Agenda - Planning Commission - 07/21/2016

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May 25, 2016 ( Volume 10 I Issue 10 Zoning Bulletin sign) and therefore subject to strict scrutiny under United States Supreme Court precedents (i.e., applicable cases on the issue from the high court). (Strict scrutiny analysis is the analysis of constitutionality that is most rigorous. It requires that the regulation further a "compelling governmen- tal interest," and be narrowly tailored to achieve that interest, or else may be unconstitutional in violation of free speech rights.) Lamar also argued that California's Free Speech Clause provided more protection to speech than did the First Amendment. Lamar also contended that the Sign Ban's "pervasive exceptions" caused the ban to fail even under an intermediate scrutiny test. (To pass intermediate scrutiny, the challenged law must further an important government interest by means that are "substantially related to that interest.") The trial court agreed with Lamar. It found that the Sign Ban violated the Free Speech Clause of the California Constitution. The court found that the Sign Ban was a content -based regulation that could not withstand strict scrutiny analysis. In so holding, the court observed that the City had failed to show "how off -site signs create special traffic- and aesthetics - related problems that are not also created by on -site and noncommercial signs." The trial court entered judgment, prohibiting the City from enforcing the Sign Ban. The court also ordered the City to process Lamar's pend- ing permit applications without regard to the Sign Ban. The City appealed. DECISION: Judgment of superior court reversed, and matter remanded with directions. Disagreeing with Lamar and with the trial court, the Court of Appeal, Second District, Division 8, California, held that the City's Sign Ban did not violate the Free Speech Clause of the California Constitution. In so holding, the court cited many "legal authorities" that have "uniformly concluded that distinctions between commercial and noncom- mercial speech, and distinctions between onsite and offsite billboards, do not offend established First Amendment principles." Looking at the City's Sign Ban here, the court noted that it was "not directed at the content of any commercial sign, or at any particular speaker." The court acknowledged that the terms "commercial" and "noncommercial" "nec- essarily refer, in the broadest sense, to the `content' of the sign." However, the court found that "plainly the term `content -based,' in free speech [cases] to date, ordinarily does not refer to whether speech is commercial or noncommercial." Rather, found the court, "the term `content -based' refers. . .to the `topic discussed or the idea or message expressed' or to `specific subject matter.'..or. . .to `particular content,' or `certain content' or 'a particular viewpoint.' " The court found no prior case law suggesting that the distinction between commercial and noncommercial speech was "content -based" and thus subject to strict scrutiny. 8 © 2016 Thomson Reuters