FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WAYNE CHARLES; FORT SELF 

STORAGE, INC., No. 10-57028

Plaintiffs-Appellants, D.C. No.

v. 2:10-cv-07260- 

ABC-PLA CITY OF LOS ANGELES, a California

municipal corporation, OPINION

Defendant-Appellee. 

Appeal from the United States District Court

for the Central District of California

Audrey B. Collins, District Judge, Presiding

Argued and Submitted

May 7, 2012—Pasadena, California

Filed October 15, 2012

Before: Kim McLane Wardlaw, Richard A. Paez, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Wardlaw

12341
COUNSEL

Matthew C. Klase, Webb, Klase & Lemond, LLC, Atlanta,

Georgia, for the plaintiffs-appellants. 

Carmen A. Trutanich, City Attorney, Kenneth T. Fong, Deputy City Attorney, and Kim R. Westhoff, Deputy City Attorney, Los Angeles, California, for the defendant-appellee.

CHARLES v. CITY OF LOS ANGELES 12343
OPINION

WARDLAW, Circuit Judge:

We are called upon to write another chapter in “the story

of billboards.” See World Wide Rush, LLC v. City of Los

Angeles, 606 F.3d 676, 680 (9th Cir. 2010). After decades of

litigation concerning the scope of permissible restrictions on

billboards, “[t]he question of the day is no longer whether cities may regulate billboards at all, but is instead the extent to

which they may do so consistent with the First Amendment

guarantee of freedom of expression.” Id. at 681. In the wake

of Metromedia, Inc. v. City of San Diego, 453 U.S. 490

(1981) and Metro Lights, L.L.C. v. City of Los Angeles, 551

F.3d 898 (9th Cir. 2009), it is clear that the City of Los Angeles (“City”) may more strictly regulate offsite1

 commercial

signs than noncommercial signs. And, indeed, the City’s sign

ordinance requires a building permit for all temporary signs

other than those containing “a political, ideological or other

noncommercial message.” Los Angeles Municipal Code

(“LAMC”) § 14.4.16(A). 

Wayne Charles and Fort Self Storage (“Appellants”) sought

to install a temporary offsite sign advertising the television

program “E! News” without obtaining the required City permits. Deeming the sign “strictly commercial in nature,” the

City notified Appellants that installation of the proposed sign

would violate several provisions of its sign ordinance. The

district court agreed with the City and granted judgment in its

1

LAMC § 14.4.2 defines an “Off-Site Sign” as “[a] sign that displays

any message directing attention to a business, product, service, profession,

commodity, activity, event, person, institution or any other commercial

message, which is generally conducted, sold, manufactured, produced,

offered or occurs elsewhere than on the premises where the sign is located.” We have held that “offsite advertising, or offsite signage, refers to a

sign on private property advertising commercial services or wares purveyed elsewhere than on the premises where the sign is located.” Metro

Lights, 551 F.3d at 900 n.1. 

12344 CHARLES v. CITY OF LOS ANGELES
favor. We must decide whether advertisements for expressive

works constitute noncommercial speech within the meaning

of the City’s sign ordinance and are thus protected speech

under the First Amendment to the U.S. Constitution.

I.

In accord with decades of judicial guidance, the City’s Sign

Ordinance, Article 4.4 of Chapter 1 of the LAMC, regulates

commercial speech far more extensively than it does noncommercial speech. See Metro Lights, 551 F.3d at 906 n.9 (“[W]e

have held that the Los Angeles Sign Ordinance only prohibits

commercial offsite signs.”); Outdoor Sys., Inc. v. City of

Mesa, 997 F.2d 604, 613 (9th Cir. 1993) (“Because our First

Amendment jurisprudence recognizes a distinction between

commercial and noncommercial speech, government officials

have to place a particular message into one or the other category for purposes of regulation.”); see also LAMC

§ 14.4.1(F) (explaining that the Sign Ordinance is written to

“conform to judicial decisions, thereby limiting further costly

litigation and facilitating enforcement of these regulations.”).

The City’s Sign Ordinance requires “a building permit . . . for

a temporary sign . . . other than one that contains a political,

ideological or other noncommercial message.” LAMC

§ 14.4.16(A).

Appellants agreed that Fort Self Storage would lease exterior wall space to Charles for the display of temporary signs

bearing “content related to motion pictures, theatrical productions, television and radio programming, music, books, newspapers, paintings, and other works of art.” Appellants assert

that advertisements in this category are exempt from the Sign

Ordinance’s permitting requirement under the clause exempting signs “contain[ing] a . . . noncommercial message” from

the permit requirement.

Appellants proposed to display as their first sign an image

composed of the logo for the television show “E! News,” and

CHARLES v. CITY OF LOS ANGELES 12345
photographs of the show’s hosts, Ryan Seacrest and Giuliana

Rancic.2

 In a wise exercise of caution before erecting the sign,

Appellants informed the City’s Building and Safety Department of their intent to install the sign, seeking confirmation

that it was indeed exempt from the permitting requirements.

The City responded in a letter dated September 10, 2010 that

the sign “appear[ed] to be strictly commercial in nature” and

was thus subject to the Sign Ordinance’s permitting requirements. The City further notified Appellants that installation of

the sign would violate several provisions of the Municipal

Code and advised them to cease and desist. Because the City

has taken action to enforce its sign ordinance many times in

the past, Appellants believed that the City would enforce the

Sign Ordinance against them if they installed the proposed

sign. 

On September 29, 2010, Appellants sued the City in federal

district court. They seek a declaratory judgment that the proposed E! News sign and all other signs they intend to display

with “content related to motion pictures, theatrical productions, television and radio programming, music, books, newspapers, paintings, and other works of art” are exempt from the

City’s permitting requirements for temporary commercial

signs. Appellants claim that the City’s decision to classify

their proposed signs as commercial speech violates the First

Amendment as applied to Appellants’ speech, and that the

City violated Appellants’ equal protection rights “by prohibiting [them] from posting their proposed signs, but allowing

other favored entities and organizations to post similar signs

bearing similar content.” 

Appellants also sought a temporary restraining order barring the City from taking any actions against Appellants for

posting the E! News sign or any other signs with content

related to expressive works. The district court denied Appel2

We have included an image of the proposed sign as Appendix A to this

opinion. 

12346 CHARLES v. CITY OF LOS ANGELES
lants’ TRO application two days later. The district court also

denied their subsequently filed motion for preliminary injunctive relief on November 12, 2010. The district court concluded that the City’s “judgment that the E! News billboard

was commercial was both legally correct and reasonable,” and

that Appellants had “failed to demonstrate any chance of success on the merits of their First Amendment challenge.” 

On November 5, 2010, the City moved to dismiss the complaint, arguing that Appellants lacked standing, that their

claims were not ripe, and that their claims should be dismissed because the E! News sign constituted commercial

speech and the City could regulate it accordingly. Ruling on

this motion, the district court dismissed as unripe Appellants’

claims concerning unspecified future signs bearing “ ‘content

related to . . . works of art,’ ” and evaluated only those claims

relating to the proposed E! News sign. The court found that

Appellants had standing to challenge the City’s classification

of the E! News sign, but rejected Appellants’ contention that

the proposed billboard should be considered an adjunct of or

incidental to the E! News television program, which enjoys

the same First Amendment protection for noncommercial

expression as the advertised news program itself. 

Following the Supreme Court’s guidance for determining

when speech is deemed commercial, the district court found

that the E! News billboard qualified as commercial speech

and did not contain “even arguably noncommercial content.”

Charles v. City of Los Angeles, 757 F. Supp. 2d 989, 1003

(C.D. Cal. 2010). The district court also reasoned that the City

was due a certain amount of deference in deciding how to categorize Appellants’ message, explaining that Ninth Circuit

precedent established that—at least when it comes to

billboards— “the City must be given some space to apply the

tests for commercial speech and to reach reasonable judgments as to what is and is not commercial, lest federal courts

become the first-line arbiters of hundreds of thousands of billboards to be erected across the country.” Id. at 1004. The disCHARLES v. CITY OF LOS ANGELES 12347
trict court entered judgment in favor of the City on December

7, 2010.

We have jurisdiction under 28 U.S.C. § 1291 and review de

novo an order granting a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Madison v. Graham,

316 F.3d 867, 869 (9th Cir. 2002). We accept “all factual allegations in the complaint as true and construe the pleadings in

the light most favorable to the nonmoving party.” Rowe v.

Educ. Credit Mgmt. Corp., 559 F.3d 1028, 1029-30 (9th Cir.

2009).

II.

[1] Appellants do not challenge the constitutionality of the

Sign Ordinance as generally applied to commercial speech,

but contend that the district court erred in determining that the

proposed E! News sign constitutes commercial speech. The

question before us is whether truthful advertisements for

expressive works protected by the First Amendment are inherently noncommercial in nature.

A.

“Commercial speech enjoys a limited measure of protection, commensurate with its subordinate position in the scale

of First Amendment values, and is subject to modes of regulation that might be impermissible in the realm of noncommercial expression.” Fla. Bar v. Went For It, Inc., 515 U.S. 618,

623 (1995) (internal quotation marks and alterations omitted).

While it is clear that the City may restrict the proliferation of

offsite billboards bearing commercial messages, see Metro

Lights, 551 F.3d at 911, in many areas “the boundary between

commercial and noncommercial speech has yet to be clearly

delineated.” Hoffman v. Capital Cities/ABC, Inc., 255 F.3d

1180, 1184 (9th Cir. 2001). 

[2] To determine whether the E! News sign constitutes

commercial speech, we follow the Supreme Court’s guidance

12348 CHARLES v. CITY OF LOS ANGELES
in Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983).

“Where the facts present a close question, ‘strong support’

that the speech should be characterized as commercial speech

is found where the speech is an advertisement, the speech

refers to a particular product, and the speaker has an economic motivation.” Hunt v. City of Los Angeles, 638 F.3d

703, 715 (9th Cir. 2011) (citing Bolger, 463 U.S. at 66-67).

“[T]he ‘core notion of commercial speech’ is that it ‘does no

more than propose a commercial transaction.’ ” Hoffman, 255

F.3d at 1184 (quoting Bolger, 463 U.S. at 66). 

[3] Appellants concede that the proposed E! News sign is

an advertisement, and it is undisputed that the sign refers to

a particular cultural product and that Appellants have an economic motivation in encouraging the public to view the program. Appellants further concede that “advertisements for

noncommercial expressive works . . . technically propose a

commercial transaction,” but suggest that such advertisements

always go beyond a bare proposal for a commercial transaction because they also “promote the ideas, expression, and

content contained in the works and thus they are too entitled

to full First Amendment protection.” The test for commercial

speech is not so lacking in nuance. 

Certain advertisements for noncommercial works might

include both an invitation to participate in a commercial transaction as well as some amount of noncommercial expression

entitled to heightened First Amendment protection. If “nothing ‘prevents the speaker from conveying, or the audience

from hearing, . . . noncommercial messages, and nothing in

the nature of things requires them to be combined with commercial messages,’ ” then the government may permissibly

restrict the commercial message regardless of its proximity to

noncommercial speech. Hunt, 638 F.3d at 715-16 (quoting

Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469,

474 (1989)). If, however, speech includes both noncommercial and commercial elements that “are inextricably intertwined, . . . we apply our test for fully protected expression.”

CHARLES v. CITY OF LOS ANGELES 12349
Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781,

796 (1988). 

The E! News billboard does not present intertwined speech.

The sign consists only of photographs of the program’s hosts

and the name of the program; no other message is conveyed.

That the underlying E! News program is itself entitled to full

First Amendment protection does not cloak all advertisements

for the program with noncommercial status; speech inviting

the public to watch E! News is not inherently identical to the

speech that constitutes the program itself. 

[4] In light of Appellants’ concessions that the E! News

sign is an advertisement for a particular product and that it

proposes a commercial transaction, the district court properly

determined that the E! News sign was commercial speech and

correctly dismissed Appellants’ claims.

Appellants maintain, however, that the test for commercial

speech set forth in Bolger is inapplicable because the Bolger

Court suggested in a passing footnote that “a different conclusion may be appropriate in a case where the pamphlet advertises an activity itself protected by the First Amendment.”

Bolger, 463 U.S. at 67 n.14. Appellants misread the Court’s

dictum in Bolger, which rested on two cases concerning religious speech, Murdock v. Pennsylvania, 319 U.S. 105 (1943),

and Jamison v. Texas, 318 U.S. 413 (1943). The citations to

Murdock and Jamison indicate that the concern animating the

Court’s footnote in Bolger was the possibility that under certain circumstances, a mechanical application of the test for

commercial speech might permit state action that impermissibly restricted political, religious or other protected noncommercial speech. 

In both Murdock and Jamison, the Court overturned the

convictions of Jehovah’s Witnesses who had been prosecuted

for religious speech that solicited donations, sometimes in

exchange for religious texts. While the religious speech at

12350 CHARLES v. CITY OF LOS ANGELES
issue in both cases bore some of the hallmarks of commercial

speech, it was unquestionably part of a protected religious

activity. In Murdock, the Court stressed that the Witnesses’

religious practice of door-to-door solicitation and distribution

of literature about their religious beliefs was distinct from the

actions of ordinary commercial booksellers: 

The constitutional rights of those spreading their

religious beliefs through the spoken and printed

word are not to be gauged by standards governing

retailers or wholesalers of books. The right to use the

press for expressing one’s views is not to be measured by the protection afforded commercial handbills. . . . [A]n itinerant evangelist however

misguided or intolerant he may be, does not become

a mere book agent by selling the Bible or religious

tracts to help defray his expenses or to sustain him.

. . . On this record it plainly cannot be said that petitioners were engaged in a commercial rather than a

religious venture. It is a distortion of the facts of

record to describe their activities as the occupation

of selling books and pamphlets.

Murdock, 319 U.S. at 111. In Jamison, the Court drew a similar distinction between purely commercial handbills and

handbills that were distributed as part of one’s religious pursuits:

The state can prohibit the use of the street for the

distribution of purely commercial leaflets, even

though such leaflets may have ‘a civic appeal, or a

moral platitude’ appended. They may not prohibit

the distribution of handbills in the pursuit of a

clearly religious activity merely because the handbills invite the purchase of books for the improved

understanding of the religion or because the handbills seek in a lawful fashion to promote the raising

of funds for religious purposes.

CHARLES v. CITY OF LOS ANGELES 12351
Jamison, 318 U.S. at 417 (citation omitted). In both decisions,

the Court drew a sharp contrast between the actions of ordinary, commercial booksellers and the activities of Jehovah’s

Witnesses, who distribute literature as part of a religious mandate of evangelism. In neither case did the Court imply that

ordinary advertisements for books were themselves noncommercial; indeed, the cases suggest the opposite conclusion.

Fairly read in combination with the decisions it cites, footnote

14 in Bolger provides no support for Appellants’ position.

B.

Seeking an alternative avenue to sidestep the Bolger

inquiry, Appellants cite a series of California state cases to

support a novel argument: truthful advertisements for expressive works are inherently noncommercial speech, because

they are accorded the same First Amendment status as the

underlying advertised work. But the cases Appellants rely on

concern only liability for particular state law torts, not regulations of general application, such as the Sign Ordinance here.

We agree that in the circumscribed context of specific tort

actions, such a rule may apply. We decline, however, to

extend this limited exception. 

[5] Faced with the need to ensure that First Amendmentprotected expression is not unduly chilled by the threat of tort

actions that would otherwise prevent the truthful promotion of

protected expressive works, under certain circumstances we

extend an advertised work’s First Amendment protection to

advertisements for the work. For example, constitutional protection from tort liability extends to truthful advertisements

for news publications that are “merely an adjunct of the protected publication and promote[ ] only the protected publication,” and make no other false claims. Cher v. Forum Int’l,

Ltd., 692 F.2d 634, 639 (9th Cir. 1982) (citing Guglielmi v.

Spelling-Goldberg Productions, 603 P.2d 454, 462 (Cal.

1979) (Bird, C.J. concurring)). 

12352 CHARLES v. CITY OF LOS ANGELES
The First Amendment extends to the sale of truthful information about a public figure, and thus renders such conduct

non-actionable under a right to publicity theory. The value of

free expression outweighs the right of publicity in these circumstances. “Any other conclusion would allow reports and

commentaries on the thoughts and conduct of public and

prominent persons to be subject to censorship under the guise

of preventing the dissipation of the publicity value of a person’s identity.” Id. at 638 (quoting Guglielmi, 603 P.2d at

461-62 (Bird, C. J. concurring)). We extend this protection

from tort liability, which is ordinarily limited to noncommercial speech, to advertisements for expressive works so as to

prevent tort actions from choking the truthful promotion of

protected speech. See Guglielmi, 603 P.2d at 462 (Bird, C. J.

concurring) (“It would be illogical to allow respondents to

exhibit the film but effectively preclude any advance discussion or promotion of their lawful enterprise.”). Applying this

principle in an action brought by “[a] well-known entertainer

who performs under the name ‘Cher’ ” against a magazine

that used an image of her as part of a campaign promoting

subscriptions, we held that the magazine “would have been

entitled to use Cher’s picture and to refer to her truthfully in

subscription advertising for the purpose of indicating the content of the publication, because such usage is protected by the

First Amendment.” Cher, 692 F.2d at 636, 639 (citation omitted). We explained that “[a]dvertising to promote a news

medium . . . is not actionable under an appropriation of publicity theory so long as the advertising does not falsely claim

that the public figure endorses that news medium.” Id. at 639.

Serious First Amendment concerns would otherwise be

raised, as news publications would be blocked from advertising their contents for fear of tort liability.

New York courts similarly treat advertisements for protected works as “incidental” to the protected work and thus

entitled to the same First Amendment status as the advertised

work in cases involving similar tort actions. See, e.g., Groden

v. Random House, Inc., 61 F.3d 1045, 1049 (2d Cir. 1995)

CHARLES v. CITY OF LOS ANGELES 12353
(collecting cases). For example, in a tort action brought under

New York’s right of privacy, Joe Namath sued Sports Illustrated magazine over its use of a photograph, “which was

originally used by defendants, without objection from plaintiff, in conjunction with a news article published by them on

the 1969 Super Bowl Game,” when the magazine reused the

photograph to advertise subscriptions to the magazine.

Namath v. Sports Illustrated, 371 N.Y.S.2d 10, 11 (N.Y. App.

Div. 1975), aff’d, 352 N.E.2d 584 (N.Y. 1976). Because the

advertisement merely called attention to “the general nature of

the contents of what is likely to be included in future issues

of the magazine,” the state court held that “[t]he use of plaintiff’s photograph was merely incidental advertising of defendants’ magazine in which plaintiff had earlier been properly

and fairly depicted and, hence, it was not violative of the Civil

Rights Law.” Id. at 12, 11. 

To protect the ability of speakers to promote their work, the

“incidental use” exception to general commercial speech principles has also been extended to actions for false advertising,

where advertisements that accurately reprinted false claims

contained in the advertised works were protected from tort

liability to the same degree as the underlying works. For

example in Lacoff v. Buena Vista Publ’g, Inc., 705 N.Y.S.2d

183, 186-187 (N.Y. Sup. Ct. 2000), purchasers of an investment book alleged that the book falsely claimed that a group

called “the Beardstown Ladies” employed a “secret” investment strategy that had earned them annual returns of 23.4%.

Holding that advertisements that accurately reflected the contents of the book were protected from tort liability to the same

extent as the book itself, the trial court explained that

If, as plaintiffs seek in the instant case, excerpts of

a book, published to inform the public of the nature

and contents of the underlying speech, are deemed

commercial speech subject to claims not available

against the book itself, the contents of the underlying

speech could be chilled.

12354 CHARLES v. CITY OF LOS ANGELES
Id. at 191. See also Nat’l Life Ins. Co. v. Phillips Publ’g, Inc.,

793 F. Supp. 627, 644-45 (D. Md. 1992) (observing that if

advertisements that merely reprinted text from protected

newsletter could support an action for defamation, the result

would be “that commentators on national issues could enjoy

. . . uninhibited, robust debate . . . only so long as their statements did not happen to be reprinted in advertisements for

their books, articles and television programs”). But see

Keimer v. Buena Vista Books, Inc., 89 Cal. Rptr. 2d 781, 788

(Cal. Ct. App. 1999) (holding that the identical advertisements as those in Lacoff constituted commercial speech).

New York’s “incidental use” exception thus serves the

same function as our exception for advertisements that are

“adjunct” to a protected work: if advertisements for expressive works were not entitled to the same immunity from tort

as the underlying work, publishers would be unable to truthfully advertise certain protected works. See Groden, 61 F.3d

at 1050-51 (“It is clear that what drives the ‘incidental use’

exception [to New York’s state law privacy tort] is the First

Amendment interest in protecting the ability of news disseminators to publicize, to make public, their own communications.”) (quoting Stern v. Delphi Internet Servs. Corp., 626

N.Y.S.2d 694, 700 (N.Y. Sup. Ct. 1995)) (internal quotation

marks omitted); Hoepker v. Kruger, 200 F. Supp. 2d 340, 350

(S.D.N.Y. 2002) (“The ancillary use exception gives news

agencies, magazine publishers, etc. the ability to publicize

their newsworthy articles without violating the right of privacy statutes.”).

The principle unifying the exceptions to the commercial

speech doctrine for advertisements for protected works is the

need to protect advertisers from tort actions that would otherwise threaten the ability of publishers to truthfully promote

particular works. While lower courts have occasionally used

imprecise, overbroad language in describing these exceptions,3

3

See, e.g., Rezec v. Sony Pictures Entm’t, Inc., 10 Cal. Rptr. 3d 333, 339

(Cal. Ct. App. 2004) (“[J]ust as the films are noncommercial speech, so

CHARLES v. CITY OF LOS ANGELES 12355
it is only in the narrow context of this principle that we have

recognized that the noncommercial First Amendment status of

an underlying expressive work extends to advertisements for

that work. Appellants now seek to extrapolate from these limited exceptions a categorical rule: truthful advertisements for

noncommercial speech always share the identical level of

First Amendment protection as the underlying speech. That

the law extends special protection to advertisements for First

Amendment-protected works in the context of certain tort

actions, however, does not support a sweeping rule that advertisements for protected speech are “noncommercial” in all

contexts. 

[6] Doctrines extending noncommercial status from a protected work to advertising for that work are justified only to

the extent necessary to safeguard the ability to truthfully promote protected speech. As Appellants have not shown that

applying the Sign Ordinance to advertisements for expressive

works threatens the ability of speakers to publicize protected

speech, we find no reason to extend the adjunct use exception

to the context of billboard regulation. Significantly, the City

does not seek to regulate the content of the underlying E!

News program or to single out E! News advertisements in

particular, but only to enforce broadly applicable guidelines

that govern the placement of all commercial advertising. Cf.

Nat’l Life Ins. Co., 793 F. Supp. at 644 (“Plaintiff’s complaint

is over the fact that the statements were made, not over where

they happen to appear. . . . [I]t is only their chance appearance

in the promotional materials that brings any color at all to ‘the

cheeks’ of Plaintiff’s argument.”). Moreover Appellants’ proposed categorical rule would radically enlarge the recognized

is an advertisement reflecting their content.”); Lacoff, 705 N.Y.S.2d at 190

(N.Y. Sup. Ct. 2000) (“[A]dvertising that promotes noncommercial

speech, such as a book, is accorded the same constitutional protection as

the speech it advertises. It is actionable only if it fails to accurately reflect

the contents of the protected speech being promoted.”). 

12356 CHARLES v. CITY OF LOS ANGELES
exceptions to the First Amendment’s limited protection for

advertising. Such a rule would place truthful advertisements

for books, films, video games, see Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729, 2733 (2011), topless dancing,

see Chase v. Davelaar, 645 F.2d 735, 738 (9th Cir. 1981), and

all other forms of noncommercial expression beyond the

reach of commercial speech regulations. No court has ever

suggested that such a broad exception to the commercial

speech doctrine is required,4

 and Appellants have presented

no cause for us to so hold. 

III.

The district court did not entirely rest its determination that

the E! News billboard was commercial speech on deference

to the City’s decision. It nonetheless concluded that deference

to the City’s evaluation of the sign’s First Amendment status

was appropriate, reasoning that “the City must be given some

space to apply the tests for commercial speech and to reach

reasonable judgments as to what is and is not commercial, lest

federal courts become the first-line arbiters of hundreds of

thousands of billboards to be erected across the country.”

Charles, 757 F. Supp. 2d at 1004. Because the judiciary has

an essential role in safeguarding the First Amendment’s guarantees, we must note our disagreement with the district

court’s view of the extent of deference owed City officials.

4

Indeed, several of the cases cited by Appellants reject the precise rule

Appellants suggest. See, e.g., Gordon & Breach Sci. Publishers S.A. v.

Am. Inst. of Physics, 859 F. Supp. 1521, 1541 n.8 (S.D.N.Y. 1994) (“Of

course, the fact that an advertisement promotes a good or service protected

by the First Amendment does not serve by itself to remove the ad from

the realm of commercial speech . . . .”), holding modified on other grounds

by Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 314 F.3d 48

(2d Cir. 2002); William O’Neil & Co., Inc. v. Validea.com Inc., 202 F.

Supp. 2d 1113, 1121-22 (C.D. Cal. 2002) (holding that an advertisement

for a book was immune from particular tort liability as an adjunct to a protected work, but expressly declining to determine whether the advertisement was categorically noncommercial speech). 

CHARLES v. CITY OF LOS ANGELES 12357
[7] We have explained that deference is due to a city’s legislative decisions addressing the spread of billboard advertising, as these decisions require the balancing of interests such

as traffic safety, revenue, and aesthetics. See Metro Lights,

551 F.3d at 910-11. We therefore defer to the City’s choices

in creating broad legislative schemes addressing regulation of

commercial speech; we have never urged similar deference to

City officials’ evaluations as to the constitutional status of

particular speech. While municipal officials are authorized to

make determinations—guided by judicial precedent—as to

whether particular speech is commercial, a district court

reviewing such a determination may not defer to the City on

a question of constitutional law. 

[8] The specter the district court raised of the “federal

courts becom[ing] the first-line arbiters of hundreds of thousands of billboards to be erected across the country,” Charles,

757 F. Supp. 2d at 1004, is insufficient to counsel against de

novo review of a municipality’s determination that certain

speech is not entitled to full First Amendment protection. In

cases involving “the line between speech unconditionally

guaranteed and speech which may legitimately be regulated,”

Speiser v. Randall, 357 U.S. 513, 525 (1958), the Supreme

Court has instructed that “judges . . . must exercise [independent] review in order to preserve the precious liberties established and ordained by the Constitution.” Bose Corp. v.

Consumers Union of U.S., Inc., 466 U.S. 485, 510-11 (1984).

We therefore extend “a special solicitude for claims that the

protections afforded by the First Amendment have been

unduly abridged.” Daily Herald Co. v. Munro, 838 F.2d 380,

383 (9th Cir. 1988) (quoting Planned Parenthood

Ass’n/Chicago Area v. Chicago Transit Auth., 767 F.2d 1225,

1229 (7th Cir. 1985)) (internal quotation marks omitted). This

“special solicitude” leads us to subject even a district court’s

factual determinations upholding restrictions on speech to

particular scrutiny: “When a district court holds a restriction

on speech constitutional, we conduct an independent, de novo

examination of the facts.” Id. Deference to the “reasonable”

12358 CHARLES v. CITY OF LOS ANGELES
legal judgment of municipal officials is thus particularly inappropriate in the First Amendment context. Any increased burden on the courts occasioned by de novo review is

outweighed by our constitutional responsibility; we may not

abdicate our obligations in the name of efficiency. The district

court’s contrary conclusion was a misreading of our precedent.

IV.

[9] While certain limited exceptions to the commercial

speech doctrine are required in order to safeguard First

Amendment values, we reject the need for a categorical rule

according noncommercial status to all truthful advertisements

for expressive works. The district court’s judgment that the E!

News sign constitutes commercial speech is AFFIRMED.

CHARLES v. CITY OF LOS ANGELES 12359
APPENDIX A

12360 CHARLES v. CITY OF LOS ANGELES