Tuesday, September 9, 2008

Court of Appeal Upholds Mobile Advertising Ban

in a 2-1 decision, the Court of Appeal, Second Appellate District, has upheld the City of West Hollywood's ban on "mobile commercial advertising." Showing Animals Respect and Kindness v. City of West Hollywood, available here. The challenged ordinance defined "mobile commercial advertising" as "any vehicle, or wheeled conveyance which carries, conveys, pulls or transports any sign or billboard for the primary purpose of advertising." However, the ordinance exempted buses, taxicabs, and any vehicle which displayed advertising or business identification of the owner, as long as the vehicle was engaged in the owner's normal business.

In an opinion by Justice Rothschild, the majority held that the ordinance applied to both commercial and non-commercial speech, that it was content-neutral, that it served significant governmental interests in promoting traffic safety, reducing air pollution and improving the city's aesthetic appearance of the city, and that it left the plaintiff--an animal rights group--ample alternative means of communication. In contrast, Justice Mallano's dissent argued that the ordinance should be interpreted as applying only to commercial speech, which would have rendered it inapplicable to plaintiff. He asserted, unlike the majority, that "the First Amendment protects the right of a vehicle owner to drive on public streets for the primary purpose of conveying a noncommercial message that appears on the vehicle."

Although the plaintiff contended that the ordinance violated both the federal and the state constitution, both the majority opinion and the dissent focused exclusively on the federal constitution. Neither addresses whether the state constitution might provide greater protection in this context than its federal counterpart.

Although there are lots of cases addressing the First Amendment implications of billboard advertising, this may be the first case involving an almost total ban on advertising placed on vehicles. None of the cases cited by either the majority or the dissent involves a local ordinance similar to the West Hollywood one. That may make the case review-worthy, particularly if the plaintiff can show that other cities have similar laws.

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