Charles v. City of Los Angeles

A billboard advertising a particular product and proposing a commercial transaction is commercial speech, and the fact that the billboard advertises protected expressive speech does not change its commercial-speech status.

Wayne Charles and Fort Self Storage (“Appellants”) sought to install a temporary offsite billboard advertisement for “E! News.” The City of Los Angeles’s Building and Safety Department determined that the sign was “strictly commercial in nature” and therefore violates its sign ordinance. The district court followed the City’s determination, and granted judgment in favor of the City. On appeal, Appellants argued that the district court erred in concluding that the billboard constitutes commercial speech, because the advertisements were for expressive works and therefore contained protected speech. The Court looked to the Supreme Court’s prior determination that speech is likely commercial if it is an advertisement relating to one product, and is driven by commercial motivation. Although Appellants agreed that the billboard is an advertisement, they claimed that it should be granted the same protection as works being advertised. The Court disagreed and concluded that the billboard is commercial speech, reasoning that the sign does not include “inextricably intertwined” noncommercial and commercial elements. Appellants further cited California cases for the proposition that “truthful advertisements for expressive works are inherently noncommercial speech, because they are accorded the same First Amendment status as the underlying advertised work.” However, the Court rejected that argument because those cases concern only liability under state tort law. The Court also expressed concern that allowing “such a broad exception” to commercial speech would “radically enlarge the recognized exceptions to the First Amendment’s limited protections for advertising.” Although the Court affirmed the district court’s judgment, the Court stated that the district court’s review of the City’s determination was too deferential. Given the importance of the constitutional rights at issue, the district court should have reviewed the City’s determination de novo. AFFIRMED.