This post was authored by Alexandra Haggarty. Alex is a summer clerk at Otten Johnson, and a rising 3L at the University of Colorado Law School.
In a case challenging a Portland, Oregon ordinance, a federal judge granted a preliminary injunction to a group of building owners who would have been compelled to post a potentially misleading message. The judge, suspecting the city was not forthcoming about its real motive behind the ordinance, found the requirements failed strict scrutiny and burdened First Amendment rights.
Portland has long encouraged owners of unreinforced masonry buildings (“URMs”) to retrofit and reinforce their properties to be stronger in the event of a major earthquake, but has remained unable to garner enough political and public support to mandate doing so. Instead, it implemented an ordinance requiring owners of designated buildings to display exterior placards disclosing the risks of major earthquakes in URMs. The ordinance required the placard state: “This is an unreinforced masonry building. Unreinforced masonry buildings may be unsafe in the event of a major earthquake.” The ordinance also required owners to (1) include a tenant notification provision in lease applications disclaiming risk and (2) document compliance with the ordinance.
In a reportedly flawed process, the city compiled a database of URMs that would be affected. Portland acknowledged the database may be inaccurate and unable to predict building performance in an earthquake but still required “conclusive evidence” – a high bar – showing a building is no longer a URM in order for it to be removed from the list. Thus, some buildings, including those owned by two of the plaintiffs, remained on the list despite having been retrofitted with safety improvements.
Quickly dismissing any argument that this was First Amendment-exempt government speech, the court then determined that the placard did not compel commercial speech. As such, the court looked to see if the regulation passed strict scrutiny.
The court continuously noted the disconnect between the ordinance and the initially-asserted government interests: 1) to build awareness of seismic risk and what to do in an earthquake – specifically to duck and cover and not try to get out, and 2) to build market demand for seismic improvements to these buildings. While promoting safety is a compelling interest, nothing in the ordinance provided for posting of instructions on what to do in an event. If the goal was just to raise awareness of risk, plenty of less restrictive alternatives, such as a public relations campaign, would have sufficed. Additionally, no evidence showed that posting placards was effective in improving risk awareness or public safety. Finally, because some retrofitted and reinforced buildings remained on this list, the ordinance was overinclusive; because some buildings that are riskier in earthquakes, like those with soft-story construction and non-ductile construction, were not on the list, it was underinclusive.
Thus, the court openly suspected the real interest lied in mandating retrofitting and reinforcement, and reprimanded the city for its attempt to achieve this goal by infringing on First Amendment rights.
Masonry Bldg. Owners of Oregon v. Wheeler, No. 3:18-cv-02194-AC, 2019 WL 2304252 (D. Or. May 30, 2019).