Last month, a federal district court in California ruled that the City of Baldwin Park’s sign ordinance was likely unconstitutional, even after the city amended the ordinance amidst a legal challenge.  The code allowed property owners additional signage and flag displays during certain times of the year, including election season and around holidays, respectively, and allowed businesses to display additional signage during promotional events.

The case originated when community members, including individuals and business owners, displayed signs alleging corruption by a local politician.  Baldwin Park enforced its code, which prohibited the signs in question.  The individuals and business owners filed a First Amendment challenge.  The city then amended its code, and the amended code is now in question.

Of importance to the case, the amended sign ordinance provides the following:

• New businesses and businesses holding sales or promotional events are allowed additional signage, such as banners and inflatables, for limited periods of time.
• Additional flags are permitted for short periods of time before and after Memorial Day, Independence Day, and Veterans Day.
• Additional temporary signs are permitted for 45 days before and 14 days after any election for which polling places are located in the city.

The plaintiffs in the case challenged each of these provisions as being speaker based and content based.  Upon review, the court agreed with the plaintiffs.  Despite the fact that the code did not distinguish between signs based on their message content—for example, the code did not require that additional signs displayed during promotional events contain content relating such events—the court still found that the code was content and speaker based.

Specifically, the court found that the sign bonus for new businesses and promotional events was speaker based, because these bonuses evinced a preference for commercial speech over noncommercial speech, and was an effective preference for promotional speech.  The court went on to find that the event based regulations for flags was similarly content biased, because it was clear that the city preferred American and other flags that might be displayed around national holidays over other flags that might be displayed at other times of the year.  Finally, the court found the election sign provision to be content based in purpose.  Even though the election sign provision does not require signs to display election content, the court found that the city obviously preferred election-oriented signage and, moreover, that the time period in which such signs are allowed is too short.  The court rejected an argument by the plaintiffs that the amount of signage permitted on residential properties was too short.

The court’s decision in Baldwin Park portends additional challenges for local governments regulating signage in the post-Reed v. Town of Gilbert era.  Since Reed, many local governments have opted for the types of regulations that Baldwin Park utilized, i.e. regulations that are not content based on their face, but which allow “bonuses” during certain, well-recognized times of the year, times when property is for sale (in the case of real estate signs) or under construction (in the case of construction signs), or when businesses host special events.  The court’s decision in Baldwin Park suggests that even these regulations may not survive First Amendment challenges, as they may fall into the category of regulations that Reed considered constitutionally suspect because they were content based in purpose, if not on their face.  The Baldwin Park litigation is in its early stages, and we plan to follow the case as it proceeds through the courts.

More about the case can be found in the Volokh Conspiracy column of the Washington Post.

www.RicardoPacheco.com v. City of Baldwin Park, No. 2:16–cv–09167–CAS(GJSx), 2017 WL 2962772 (C.D. Cal. Jul. 10, 2017).