Citizens for Free Speech and Equal Justice, LLC v. City Of San Jose

Background

Citizens for Free Speech and Equal Justice, LLC and GTL Enterprises, LLC alleged that provisions of the City of San Jose’s sign ordinance violated the First and Fourteenth Amendments. The City moved for partial summary judgment—judgment on particular issues when there is no genuine dispute about a material fact—concerning two exemptions for signs erected by the City. The court held a hearing on July 21, 2022.

The ordinance provides that signs erected by the City do not need permits but must comply with the ordinance’s other requirements, except that signs erected on City-owned land under Council Policy 6-4 follow that policy instead of the ordinance. The court called these the Permit Requirements Exemption and the Policy 6-4 Exemption.

Permit Requirements Exemption

The Permit Requirements Exemption excuses the City from filing a permit application and paying a fee to itself, while leaving the City subject to the ordinance’s substantive restrictions on the type, number, and characteristics of signs. The plaintiffs argued that the permitting process was effectively the only way to enforce the ordinance’s other requirements, and that the City’s stated justifications were content-based. They also questioned whether a Ninth Circuit decision approving an identical exemption remained valid after a later Supreme Court decision.

The court held that the exemption was speaker-based, not content-based, because it applied to all signs erected by the City without reference to the message displayed. It therefore applied intermediate scrutiny, a constitutional test requiring the government to show that the restriction serves a substantial interest, directly advances that interest, and is no broader than necessary.

The court found no dispute that the relevant speech was lawful and not misleading, and determined that public health and safety were substantial governmental interests. It further found that the exemption directly advanced those interests and was not broader than necessary because the City remained subject to the ordinance’s substantive sign restrictions, and the exemption did not reduce the communication forums available to non-City speakers.

The court concluded that the Permit Requirements Exemption satisfied intermediate scrutiny and granted the City’s motion for summary judgment on that exemption.

Policy 6-4 Exemption

The Policy 6-4 Exemption applies to signs erected on City-owned land under Council Policy 6-4. That policy identifies 17 potential locations and allows signs, including signs displaying off-site commercial speech, for purposes such as generating City revenue, reducing visual clutter or blight, and enhancing commercial vibrancy. It also contains location, size, height, and illumination limits and states that the City does not intend to create a public forum at the identified sites.

The plaintiffs argued that the City had created designated public forums—government property intentionally opened for public expressive activity—because the City allegedly did not control the messages on the signs. They also objected to the policy’s provision allowing the City to reserve space or time for its own messages.

The court found no genuine dispute of material fact that the City restricted Policy 6-4 signs to commercial speech. It relied on the policy’s mandatory language, restrictions on certain types of messages, a request for proposals limiting advertising to commercial transactions, and agreements concerning signs involving Clear Channel. The court interpreted provisions stating that the City “may” impose certain limits as granting the City authority to impose those limits, rather than allowing the City to disregard the policy’s mandatory commercial-speech restriction.

The court also held that the 17 locations were nonpublic forums, meaning government property not generally opened to public expressive activity. The locations included sides of City-owned parking garages and buildings, parking lots, a vacant service yard, and vacant City-owned land without direct access to public roads. The plaintiffs provided no evidence that the public had used the sites for expressive activity. In a nonpublic forum, the City could favor commercial speech over noncommercial speech if the restriction was viewpoint-neutral and reasonable in light of the forum’s purpose. The court also held that the City could reserve space or time for its own messages.

Applying intermediate scrutiny, the court found that Policy 6-4 allowed only lawful and nonmisleading commercial speech, served substantial interests in public safety and aesthetics, directly advanced those interests, and did not go further than necessary. The court concluded that limiting the number, location, and appearance of off-site commercial advertisements on City property satisfied that standard.

The court therefore granted the City’s motion for summary judgment on the Policy 6-4 Exemption.

Order

Beth Labson Freeman granted the City’s partial motion for summary judgment on both the Permit Requirements Exemption and the Policy 6-4 Exemption. The order stated that the existing case schedule remained in effect.