Agenda - Planning Commission - 12/07/2017

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Zoning Bulletin October 25, 2017 I Volume 11 I Issue 20 The United States Court of Appeals, Ninth Circuit, held that the distinction between commercial and noncommercial signs in Article 6 of San Francisco's Planning Code survived "intermediate scrutiny" and therefore did not violate the First Amendment. In so holding, the court first explained that the proper level of scrutiny for this First Amendment challenge was intermediate scrutiny. The court determined that because noncommercial signs were exempted from its regulatory framework, Article 6 of the Planning Code was a regulation of commercial speech. Restrictions on commercial speech, said the court, are subject to intermediate scrutiny. Under that standard, explained the court, the regulation will withstand judicial scrutiny, and be found to not be in violation of the First Amendment, if it meets four criteria: (1) the regulated speech "must concern lawful activity and not be misleading;" (2) the asserted governmental interest in regulating the speech is "substantial;" (3) "the regulation directly advances the governmental interest asserted;" and (4) the regulation is "not more extensive than is necessary to serve that interest." Applying that test here, the court found that the first two criteria were clearly met: (1) CP's advertisements concerned lawful, non -misleading activity; and (2) San Francisco's asserted interests in regulating com- mercial speech for "safety and aesthetics" was "substantial." The court next addressed the remaining two criteria by looking at the "fit" be- tween San Francisco's "ends" (i.e., asserted interests) and the "means" (i.e., regulatory framework) chosen to accomplish those ends. CP had argued that Article 6 of the Planning Code failed to meet those last two criteria to withstand intermediate scrutiny because the regulations "exempt[ed] noncommercial signs for reasonslunconnected to [San Francisco's] asserted interests in safety and aesthetics." The Ninth Circuit disagreed. The court concluded that, contrary to CP's argument, Article 6 was "not impermissibly under -inclusive" so as to undermine the interests San Francisco claimed for adopting the regulations in Article 6. Rather, the court found that San Francisco's, choice to regulate commercial signs (but not noncommercial signs) had a substantial effect on San Francis- co's interests in safety and aesthetics (thus meeting the third criteria of the test). The court found that Article 6's exceptions "ensure that the regulation will achieve its end, and the distinctions that it makes among different kinds of speech relate empirically to the interests that the government seeks to advance." In other words, the court concluded that Article 6 did not "impermissibly discriminate against commercial speech solely on the ground that it deserves less protection than noncommercial speech," but instead focused "on the unique risks to San Francisco's interests that commercial signs pose." The court also found that the fourth criteria in intermediate scrutiny © 2017 Thomson Reuters 7