictions on
billboards, “[t]he question of the day is no longer whether cit-
ies may regulate billboards at all, but is instead the extent to
which they may do so consistent with the First Amendment
guarantee of freedom of expression.” Id. at 681. In the wake
of Metromedia, Inc. v. City of San Diego, 453 U.S. 490(1981) and Metro Lights, L.L.C. v. City of Los Angeles, 551
F.3d 898 (9th Cir. 2009), it is clear that the City of Los Ange-
les (“City”) may more strictly regulate offsite1 commercial
signs than noncommercial signs. And, indeed, the City’s sign
ordinance requires a building permit for all temporary signs
other than those containing “a political, ideological or other
noncommercial message.” Los Angeles Municipal Code
(“LAMC”) § 14.4.16(A).
Wayne Charles and Fort Self Storage (“Appellants”) sought
to install a temporary offsite sign advertising the television
program “E! News” without obtaining the required City per-
mits. Deeming the sign “strictly commercial in nature,” the
City notified Appellants that installation of the proposed sign
would violate several provisions of its sign ordinance. The
district court agreed with the City and granted judgment in its
1
LAMC § 14.4.2 defines an “Off-Site Sign” as “[a] sign that displays
any message directing attention to a business, product, service, profession,
commodity, activity, event, person, institution or any other commercial
message, which is generally conducted, sold, manufactured, produced,
offered or occurs elsewhere than on the premises where the sign is locat-
ed.” We have held that “offsite advertising, or offsite signage, refers to a
sign on private property advertising commercial services or wares pur-
veyed elsewhere than on the premises where the sign is located.” Metro
Lights, 551 F.3d at 900 n.1.
CHARLES v. CITY OF LOS ANGELES 12345
favor. We must decide whether advertisements for expressive
works constitute noncommercial speech within the meaning
of the City’s sign ordinance and are thus protected speech
under the First Amendment to the U.S. Constitution.
I.
In accord with decades of judicial guidance, the City’s Sign
Ordinance, Article 4.4 of Chapter 1 of the LAMC, regulates
commercial speech far more extensively than it does noncom-
mercial speech. See Metro Lights, 551 F.3d at 906 n.9 (“[W]e
have held that the Los Angeles Sign Ordinance only prohibits
commercial offsite signs.”); Outdoor Sys., Inc. v. City of
Mesa, 997 F.2d 604, 613 (9th Cir. 1993) (“Because our First
Amendment jurisprudence recognizes a distinction between
commercial and noncommercial speech, government officials
have to place a particular message into one or the other cate-
gory for purposes of regulation.”); see also LAMC
§ 14.4.1(F) (explaining that the Sign Ordinance is written to
“conform to judicial decisions, thereby limiting further costly
litigation and facilitating enforcement of these regulations.”).
The City’s Sign Ordinance requires “a building permit . . . for
a temporary sign . . . other than one that contains a political,
ideological or other noncommercial message.” LAMC
§ 14.4.16(A).
Appellants agreed that Fort Self Storage would lease exte-
rior wall space to Charles for the display of temporary signs
bearing “content related to motion pictures, theatrical produc-
tions, television and radio programming, music, books, news-
papers, paintings, and other works of art.” Appellants assert
that advertisements in this category are exempt from the Sign
Ordinance’s permitting requirement under the clause exempt-
ing signs “contain[ing] a . . . noncommercial message” from
the permit requirement.
Appellants proposed to display as their first sign an image
composed of the logo for the television show “E! News,” and
12346 CHARLES v. CITY OF LOS ANGELES
photographs of the show’s hosts, Ryan Seacrest and Giuliana
Rancic.2 In a wise exercise of caution before erecting the sign,
Appellants informed the City’s Building and Safety Depart-
ment of their intent to install the sign, seeking confirmation
that it was indeed exempt from the permitting requirements.
The City responded in a letter dated September 10, 2010 that
the sign “appear[ed] to be strictly commercial in nature” and
was thus subject to the Sign Ordinance’s permitting require-
ments. The City further notified Appellants that installation of
the sign would violate several provisions of the Municipal
Code and advised them to cease and desist. Because the City
has taken action to enforce its sign ordinance many times in
the past, Appellants believed that the City would enforce the
Sign Ordinance against them if they installed the proposed
sign.
On September 29, 2010, Appellants sued the City in federal
district court. They seek a declaratory judgment that the pro-
posed E! News sign and all other signs they intend to display
with “content related to motion pictures, theatrical produc-
tions, television and radio programming, music, books, news-
papers, paintings, and other works of art” are exempt from the
City’s permitting requirements for temporary commercial
signs. Appellants claim that the City’s decision to classify
their proposed signs as commercial speech violates the First
Amendment as applied to Appellants’ speech, and that the
City violated Appellants’ equal protection rights “by prohibit-
ing [them] from posting their proposed signs, but allowing
other favored entities and organizations to post similar signs
bearing similar content.”
Appellants also sought a temporary restraining order bar-
ring the City from taking any actions against Appellants for
posting the E! News sign or any other signs with content
related to expressive works. The district court denied Appel-
2
We have included an image of the proposed sign as Appendix A to this
opinion.
CHARLES v. CITY OF LOS ANGELES 12347
lants’ TRO application two days later. The district court also
denied their subsequently filed motion for preliminary injunc-
tive relief on November 12, 2010. The district court con-
cluded that the City’s “judgment that the E! News billboard
was commercial was both legally correct and reasonable,” and
that Appellants had “failed to demonstrate any chance of suc-
cess on the merits of their First Amendment challenge.”
On November 5, 2010, the City moved to dismiss the com-
plaint, arguing that Appellants lacked standing, that their
claims were not ripe, and that their claims should be dis-
missed because the E! News sign constituted commercial
speech and the City could regulate it accordingly. Ruling on
this motion, the district court dismissed as unripe Appellants’
claims concerning unspecified future signs bearing “ ‘content
related to . . . works of art,’ ” and evaluated only those claims
relating to the proposed E! News sign. The court found that
Appellants had standing to challenge the City’s classification
of the E! News sign, but rejected Appellants’ contention that
the proposed billboard should be considered an adjunct of or
incidental to the E! News television program, which enjoys
the same First Amendment protection for noncommercial
expression as the advertised news program itself.
Following the Supreme Court’s guidance for determining
when speech is deemed commercial, the district court found
that the E! News billboard qualified as commercial speech
and did not contain “even arguably noncommercial content.”
Charles v. City of Los Angeles, 757 F. Supp. 2d 989, 1003
(C.D. Cal. 2010). The district court also reasoned that the City
was due a certain amount of deference in deciding how to cat-
egorize Appellants’ message, explaining that Ninth Circuit
precedent established that—at least when it comes to
billboards— “the City must be given some space to apply the
tests for commercial speech and to reach reasonable judg-
ments as to what is and is not commercial, lest federal courts
become the first-line arbiters of hundreds of thousands of bill-
boards to be erected across the country.” Id. at 1004. The dis-
12348 CHARLES v. CITY OF LOS ANGELES
trict court entered judgment in favor of the City on December
7, 2010.
We have jurisdiction under 28 U.S.C. § 1291 and review de
novo an order granting a motion to dismiss pursuant to Fed-
eral Rule of Civil Procedure 12(b)(6). Madison v. Graham,
316 F.3d 867, 869 (9th Cir. 2002). We accept “all factual alle-
gations in the complaint as true and construe the pleadings in
the light most favorable to the nonmoving party.” Rowe v.
Educ. Credit Mgmt. Corp., 559 F.3d 1028, 1029-30 (9th Cir.
2009).
II.
[1] Appellants do not challenge the constitutionality of the
Sign Ordinance as generally applied to commercial speech,
but contend that the district court erred in determining that the
proposed E! News sign constitutes commercial speech. The
question before us is whether truthful advertisements for
expressive works protected by the First Amendment are inher-
ently noncommercial in nature.
A.
“Commercial speech enjoys a limited measure of protec-
tion, commensurate with its subordinate position in the scale
of First Amendment values, and is subject to modes of regula-
tion that might be impermissible in the realm of noncommer-
cial expression.” Fla. Bar v. Went For It, Inc., 515 U.S. 618,
623 (1995) (internal quotation marks and alterations omitted).
While it is clear that the City may restrict the proliferation of
offsite billboards bearing commercial messages, see Metro
Lights, 551 F.3d at 911, in many areas “the boundary between
commercial and noncommercial speech has yet to be clearly
delineated.” Hoffman v. Capital Cities/ABC, Inc., 255 F.3d
1180, 1184 (9th Cir. 2001).
[2] To determine whether the E! News sign constitutes
commercial speech, we follow the Supreme Court’s guidance
CHARLES v. CITY OF LOS ANGELES 12349
in Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983).
“Where the facts present a close question, ‘strong support’
that the speech should be characterized as commercial speech
is found where the speech is an advertisement, the speech
refers to a particular product, and the speaker has an eco-
nomic motivation.” Hunt v. City of Los Angeles, 638 F.3d
703, 715 (9th Cir. 2011) (citing Bolger, 463 U.S. at 66-67).
“[T]he ‘core notion of commercial speech’ is that it ‘does no
more than propose a commercial transaction.’ ” Hoffman, 255
F.3d at 1184 (quoting Bolger, 463 U.S. at 66).
[3] Appellants concede that the proposed E! News sign is
an advertisement, and it is undisputed that the sign refers to
a particular cultural product and that Appellants have an eco-
nomic motivation in encouraging the public to view the pro-
gram. Appellants further concede that “advertisements for
noncommercial expressive works . . . technically propose a
commercial transaction,” but suggest that such advertisements
always go beyond a bare proposal for a commercial transac-
tion because they also “promote the ideas, expression, and
content contained in the works and thus they are too entitled
to full First Amendment protection.” The test for commercial
speech is not so lacking in nuance.
Certain advertisements for noncommercial works might
include both an invitation to participate in a commercial trans-
action as well as some amount of noncommercial expression
entitled to heightened First Amendment protection. If “noth-
ing ‘prevents the speaker from conveying, or the audience
from hearing, . . . noncommercial messages, and nothing in
the nature of things requires them to be combined with com-
mercial messages,’ ” then the government may permissibly
restrict the commercial message regardless of its proximity to
noncommercial speech. Hunt, 638 F.3d at 715-16 (quoting
Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469,
474 (1989)). If, however, speech includes both noncommer-
cial and commercial elements that “are inextricably inter-
twined, . . . we apply our test for fully protected expression.”
12350 CHARLES v. CITY OF LOS ANGELES
Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781,
796 (1988).
The E! News billboard does not present intertwined speech.
The sign consists only of photographs of the program’s hosts
and the name of the program; no other message is conveyed.
That the underlying E! News program is itself entitled to full
First Amendment protection does not cloak all advertisements
for the program with noncommercial status; speech inviting
the public to watch E! News is not inherently identical to the
speech that constitutes the program itself.
[4] In light of Appellants’ concessions that the E! News
sign is an advertisement for a particular product and that it
proposes a commercial transaction, the district court properly
determined that the E! News sign was commercial speech and
correctly dismissed Appellants’ claims.
Appellants maintain, however, that the test for commercial
speech set forth in Bolger is inapplicable because the Bolger
Court suggested in a passing footnote that “a different conclu-
sion may be appropriate in a case where the pamphlet adver-
tises an activity itself protected by the First Amendment.”
Bolger, 463 U.S. at 67 n.14. Appellants misread the Court’s
dictum in Bolger, which rested on two cases concerning reli-
gious speech, Murdock v. Pennsylvania, 319 U.S. 105 (1943),
and Jamison v. Texas, 318 U.S. 413 (1943). The citations to
Murdock and Jamison indicate that the concern animating the
Court’s footnote in Bolger was the possibility that under cer-
tain circumstances, a mechanical application of the test for
commercial speech might permit state action that impermiss-
ibly restricted political, religious or other protected noncom-
mercial speech.
In both Murdock and Jamison, the Court overturned the
convictions of Jehovah’s Witnesses who had been prosecuted
for religious speech that solicited donations, sometimes in
exchange for religious texts. While the religious speech at
CHARLES v. CITY OF LOS ANGELES 12351
issue in both cases bore some of the hallmarks of commercial
speech, it was unquestionably part of a protected religious
activity. In Murdock, the Court stressed that the Witnesses’
religious practice of door-to-door solicitation and distribution
of literature about their religious beliefs was distinct from the
actions of ordinary commercial booksellers:
The constitutional rights of those spreading their
religious beliefs through the spoken and printed
word are not to be gauged by standards governing
retailers or wholesalers of books. The right to use the
press for expressing one’s views is not to be mea-
sured by the protection afforded commercial hand-
bills. . . . [A]n itinerant evangelist however
misguided or intolerant he may be, does not become
a mere book agent by selling the Bible or religious
tracts to help defray his expenses or to sustain him.
. . . On this record it plainly cannot be said that peti-
tioners were engaged in a commercial rather than a
religious venture. It is a distortion of the facts of
record to describe their activities as the occupation
of selling books and pamphlets.
Murdock, 319 U.S. at 111. In Jamison, the Court drew a simi-
lar distinction between purely commercial handbills and
handbills that were distributed as part of one’s religious pur-
suits:
The state can prohibit the use of the street for the
distribution of purely commercial leaflets, even
though such leaflets may have ‘a civic appeal, or a
moral platitude’ appended. They may not prohibit
the distribution of handbills in the pursuit of a
clearly religious activity merely because the hand-
bills invite the purchase of books for the improved
understanding of the religion or because the hand-
bills seek in a lawful fashion to promote the raising
of funds for religious purposes.
12352 CHARLES v. CITY OF LOS ANGELES
Jamison, 318 U.S. at 417 (citation omitted). In both decisions,
the Court drew a sharp contrast between the actions of ordi-
nary, commercial booksellers and the activities of Jehovah’s
Witnesses, who distribute literature as part of a religious man-
date of evangelism. In neither case did the Court imply that
ordinary advertisements for books were themselves noncom-
mercial; indeed, the cases suggest the opposite conclusion.
Fairly read in combination with the decisions it cites, footnote
14 in Bolger provides no support for Appellants’ position.
B.
Seeking an alternative avenue to sidestep the Bolger
inquiry, Appellants cite a series of California state cases to
support a novel argument: truthful advertisements for expres-
sive works are inherently noncommercial speech, because
they are accorded the same First Amendment status as the
underlying advertised work. But the cases Appellants rely on
concern only liability for particular state law torts, not regula-
tions of general application, such as the Sign Ordinance here.
We agree that in the circumscribed context of specific tort
actions, such a rule may apply. We decline, however, to
extend this limited exception.
[5] Faced with the need to ensure that First Amendment-
protected expression is not unduly chilled by the threat of tort
actions that would otherwise prevent the truthful promotion of
protected expressive works, under certain circumstances we
extend an advertised work’s First Amendment protection to
advertisements for the work. For example, constitutional pro-
tection from tort liability extends to truthful advertisements
for news publications that are “merely an adjunct of the pro-
tected publication and promote[ ] only the protected publica-
tion,” and make no other false claims. Cher v. Forum Int’l,
Ltd., 692 F.2d 634, 639 (9th Cir. 1982) (citing Guglielmi v.
Spelling-Goldberg Productions, 603 P.2d 454, 462 (Cal.
1979) (Bird, C.J. concurring)).
CHARLES v. CITY OF LOS ANGELES 12353
The First Amendment extends to the sale of truthful infor-
mation about a public figure, and thus renders such conduct
non-actionable under a right to publicity theory. The value of
free expression outweighs the right of publicity in these cir-
cumstances. “Any other conclusion would allow reports and
commentaries on the thoughts and conduct of public and
prominent persons to be subject to censorship under the guise
of preventing the dissipation of the publicity value of a per-
son’s identity.” Id. at 638 (quoting Guglielmi, 603 P.2d at
461-62 (Bird, C. J. concurring)). We extend this protection
from tort liability, which is ordinarily limited to noncommer-
cial speech, to advertisements for expressive works so as to
prevent tort actions from choking the truthful promotion of
protected speech. See Guglielmi, 603 P.2d at 462 (Bird, C. J.
concurring) (“It would be illogical to allow respondents to
exhibit the film but effectively preclude any advance discus-
sion or promotion of their lawful enterprise.”). Applying this
principle in an action brought by “[a] well-known entertainer
who performs under the name ‘Cher’ ” against a magazine
that used an image of her as part of a campaign promoting
subscriptions, we held that the magazine “would have been
entitled to use Cher’s picture and to refer to her truthfully in
subscription advertising for the purpose of indicating the con-
tent of the publication, because such usage is protected by the
First Amendment.” Cher, 692 F.2d at 636, 639 (citation omit-
ted). We explained that “[a]dvertising to promote a news
medium . . . is not actionable under an appropriation of pub-
licity theory so long as the advertising does not falsely claim
that the public figure endorses that news medium.” Id. at 639.
Serious First Amendment concerns would otherwise be
raised, as news publications would be blocked from advertis-
ing their contents for fear of tort liability.
New York courts similarly treat advertisements for pro-
tected works as “incidental” to the protected work and thus
entitled to the same First Amendment status as the advertised
work in cases involving similar tort actions. See, e.g., Groden
v. Random House, Inc., 61 F.3d 1045, 1049 (2d Cir. 1995)
12354 CHARLES v. CITY OF LOS ANGELES
(collecting cases). For example, in a tort action brought under
New York’s right of privacy, Joe Namath sued Sports Illus-
trated magazine over its use of a photograph, “which was
originally used by defendants, without objection from plain-
tiff, in conjunction with a news article published by them on
the 1969 Super Bowl Game,” when the magazine reused the
photograph to advertise subscriptions to the magazine.
Namath v. Sports Illustrated, 371 N.Y.S.2d 10, 11 (N.Y. App.
Div. 1975), aff’d, 352 N.E.2d 584 (N.Y. 1976). Because the
advertisement merely called attention to “the general nature of
the contents of what is likely to be included in future issues
of the magazine,” the state court held that “[t]he use of plain-
tiff’s photograph was merely incidental advertising of defen-
dants’ magazine in which plaintiff had earlier been properly
and fairly depicted and, hence, it was not violative of the Civil
Rights Law.” Id. at 12, 11.
To protect the ability of speakers to promote their work, the
“incidental use” exception to general commercial speech prin-
ciples has also been extended to actions for false advertising,
where advertisements that accurately reprinted false claims
contained in the advertised works were protected from tort
liability to the same degree as the underlying works. For
example in Lacoff v. Buena Vista Publ’g, Inc., 705 N.Y.S.2d
183, 186-187 (N.Y. Sup. Ct. 2000), purchasers of an invest-
ment book alleged that the book falsely claimed that a group
called “the Beardstown Ladies” employed a “secret” invest-
ment strategy that had earned them annual returns of 23.4%.
Holding that advertisements that accurately reflected the con-
tents of the book were protected from tort liability to the same
extent as the book itself, the trial court explained that
If, as plaintiffs seek in the instant case, excerpts of
a book, published to inform the public of the nature
and contents of the underlying speech, are deemed
commercial speech subject to claims not available
against the book itself, the contents of the underlying
speech could be chilled.
CHARLES v. CITY OF LOS ANGELES 12355
Id. at 191. See also Nat’l Life Ins. Co. v. Phillips Publ’g, Inc.,
793 F. Supp. 627, 644-45 (D. Md. 1992) (observing that if
advertisements that merely reprinted text from protected
newsletter could support an action for defamation, the result
would be “that commentators on national issues could enjoy
. . . uninhibited, robust debate . . . only so long as their state-
ments did not happen to be reprinted in advertisements for
their books, articles and television programs”). But see
Keimer v. Buena Vista Books, Inc., 89 Cal. Rptr. 2d 781, 788
(Cal. Ct. App. 1999) (holding that the identical advertise-
ments as those in Lacoff constituted commercial speech).
New York’s “incidental use” exception thus serves the
same function as our exception for advertisements that are
“adjunct” to a protected work: if advertisements for expres-
sive works were not entitled to the same immunity from tort
as the underlying work, publishers would be unable to truth-
fully advertise certain protected works. See Groden, 61 F.3d
at 1050-51 (“It is clear that what drives the ‘incidental use’
exception [to New York’s state law privacy tort] is the First
Amendment interest in protecting the ability of news dissemi-
nators to publicize, to make public, their own communica-
tions.”) (quoting Stern v. Delphi Internet Servs. Corp., 626
N.Y.S.2d 694, 700 (N.Y. Sup. Ct. 1995)) (internal quotation
marks omitted); Hoepker v. Kruger, 200 F. Supp. 2d 340, 350
(S.D.N.Y. 2002) (“The ancillary use exception gives news
agencies, magazine publishers, etc. the ability to publicize
their newsworthy articles without violating the right of pri-
vacy statutes.”).
The principle unifying the exceptions to the commercial
speech doctrine for advertisements for protected works is the
need to protect advertisers from tort actions that would other-
wise threaten the ability of publishers to truthfully promote
particular works. While lower courts have occasionally used
imprecise, overbroad language in describing these exceptions,3
3
See, e.g., Rezec v. Sony Pictures Entm’t, Inc., 10 Cal. Rptr. 3d 333, 339
(Cal. Ct. App. 2004) (“[J]ust as the films are noncommercial speech, so
12356 CHARLES v. CITY OF LOS ANGELES
it is only in the narrow context of this principle that we have
recognized that the noncommercial First Amendment status of
an underlying expressive work extends to advertisements for
that work. Appellants now seek to extrapolate from these lim-
ited exceptions a categorical rule: truthful advertisements for
noncommercial speech always share the identical level of
First Amendment protection as the underlying speech. That
the law extends special protection to advertisements for First
Amendment-protected works in the context of certain tort
actions, however, does not support a sweeping rule that adver-
tisements for protected speech are “noncommercial” in all
contexts.
[6] Doctrines extending noncommercial status from a pro-
tected work to advertising for that work are justified only to
the extent necessary to safeguard the ability to truthfully pro-
mote protected speech. As Appellants have not shown that
applying the Sign Ordinance to advertisements for expressive
works threatens the ability of speakers to publicize protected
speech, we find no reason to extend the adjunct use exception
to the context of billboard regulation. Significantly, the City
does not seek to regulate the content of the underlying E!
News program or to single out E! News advertisements in
particular, but only to enforce broadly applicable guidelines
that govern the placement of all commercial advertising. Cf.
Nat’l Life Ins. Co., 793 F. Supp. at 644 (“Plaintiff’s complaint
is over the fact that the statements were made, not over where
they happen to appear. . . . [I]t is only their chance appearance
in the promotional materials that brings any color at all to ‘the
cheeks’ of Plaintiff’s argument.”). Moreover Appellants’ pro-
posed categorical rule would radically enlarge the recognized
is an advertisement reflecting their content.”); Lacoff, 705 N.Y.S.2d at 190
(N.Y. Sup. Ct. 2000) (“[A]dvertising that promotes noncommercial
speech, such as a book, is accorded the same constitutional protection as
the speech it advertises. It is actionable only if it fails to accurately reflect
the contents of the protected speech being promoted.”).
CHARLES v. CITY OF LOS ANGELES 12357
exceptions to the First Amendment’s limited protection for
advertising. Such a rule would place truthful advertisements
for books, films, video games, see Brown v. Entm’t Mer-
chants Ass’n, 131 S. Ct. 2729, 2733 (2011), topless dancing,
see Chase v. Davelaar, 645 F.2d 735, 738 (9th Cir. 1981), and
all other forms of noncommercial expression beyond the
reach of commercial speech regulations. No court has ever
suggested that such a broad exception to the commercial
speech doctrine is required,4 and Appellants have presented
no cause for us to so hold.
III.
The district court did not entirely rest its determination that
the E! News billboard was commercial speech on deference
to the City’s decision. It nonetheless concluded that deference
to the City’s evaluation of the sign’s First Amendment status
was appropriate, reasoning that “the City must be given some
space to apply the tests for commercial speech and to reach
reasonable judgments as to what is and is not commercial, lest
federal courts become the first-line arbiters of hundreds of
thousands of billboards to be erected across the country.”
Charles, 757 F. Supp. 2d at 1004. Because the judiciary has
an essential role in safeguarding the First Amendment’s guar-
antees, we must note our disagreement with the district
court’s view of the extent of deference owed City officials.
4
Indeed, several of the cases cited by Appellants reject the precise rule
Appellants suggest. See, e.g., Gordon & Breach Sci. Publishers S.A. v.
Am. Inst. of Physics, 859 F. Supp. 1521, 1541 n.8 (S.D.N.Y. 1994) (“Of
course, the fact that an advertisement promotes a good or service protected
by the First Amendment does not serve by itself to remove the ad from
the realm of commercial speech . . . .”), holding modified on other grounds
by Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 314 F.3d 48(2d Cir. 2002); William O’Neil & Co., Inc. v. Validea.com Inc., 202 F.
Supp. 2d 1113, 1121-22 (C.D. Cal. 2002) (holding that an advertisement
for a book was immune from particular tort liability as an adjunct to a pro-
tected work, but expressly declining to determine whether the advertise-
ment was categorically noncommercial speech).
12358 CHARLES v. CITY OF LOS ANGELES
[7] We have explained that deference is due to a city’s leg-
islative decisions addressing the spread of billboard advertis-
ing, as these decisions require the balancing of interests such
as traffic safety, revenue, and aesthetics. See Metro Lights,
551 F.3d at 910-11. We therefore defer to the City’s choices
in creating broad legislative schemes addressing regulation of
commercial speech; we have never urged similar deference to
City officials’ evaluations as to the constitutional status of
particular speech. While municipal officials are authorized to
make determinations—guided by judicial precedent—as to
whether particular speech is commercial, a district court
reviewing such a determination may not defer to the City on
a question of constitutional law.
[8] The specter the district court raised of the “federal
courts becom[ing] the first-line arbiters of hundreds of thou-
sands of billboards to be erected across the country,” Charles,
757 F. Supp. 2d at 1004, is insufficient to counsel against de
novo review of a municipality’s determination that certain
speech is not entitled to full First Amendment protection. In
cases involving “the line between speech unconditionally
guaranteed and speech which may legitimately be regulated,”
Speiser v. Randall, 357 U.S. 513, 525 (1958), the Supreme
Court has instructed that “judges . . . must exercise [indepen-
dent] review in order to preserve the precious liberties estab-
lished and ordained by the Constitution.” Bose Corp. v.
Consumers Union of U.S., Inc., 466 U.S. 485, 510-11 (1984).
We therefore extend “a special solicitude for claims that the
protections afforded by the First Amendment have been
unduly abridged.” Daily Herald Co. v. Munro, 838 F.2d 380,
383 (9th Cir. 1988) (quoting Planned Parenthood
Ass’n/Chicago Area v. Chicago Transit Auth., 767 F.2d 1225,
1229 (7th Cir. 1985)) (internal quotation marks omitted). This
“special solicitude” leads us to subject even a district court’s
factual determinations upholding restrictions on speech to
particular scrutiny: “When a district court holds a restriction
on speech constitutional, we conduct an independent, de novo
examination of the facts.” Id. Deference to the “reasonable”
CHARLES v. CITY OF LOS ANGELES 12359
legal judgment of municipal officials is thus particularly inap-
propriate in the First Amendment context. Any increased bur-
den on the courts occasioned by de novo review is
outweighed by our constitutional responsibility; we may not
abdicate our obligations in the name of efficiency. The district
court’s contrary conclusion was a misreading of our prece-
dent.
IV.
[9] While certain limited exceptions to the commercial
speech doctrine are required in order to safeguard First
Amendment values, we reject the need for a categorical rule
according noncommercial status to all truthful advertisements
for expressive works. The district court’s judgment that the E!
News sign constitutes commercial speech is AFFIRMED.
12360 CHARLES v. CITY OF LOS ANGELES
APPENDIX A