FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NANO MALDONADO, 

Plaintiff-Appellant,

v.

JEFF MORALES, in his capacity as

No. 06-15657 Director of the California

Department of Transportation, D.C. No.  Defendant, CV-02-03167-CRB

and

WILL KEMPTON, in his capacity as

Director of the California

Department of Transportation,

Defendant-Appellee. 

NANO MALDONADO, 

Plaintiff-Appellant, No. 07-15535

v. D.C. No.

WILL KEMPTON, in his capacity as  CV-02-03167-CRB

Director of the California OPINION Department of Transportation,

Defendant-Appellee. 

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued and Submitted

August 13, 2008—San Francisco, California

Filed February 25, 2009

2145
Before: Eugene E. Siler, Jr.,* M. Margaret McKeown, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge McKeown

*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge

for the Sixth Circuit, sitting by designation. 

2146 MALDONADO v. KEMPTON
COUNSEL

Dennis Scott Zell, Fogarty & Zell, LLP, Millbrae, California,

for the plaintiff-appellant. 

Ronald W. Beals, Assistant Chief Counsel, California Department of Transportation Legal Division, Sacramento, California, for the defendant-appellee. 

Michael F. Wright, Case Knowlson, Jordan & Wright, LLP,

Los Angeles, California, for the amicus. 

OPINION

McKEOWN, Circuit Judge: 

Nano Maldonado has raised a number of constitutional

challenges to the California Outdoor Advertising Act. Cal.

Bus. & Prof. Code § 5200, et seq. As a consequence of a legislative amendment in 2008, the Act bars offsite commercial

advertising but does not restrict non-commercial speech. Cal.

Bus. & Prof. Code § 5275. Although some of Maldonado’s

claims are now moot because of this amendment, he continues

to challenge application of the Act to his effort to display offpremises advertising on a highway billboard. This appeal is

Maldonado’s second trip to our court and requires us, once

again, to reiterate our commercial speech jurisprudence

involving billboards. We dismiss as moot Maldonado’s appeal

from the district court’s injunction and affirm the district

court’s grant of summary judgment on his other claims. 

I. BACKGROUND

Maldonado has had a long-running dispute with the California Department of Transportation (“Caltrans”) over the use

of a billboard on his property. In the early 1990s, he

2150 MALDONADO v. KEMPTON
purchased property in Redwood City, California, that is adjacent to U.S. Highway 101. This land is in an area of Highway

101 that has been classified as “landscaped freeway.” In 1993,

Maldonado applied to Caltrans for a permit to use his billboard for offsite advertising. Because California’s Outdoor

Advertising Act (“COAA”) bars property owners from using

billboards along a landscaped freeway to advertise for offsite

businesses, Caltrans denied the application. See Cal. Bus. &

Prof. Code §§ 5440, 5442. Maldonado’s efforts to skirt the

offsite advertising ban have resulted in lengthy litigation at

the state and federal level over the last ten years. 

After Maldonado continued using the billboard for offsite

advertising despite numerous citations, Caltrans sued him in

California state court for nuisance. See People v. Maldonado,

86 Cal. App. 4th 1225, 1228-29 (Cal. Ct. App. 2001). The

state court trial judge found in favor of Caltrans and enjoined

Maldonado from continuing to violate the COAA. Id. at 1229-

30. The injunction barred Maldonado from: (1) “posting or

displaying any advertising on his billboard without first having obtained from [Caltrans] either a permit for outdoor

advertising, or an exemption from or waiver of the permit

requirement;” (2) “posting or displaying any on premise

advertising which does not direct the viewer to the billboard

location for purposes of conducting business;” (3) “posting or

displaying any on premise advertising for activities not conducted on [his] premises;” and (4) “posting or displaying any

on premise advertising for products or services which are only

incidental or secondary to the principal business activity conduct on [his] premises.” Id. at 1233-35 (internal quotations

and citations omitted). The state court of appeals upheld all

but the first of these prohibitions. Id.

Despite the injunction, Maldonado persisted in using his

billboard for offsite advertising and was twice cited for contempt. He then sued in federal court, alleging the COAA violated the First Amendment, both facially and as applied to

him. The district court dismissed the case on procedural

MALDONADO v. KEMPTON 2151
grounds. We reversed that dismissal. See Maldonado v. Harris (“Maldonado II”), 370 F.3d 945, 956 (9th Cir. 2004). On

remand, the district court held that the COAA unconstitutionally privileged commercial speech over non-commercial

speech because it permitted onsite commercial speech but

barred onsite non-commercial speech. Maldonado v. Kempton

(“Maldonado III”), 422 F. Supp. 2d 1169, 1178 (N.D. Cal.

2006). The district court enjoined enforcement of the COAA

against non-commercial speech on billboards where onsite

advertising is allowed. Id. at 1178. The district court later

found that the COAA, as amended by the injunction, is constitutional and granted summary judgment against Maldonado

on his other claims. 

Maldonado now challenges the district court’s injunction

and summary judgment ruling. He argues that the district

court’s injunction was not an appropriate remedy for the statute’s unconstitutional preference for commercial speech. He

claims that the COAA is overbroad and vague, that it imposes

unconstitutional prior restraints on speech, that it violates

equal protection, and that it violates substantive due process.

He also claims that the state court injunction barring him from

violating the COAA imposes a separate unconstitutional

restraint on his First Amendment rights.

II. ANALYSIS

A. JURISDICTION

Before addressing Maldonado’s substantive claims, we first

resolve three threshold issues: whether the amendment to the

COAA moots Maldonado’s claims, whether he has standing

to raise his claims, and whether his claims about the criminal

enforcement provisions are ripe. See Kescoli v. Babbitt, 101

F.3d 1304, 1308 (9th Cir. 1996) (“If the appeal is moot, we

lack jurisdiction.”); Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 88-89 (1998) (standing is a jurisdictional

question that ordinarily must be resolved before addressing

2152 MALDONADO v. KEMPTON
the merits); Texas v. United States, 523 U.S. 296, 301-302

(1998) (courts should not reach the merits of unripe issues).

1. Mootness

On January 1, 2008, after the district court’s injunction and

after the two appeals consolidated in this case were filed, the

California legislature amended the COAA. The new section,

§ 5275, reads: 

Notwithstanding any other provision of this chapter,

the director may not regulate noncommercial, protected speech contained within any advertising display authorized by, or exempted from, this chapter.

Cal. Bus. & Prof. Code § 5275. 

[1] With this amendment, the COAA now exempts noncommercial speech from regulation by Caltrans. The question

then is whether this statutory change moots Maldonado’s

appeal. Mootness is “ ‘the doctrine of standing set in a time

frame.’ ” Abdala v. I.N.S., 488 F.3d 1061, 1063 (9th Cir.

2007) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs., Inc., 528 U.S. 167, 189 (2000)). “A statutory

change . . . is usually enough to render a case moot, even if

the legislature possesses the power to reenact the statute after

the lawsuit is dismissed.” Native Village of Noatak v, Blatchford, 38 F.3d 1505, 1510 (9th Cir. 1994). 

Before enactment of this new provision, the district court

held that the COAA impermissibly favored commercial over

non-commercial speech, because it provided an exception

only for onsite commercial advertising and not for noncommercial messages. The district court remedied this constitutional infirmity by enjoining Caltrans from enforcing the

COAA against non-commercial speech: “the Court will enjoin

the State from enforcing COAA to prohibit non-commercial

MALDONADO v. KEMPTON 2153
speech wherever the Act permits commercial speech.” Maldonado III, 422 F. Supp. 2d at 1178. 

Section 5275 incorporates the same solution to the constitutional problem that the district court implemented via the

injunction, specifically carving out non-commercial speech

from regulation. Cal. Bus. Prof. Code § 5275. Now that the

statute has been amended to exempt non-commercial speech,

the injunction is moot.1See Railway Labor Executives’ Ass’n

v. Gibbons, 455 U.S. 457, 465 n.8 (1982) (noting that the

amendment of a law removing sections declared unconstitutional by a district court mooted that court’s injunction). 

Despite the changes to the COAA, Maldonado argues that

because Caltrans stated that it will not change its enforcement

policy, his claims are not moot. However, what Caltrans actually said is that it never enforced the COAA against noncommercial speech, even when the text of the law permitted

it to do so. This statement was not a threat to flout the new

law, but rather a promise to follow it. 

[2] Four of Maldonado’s claims against the COAA were

predicated on the COAA as reformed by the district court:

(1) the COAA is overbroad and vague; (2) the COAA is

enforced via unconstitutional prior restraints; (3) the grandfathering provision violates equal protection; and (4) the COAA

violates the suppression doctrine and substantive due process.

These claims do not depend on the lack of statutory exception

for non-commercial speech and thus remain live controversies. 

[3] Maldonado’s claim that the state court injunction bars

him from exercising his First Amendment Rights is also unaf1Maldonado’s dispute over the injunction centers on the multiple claims

relating to the district court’s allegedly improper reformation of the statute, and claimed failure to comply with Federal Rule of Civil Procedure

65(d). 

2154 MALDONADO v. KEMPTON
fected by the changes to the COAA. Although the purpose of

that injunction was to bar Maldonado from continued violation of the COAA, the language of the injunction bars him

from engaging in offsite advertising on his billboard, not simply from violating the COAA. Therefore, the change to the

COAA itself has no effect on this aspect of the state court

injunction. This claim is addressed below in our analysis of

prior restraint. 

2. Standing

We next address Caltrans arguments that Maldonado lacks

standing to pursue his claims. Caltrans posits that because a

Redwood City ordinance also includes billboard restrictions,

some of Maldonado’s claims are not redressable. See Redwood City Sign Ordinance § 3.114 (2000) (amended 2007)

(prohibiting offsite advertising subject to enumerated exceptions such as community activity signs, open house signs,

garage sale signs, political signs and public event signs).2 Caltrans argues that even if Maldonado were to prevail on his

constitutional claims, the city ordinance would still prohibit

Maldonado’s advertising, hence obtaining relief in this court

would be fruitless. 

Caltrans’s argument might have merit if the Redwood City

prohibitions were clearly identifiable, enforceable, and distinct from the federal challenge to the amended COAA. The

Seventh Circuit considered such a circumstance in Harp

Advertising Illinois, Inc. v. Village of Chicago Ridge, 9 F.3d

1290 (7th Cir. 1993). As we explained in a later case analyzing Harp, “ ‘[a]n injunction against the portions of the sign

and zoning codes that [Harp] has challenged [i.e., the off-site

sign ban] would not let it erect the proposed sign; the village

2

In its brief, Caltrans cited to the statute enacted in 2000 but later submitted a letter alerting the court to a statutory change that clearly

exempted non-commercial messages. The amended version of the statute

is codified at Redwood City Code §§ 3.57-3.61, 3.71-3.72. 

MALDONADO v. KEMPTON 2155
could block the sign simply by enforcing another, valid ordinance [i.e., the size and height restrictions] already on the

books.’ ” Get Outdoors II, L.L.C. v. City of San Diego, 506

F.3d 886, 893 (9th Cir. 2007) (quoting Harp, 9 F.3d at 1292)

(alterations in original) (emphasis added). 

[4] When evaluating redressability, the key question is

whether the harm alleged by the plaintiff is likely to be alleviated by a ruling in its favor. See Harp, 9 F.3d at 1292 (“Law

like life deals in probabilities. A rule reducing the probability

of success causes a concrete injury for the same reason that

an . . . option to buy stock sells at a positive price.”). Maldonado’s constitutional challenge to the COAA applies with

equal force to the similarly-worded Redwood City ordinance,

which also bans offsite commercial advertising. Although the

Redwood City ordinance might present another obstacle in

Maldonado’s path were he to prevail in this litigation, it is one

that a favorable ruling here would likely allow him to surmount. Therefore, the Redwood City Ordinance does not

defeat Maldonado’s standing to challenge the constitutionality

of the COAA. 

Caltrans also questions Maldonado’s standing to challenge

the COAA provisions that were not applied to him, such as

COAA’s grandfathering provision, which exempted preexisting offsite advertisements from the Act. Although plaintiffs are generally limited to enforcing their own rights, standing is broader for facial First Amendment challenges. We

have long held that plaintiffs have standing to challenge

exceptions as underinclusive when the exception does not

apply to the plaintiff. See Ripplinger v. Collins, 868 F.2d

1043, 1048 (9th Cir. 1989) (“Plaintiffs . . . have standing to

claim a constitutional violation because others similarly situated are exempt from the operation of a state law adversely

affecting the plaintiffs.”). Similarly, a plaintiff alleging that a

statute is void for vagueness and overbreadth resulting in a

chilling effect on speech has standing even if the law is constitutional as applied to him. See S.O.C., Inc. v. County of

2156 MALDONADO v. KEMPTON
Clark, 152 F.3d 1136, 1142-43 (9th Cir. 1998). These principles are sufficiently broad to grant Maldonado standing on his

First Amendment and equal protection claims. 

3. Ripeness

[5] Finally, Caltrans insists that because Maldonado has not

actually been prosecuted, his complaint about the criminal

provisions of the COAA, Cal. Bus. & Prof. Code § 5464, is

purely hypothetical and should not be addressed by this court.

Although cast by Caltrans as a standing issue, this challenge

fits more neatly into the ripeness category. Ripeness is

intended to “prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Abbott Labs. v. Gardner, 387 U.S. 136, 148

(1967), overruled on other grounds by Califano v. Sanders,

430 U.S. 99 (1977). The role of the courts is “neither to issue

advisory opinions nor to declare rights in hypothetical cases,

but to adjudicate live cases or controversies.” Thomas v.

Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138

(9th Cir. 2000) (en banc). 

[6] Ripeness is both a constitutional and a prudential doctrine. Portman v. County of Santa Clara, 995 F.2d 898, 902

(9th Cir. 1993). Under the constitutional inquiry, we look to

a three-part test: (1) whether the plaintiff has articulated a

concrete plan to violate the law in question; (2) whether there

has been a threat of prosecution from the state; and (3)

whether the statute at issue has previously been enforced.

Thomas, 220 F.3d at 1138-39. In other words, a “genuine

threat of enforcement” is sufficient to render a claim ripe for

review. City of Houston v. Hill, 482 U.S. 451, 459 n.7 (1987)

(citing Steffel v. Thompson, 415 U.S. 452, 475 (1974)). The

prudential inquiry weighs “the fitness of the issue for judicial

decision and the hardship to the parties of withholding court

consideration.” Abbott Labs., 387 U.S. at 149. 

[7] The last time Maldonado came before this court, invoking the framework described above, we held that his claims

MALDONADO v. KEMPTON 2157
were ripe. Applying the test for constitutional ripeness, we

held: 

Maldonado’s suit fares well as far as the first and

third factors are concerned: Maldonado alleges that

his current conduct is in violation of COAA, and

Caltrans has undoubtedly enforced the statute against

Maldonado in the past. Although the second factor is

a closer question, it also tends to favor Maldonado:

while there may not have been specific threats of

enforcement against his current signs, the fact that an

injunction had been entered against Maldonado certainly qualifies as a threat of enforcement. We therefore conclude that Maldonado’s First Amendment

challenge meets the constitutional component of

ripeness.

Maldonado II, 370 F.3d at 953-54 (footnote omitted). As for

prudential ripeness, we held: 

Maldonado’s suit meets the first prong because there

has been no contention that the record needs to be

developed further in order for the district court to be

able to address the constitutional challenge. . . . The

second factor also weighs in favor of Maldonado

because withholding consideration of his claims will

require him to risk being found in contempt of the

state court injunction in order to be able to challenge

the constitutionality of the statute.

Id. at 954. Caltrans offers nothing to change our analysis in

this appeal. Maldonado appears locked in a continuing battle

with the state over this billboard. The result is not hypothetical. Instead, there is a continuing cycle of contempt citations,

litigation and appeals. 

2158 MALDONADO v. KEMPTON
B. OVERBREADTH AND VAGUENESS

1. Criminal Enforcement

Maldonado challenges the constitutionality of the COAA

provisions that punish violations of the ban on offsite advertising as misdemeanor criminal offenses. See Cal. Bus. &

Prof. Code § 5464. Maldonado’s overbreadth claim is linked

to his vagueness claim. In effect, he argues that the distinction

between commercial and non-commercial speech is vague

and therefore fails to give sufficient notice of the prohibited

conduct and chills protected speech. Maldonado alleges the

statute is overbroad because the vagueness of this distinction

will result in some non-commercial speech being subjected to

the COAA. 

[8] To be sure, courts must take extra care in determining

whether criminal statutes are vague or “reach[ ] a substantial

amount of constitutionally protected conduct” because of the

heightened risk of deterring people from engaging in constitutionally protected conduct. City of Houston, 482 U.S. at 458.

Because of the nature of criminal sanctions, “[t]he standards

of certainty in statutes punishing for offenses is higher than in

those depending primarily on civil sanction for enforcement.”

Winters v. New York, 333 U.S. 507, 515 (1948). 

[9] The standard for unconstitutional vagueness is whether

the statute “provide[s] a person of ordinary intelligence fair

notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.”

United States v. Williams, ___ U.S. ___, 128 S. Ct. 1830,

1845 (2008) (citing Hill v. Colorado, 530 U.S. 703, 732

(2000)). The settled law of this circuit is that the commercial/

non-commercial and onsite/offsite distinctions are not unconstitutionally vague. Clear Channel Outdoor, Inc. v. City of

Los Angeles, 340 F.3d 810, 814 (9th Cir. 2003) (“We have

relied on Metromedia to uphold sign ordinances that distinguish between onsite and offsite signs when that distinction

MALDONADO v. KEMPTON 2159
does not also prevent the erection of on-site non-commercial

signs.”) (citing Metromedia Inc. v. City of San Diego, 453

U.S. 490, 511-14 (1981)); Acklerley Communications of the

Northwest, Inc. v. Krochalis, 108 F.3d 1095 (9th Cir. 1997)

(upholding Seattle’s ban on offsite commercial advertising on

billboards); Outdoor Systems, Inc. v. City of Mesa, 997 F.2d

604, 613 (9th Cir. 1993) (“Because our First Amendment

jurisprudence recognizes a distinction between commercial

and non-commercial speech, government officials have to

place a particular message into one or the other category for

purposes of regulation. The potential difficulty of that categorization in itself does not render the regulations unconstitutional.”). Because the overbreadth and chilling effect claims

are dependent on the statute’s alleged unconstitutional vagueness, those claims also fail. 

2. Suppression Doctrine

[10] Maldonado claims that the COAA is a violation of the

“suppression doctrine.” Maldonado’s brief lumped this claim

in with his substantive due process claim,3 but it is in fact a

First Amendment claim premised on City of Ladue v. Gilleo,

512 U.S. 43 (1994). In Ladue, the Supreme Court held that a

municipal ordinance banning nearly all types of signs,

although content-neutral, was unconstitutional because it

“suppress[ed] too much speech.” Id. at 55. In essence, the

suppression doctrine is an overbreadth doctrine that prevents

highly restrictive yet content-neutral limitations on speech

3Maldonado’s apparent substantive due process arguments, namely that

the state cannot validly prohibit offsite advertising in urban areas, and “the

government’s asserted aesthetic and traffic safety interests” cannot overcome his liberty and property interests, miss the mark. The basis for the

sign ban relates to signs in the aggregate, not to Maldonado’s billboard in

particular. See United States v. Edge Broadcasting Co., 509 U.S. 418, 427-

28 (1993). Nor do our billboard cases create an urban carve out. Rather

we have consistently upheld bans in urban areas, like Los Angeles. See,

e.g., Metro Lights v. City of Los Angeles, 551 F.3d 898, 914 (9th Cir.

2009). 

2160 MALDONADO v. KEMPTON
from foreclosing or nearly foreclosing an entire medium of

expression:

[W]e have held invalid ordinances that completely

banned the distribution of pamphlets within the

municipality, Lovell v. City of Griffin, 303 U.S. 444,

451-452, 58 S. Ct. 666, 82 L. Ed. 949 (1938); handbills on the public streets, Jamison v. Texas, 318

U.S. 413, 416, 63 S. Ct. 669, 87 L. Ed. 869 (1943);

the door-to-door distribution of literature, Martin v.

City of Struthers, 319 U.S. 141, 145-149, 63 S. Ct.

862, 87 L. Ed. 1313 (1943); Schneider v. State

(Town of Irvington), 308 U.S. 147, 164-165, 60

S. Ct. 146, 84 L. Ed. 155 (1939), and live entertainment, Schad v. Mount Ephraim, 452 U.S. 61, 75-76,

101 S. Ct. 2176, 68 L. Ed. 2d 671

(1981). . . . Although prohibitions foreclosing entire

media may be completely free of content or viewpoint discrimination, the danger they pose to the

freedom of speech is readily apparent—by eliminating a common means of speaking, such measures

can suppress too much speech. 

Id.

[11] The COAA does not ban all signs, or even nearly all

signs, but only off premises, commercial billboards. Maldonado remains free to post any non-commercial messages or

to post onsite advertising on his billboard. This regulation is

substantially less restrictive than any the Supreme Court has

struck down under the suppression doctrine. We have upheld

similar restrictions in the past and did so just last month. See,

e.g., Metro Lights v. City of Los Angeles, 551 F.3d 898, 914

(9th Cir. 2009). Therefore, Maldonado’s suppression doctrine

claim fails. 

C. PRIOR RESTRAINT

Under California law, violations of the COAA are public

nuisances that may be enjoined by the courts. Cal. Bus. &

MALDONADO v. KEMPTON 2161
Prof. Code § 5461. Maldonado argues that the state court

injunction barring him from continuing to violate the COAA

constitutes an unconstitutional prior restraint on speech. The

fact that the COAA allows such prior restraints, he claims,

renders it unconstitutional. 

[12] That the statute allows injunctions against speech does

not itself render the COAA unconstitutional—“[n]ot all

injunctions that may incidentally affect expression . . . are

prior restraints.” Madsen v. Women’s Health Center, Inc., 512

U.S. 753, 763 n.2 (1994) (citations omitted). Content-neutral

injunctions that do not bar all avenues of expression are not

treated as prior restraints. Id.

[13] The content-neutral injunction against Maldonado is a

pointed one—it bars him from violating the COAA, namely

posting offsite advertising on his billboard. Maldonado, 86

Cal. App. 4th at 1234; see also Metro Lights, 551 F.3d at 912

(holding that a similar ordinance barring offsite commercial

advertising but permitting non-commercial and onsite commercial advertising is “not by its terms a content-based regulation”). The injunction does not limit his onsite advertising.

Nor does it bar him from posting non-commercial messages.

The injunction merely means “he may not use his billboard to

direct travelers to businesses that are not located [on his premises].” Maldonado, 86 Cal. App. 4th at 1234-35. In effect, the

injunction does no more than provide court-ordered compliance with the statute. 

The fact that the restriction is not a prior restraint does not

end the inquiry. Injunctions are subject to a higher level of

scrutiny than generally applicable laws: 

There are obvious differences, however, between an

injunction and a generally applicable ordinance.

Ordinances represent a legislative choice regarding

the promotion of particular societal interests. Injunctions, by contrast, are remedies imposed for viola2162 MALDONADO v. KEMPTON
tions (or threatened violations) of a legislative or

judicial decree. 

Madsen, 512 U.S. at 764. Because of these differences

between injunctions and generally applicable ordinances, the

Supreme Court has counseled that “a somewhat more stringent application of general First Amendment principles”

should be used to review injunctions. Id. at 765. 

[14] In Madsen, the Court held that the appropriate test for

content-neutral injunctions was “whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest.” Id. at 765.

Madsen involved non-commercial speech by anti-abortion

protestors, whereas Maldonado has engaged in less protected

commercial speech. Whether Madsen’s stricter test for evaluating an injunction applies equally to an injunction regulating

commercial speech is a distinction not addressed by the Court.

See generally Central Hudson Gas & Elec. Corp. v. Public

Serv. Comm’n, 447 U.S. 557, 562-63 (1980) (“The Constitution . . . accords a lesser protection to commercial speech than

to other constitutionally guaranteed expression.”) (citations

omitted). However, we need not reach that issue because even

under the Madsen test, the injunction is constitutional. 

[15] California’s interest in improving aesthetics and safety

along its highways is significant. Metromedia, 453 U.S. at

511. Maldonado repeatedly violated the ban on offsite advertising, prompting the state’s efforts to enjoin him from further

violations. The injunction only bars Maldonado from engaging in conduct that is itself illegal, a narrower limit than that

upheld in Madsen, which involved a 36-foot no-protest buffer

zone around an abortion clinic. Madsen, 512 U.S. at 769-70.

Because the injunction bars only further violations of the

same, constitutionally valid law that Maldonado previously

violated, it “burdens no more speech than necessary to accomplish” the government’s interest in curtailing billboard advertising. See id. at 754. 

MALDONADO v. KEMPTON 2163
D. EQUAL PROTECTION

The COAA exempts billboards that were already in place

in 1967. Cal. Bus. & Prof. Code § 5364. Maldonado argues

that this exception violates equal protection because it permits

some speakers to maintain billboards with offsite commercial

advertising while barring him from doing so. Further, he

claims that because speech is involved, the grandfathering

clause is subject to strict scrutiny. 

We have previously held that strict scrutiny under the

Equal Protection Clause is inappropriate where a law regulating speech is content-neutral, even where the speech at issue

was non-commercial. Jones Intercable of San Diego, Inc. v.

City of Chula Vista, 80 F.3d 320, 327 (9th Cir. 1996) (citing

Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 655

(1994)). The grandfathering clause of the COAA must survive, at most, an intermediate level of scrutiny. See Jones

Intercable, 80 F.3d at 327. 

[16] The state’s interest is substantial and easily passes the

necessary scrutiny to overcome this equal protection challenge. The district court noted that banning new offsite billboards but allowing legal nonconforming billboards to remain

“furthers the State’s significant interest in reducing blight and

increasing traffic safety,” even if all billboards are not eliminated. The state government also has a strong financial interest in allowing the grandfathered billboards to stay. Without

the exemption, the state would have to pay just compensation

to the billboard owners or risk losing the state’s full allotment

of federal highway money. See 23 U.S.C. § 131. Maldonado’s

complaint against grandfathering also overlooks an important

point—when he purchased the property in the early 1990s, the

offsite ban had been in effect for more than twenty years. His

sign was never legally permitted or maintained, so he is not

similarly situated to the grandfathered landowners. Maldona2164 MALDONADO v. KEMPTON
do’s equal protection challenge to the grandfathering provision fails.4

[17] Dismissed as moot with respect to Maldonado’s challenges to the district court’s injunction and affirmed as to the

district court’s grant of summary judgment on the remaining

claims.

DISMISSED IN PART; AFFIRMED IN PART. 

4Except to the extent that it is subsumed in his equal protection argument, we decline to address Maldonado’s passing references to “spot zoning.” Arguments made in passing and inadequately briefed are waived.

Halicki Films, L.L.C. v. Sanderson Sales & Mktg., 547 F.3d 1213, 1229-

30 (9th Cir. 2008). 

MALDONADO v. KEMPTON 2165