By Richard Hamlin, Hamlin Cody
Simi Valley is a city northwest of Los Angeles.It prohibited parking mobile billboards on city streets unless they also qualified as “authorized emergency or construction-related vehicles.”Bruce Boyer would park mobile billboards throughout the city.The city police either impounded or threatened to impound the billboards.
Mr. Boyer sued the city, alleging First Amendment violations.The city argued its ordinance was a content-neutral time, place, and manner restriction.The trial court agreed and dismissed the case.(I am omitting some procedural issues.)
The Ninth Circuit said the ordinance was content-neutral on its face.It went on to agree with Mr. Boyer, that exempting authorized emergency and construction-related vehicles meant that some speakers would be allowed to park on city streets while others would not.That meant the ordinance “is inescapably a content-based distinction.”The court said it struggled “to identify a justification” for the distinction.
That will not be the end of the case.The Ninth Circuit agreed with the trial court that the distinction was “rational,” but said that was the wrong standard.It sent the case back to the trial court to see if the city could justify the restriction under a “strict scrutiny” standard.It seems that neither party briefed that issue.
Also, the Ninth Circuit raised an issue that neither side had considered.It considered, and rejected, the idea that the exemption might qualify under the government-speech doctrine described by J. Alito in his concurring opinion inReed v. Gilbert.Although it declared the ordinance would not qualify under that doctrine, the court laid out a road map for the city to follow to qualify under that doctrine.
You can watch the case being argued before the Ninth Circuit below.
[wpforms id=”9787″]
Paid Advertisement
