September 21, 2008, by
In Showing Animals Respect and Kindness et al., (SHARK) v. City of West Hollywood, the California Court of Appeal for the Second District upheld a City of West Hollywood ("City") ordinance banning all "mobile billboard advertising" of any content, at any time, and on any street. The Court's opinion addresses whether the term "advertising"--as used in the ordinance--covers both commercial and noncommercial speech.
Plaintiff SHARK is a nonprofit organization that campaigns against cruelty to animals. SHARK operates a truck called the "Tiger Truck" which is equipped with four one-hundred inch video screens mounted on the front, back, and sides. The screens show animals being injured or killed by humans and below the screens are LED signs proclaiming messages protesting animal cruelty. The "Tiger Truck" also broadcasts the sounds of animals being abused.
The City adopted an ordinance making it unlawful for any person to conduct any mobile billboard advertising upon any street or other public place in the City. Under the ordinance, mobile billboard advertising includes any vehicle which carries, conveys, pulls, or transports any sign or billboard for the primary purpose of advertising. The ordinance was adopted in order to promote the safe movement of vehicular traffic, to reduce air pollution, and to improve the aesthetic appearance of the City.
The City agreed that SHARK was engaged in noncommercial speech. However, the City argued that the term "advertising" applies to both commercial and noncommercial speech. SHARK contended that the term "advertising" applies only to commercial speech and, consequently, the ordinance was not applicable to billboards conveying noncommercial speech. The Court held that the term "advertise" is not limited to commercial speech and noncommercial speech, such as messages which endorse political candidates, social causes, and religious beliefs, may also fall within the term "advertise" under the ordinance. Having determined that the ordinance applies to both commercial and noncommercial speech, the Court concluded that the ordinance was content neutral, served a significant government interest, was narrowly tailored, and left open alternative channels for communication. The dissenting opinion, however, interpreted the ban on advertising to pertain to commercial speech only and found that the definition of "advertising" in the ordinance was overbroad and ambiguous.