In Contest Promotions v. San Francisco, amended October 23, 2017, the 9th Circuit affirmed the district court's dismissal of a 42 U.S.C. section 1983 challenge to the constitutionality of a city's billboard ordinance. The city's planning code differentiated between general signs (which direct attention to business that takes place elsewhere than on the premises where the sign stands) and business signs (which direct attention to business conducted on the premises where the sign is located). The code bars all general signs erected after March 2002. The planning code differentiates between commercial and non-commercial signs, setting forth a non-exclusive list of types of noncommercial signs; and provides that the provisions concerning general and business signs do not apply to non-commercial signs. Plaintiff, which posts commercial signs, challenged the code's differentiation between commercial and non-commercial signs as violating the First Amendment.
The 9th Circuit ruled that the code did not violate the First Amendment. Since the portions differentiating between business and general signs excluded non-commercial signs, the level of scrutiny that applies to commercial speech--intermediate--applies. The code met the requirements of intermediate scrutiny, because it directly served the governmental interests in promoting traffic safety and aesthetics, and was no more extensive than necessary to serve that interest.
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