Citizens for Free Speech and Equal Justice, LLC v. City Of San Jose

1

2

3 UNITED STATES DISTRICT COURT

4 NORTHERN DISTRICT OF CALIFORNIA

5 SAN JOSE DIVISION

6

7 CITIZENS FOR FREE SPEECH AND Case No. 18-cv-01919-BLF

EQUAL JUSTICE, LLC, et al.,

8

Plaintiffs, ORDER GRANTING THE CITY’S

9 MOTION FOR PARTIAL SUMMARY

v. JUDGMENT ON THE PERMIT

10 REQUIREMENTS EXEMPTION AND

CITY OF SAN JOSE, THE POLICY 6-4 EXEMPTION

11

Defendant. [Re: ECF No. 106]

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13 In this case, Plaintiffs Citizens for Free Speech and Equal Justice, LLC and GTL

14 Enterprises, LLC allege that certain provisions of the City of San Jose’s Municipal Code related to

15 signs are unconstitutional under the First and Fourteenth Amendments. The Court previously

16 issued an order granting in part and denying in part the parties’ cross-motions for partial summary

17 judgment. ECF No. 75. In that order, the Court denied the parties’ requests for summary

18 judgment on the exemption for signs erected by the City because the issue was inadequately

19 briefed. See ECF No. 75 at 24–26, 41–42. The denial was without prejudice to filing a

20 subsequent motion (or cross-motions) for partial summary judgment limited to the issue of City-

21 erected signs. Id. at 42.

22 The City has now filed a partial motion for summary judgment on the two exemptions for

23 signs erected by the City: (1) the permit requirements exemption, and (2) the Council Policy 6-4

24 exemption. See ECF No. 106 (“MSJ”); see also ECF No. 112 (“Reply”). Plaintiffs oppose the

25 motion. See ECF No. 109 (“Opp.”). The Court held a hearing on the motion on July 21, 2022.

26 ECF No. 129. For the following reasons, the Court GRANTS the City’s motion as to both

27 exemptions.

1 I. BACKGROUND

2 Section 23.02.1310.B of the City’s sign ordinance provides as follows:

3 Signs erected by the City are exempt from permit requirements but

shall comply with all other requirements of this Title, provided,

4 however, that signs erected on City owned land pursuant to Council

Policy 6-4, shall comply with Council Policy 6-4, in lieu of the

5 requirements of this Title.

6 ECF No. 55-2 (Joint Statement of Undisputed Facts (“JSOF”)), Ex. 7 at 31–32. Section

7 23.02.1310.B accordingly divides City-erected signs into two types. First are signs erected on

8 City-owned land pursuant to Council Policy 6-4, which must comply with that Policy instead of

9 the requirements of the City’s sign ordinance (the “Policy 6-4 Exemption”). Id. Second are signs

10 erected by the City, which must comply with all provisions of the City’s sign ordinance except

11 that the City need not comply with the ordinance’s “permit requirements” (the “Permit

12 Requirements Exemption”). Id.

13 II. LEGAL STANDARD

14 Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary

15 judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions

16 on file, together with the affidavits, if any, show that there is no genuine issue as to any material

17 fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v.

18 Catrett, 477 U.S. 317, 322 (1986). “Partial summary judgment that falls short of a final

19 determination, even of a single claim, is authorized by Rule 56 in order to limit the issues to be

20 tried.” State Farm Fire & Cas. Co. v. Geary, 699 F. Supp. 756, 759 (N.D. Cal. 1987). The

21 moving party “bears the burden of showing there is no material factual dispute,” Hill

22 v. R+L Carriers, Inc., 690 F. Supp. 2d 1001, 1004 (N.D. Cal. 2010), by “identifying for the court

23 the portions of the materials on file that it believes demonstrate the absence of any genuine issue

24 of material fact.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th

25 Cir. 1987). In judging evidence at the summary judgment stage, “the Court does not make

26 credibility determinations or weigh conflicting evidence, and is required to draw all inferences in a

27 light most favorable to the nonmoving party.” First Pac. Networks, Inc. v. Atl. Mut. Ins. Co., 891

1 exists, “there must be enough doubt for a reasonable trier of fact to find for the [non-moving

2 party].” Corales v. Bennett, 567 F.3d 554, 562 (9th Cir. 2009).

3 III. DISCUSSION

4 At issue in this motion are Plaintiffs’ facial1 challenges to the two sign exemptions

5 contemplated in section 23.02.1310.B: (1) the Permit Requirements Exemption, and (2) Policy 6-

6 4 Exemption. The City moves for summary judgment on both exemptions, and the Court divides

7 its discussion accordingly.

8 A. Applicable Law

9 The First Amendment, applicable to the States through the Fourteenth Amendment,

10 prohibits the enactment of laws “abridging the freedom of speech.” Reed v. Town of Gilbert, 135

11 S. Ct. 2218, 2226 (2015) (quoting U.S. CONST. amend. I). Under the First Amendment, therefore,

12 “a government, including a municipal government vested with state authority, has no power to

13 restrict expression because of its message, its ideas, its subject matter, or its content.” Id. (internal

14 quotation marks omitted). “Content-based laws – those that target speech based on its

15 communicative content – are presumptively unconstitutional and may be justified only if the

16 government proves that they are narrowly tailored to serve compelling state interests.” Id.

17 “Government regulation of speech is content based if a law applies to particular speech

18 because of the topic discussed or the idea or message expressed.” Reed, 135 S. Ct. at 2226. A

19 court, therefore, must “consider whether a regulation of speech ‘on its face’ draws distinctions

20 based on the message a speaker conveys.” Id. In addition, the Supreme Court has considered laws

21 to be content based, even “though facially content neutral,” where the “laws cannot be justified

22 without reference to the content of the regulated speech.” Id.; see Foti v. City of Menlo Park, 146

23 F.3d 629, 638 (9th Cir. 1998) (“A speech restriction is content-neutral if it is justified without

24 reference to the content of the regulated speech.” (internal quotation marks omitted)). That is, an

25 ordinance is content based if it discriminates “based on ‘the topic discussed or the idea or message

26 expressed.’” City of Austin, Texas v. Reagan Nat’l Advertising of Austin, LLC, 142 S. Ct. 1464,

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1 1474 (2022) (quoting Reed, 135 S. Ct. at 2218).

2 B. Permit Requirements Exemption

3 The City first moves for summary judgment on Plaintiffs’ facial challenge to the Permit

4 Requirements Exemption. Under this Exemption, “[s]igns erected by the City are exempt from

5 permit requirements but shall comply with all other requirements of this Title.” § 23.02.1310.B.

6 The import of this language is undisputed: Where the City displays its own message on a sign that

7 is not on City-owned property pursuant to Policy 6-4, the City is required to comply with all

8 provisions of the sign ordinance, except that it need neither pay a fee to itself nor file a permit

9 application.

10 The City argues that it is entitled to summary judgment on the Permit Requirements

11 Exemption because it satisfies intermediate scrutiny. The City relies on the Ninth Circuit’s

12 holding in G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064 (9th Cir. 2006), that an

13 identical permit requirements exemption was subject to intermediate scrutiny because it was a

14 speaker-based, and not a content-based, restriction. MSJ at 4–5. Plaintiffs respond that it is only

15 through the permitting process that a sign permit may be denied, and so the Permit Requirements

16 Exemption effectively exempts the City from the other requirements of the sign ordinance. See

17 Opp. at 1–3. Plaintiffs also assert that the City justifies the Permit Requirements Exemption on

18 solely content-based grounds, which should result in application of strict scrutiny rather than

19 intermediate scrutiny. Id. Plaintiffs also dispute whether G.K. Ltd. remains good law after Reed.

20 Id. at 3 n.1.

21 i. What Level of Scrutiny Applies

22 The Court first must determine what level of scrutiny applies by evaluating if the Permit

23 Requirements Exemption is content-based. Laws that are content-based must satisfy strict

24 scrutiny, see Reed, 135 S. Ct. at 2227, while laws that are speaker-based and content-neutral must

25 satisfy intermediate scrutiny, see Recycle for Change v. City of Oakland, 856 F.3d 666, 669 (9th

26 Cir. 2017).

27 The Court agrees with the City that, based on the G.K. Ltd., there is no genuine dispute of

1 because it is speaker-based rather than content-based. In G.K. Ltd., the Ninth Circuit evaluated a

2 section of Lake Oswego’s sign ordinance that provided that “public signs, signs for hospital or

3 emergency services, legal notices, railroad signs and danger signs” needed to comply with the sign

4 ordinance, but were not “subject to the City’s permit and fee process.” 436 F.3d at 1076. As to

5 public signs, signs for hospital or emergency services, and railroad signs, the Ninth Circuit found

6 that the provisions were speaker-based because they reflected “the City’s preference for not

7 subjecting certain entities—public agencies, hospitals and railroad companies—to the

8 requirements of the permitting and fee scheme.” Id. at 1077. The exemptions “sa[id] nothing of

9 the City’s preference for the content of th[o]se speakers’ messages, nor d[id] they allow the City to

10 discriminate against disfavored speech.” Id. The Ninth Circuit noted that the speakers were still

11 subject to the other provisions of the sign ordinance “concerning the type, number and

12 characteristics of signs that are permissible in the City; it is just that certain speakers need not

13 obtain permits (and pay the associated fee) before posting their signs.” Id. Finally, “[t]hat the law

14 affect[ed] plaintiffs more than other speakers d[id] not, in itself, make the law content based.” Id.

15 The Ninth Circuit thus found that that exemption was speaker-based, not content-based, and that

16 intermediate scrutiny applied. Id. at 1079–81 (applying intermediate scrutiny analysis).

17 The Permit Requirements Exemption here is even more clearly speaker-based than was the

18 exemption in G.K. Ltd. The exemption in the sign ordinance reaches all signs erected by a single

19 speaker—the City—without reference to any specific type of content that can be erected under the

20 exemption. The exemption thus reflects the City’s “preference” that it need not pay a fee (to

21 itself) or fill out a permit application. As in G.K. Ltd., the signs under this exemption are still

22 subject to the other restrictions in the sign ordinance, including the “type, number and

23 characteristics of signs that are permissible in the City;” they only “need not obtain permits (and

24 pay the associated fee) before posting their signs.” 436 F.3d at 1077. Because the Permit

25 Requirements Exemption tracks (and is indeed narrower than) the exemption approved in G.K.

26 Ltd., the Court finds that it is speaker-based rather than content-based.

27 Plaintiffs’ arguments to the contrary are not persuasive. First, Plaintiffs argue that there is

1 recognizes that at least one court in this district has questioned whether G.K. Ltd. has vitality post-

2 Reed. See Citizens for Free Speech, LLC v. Cnty. of Alameda, 194 F. Supp. 3d 968, 983–86 (N.D.

3 Cal. 2016) (involving exemption for city signs from permit requirement and substantive

4 provisions of city’s sign code). The Court finds, however, that Reed does not undermine the

5 continued applicability of G.K. Ltd. on the facts of this case for several reasons. First, the Court

6 notes that the code in Reed was “not speaker based” because “[t]he restrictions for political,

7 ideological, and temporary signs appl[ed] equally no matter who sponsors them.” 135 S. Ct. at

8 2231. Reed’s statements on speaker-based distinctions are thus arguably dicta. Second, even if

9 that portion of Reed is binding, the Court agrees with the City that it does not undermine the

10 analytical framework in G.K. Ltd. On speaker-based distinctions, the Supreme Court stated that

11 “the fact that a distinction is speaker based does not . . . automatically render the distinction

12 content neutral” because a speaker-based distinction can “reflect[] a content preference.” Id. at

13 2230 (citing Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 658 (1994)). But G.K. Ltd.

14 recognized this very principle—that facially speaker-based distinctions could be subject to strict

15 scrutiny because a speaker preference can reflect a content preference—with a citation to the same

16 case cited by the Supreme Court in Reed. Finally, three Justices concurring in Reed affirmed the

17 general principle from G.K. Ltd. that “government entities may also erect their own signs

18 consistent with principles that allow governmental speech [and] may put up all manner of signs to

19 promote safety.” Id. at 2233 (Alito, J., concurring, joined by Kennedy and Sotomayor, JJ.). Thus,

20 the Court finds that on the facts present here, Reed does not undermine G.K. Ltd.

21 With that issue resolved, Plaintiffs’ other arguments are more easily addressed. Plaintiffs

22 also contend that the permitting process itself is the only mechanism through which a permit may

23 be denied. Opp. at 1–2. But that was also the case in G.K. Ltd., which upheld an identical

24 exemption. Plaintiffs also argue that the City impermissibly justifies the Exemption with content-

25 based terms, such as that the City is “more likely to promote public health and safety than the non-

26 preferred speaker.” Id. at 2. Plaintiff’s argument that this is impermissible is based on citation to

27 Boyer v. City of Simi Valley, 978 F.3d 618 (9th Cir. 2020), but that case is not fatal to the

1 vehicles used “for construction, repair or maintenance of public or private property,” exempting

2 them from a substantive provision of the sign ordinance—the general ban on mobile billboard

3 advertising displays. Id. at 620. That is unlike the case here, where the Permitting Requirements

4 Exemption requires compliance with all parts of the sign ordinance except paying a fee and filing

5 a permit application. Second, the Ninth Circuit in Boyer expressly found that the exemption in

6 that case could not be justified by the preference for government speakers approved in Justice

7 Alito’s concurring opinion in Reed. While “some of the speech by authorized vehicles covered by

8 the [exemption] would qualify as government speech, . . . [a]s written, the [e]xemption does not

9 limit authorized vehicles only to those messages made by government entities or that are

10 ‘effectively controlled’ by the City,” the Circuit said. Id. at 623. That is not the case with the

11 Permit Requirements Exemption, which refers solely to messages displayed by the City and not

12 other speakers.

13 The Court finds that the Permit Requirements Exemption is speaker-based and not content-

14 based. The Permit Requirements Exemption is thus subject to intermediate scrutiny. Recycle for

15 Change, 856 F.3d at 669.

16 ii. Applying Intermediate Scrutiny

17 To survive intermediate scrutiny on summary judgment, the City must show an absence of

18 material fact on four elements. First, the speech at issue “must concern lawful activity and not be

19 misleading.” Contest Promotions, LLC v. City & Cnty. of San Francisco, 874 F.3d 597, 601 (9th

20 Cir. 2014) (citing Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 566

21 (1980)). Second, the asserted governmental interest must be “substantial.” Id. Then, the court

22 examines whether “the regulation directly advances the governmental interest asserted, and

23 whether it is not more extensive than is necessary to serve that interest.” Id.

24 There is no dispute that the speech at issue here is lawful and not misleading. And ample

25 case law establishes that the City’s asserted interest in public health and safety are “substantial”

26 interests. See, e.g., G.K. Ltd., 436 F.3d at 1079; Boyer, 978 F.3d at 623 (citing Reed, 135 S. Ct. at

27 2218). The City has submitted an unrebutted declaration stating that the messages the City

1 the availability of vaccines and traffic safety announcements. ECF No. 106-1 (“Davis Decl.”) ¶ 3.

2 Second, the Permit Requirements Exemption “directly advances” the stated interest and “is

3 not more extensive than is necessary” to serve that interest. The Permit Requirements Exemption

4 only exempts the City from paying a fee to itself and filling out a permit application. The City

5 remains subject to the substantive provisions of the sign ordinance, including all restrictions on the

6 “type, number and characteristics of signs that are permissible.” G.K. Ltd., 436 F.3d at 1077. The

7 Exemption does not affect the availability of forums open to non-City speakers at all. The same

8 forums of communication are open to non-City speakers as they are to City speakers under this

9 Exemption, and those forums are subject to the same substantive requirements of the Sign Code

10 regardless of whether it is the City or another entity speaking. See id. at 1080 (exemptions “d[id]

11 not prohibit residents from communicating through signs so long as those signs otherwise comply

12 with the [sign ordinance’s] restrictions”).

13 The Permit Requirements Exemption thus satisfies intermediate scrutiny.

14 * * *

15 Because the City has shown by undisputed evidence that the Permit Requirements

16 Exemption is speaker-based, not content-based, and satisfies intermediate scrutiny, the Permit

17 Requirements Exemption passes constitutional muster. The City’s motion for summary judgment

18 on the Permit Requirements Exemption is thus GRANTED.

19 C. Policy 6-4 Exemption

20 The City also moves for summary judgment on Plaintiffs’ facial challenge to the second

21 exemption contemplated in section 23.02.1310.B: the Policy 6-4 Exemption. Under this

22 Exemption, “[s]igns erected on City owned land pursuant to Council Policy 6-4, shall comply with

23 Council Policy 6-4, in lieu of the requirements of this Title.” § 23.02.1310.B. Unlike the Permit

24 Requirements Exemption, this Exemption requires signs erected pursuant to Policy 6-4 to comply

25 with the requirements of that Policy instead of the requirements of the City’s sign ordinance.

26 Council Policy 6-4 was implemented “[t]o state Council Policy regarding existing and

27 future use of Signs . . . ; to provide guidance regarding implementation of a program that may

1 Signs on City-owned land to promote an aesthetically pleasing environment.” Davis Decl. Ex. A

2 (“Policy 6-4”) at 2. As is relevant here, Policy 6-4 provides that “[t]he City will only allow the

3 future use of Billboards and Signs displaying Off-Site Commercial Speech on City-owned land, as

4 and where expressly allowed pursuant to this Council Policy 6-4.” Id. “The City may allow

5 Signs, . . . including Signs displaying Off-Site Commercial Speech on City-owned land pursuant

6 to this [policy] for any of the following purposes, where consistent with applicable state and

7 federal law: . . . [t]o generate revenue for the City,” “eliminate visual clutter or blight,” or

8 “explore opportunities to enhance the commercial vibrancy of the City in selected locations.” Id.

9 at 2–3. Policy 6-4 contains site selection criteria for City-owned land where signs may be built

10 under the Policy and identifies 17 locations in the City where such signs may be erected. Id. at 3–

11 4, 9. The criteria provide that a site is eligible if the parcel of land “has a General Plan Land

12 Use/Transportation Diagram designation other than Open Space, Parkland, Habitat, Lower

13 Hillside, Agriculture, Private Recreation and Open Space, Open Hillside, Mixed-use

14 Neighborhood, Transit Residential, Urban Residential, or Residential Neighborhood.” Id. at 4.

15 The Policy states that “the City does not intend to create a public forum on any of the sites that are

16 or may be designated as potential Sign site pursuant to this Policy” and “[t]he City may limit any

17 Sign or Signs approved pursuant to this Policy to only the display of commercial messages.” Id. at

18 7.

19 The City argues that it is entitled to summary judgment on this Exemption because the

20 Exemption is subject to and satisfies intermediate scrutiny. The City says this Exemption, by its

21 plain terms, is limited to off-site commercial speech, which is subject to “a lesser protection” than

22 other constitutionally guaranteed speech. MSJ at 2–3. The City says it is allowed to enact

23 content-based restrictions favoring commercial speech over non-commercial speech on its own

24 property where it has not created a public forum. Id. at 3–4. Policy 6-4 has not created a public

25 forum on the 17 approved locations, the City says, because the locations specified in Policy 6-4

26 have not been opened to the public for expressive conduct. Id. at 4.

27 Plaintiffs respond that there are genuine disputes of material fact as to what level of

1 that there is evidence in the record supporting a finding that Policy 6-4 creates a public forum on

2 signs erected pursuant to that Policy because the City does not in fact restrict messages on those

3 signs to commercial speech or exercise control over what is displayed on the signs. Opp. at 3–5.

4 Plaintiffs point to language in Policy 6-4 that states that the City “may” limit the messages to

5 commercial messages and “may require” the signs to “reserve message space of time for City

6 government speech.” Id. at 5.

7 i. What Level of Scrutiny Applies

8 As with the Permit Requirements Exemption, the parties’ dispute over the Policy 6-4

9 Exemption centers on what level of scrutiny should apply.

10 Because this Exemption implicates signs erected on the City’s own property, the Court

11 conducts a forum analysis adopted by the Supreme Court to determine what level of scrutiny

12 applies. This analysis is “a means of determining when the Government’s interest in limiting the

13 use of its own property to its intended purpose outweighs the interest of those wishing to use the

14 property for other purposes.” Children of the Rosary v. City of Phoenix, 154 F.3d 972, 976 (9th

15 Cir. 1998). A forum analysis divides government property into three general categories: public

16 forums, designated public forums, and nonpublic forums.

17 The parties agree that the Policy 6-4 sign locations are not traditional public forums, but do

18 not agree on which of the other types of forums they are. See MSJ at 4 (contending they are non-

19 public forums); Opp. at 4 (contending they are designated public forums). A designated public

20 forum “is a nontraditional forum that the government has opened for expressive activity by part or

21 all of the public.” Children of the Rosary, 154 F.3d at 976 (citing Perry Educ. Ass’n v. Perry

22 Local Educators’ Ass’n, 460 U.S. 37, 46 & n.7 (1983)). Creating a designated public forum

23 “requires a decision ‘intentionally opening a nontraditional forum for public discourse.’” Id.

24 (citing Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 802 (1985)).

25 In contrast, nonpublic forums are those that the City has not opened generally to expressive

26 conduct by the public. Id. Terminology in the forum analysis for nonpublic forums has been

27 inconsistent. Some cases also refer to “limited public forums,” which appear to toe the line

1 Circuit case that defines a limited public forum as “a sub-category of a designated public forum

2 that ‘refer[s] to a type of nonpublic forum that the government has intentionally opened to certain

3 groups or to certain topics’.” Garnier v. O’Connor-Ratcliff, --- F.4th ----, 2022 WL 2963453, at

4 *15 (9th Cir. Jul. 27, 2022) (quoting Hoper v. City of Pasco, 241 F.3d 1067, 1074 (9th Cir. 2001)).

5 This is arguably where the City claims the Policy 6-4 signs fit, as it says the signs permit solely

6 commercial speech.

7 Regardless of whether the proper term is a “nonpublic forum” or a “limited public forum,”

8 the legal standard is the same. The City is permitted to enact content-based restrictions favoring

9 commercial speech over non-commercial speech on its own property that is a nonpublic (or

10 limited public) forum. Children of the Rosary, 154 F.3d at 978 (“In a nonpublic forum, the

11 government has the right to make distinctions in access on the basis of subject matter and speaker

12 identity . . . but must not make distinctions based on the speaker’s viewpoint.” (cleaned up));

13 accord Garnier, 2022 WL 2963453, at *15 (“In a limited public forum, restrictions on speech and

14 speakers are permissible as long as they are ‘viewpoint neutral and reasonable in light of the

15 purpose served by the forum.’”) (quoting Hopper, 241 F.3d at 1074–75). Those restrictions are

16 subject only to intermediate scrutiny. Contest Promotions, 874 F.3d at 601. But if the forum is a

17 designated public forum, the restrictions are subject to strict scrutiny. Pleasant Grove City, Utah

18 v. Summum, 555 U.S. 460, 469–70 (2009) (“Government restrictions on speech in a designated

19 public forum are subject to the same strict scrutiny as restrictions in a traditional public forum.”).

20 The Policy 6-4 signs are unquestionably not located in traditional public forums. Policy 6-

21 4 specifies 17 locations where signs may be erected on City-owned properties. See Policy 6-4 at

22 Att. A. None of these locations is a traditionally public forum. Three of the locations are on the

23 sides of City-owned parking garages elevated above street level. Davis Decl. ¶¶ 6–7. Six of the

24 locations are on the sides of City-owned buildings elevated above street level. Id. ¶¶ 7–13. Two

25 of the sign locations are in City-owned parking lots or at a vacant service yard. Id. ¶¶ 14, 16. And

26 the remaining Policy 6-4 sign locations are on vacant City-owned land with no direct access to

27 public roadways. Id. ¶¶ 5, 17–20.

1 to whether the City has created designated public forums at these locations. Opp. at 3–5.

2 Plaintiffs make two arguments: first, that Policy 6-4 creates a public forum at the designated sign

3 locations because City makes no effort to control or restrict the messages displayed on the signs to

4 only commercial speech, thus creating the opportunity for public expressive activity, id. at 3–5;

5 and second, that the City impermissibly reserves for itself the right to transmit its own messages

6 on Policy 6-4 signs, id. at 5. Neither argument is persuasive.

7 a. City Restrictions on Messages on Policy 6-4 Signs

8 There are no genuine disputes of material fact regarding whether the City restricts the

9 messages on Policy 6-4 signs. As an initial matter, Plaintiffs frame this issue as whether the

10 messages on Policy 6-4 signs amount to “government speech.” See Opp. at 4–5 (citing Boyer, 978

11 F.3d at 624). In that same vein, they urge the Court to consider as supplemental authority the

12 Supreme Court’s recent decision in Shurtleff v. Boston, 142 S. Ct. 1583 (2022), which further

13 clarified how courts should evaluate whether speech amounts to government speech or private

14 speech. See ECF No. 120. But the Court finds that this improperly frames the issue. The City

15 does not contend that the speech on Policy 6-4 signs is government speech such that it avoids

16 heightened constitutional scrutiny. So the question is not whether the content of the signs

17 displayed pursuant to the Policy 6-4 Exemption is City speech or private speech. The question is

18 whether the City has permissibly regulated private speech on its own property under the forum

19 analysis described above. These are two distinct questions. See Summum, 555 U.S. at 469

20 (“While government speech is not restricted by the Free Speech Clause, the government does not

21 have a free hand to regulate private speech on government property.”); see also id. at 469–70

22 (discussing the forum analysis applicable to government regulation of private speech on the

23 government’s property); . Contrary to the implication in Plaintiffs’ briefing, the City’s “exercise[]

24 [of] control over” the messages on the Policy 6-4 signs is relevant to whether the Policy 6-4 signs

25 are designated public forums that have been “opened [to] expressive activity” by the public, not

26 whether the speech itself is City speech or private speech.

27 With the issue properly framed, the Court finds that there is no genuine dispute of material

1 language of Policy 6-4 makes this clear in several instances. The purpose of Policy 6-4 is “[t]o

2 state Council Policy regarding existing and future use of Signs, including Billboards,

3 Programmable Electronic Signs and Signs displaying Off-site Commercial Speech on City-owned

4 land . . . .” Policy 6-4 at 2. And the first numbered paragraph of the Policy states that “[t]he City

5 will only allow the future use of Billboards and Signs displaying Off-Site Commercial Speech on

6 City-owned land.” Id. Policy 6-4 also indicates that the City exercises additional control over the

7 messages on the sign. The Policy prohibits messages that contain false advertising, incite

8 unlawful activity, or amount to defamatory speech, fighting words, or obscene speech. Id. at 7.

9 And while not dispositive by itself, the Policy also states that “the City does not intend to create a

10 public forum on any of the sites that are or may be designed as potential Sign sites pursuant to this

11 Policy.” Id.

12 Plaintiffs point to other language in Policy 6-4 that uses the term “may” to describe the

13 City’s message limitations on Policy 6-4 signs. Opp. at 5. For example, Policy 6-4 states that the

14 City “may limit” approved Signs to “only the display of commercial messages; “may develop”

15 lists of “goods, products, or services that may not be advertised;” and “may require” the signs to

16 reserve space or time for City speech. Policy 6-4 at 7. But Plaintiffs read these paragraphs in

17 isolation and ignore the other provisions of Policy 6-4 above, which use the mandatory word

18 “will” to describe the limitation to commercial speech. In light of the mandatory language in other

19 parts of Policy 6-4, the Court interprets “may” in the paragraphs Plaintiffs cite to mean that the

20 City is granted the power to enact those limitations, not that it may choose not to do so. See May,

21 Black’s Law Dictionary (11th ed. 2019).2

22 Plaintiffs also refer to the deposition testimony of the City’s person most knowledgeable,

23 who they say confirmed that the City “does not attempt to control the messages that will be

24 displayed” on Policy 6-4 signs. Opp. at 4. Plaintiffs quote the following testimony:

25 Q: So there are no other portions of this RFP which speak to

restrictions on the content of the message other than section 2.3 of the

26

27

2 Indeed, one of the other definitions of “may” is “is required to.” May, Black’s Law Dictionary

RFP; is that right?

1

A: I believe that is correct.

2

Id. (citing ECF No. 110-1 (“PMK Dep. I”) 47:4–12). But as the City says, Plaintiffs selectively

3

quote the testimony and fail to discuss the document that the witness was questioned about.

4

Accord Reply at 1. The PMK witness was testifying about the City’s Request for Proposal RFP

5

OED60-19-1. See ECF No. 112-1, Ex. 1 (“RFP”); ECF No. 112-1, Ex. 2 (“PMK Dep. II”) 35:23–

6

36:3 (indicating that the PMK witness was testifying about Exhibit 8, the RFP). The RFP sought

7

proposals for signs at eight of the 17 sites designated by Policy 6-4. PMK Dep. II 38:2–10. The

8

PMK witness testified about section 2.3 of the RFP, which lists restrictions that the City places on

9

messages displayed on those signs. Among those is a content limitation to “commercial

10

advertising.” See, e.g., id. 44:1–5 (“Q: The contents of the message? A: Content, yeah. So I

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would say they are restricted to this commercial advertising policy and the benefit that – the

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benefit that the city was asking for with respect to time, yes.”).

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The plain language of the RFP itself also indicates that the City restricts the messages on

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Policy 6-4 to commercial speech. Section 2.3.5 of the RFP is entitled “Commercial Advertising

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Policy.” The introductory paragraph of that section states:

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Only advertising that promotes commercial transactions in

17 compliance with Council Policy 6-4, as it may be amended from time

to time, will be permitted. Any advertising that does not promote a

18 commercial transaction; and that falls within the following categories

is also prohibited.

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RFP § 2.3.5. That section of the RFP lists further restrictions on any commercial messages that

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can be displayed, including prohibitions on advertisements with demeaning or disparaging

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material, profanity, violence, unlawful goods or services, unlawful conduct, obscenity or nudity,

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and prurient sexual suggestiveness, among others. Id. Both the RFP and the PMK testimony

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make clear that the messages on Policy 6-4 signs are limited to commercial speech.

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Plaintiffs have also filed a motion for leave to file supplemental evidence that they claim

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“contradicts the City’s characterization of its conduct under Policy 6-4.” ECF No. 120. Plaintiffs

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claim to have learned that the City approved new signs—to be constructed by private company

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Clear Channel—pursuant to Policy 6-4 only weeks ago. Id. at 1. Plaintiffs claim that the City

1 refused or has failed to produce relevant documents about these signs and provided inaccurate

2 statements in its discovery responses. Id. at 1–2. Plaintiffs assert that public records requests have

3 revealed that the City exercises no control over the messages on the signs. Id. at 2. The City

4 opposes the motion for leave, both procedurally and substantively. The City says that it in fact

5 produced relevant documents during the discovery period and that its discovery responses were

6 accurate. ECF No. 122. On the substance, the City says that the actual project approval

7 documents (also produced in discovery) and agreement with Clear Channel restrict the messages

8 to commercial speech allowed under Policy 6-4. Id. at 2–3.

9 The Court would be justified in denying the motion for leave to file supplemental evidence

10 on procedural grounds. In its opposition brief, the City has shown that it in fact produced relevant

11 documents about the Clear Channel signs to Plaintiffs. See ECF No. 122-1, Ex. A (“Project Plan

12 Approval for Outdoor Digital Billboards,” Bates-stamped SJ499–509), Ex. B (additional

13 documents related to the project, Bates-stamped SJ496–498); see also Ex. C (excerpts of 2007

14 agreement between Clear Channel and the City relating to advertising on signs at the airport). The

15 City’s discovery responses also accurately indicated that no Policy 6-4 signs “have been erected,”

16 rather than that no Policy 6-4 signs had been approved. See ECF No. 120-2, Ex. E (objections

17 stating that “no signs have been erected within the [City] pursuant to Council Policy 6-4”).

18 Because the City produced relevant documents and did not provide false discovery responses, the

19 Court could deny the motion for leave.

20 But even looking to the evidence Plaintiffs want the Court to consider, the Court finds that

21 it supports the City’s contention that the Policy 6-4 signs are limited to displaying commercial

22 speech. Plaintiffs do not specifically explain how the exhibits they attach to their request support

23 their arguments, but based on the Court’s review, the exhibits refer to agreements made between

24 Clear Channel and the City that the City attaches to its opposition. See ECF No. 120-3, Ex. B

25 (second amendment to 2007 Concession Agreement); id. Ex. C. (sixth amendment to 2007

26 Concession Agreement), id. Ex. D at 2–3 (referring to 2007 Concession Agreement with Clear

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1 Channel).3 The City’s approval of Clear Channel’s plan for the signs in dispute pursuant to that

2 Agreement states under “Advertising content standards” that “[o]nly advertising that promote[s]

3 commercial transactions in compliance with Section 4.6 and 4.7 of the [2007 Concession]

4 Agreement” is permissible on the signs. ECF No. 120-2, Ex. A at 4. This provision makes it clear

5 that the content on the signs is restricted to commercial speech. Section 4.6 of the 2007

6 Concession Agreement states that Clear Channel is limited “to the placement of advertisements

7 from commercial entities where such advertisements do no more than propose the sale, for profit,

8 of goods and/or services.” Id. Ex. C at 2. Section 4.7 contains further limitations similar to those

9 in the RFP, including against profanity or obscenity, deceptive or misleading advertising, or

10 violent content. Id. at 3. This evidence supports, rather than undermines, the Court’s finding that

11 there is no genuine dispute of material fact that the Policy 6-4 signs are limited to commercial

12 speech.

13 There is thus no genuine dispute of material fact that City restricts the messages displayed

14 on Policy 6-4 signs to commercial speech, such that it has not created a designated public forum

15 on those signs.

16 b. City’s Reservation of Space or Time for Its Own Messages

17 Second, Plaintiffs protest that the City reserves the right to request space and time for its

18 own messages on Policy 6-4 signs. Opp. at 5. The City responds that it is permitted to do so

19 under Supreme Court precedent. Reply at 2.

20 It is undisputed that Policy 6-4 does in fact allow the City to reserve space and time for its

21 own messages. See Policy 6-4 at 7 (“The City may require any Sign approved pursuant to this

22 Policy to reserve message space or time for City government speech.”). But the Court agrees with

23 the City that it is permitted to do so. The Supreme Court examined a sign ordinance with this very

24 exception in Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981). The ordinance in that

25 case contained a ban on certain types of outdoor off-site advertising signs, but contained within

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3 Plaintiffs’ exhibits are appropriate subjects of judicial notice as documents made available by

1 those restrictions an exemption for “government signs.” Id. at 494. Insofar as the ordinance

2 regulated commercial speech, the Court found that it passed constitutional muster even with the

3 “specifically exempted signs,” including government signs. Id. at 508–12.4 Accordingly, the City

4 is permitted to require the Policy 6-4 signs to reserve space or time for its own messages.

5 * * *

6 Plaintiffs have submitted no evidence that the public has used any of the 17 sites

7 designated by Policy 6-4 to engage in “expressive activity” such that they would become

8 designated public forums. Children of the Rosary, 154 F.3d at 976; accord Garnier, 2022 WL

9 2963453, at *15 (school board trustees’ Twitter and Facebook pages were designated public

10 forums where trustees allowed constituents to react to or comment on trustees’ posts and trustees

11 occasionally solicited feedback or engaged with the comments). The Court thus finds that there is

12 no genuine dispute of material fact that the Policy 6-4 sign locations are nonpublic forums. The

13 City is thus allowed to enact content-based restrictions favoring commercial speech over non-

14 commercial speech on those signs provided the restrictions satisfy intermediate scrutiny. Children

15 of the Rosary, 154 F.3d at 978; Contest Promotions, LLC, 874 F.3d at 601.

16 ii. Applying Intermediate Scrutiny

17 The Court now examines whether Policy 6-4 satisfies intermediate scrutiny under

18 Metromedia. First, the commercial speech allowed must be lawful and not misleading.

19 Metromedia, 453 U.S. at 507. The restriction on protected commercial speech must then “seek[]

20 to implement a substantial government interest, directly advance[] that interest, and reach[] no

21 further than necessary to accomplish the given objective.” Metromedia, 453 U.S. at 507 (citing

22 Central Hudson, 447 U.S. at 563–66).

23 The Court finds that the Policy 6-4 restrictions meet this standard. First, Policy 6-4 only

24 allows commercial speech that is lawful and not misleading, and Plaintiffs do not suggest

25 otherwise. See Policy 6-4 at 7; accord Metromedia, 453 U.S. at 507. Second, as before, the City’s

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4 The Court separately struck down the ordinance’s general ban on signs carrying noncommercial

1 stated goals of public safety and aesthetics5 (see Policy 6-4 at 2) are substantial government

2 interests. Metromedia, 453 U.S. at 507–08. Third, the Policy 6-4 restrictions “reach no further

3 than necessary.” “If the [C]ity has a sufficient basis for believing billboards are traffic hazards

4 and are unattractive, then obviously the most direct and perhaps the only effective approach to

5 solving the problems they create is to prohibit them.” Id. at 508. As in Metromedia, the City has

6 stopped short of a total ban, so the restrictions certainly do not go farther than necessary. Id.

7 The Court also finds that Policy 6-4 “directly advances” the City’s interest in aesthetics

8 and public safety. The Metromedia Court noted the “accumulated, common-sense judgments of

9 local lawmakers and of the many reviewing courts that billboards are real and substantial hazards

10 to traffic safety” and amount to blights on the city landscape. 453 U.S. at 508–10. The

11 Metromedia Court also rejected the argument that allowing certain types of commercial speech at

12 the exclusion of others undermined the policy directly advancing the interests in aesthetics and

13 public safety. Id. at 511–12; see also Metro Lights LLC v. City of Los Angeles, 551 F.3d 898, 907

14 (9th Cir. 2009) (“[A] ban on some offsite signs still advances traffic safety and aesthetics more

15 than a ban on none.”). The Court notes that both Metromedia and Metro Lights involved starker

16 bans on most offsite commercial speech, versus Policy 6-4’s mere limitations on offsite

17 commercial messages. But the principles of Metromedia still apply here. Policy 6-4 restricts

18 commercial messages on the City’s own property to 17 specifically identified sign sites containing

19 22 total potential signs. Policy 6-4 further contains limitations on the type, size, height, and

20 illumination of those signs. Policy 6-4 at 4–6. These limitations “directly advance[]” the City’s

21 stated interests in public safety and aesthetics by limiting the number, location, and appearance of

22 offsite commercial advertisements on City property.

23 The Policy 6-4 Exemption accordingly satisfies intermediate scrutiny.

24 * * *

25 Because the City has shown that the Policy 6-4 Exemption satisfies intermediate scrutiny,

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5 Policy 6-4 also aims to generate revenue for and expand the commercial vibrancy of the City.

1 the Policy 6-4 Exemption passes constitutional muster. The City’s motion for summary judgment

2 on the Policy 6-4 Exemption is thus GRANTED.

3 || IV. ORDER

4 For the foregoing reasons, IT IS HEREBY ORDERED that the City’s partial motion for

5 summary judgment on the Permit Requirements Exemption and the Policy 6-4 Exemption is

6 GRANTED. The case schedule (ECF No. 82) remains in effect.

4

8 Dated: August 1, 2022 tn)

9

BETH LABSON FREEMAN

10 United States District Judge

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