In an interesting case regarding prohibited ordinances, plaintiffs operated a fleet of standalone trailers that were specially constructed to display signs or banners, which the company used to advertise its burglary alarm services, as well as other products and political causes.

Previously, the California State Legislature enacted a series of amendments to the Vehicle Code empowering local municipalities to regulate mobile billboards. The new sections of the Vehicle Code authorized cities to adopt laws penalizing the parking of portable, non-motorized wheeled vehicles that carry signs and are for the primary purpose of advertising. The enabling legislation also allowed cities to regulate motor vehicles bearing “advertising signs that are not permanently affixed and that extend beyond the overall length, width, or height of the vehicle.”

After the ordinances took effect, the plaintiffs brought suit alleging that the mobile billboard bans are facially invalid because they abridge the freedom of speech guaranteed by the First Amendment.

On cross-motion for summary judgment, the District Court concluded that the mobile billboard bans were content-neutral, reasonable, time, place, and manner restrictions on speech that did not violate the First Amendment. Accordingly, the court entered judgment in favor of the cities and against the plaintiffs. The plaintiffs appealed.

In discussing the case, the United States Court of Appeals for the Ninth Circuit indicated that the First Amendment, as applied to the states through the Fourteenth Amendment to the United States Constitution, prohibits state and local governments from enacting laws “abridging the freedom of speech.” Laws affecting speech in traditional public fora are also presumptively invalid, although the government may impose reasonable time, place and manner restrictions on speech in traditional public fora so long as the restrictions are content neutral, are “narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the information.”

In affirming the denial of a preliminary injunction to the plaintiff, a panel of the court found that the non-motorized mobile billboard ordinances are content-neutral, relying on a previous case which concluded that a sign regulation restricting the size, duration, and location of directional signs was content-neutral.

The court then pointed out that a regulation is content-based if, on its face, it draws distinctions based on the message a speaker conveys. A regulation that defines regulated speech by a particular subject matter or that discriminates between viewpoints is plainly content-based. The court cited an example where the Supreme Court recently held that an ordinance that imposed more stringent restrictions on signs directing the public to a church meeting than on “political” signs was content-based. In addition, an ostensibly viewpoint-neutral law is content-based if it was “adopted by the government because of a disagreement with the message the speech conveys.”

The court then held that the mobile billboard ban regulates the manner, not the content, of affected speech. The ordinances address only the types of sign-bearing vehicles subject to regulation, and discriminate against prohibited billboards on the basis of their size and mobility alone. Even the regulated vehicle bearing a blank sign could conceivably violate the ordinances.

The court further stated that by removing from city streets vehicles that have no purpose other than advertising, the mobile billboard regulations are narrowly tailored to the cities’ interests in parking control and reducing traffic hazards. Because the utility of mobile billboards stems from owners’ ability to park them for periods of hours or days at a time, they reduce available on-street parking.

The mobile billboard ordinances leave open adequate alternative opportunities for advertising. Therefore, the court affirmed the judgment of the district court.

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