Agenda - Planning Commission - 12/06/2012

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November 25, 2012 1 Volume 6 I Issue 22 Zoning Bulletin The United States Court of Appeals, Second Circuit, held that because the "E! News" billboard did not present solely noncommercial speech or even "intertwined [commercial and non-commercial] speech", it had properly been classified by the City as commercial, and thus was subject to the Sign Ordinance's permitting requirements. In so holding, the court explained that: "Commercial speech enjoys a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, and is subject to modes of regula- tion that might be impermissible in the realm of noncommercial expression." In other words, municipalities can more strictly regulate offsite commercial signs than noncommercial signs. So to deteiuuine whether C & F's First Amendment rights were being violated here, the court had to determine whether the "E! News" billboard was commercial or noncommercial speech. The court admitted that the "the boundary between commercial and noncommercial speech" was a bit fuzzy. However, the court explained that where it is difficult to determine which category specific speech falls under, there is "strong support" that the speech should be characterized as commercial speech where: the speech is an advertisement; the speech refers to a particular product; and the speaker has an economic motivation." Here, C & F had conceded that the proposed "E! News" sign was an advertisement. And, it was undisputed that the sign referred to a particular cultural product and that C & F had an economic motivation in encouraging the public to view the program. C & F had tried arguing that this advertisement went "beyond a bare pro- posal for a commercial transaction" because it also "promote[d] the ideas, expression, and content contained" in the television program and thus was entitled to full First Amendment protection. The court rejected that argument. It acknowledged that certain advertisements for noncommercial works might include both an invitation to participate in a commercial trans- action as well as some amount of noncommercial expression entitled to heightened First Amendment protection. However, as long as those com- mercial and noncommercial messages were not "intertwined", then "the government may permissibly restrict the commercial message regardless of its proximity to noncommercial speech." On the other hand, if the speech includes both noncommercial and commercial elements that "are inextrica- bly intertwined, ... [the court applies its] test for fully protected expression." Here, the court concluded that the "E! News" billboard did not present intertwined speech. The sign consisted only of photographs of the program's hosts and the name of the program; no other message was conveyed. That the underlying "E! News" program was itself entitled to full First Amend- ment protection did not cloak all advertisements for the program with noncommercial status, said the court. The court found that the district court properly determined that the "E! News" sign was commercial speech and correctly dismissed C & F's claims. See also: Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 103 S. Ct. 2875, 77 L. Ed. 2d 469 (1983). 4 ©2012 Thomson Reuters