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

Photo by Peter Kaminski, used pursuant to Creative Commons 2.0 license.

Fewer than six months after it was enacted as an “emergency” measure, a Cincinnati ordinance singling out billboards for special taxes has succumbed to a constitutional challenge. The ordinance, which met legal headwinds from the start, transparently aimed to make life miserable for the city’s billboard operators and consisted of two primary components: (1) a special tax on revenues from billboard advertising and (2) a hush provision preventing those operators from telling advertisers about the tax.  An Ohio judge wasted little time in finding both provisions unconstitutional and Continue Reading Cincinnati “Billboard Tax” Found Unconstitutional Just Months After Enactment

New Jersey bars may now post signs this like this one. Source: steezdesign.com.

Last month, a federal court ruled that New Jersey’s prohibition on “BYOB” advertising—that is, advertising by drinking and entertainment establishments allowing patrons to bring their own alcoholic beverages—violated the First Amendment.  As a result of the court’s ruling, Garden State restaurants will now be allowed to post advertisements encouraging their patrons to bring their own wine and beer.

New Jersey law allowed patrons to bring wine or beer onto the premises of establishments that are not licensed to serve alcoholic beverages, but prohibited such establishments from advertising that it was permissible to do so.  An Atlantic City nightclub, Stiletto, filed suit in federal district court against Atlantic City and the state, seeking to invalidate the state law.  Stiletto wished to advertise that patrons could bring their own beverages to the nightclub. Continue Reading New Jersey Prohibition On “BYOB” Advertising Found Unconstitutional

Photo Credit: Robert Coure-Baker. Used subject to creative commons license https://creativecommons.org/licenses/by/2.0/

In an effort to curb visual clutter and reduce litter, Chicago’s sign ordinance has, since 2007, prohibited posting “commercial advertising material” on city-owned property.  No longer, however.  Writing recently, the U.S. District Court for the Northern District of Illinois struck down that ban as unconstitutionally vague.

The ordinance’s challenger, RCP Productions, leveled two contentions, and while only one was convincing, that was enough to sink the ban.  RCP first argued that the sign ordinance unconstitutionally restricted commercial speech—a high bar to clear, and RCP fell short.  Chicago, the court concluded, had supplied ample reason to believe that commercial advertising accounted for the vast majority of signage and litter clogging the city’s public ways.  The city’s ban addressed those bugaboos without blocking other avenues for commercial speech, and thus didn’t raise a constitutional worry.  On that front at least.

The challenger’s second argument proved more successful: the court agreed that the term “commercial advertising material” lacked constitutionally required clarity.  Was a flyer advertising a $10 lunch event with a federal judge a commercial advertisement?  And what about the plaintiff’s own advertisement, promoting a non-profit film screening with a small admission fee?  Was that banned as well?  The ordinance offered no clear answers, and instead, Chicago officials had suggested multiple readings.  That proved fatal.   Chicago was not required to provide perfect clarity, the court reasoned, but the term “commercial advertising material” lay at the heart of the sign ordinance’s ban, and the city did not define that critical term.  Absent a clear definition, the court worried Chicago could lean on the ordinance’s ambiguity to prohibit disfavored messages.  The ordinance therefore fell to RCP’s challenge.

Link to full opinion here: https://law.justia.com/cases/federal/district-courts/illinois/ilndce/1:2015cv11398/319533/93/

The U.S. District Court for the Southern District of New York recently declared unconstitutional New York City’s ban on advertising in vehicles other than exempted taxis.  Under the city’s program, medallion and certain other taxis could display advertising, including seat-back television content and advertising, but other for-hire vehicles (“FHVs”), like those used for Lyft and Uber rideshare services could not do the same. Vugo, Inc., a seat-back video advertising company, challenged New York City’s regulations on the ground that their distinction between taxis and other FHVs violated the First Amendment.  On the parties’ cross motions for summary judgment, the district court agreed.

The court reviewed the regulations under Central Hudson’s four-part commercial speech test.  Under that test, if the speech regulated is neither false nor unlawful (a component not at issue in this case) and the government can show a substantial interest to justify its regulation, the court then considers whether regulation directly advances the government’s interest and whether it is narrowly drawn and not more extensive than necessary to serve the interest.

On the second prong, the court agreed with New York City that its interest in regulating vehicle advertisements as annoyances to passengers was substantial—but beyond that point the city’s arguments fared worse.  Most problematic for the court was the city’s justification for allowing advertising in taxis but not other FHVs: that the advertisements allowed operators to offset the cost of expensive ride- and fare-monitoring equipment the city required taxis to maintain.  That justification for the distinction shared no relationship to the city’s concerns about passenger annoyances, however.  That is, the advertisements were equally annoying irrespective of whether they helped offset other costs.  And because the taxi exemption still allowed advertising for more than 370,000 daily trips, the court doubted that the distinction between taxis and FHVs advanced the city’s other stated interest in aesthetics.

The court also found the exemption lacking with respect to Central Hudson’s fourth prong.  Though it noted that the commercial speech test does not require cities to employ the least restrictive means to achieve their goals, it concluded New York City’s outright prohibition on advertising in FHV was far too broad.

The court’s suggested alternative: just let passengers turn the ads off.

View the complete decision here: https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2015cv08253/448867/63/

Last week, the Ninth Circuit Court of Appeals upheld San Francisco’s prohibition on new off-site commercial billboards, rejecting a First Amendment claim to the contrary made by a billboard company.  The case reaffirms the distinction between commercial and noncommercial speech regulation under the First Amendment, and limits the scope of Reed v. Town of Gilbert.

Since 2002, San Francisco has prohibited the erection of new off-site billboards—which advertise products or services not available on the property where the billboards are located—while allowing new on-site business signs.  The prohibition amounts to an effective ban on new billboards in San Francisco, although billboards that predated the ban are allowed to remain in place.  The plaintiff, Contest Promotions, LLC, is a billboard company that challenged San Francisco’s regulation under the First Amendment.  The district court for the Northern District of California granted a motion to dismiss filed by the City and County of San Francisco. Continue Reading Ninth Circuit Allows San Francisco’s Billboard Ban to Stand

Day laborers in Oyster Bay. Source: New York Times.

On Tuesday, the Second Circuit Court of Appeals ruled that the Town of Oyster Bay, New York’s prohibition on motor vehicle solicitation of employment violated the First Amendment.  The appellate court’s ruling affirms an earlier district court ruling that found similarly.  The plaintiffs in the case were two groups that advocate for the interests of day laborers.

Oyster Bay enacted an ordinance in 2009 that read, in relevant part, “It shall be unlawful for any person standing within or adjacent to any public right-of-way within the Town of Oyster Bay to stop or attempt to stop any motor vehicle utilizing said public right-of-way for the purpose of soliciting employment of any kind from the occupants of said motor vehicle.”  Oyster Bay’s ordinance was ostensibly an effort to curb day laborer solicitation. Continue Reading Second Circuit Affirms District Court Injunction Against Oyster Bay Solicitation Ordinance

One of International Outdoor’s billboards in the Detroit area. Source: International Outdoor.

Late last month, a federal court in Michigan granted in part and denied in part a motion to dismiss First Amendment claims filed by a billboard company, International Outdoor, against the City of Troy.  The billboard company claimed that Troy’s sign ordinance was content based and unconstitutional, and that it imposed an unconstitutional prior restraint.  The city moved to dismiss the plaintiff’s claims, and further argued that the billboard company lacked standing to bring the claims.

The court first reviewed the city’s challenge to International Outdoor’s standing, which asserted that International Outdoor failed to plead redressability.  In a short response, the court held that, because the challenge was a facial challenge to the entire sign ordinance, if the court were to strike down the entire ordinance, the plaintiff’s injury would be redressed. Continue Reading Billboard Company’s Challenge to Michigan Sign Code Survives Motion to Dismiss

“Sexy cops” patrolling the Las Vegas Strip. Source: loweringthebar.net.

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

Last month, street performers in the Ninth Circuit got a bigger tip than anticipated when the Ninth Circuit Court of Appeals reversed a Nevada federal district court’s order granting summary judgment to three Las Vegas police officers, where the police officers ticketed two street performers on the famous Las Vegas Strip.  In its ruling, the appeals court found that the street performers—who dressed up as “sexy cops” to take photos with tourists—could not constitutionally be required to obtain a business license for engaging in expressive activity and association.

Michele Santopietro is an actress turned street performer who occasionally dresses up as a “sexy cop” on the Las Vegas Strip.  In March of 2011, Santopietro and her colleague Lea Patrick performed as “sexy cops” on the Strip as they were approached by three individuals indicating a desire to take a photograph.  The “sexy cops” happily obliged.  Following the photograph, Patrick persistently reminded the three individuals that the “sexy cops” work for tips.  Unbeknownst to Santopietro and Patrick, the three individuals in question were real Las Vegas Metro police officers dressed down in street clothes.  Due to Patrick’s persistence and claim that the officer entered into a “verbal contract” to give a tip, the Metro police officers arrested the two women under Clark County Code § 6.56.030 which states: “It is unlawful for any person, in the unincorporated areas of the county to operate or conduct business as a temporary store, professional promoter or peddler, solicitor or canvasser without first having procured a license for the same.” Continue Reading Las Vegas “Sexy Cops” Don’t Need a Business License, At Least For Now

Dairy cows at Ocheesee Creamery. Source: Institute for Justice.

Some questions probably never need to be answered, and the universe of such questions might include the question: “what exactly is skim milk?” In a decision that sheds light on the current state of the commercial speech doctrine—and which may provide some helpful guidance for our local government readers—the Eleventh Circuit additionally provides some good analysis of low-fat dairy products. Continue Reading What is Skim Milk? Eleventh Circuit Provides Some Insight in Commercial Speech Decision