This post was authored by Otten Johnson summer law clerk Matt Bender.  Matt is a rising third-year law student at the University of Denver Sturm College of Law.

Herson v. City of Richmond was all set on October 21, 2014, when the Ninth Circuit Court of Appeals issued its first opinion on the case, affirming the dismissal of the plaintiff’s First Amendment claims.  However, after the United States Supreme Court decided Reed v. Town of Gilbert, the Supreme Court vacated the original Ninth Circuit Herson decision so that the case could be reconsidered under Reed.  A year and a half later on January 22, 2016, the Ninth Circuit again issued an opinion on Herson v. City of Richmond.  While the Supreme Court thought things had changed due to Reed, the Ninth Circuit apparently did not as this second opinion is word-for-word identical to the first.

Herson stems from a challenge to a subsequently repealed Richmond, California municipal sign code by a plaintiff whose sign application to build twelve free standing signs within Richmond was rejected based on both content-neutral height and size restrictions and content-based categorical distinctions.  The court addressed each rationale for rejecting the signs separately.

First, the court dismissed the plaintiff’s request for injunctive relief from the old sign code, noting that the issue is now moot as the old code is no longer enforceable.  Second, the court quickly dismissed the rest of the plaintiff’s claim for damages, noting that the city had “an independent, constitutionally valid reason for denying” the plaintiff’s application.  Specifically, the court noted that the city’s old sign code, which provided that “freestanding signs erected within 660 feet of a freeway could not exceed 12 feet in height nor 40 square feet in area,” was both content-neutral and narrowly tailored to serve a compelling interest.  Finally, the court found that the plaintiff’s claim was not redressable because these valid, content-neutral provisions of the code were not invalidated by content-based provisions.

The court next turned to the validity of the new sign code and its exemption for “[t]raffic control and danger signs erected by a governmental entity.”  While the District Court held that the exemption could be considered content-based because it “depends solely on who the speaker is,” it said that the exemption would still be valid under strict scrutiny as serving aesthetic and safety considerations that were the “least restrictive means to achieve a compelling governmental interest.” The Ninth Circuit, on the other hand, never actually reached this issue, only pointing out that the plaintiff waived any objection to the District Court’s holding on the new sign code by failing to raise the issue on appeal  Thus, without actually endorsing the new sign code, the court allowed it to stand.

Herson is a classic example of the proper application of a sign code.  The city’s rejection of the sign application was grounded in constitutional, content-neutral height and size restrictions and constitutional, content-based aesthetic and safety concerns.  These basic foundations of the law have remained unchanged by Reed, and will continue to serve as legal bedrock as the Supreme Court denied Certiorari review of the second Herson opinion on May 23, 2016.

Herson v. City of Richmond, 634 F. App’x 472 (9th Cir. 2016)

*If you’ve been following this area of law closely, you may recognize the plaintiff’s name from Herson v. City of San Carlos, 714 F.Supp.2d 1018 (N.D. Cal 2010), which made very similar claims and had a nearly identical result.