By Matthew Hinks
Sign litigation, especially litigation over the constitutionality of ordinances and regulations affecting signage, often involves familiar, but competing, concepts. Although the courts recognize that outdoor advertising signs are subject to certain protections as “commercial speech” under the First Amendment, municipalities and agencies nevertheless hold significant authority to regulate signage. So long as the regulations on signage are content neutral and further the recognized governmental interests in protecting traffic safety and eliminating visual blight, the regulations are generally upheld. However, where an ordinance or regulatory scheme affords local officials too much — or in the courts’ parlance, “unbridled” — discretion over whether to approve, deny or condition the approval of a sign, the courts are willing to step in and strike down the offending regulation. Although not a sign case, a new opinion out of the Ninth Circuit, Kaahumanu v. State of Hawaii, 2012 DJAR 7472 (9th Cir., June 6, 2012), offers a wonderful illustration of these competing principles.
The plaintiffs in Kaahumanu were a Native Hawaiian pastor who performs religious wedding ceremonies, and Maui Wedding and Event Professionals Association, an association of individuals and businesses providing commercial services for weddings. Plaintiffs brought First Amendment and other constitutional challenges to regulations and associated guidelines that require permits for “commercial weddings” on Hawaii’s public beaches.
Public beaches in Hawaii are under the jurisdiction of Hawaii’s Department of Land and Natural Resources (“DLNR”). In November 2002, DLNR began to regulate commercial activities on “unencumbered” public beaches — i.e., public beaches that have not been set aside for any purpose, by statute, executive order, or other means to a governmental agency; or are encumbered by lease, license, permit, easement, or other document issued by DLNR. DLNR regulations provide, “[n]o person shall engage in commercial activities of any kind without a written permit from the board or its authorized representative.”
An applicant seeking a permit for a commercial event, including a wedding ceremony, is subject to several terms and conditions. Among other things, a permittee can reserve a “right-of-entry area” for up to two hours in exchange for payment of a fee. The applicant must obtain insurance and agree to indemnify DLNR against losses. The regulations contain a number of restrictions on the physical objects that can be erected or brought into the permitted area. The terms and conditions further provide that “[t]he right-of-entry permit is revocable and terminable at anytime for any reason in the sole and absolute discretion of the Chairperson [of DLNR].” Further, DLNR reserves “the right to impose additional[ ] terms and conditions as it deems necessary or appropriate while the right-of-entry is in force.”
Are Wedding Ceremonies “Speech”
Initially, the court had to face the question of whether wedding ceremonies constituted “speech” protected by the First Amendment. The court had “no difficulty” concluding that they do. This was true because, according to the court, “[w]edding ceremonies convey important messages about the couple, their beliefs, and their relationship to each other and to their community.”
Content Neutral Regulations Satisfy the First Amendment
Despite the recognized First Amendment protections, the court upheld most aspects of DLNR’s regulations. According to the court, the requirement of obtaining a permit to hold a beach wedding; the restrictions on physical objects that wedding participants may bring onto the beach; and the insurance and indemnification requirements were permissible time, place and manner restrictions on speech. Each was content neutral, served significant government interests and left open alternative channels for communication of the “message” supplied by wedding ceremonies.
Regulations Granting Government Officials “Unbridled Discretion” Do Not
However, the court struck down the parts of the regulations providing that the permit was “terminable at anytime for any reason in the sole and absolute discretion of” DLNR; and reserving to DLNR the “right to impose additional[ ] terms and conditions as it deems necessary or appropriate while the right-of-entry is in force.” According to the court, regulations affecting protected speech, to be upheld, must generally be “viewpoint” or “content neutral.” In other words, the regulations may not favor or discriminate against speakers based upon the content of the speech. Central to this principle is that a licensing authority may not be afforded “unbridled discretion” over protected speech because, to do so, would create the danger of self or government censorship.
The court quoted at length the Supreme Court’s well-known opinion in City of Lakewood v. Plain Dealer Publ. Co., 486 U.S. 750 (1988):
[A] law or policy permitting communication in a certain manner for some but not for others raises the specter of viewpoint censorship. This danger is at its zenith when the determination of who may speak and who may not is left to the unbridled discretion of a government official. As demonstrated above, we have often and uniformly held that such statutes or policies impose censorship on the public or the press, and hence are unconstitutional, because without standards governing the exercise of discretion, a government official may decide who may speak and who may not based upon the viewpoint of the speaker.
Thus, according to the court, to pass constitutional muster, time, place and manner regulations must contain adequate standards to guide the official’s decision and render it subject to effective judicial review.
Those adequate standards were (rightfully) found lacking here. As the court noted, the DLNR may revoke a permit “at anytime” “for any reason,” and “in the sole and absolute discretion of the Chairperson.” Further, DLNR may add terms and conditions to a permit “as it deems necessary or appropriate.” The provisions failed to sufficiently constrain the authority of DLNR and therefore failed First Amendment scrutiny. In fact, it mattered not there was nothing in the record suggesting that DLNR ever invoked the discretionary power given to it under these provisions. The mere potential for the exercise of the power was enough to render it inconsistent with the First Amendment.
The applicability of the court’s analysis to sign litigation and billboard regulations is obvious. Whenever a governmental agency makes a decision respecting the permissibility of a sign or imposes conditions upon the allowance of a sign, close attention should be paid to the regulations governing the official’s authority to ensure compliance with principles analyzed in the Kaahumanu opinion.
Matthew Hinks is a litigator with a wide-ranging practice that focuses primarily on the representation of real estate developers in difficult land use cases. Matt has extensive experience litigating complex mandamus actions and other claims involving signage disputes, governmental takings, CEQA challenges, planning and zoning law, civil rights violations, eminent domain issues, title disputes, lease disputes and community redevelopment and density bonus law. He has extensive experience in both federal and state courts, including trial courts and courts of appeal, as well as in arbitration, mediation and administrative settings. Contact Matt at MHinks@jmbm.com or 310.201.3558.