An example of San Francisco’s warning label. Image credit: Behavioral Science and Policy. Used subject to license.

A San Francisco ordinance requiring health warnings on advertisements for some sugar-sweetened beverages has suffered an early defeat.  On January 31, the Ninth Circuit ruled, en banc, that the district court should have granted plaintiff American Beverage Association’s request for a preliminary injunction to prevent the ordinance’s enforcement.

At issue was the ordinance’s required rectangular warning label—similar to such labels for cigarettes—occupying 20% of any advertisement for many sugar-sweetened beverages.  The text of the warning was to read as follow: “WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.”  Arguing that the ordinance impermissibly compelled commercial speech, the American Beverage Association sued and sought a preliminary injunction against its enforcement.

After the district court denied the requested preliminary injunction, the Ninth Circuit reversed.  The court concluded that, despite some recent uncertainty regarding the appropriate test, the Supreme Court’s decision in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985), required an inquiry into whether San Francisco’s warning label was (1) purely factual, (2) non-controversial, and (3) not unjustified or unduly burdensome.

In the court’s view, the ordinance was likely to fail the Zauderer test’s third prong because the warning label was unduly burdensome.  The record indicated that a warning label half the size (i.e., 10% of the advertising area) would adequately accomplish the city’s primary objectives of warning consumers about the harms of sugar-sweetened beverages and reducing their consumption.  Moreover, San Francisco failed to show that the sizeable, contrasting label would not “drown out” the rest of the advertisement and would not effectively rule out the possibility of having an advertisement in the first place.  The panel cautioned, however, that it did not intend to set a per se rule that 10% warning labels were acceptable while 20% labels were not.

Three judges concurred in the judgment but departed from the majority’s reason.  Judge Ikuta would have instead applied the framework from the Supreme Court’s 2018 decision in National Institute of Family & Life Advocates v. Becerra,  ___U.S. ___, 138 S.Ct. 2361 (2018).  Chief Judge Thomas would have concluded that the warning was not “purely factual.” And Judge Nguyen disagreed with the majority’s application of Zauderer to speech that was not false, deceptive, or misleading but still concluded that a preliminary injunction was appropriate.

Full opinion available here: https://law.justia.com/cases/federal/appellate-courts/ca9/16-16072/16-16072-2019-01-31.html

AFDI sought to run an advertisement that was nearly identical to a U.S. State Department advertisement. Source: American Freedom Law Center.

In a case that has been percolating for more than five years and which we reported on last year, the Ninth Circuit Court of Appeals reversed a district court order granting summary judgment in favor of King County, Washington, finding that the county’s bus advertising policy and rejection of a proposed advertisement violated the First Amendment.  The Ninth Circuit had previously affirmed the district court’s order denying a preliminary injunction to the plaintiff, American Freedom Defense Initiative, a nonprofit concerned with the “Islamization of America.”  The advertisements that AFDI desired to run showed the faces of individuals on the nation’s “most wanted” list of jihadists.

For purposes of brevity, the facts and prior disposition of the case can be found in our earlier post.

In its analysis, the Ninth Circuit confirmed that advertising space on King County’s public buses constitutes a nonpublic forum, thus requiring the Seattle bus system’s advertising policy to be reasonable in light of the purposes of the forum, and viewpoint neutral.  The Ninth Circuit clarified that reasonableness is measured by reviewing the forum’s purpose, whether the standards for rejecting an advertisement are definite and objective, and by an independent review of the record.

The court found that the transit operator’s policies prohibiting false or misleading advertising were reasonable.  However, it disagreed that the policy prohibiting demeaning or disparaging advertising was viewpoint neutral.  Citing to the Supreme Court’s 2017 decision in Matal v. Tam, which held a similar prohibition to be viewpoint based, the court found offensive speech is, by its nature, expressive of a particular viewpoint and thus a prohibition on such speech is not viewpoint neutral.  And while the court found that the transit operator’s policy prohibiting advertising that would be disruptive to its transit service was viewpoint neutral and facially reasonable, it found the transit operator’s rejection of AFDI’s advertising to be unreasonable.  Namely, the court pointed to a U.S. State Department advertisement run by the transit operator that showed faces of global terrorists that was nearly identical to the advertisement rejected by the operator.  Because the bus system could not demonstrate harm to its operations from the State Department advertisement, the court found that the rejection of AFDI’s advertising was unreasonable.

Am. Freedom Defense Initiative v. King Cnty., 904 F.3d 1126 (9th Cir. 2018).

In a case that we reported on earlier this year, a federal court in Pennsylvania has ruled that the failure to provide a deadline by which the government is required to make permitting decisions renders that state’s outdoor advertising law unconstitutional.  Nonetheless, PennDOT can remedy the problem by simply imposing internal processing timeframes.

The facts of the case can be found in our earlier post.

On cross-motions for summary judgment, the court found that the permitting provisions of the act violated the First Amendment.  Pennsylvania’s outdoor advertising law does not contain any deadlines by which the state must rule on a billboard permit application.  Under the Supreme Court’s rulings in City of Littleton v. Z.J. Gifts and Thomas v. Chicago Park District, a content based law must have a clear permitting timeframe in order to satisfy constitutional scrutiny.  The court determined that the Pennsylvania statute was content based, because it exempted “official signs” and “directional signs” from permitting.  As there was no timeframe required for the issuance of other permits, the court invalidated the permitting provisions of the statute.  Of course, PennDOT can remedy the constitutional violation by simply imposing internal permitting timeframes. Continue Reading Lack of Permitting Timeframes in Pennsylvania Billboard Law is Unconstitutional, But There’s An Easy Fix

A mobile billboard in Miami, Florida. Source: mobilebillboardmiami.com.

This post was authored by Otten Johnson summer law clerk Alex Gano.  Alex is a rising third-year law student at the University of Colorado Law School.

Earlier this month, the Ninth Circuit Court of Appeals in Lone Star Security v. City of Los Angeles revisited an earlier opinion regarding the content neutrality of ordinances in five Southern California cities that banned mobile billboard advertising.  In upholding the municipal bans a second time, the court held that the U.S. Supreme Court’s decision in Reed v. Town of Gilbert did not create heightened judicial scrutiny for restrictions on the “manner” of advertising. Continue Reading Ninth Circuit: Local Restrictions on “Mobile Advertising” Still Content Neutral post-Reed