FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CONTEST PROMOTIONS, LLC,

Plaintiff-Appellant,

v.

CITY AND COUNTY OF SAN

FRANCISCO,

Defendant-Appellee.

No. 17-15909

D.C. No.

3:16-cv-06539-SI

ORDER AND

AMENDED

OPINION

Appeal from the United States District Court

for the Northern District of California

Susan Illston, Senior District Judge, Presiding

Argued and Submitted July 12, 2017

San Francisco, California

Filed August 16, 2017

Amended October 23, 2017

Before: Susan P. Graber and Michelle T. Friedland, Circuit

Judges, and Consuelo B. Marshall,* District Judge.

Order;

Opinion by Judge Graber

* The Honorable Consuelo B. Marshall, Senior United States District

Judge for the Central District of California, sitting by designation.
2 CONTEST PROMOTIONS V. SAN FRANCISCO

SUMMARY**

Civil Rights

The panel affirmed the district court’s Fed. R. Civ. P.

12(b)(6) dismissal of an action brought pursuant to 42 U.S.C.

§ 1983 challenging San Francisco’s sign-related regulations.

Through its Planning Code, San Francisco prohibits new

billboards but allows onsite business signs relating to

activities undertaken on the premises, subject to various rules. 

Noncommercial signs are exempt from the rules. Plaintiff, an

advertiser that rents the right to post signs on the premises of

third-party businesses, alleged that the City’s Planning Code

violates the First Amendment by exempting noncommercial

signs from its regulatory ambit. 

The panel held that the distinction drawn between

commercial and noncommercial signs in the City’s Planning

Code survived intermediate scrutiny under Central Hudson

Gas &Electric Corp. v. Public Service Commission, 447 U.S.

557 (1980). The panel held that the distinctions directly

advanced the City’s substantial interests in safety and

aesthetics and was not impermissibly underinclusive. 

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
CONTEST PROMOTIONS V. SAN FRANCISCO 3

COUNSEL

Michael F. Wright (argued), Los Angeles, California, for

Plaintiff-Appellant.

James M. Emery (argued) and Victoria Wong, Deputy City

Attorneys; Dennis J. Herrera, City Attorney; Office of the

City Attorney, San Francisco, California; for DefendantAppellee.

ORDER

The opinion filed on August 16, 2017, and published at

867 F.3d 1171, is amended by the opinion filed concurrently

with this order, as follows:

On slip opinion page 14, footnote 4, delete the last

sentence: “For the reasons given by the district court, see

Contest Promotions, LLC v. City of San Francisco, No. 16-

cv-06539-SI, 2017 WL 1493277, at *5 (N.D. Cal. Apr. 26,

2017) (order), we affirm the dismissal of that claim as well.” 

Substitute the following for the deleted sentence: “This claim

is moot because no penalties ever were assessed.”

With this amendment, the panel has voted to deny

Appellant’s petition for rehearing. Judges Graber and

Friedland have voted to deny Appellant’s petition for

rehearing en banc, and Judge Marshall has so recommended.

The full court has been advised of the petition for

rehearing en banc, and no judge of the court has requested a

vote on it.
4 CONTEST PROMOTIONS V. SAN FRANCISCO

Appellant’s petition for rehearing and rehearing en banc

is DENIED. No further petitions for rehearing and rehearing

en banc may be filed.

OPINION

GRABER, Circuit Judge:

Plaintiff Contest Promotions, LLC, rents advertising

space from businesses in cities around the country, including

San Francisco, and places third-party advertising signs in that

space, framed by text inviting passersby to enter the business

and win a prize related to the sign. Through its Planning

Code, San Francisco prohibits new billboards but allows

onsite business signs subject to various rules. 

Noncommercial signs are exempt from the rules. In this, the

latest of several challenges that Plaintiff has mounted to San

Francisco’s sign-related regulations, Plaintiff argues that the

distinction between commercial and noncommercial signs

violates the First Amendment. The district court dismissed

the complaint. Reviewing the order of dismissal de novo,

Friedman v. AARP, Inc., 855 F.3d 1047, 1051 (9th Cir. 2017),

we affirm.

BACKGROUND

Like other local governments, the City and County of San

Francisco, Defendant here, uses its Planning Code to regulate

outdoor advertising, including billboards. The purposes of

PlanningCode Article 6, which contains the advertising rules,

include “promot[ing] the aesthetic and environmental values

of San Francisco,” “protect[ing] public investment in and the
CONTEST PROMOTIONS V. SAN FRANCISCO 5

character and dignity of public buildings, streets, and open

spaces,” “protect[ing] the distinctive appearance of San

Francisco,” and “reduc[ing] hazards to motorists, bicyclists,

and pedestrians.” S.F., Cal., Planning Code (“Planning

Code”) § 601.

The Planning Code draws two distinctions that are

relevant here. First, the PlanningCode distinguishes between

“general advertising signs” and “business signs.” A general

advertising sign is

[a] Sign, legally erected prior to the effective

date of Section 611 of this Code, which

directs attention to a business, commodity,

industry or other activity which is sold,

offered or conducted elsewhere than on the

premises upon which the Sign is located, or to

which it is affixed, and which is sold, offered

or conducted on such premises only

incidentally if at all.

Id. § 602 (emphasis added). By contrast, a business sign is

defined in part as

[a] Sign which directs attention to the primary

business, commodity, service, industry or

other activity which is sold, offered, or

conducted on the premises upon which such

Sign is located, or to which it is affixed.

Id. (emphasis added). In other words, general advertising

signs, like traditional billboards, refer primarily to offsite

activities, whereas business signs refer to the activities

undertaken on the same premises as the sign. The Code
6 CONTEST PROMOTIONS V. SAN FRANCISCO

decrees that “[n]o new general advertising signs shall be

permitted at any location within the City as of March 5,

2002.” Id. § 611(a). By contrast, business signs are

permitted, subject to other limitations related to neighborhood

and development type.

Second, the Planning Code distinguishes between

commercial and noncommercial signs. The latter are

exempted from Article 6 altogether. See Planning Code

§ 603(a) (explaining that “[n]othing in this Article 6 shall

apply to . . . Noncommercial Signs”).1 Article 6 does not

define “noncommercial” except by reference to a nonexhaustive list that includes “[o]fficial public notices,”

“[g]overnmental signs,” “[t]emporary display posters,”

“[f]lags, emblems, insignia, and posters of any nation or

political subdivision,” and “[h]ouse numbers.” Id.

Plaintiff is an advertiser that rents the right to post signs

on the premises of third-party businesses. Taking the

allegations in the complaint as true, Plaintiff’s signs advertise

contests in which passing customers can participate by going

inside the business and filling out a form. Plaintiff alleges

1 An earlier version of the sign ordinance exempted a long list of

types of noncommercial signs without categorically exempting them all. 

In response to state and federal court decisions that interpreted the

ordinance to exempt all noncommercial signs in order to preserve its

constitutionality, see Metro Fuel LLC v. City of San Francisco, No. C 07-

6067 PJH, 2011 WL 900318, at *9 (N.D. Cal. Mar. 15, 2011) (so

holding); City of San Francisco v. Eller Outdoor Advert., 237 Cal. Rptr.

815, 828 (Ct. App. 1987) (same), Defendant recently amended the

ordinance to formally exempt noncommercial signs, full-stop. See

Enactment No. 218-16, File No. 160553, San Francisco Board of

Supervisors, eff. Dec. 10, 2016 (exempting all noncommercial signs from

Article 6).
CONTEST PROMOTIONS V. SAN FRANCISCO 7

that the signs depict prizes that customers may win in

Plaintiff’s contests. No party disputes that Plaintiff’s signs

are “commercial” under Article 6. In September and October

of 2016, and in January of 2017, Defendant issued several

Notices of Enforcement, accusing Plaintiff’s signs of

violating various requirements of Article 6.

Although the San Francisco Charter sets forth an

administrative process for challenging the denial of permits

for signs, see S.F., Cal., Charter § 4.106(b), Plaintiff did not

avail itself of that process. Instead, Plaintiff responded by

filing suit under 42 U.S.C. § 1983 alleging, inter alia, that

Article 6 of the Planning Code violates the First Amendment

by exempting noncommercial signs from its regulatory

ambit.2 Plaintiff moved for a preliminary injunction, which

the district court denied. Plaintiff then filed the operative first

amended complaint, and Defendant moved to dismiss the

action under Federal Rule of Civil Procedure 12(b)(6). The

district court granted Defendant’s motion and entered a

judgment of dismissal, and Plaintiff timely appeals.

DISCUSSION

A. Level of Scrutiny

Our First Amendment analysis begins by determining the

level of scrutiny that applies to the Planning Code’s Article

2 This is one of several actions that Plaintiff has filed against

Defendant, challenging various aspects of its billboard regulations. In a

separate memorandum disposition, we affirm the dismissal of an earlierfiled suit raising different First Amendment issues under the Planning

Code. And in a second memorandum disposition, also filed this date, we

dismiss as moot Plaintiff’s appeal from the denial of its motion for a

preliminary injunction in this case.
8 CONTEST PROMOTIONS V. SAN FRANCISCO

6. Because noncommercial signs are exempted from its

regulatory framework, Article 6 is a regulation of commercial

speech. Restrictions on commercial speech are subject to

intermediate scrutiny under Central Hudson Gas & Electric

Corp. v. Public Service Commission, 447 U.S. 557 (1980). 

Citing Sorrell v. IMS Health Inc., 564 U.S. 552 (2011), and

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), Plaintiff

argues that review more searching than Central Hudson’s

intermediate scrutiny standard should govern our analysis of

Defendant’s billboard laws. But we recently held that

“Sorrell did not mark a fundamental departure from Central

Hudson’s four-factor test, and Central Hudson continues to

apply.” Retail Dig. Network, LLC v. Prieto (“RDN”),

861 F.3d 839, 846 (9th Cir. 2017) (en banc).

In RDN, we rejected the plaintiff’s argument that a liquor

advertising rule “imposed a content- or speaker-based

burden” and therefore merited “heightened scrutiny.” Id. at

847. We held that the speaker- or content-based nature of a

regulation merely meant that such a regulation “implicates

the First Amendment, which requires scrutiny greater than

rational basis review.” Id. (citing Sorrell, 564 U.S. at 567). 

In those situations, the proper level of scrutiny was the

longstanding commercial speech doctrine, which calls for

intermediate review. Id. at 848.

We have likewise rejected the notion that Reed altered

Central Hudson’s longstanding intermediate scrutiny

framework. See Lone Star Sec. & Video, Inc. v. City of Los

Angeles, 827 F.3d 1192, 1198 n.3 (9th Cir. 2016)

(“[A]lthough laws that restrict only commercial speech are

content based, such restrictions need only withstand

intermediate scrutiny.” (citing Reed and Central Hudson)). 
CONTEST PROMOTIONS V. SAN FRANCISCO 9

We thus reject Plaintiff’s argument that review more

searching than intermediate scrutiny applies here.

Under that standard, we undertake our analysis in four

steps. First, the speech “must concern lawful activity and not

be misleading.” Central Hudson, 447 U.S. at 566. Second,

“we ask whether the asserted governmental interest is

substantial.” Id. Then, “[i]f both inquiries yield positive

answers, we must determine whether the regulation directly

advances the governmental interest asserted, and whether it

is not more extensive than is necessary to serve that interest.” 

Id.

B. Central Hudson Analysis

“Applying the Central Hudson test in the context of

billboard regulations is not new for the Supreme Court or us.” 

Outdoor Sys., Inc. v. City of Mesa, 997 F.2d 604, 610 (9th

Cir. 1993). At the first step, neither party disputes that, as

alleged, Plaintiff’s advertisements concern lawful, nonmisleading activity. And at the second step, the Supreme

Court and this court have long held—and today, we

reaffirm—that a locality’s asserted interests in safety and

aesthetics, see Planning Code § 601 (describing the purpose

of Defendant’s sign controls), are substantial. See

Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507–08

(1981) (plurality) (explaining that there was no “substantial

doubt that the twin goals that the ordinance seeks to

further—traffic safety and the appearance of the city—are

substantial governmental goals”); accord Metro Lights,

L.L.C. v. City of Los Angeles, 551 F.3d 898, 904 (9th Cir.

2009) (noting that “[i]t is well-established that traffic safety

and aesthetics constitute substantial government interests”);

Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895,
10 CONTEST PROMOTIONS V. SAN FRANCISCO

905 (9th Cir. 2007) (noting that “both the Supreme Court and

our circuit have endorsed these rationales as substantial

governmental interests”); Ackerley Commc’ns of Nw. Inc. v.

Krochalis, 108 F.3d 1095, 1099 (9th Cir. 1997) (reaffirming

that “a city’s interest in avoiding visual clutter suffices to

justify a prohibition of billboards”); Nat’l Advert. Co. v. City

of Orange, 861 F.2d 246, 248 (9th Cir. 1988) (same). We

therefore proceed to the last two steps of Central Hudson.

“The last two steps of the Central Hudson analysis

basically involve a consideration of the ‘fit’ between the

legislature’s ends and the means chosen to accomplish those

ends.”3 United States v. Edge Broad. Co., 509 U.S. 418,

427–28 (1993) (internal quotation marks omitted). The third

Central Hudson step asks whether “the restriction . . . directly

advance[s] the state interest involved.” Valle Del Sol Inc. v.

Whiting, 709 F.3d 808, 821 (9th Cir. 2013) (internal quotation

marks omitted). In considering that question, “we must look

at whether the City’s ban advances its interest in its general

application, not specifically with respect to [the defendant].” 

Metro Lights, 551 F.3d at 904. The regulation also must not

be underinclusive, such that it “‘undermine[s] and

counteract[s]’ the interest the government claims it adopted

the law to further.” Id. at 905 (quoting Rubin v. Coors

Brewing Co., 514 U.S. 476, 489 (1995)). The fourth step

“guards against over-regulation rather than under-regulation.”

Id. at 911. It “does not require that the regulation be the

3 As we have observed before, “[i]t has not always been clear how

this basic inquiry differs with respect to the last two steps of the Central

Hudson analysis, and indeed the Supreme Court has observed that the

steps of the analysis are ‘not entirely discrete.’” Metro Lights, 551 F.3d at

904 (quoting Greater New Orleans Broad. Ass’n v. United States,

527 U.S. 173, 183 (1999)).
CONTEST PROMOTIONS V. SAN FRANCISCO 11

least-restrictive means to accomplish the government’s goal. 

Rather, what is required is a reasonable fit between the ends

and the means, a fit ‘that employs not necessarily the least

restrictive means, but a means narrowly tailored to achieve

the desired objective.’” Outdoor Sys., 997 F.2d at 610

(alteration omitted) (quoting Bd. of Trs. v. Fox, 492 U.S. 469,

480 (1989)).

Relying on City of Cincinnati v. Discovery Network, Inc.,

507 U.S. 410 (1993), Plaintiff argues that Article 6 falters at

the last two steps of the Central Hudson analysis because it

exempts noncommercial signs for reasons unconnected to

Defendant’s asserted interests in safety and aesthetics. We

disagree for two reasons.

First, Discovery Network is materially distinguishable. 

There, the Supreme Court considered a First Amendment

challenge to a city’s ordinance that “completely prohibit[ed]

the distribution of commercial handbills on the public right of

way” using newsracks, while leaving unaffected a far greater

number of newsracks that distributed noncommercial

material. Id. at 414. In particular, the record showed that

“the number of newsracks dispensing commercial handbills

was ‘minute’ compared with the total number (1,500–2,000)

on the public right of way.” Id. The Court held that the

ordinance’s distinction between commercial and

noncommercial speech “b[ore] no relationship whatsoeverto

the particular interests that the city has asserted,” making the

ordinance “an impermissible means of responding to” the

city’s “admittedly legitimate interests” in safety and

aesthetics. Id. at 424; see also id. at 428 (concluding that “the

distinction [the city] has drawn has absolutely no bearing on

the interests it has asserted”).
12 CONTEST PROMOTIONS V. SAN FRANCISCO

The Court’s conclusion rested in significant part on the

details of the record before it and on the empirically poor

connection between the ordinance and the asserted problem. 

For example, the Court noted that, “[w]hile there was some

testimony in the District Court that commercial publications

are distinct from noncommercial publications in their

capacity to proliferate, the evidence of such was exceedingly

weak,” id. at 425, and that if the “aggregate number of

newsracks on its streets” was the real concern, then

“newspapers are arguably the greater culprit because of their

superior number,” id. at 426. Thus, “the fact that the

regulation ‘provide[d] only the most limited incremental

support for the interest asserted,’—that it achieved only a

‘marginal degree of protection,’ for that interest—supported

[the Court’s] holding that the prohibition was invalid.” Id. at

427 (first alteration in original) (quoting Bolger v. Youngs

Drug Prods. Corp., 463 U.S. 60, 73 (1983)). As the Court

emphasized: “Our holding, however, is narrow. As should

be clear from the above discussion, we do not reach the

question whether, given certain facts and under certain

circumstances, a community might be able to justify

differential treatment of commercial and noncommercial

newsracks. We simply hold that on this record [the city] has

failed to make such a showing.” Id. at 428.

Unlike in Discovery Network, Article 6 is not

impermissibly under-inclusive. The text of Article 6 explains

why such a rule is necessary. It explains that, when the

ordinance was adopted, the “increased size and number of

general advertising signs” in particular were “creating a

public safety hazard,” that such signs “contribute to blight

and visual clutter as well as the commercialization of public

spaces,” that there was a “proliferation” of such signs in

“open spaces all over the City,” and that there was “currently
CONTEST PROMOTIONS V. SAN FRANCISCO 13

an ample supply of general advertising signs within the City.” 

Planning Code § 611(f). These are statements of legislative

purpose specific to commercial signs. In contrast to a ban on

commercial sidewalk newsracks affecting only a tiny fraction

of the overall number of newsracks, Defendant’s choice to

regulate commercial signs (but not noncommercial signs) has

a substantial effect on its interests in safety and aesthetics. 

Accordingly, Article 6 is not constitutionally underinclusive. 

Its 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. Metro Lights, 551 F.3d at 906.

Outdoor Systems is not to the contrary. Defendant relies

on that case to argue that Defendant impermissibly

“discriminate[s] against commercial speech solely on the

ground that it deserves less protection than noncommercial

speech.” 997 F.2d at 610. As explained above, that is not the

reason for the distinction drawn by Article 6, which focuses

instead on the unique risks to Defendant’s interests that

commercial signs pose. Plaintiff also contends that, unlike

the billboard regulations that survived intermediate scrutiny

in Outdoor Systems, the ones at issue here are not neutral as

between commercial and noncommercial speech. But neither

were the regulations that we approved in Outdoor Systems. 

As we observed—in a factual recitation that is admittedly in

some tension with other analysis in the opinion—Mesa’s

regulations “contain[ed] a provision that except[ed] all

noncommercial signs from the Code’s definition of offsite

signs.” Id. at 608–09.

More generally, a second principle supports our

conclusion. It is well established that a law need not deal

perfectly and fully with an identified problem to survive
14 CONTEST PROMOTIONS V. SAN FRANCISCO

intermediate scrutiny. The Supreme Court long ago rejected

the notion “that a prohibition against the use of unattractive

signs cannot be justified on [a]esthetic grounds if it fails to

apply to all equally unattractive signs.” Members of City

Council v. Taxpayers for Vincent, 466 U.S. 789, 810 (1984)

(noting that “[a] comparable argument was categorically

rejected in Metromedia”). Instead, for example, “the validity

of the [a]esthetic interest in the elimination of signs on public

property is not compromised by failing to extend the ban to

private property.” Id. at 811. And in Metromedia, the

Supreme Court noted with approval that the city “ha[d] gone

no further than necessary in seeking to meet its ends,” when

it declined to ban all billboards and instead “allow[ed] onsite

advertising and some other specifically exempted signs.” 

453 U.S. at 508.

We therefore hold that the distinctions drawn in Article 6

between commercial and noncommercial speech directly

advance Defendant’s substantial interests. We find no

constitutional infirmity in the ordinance’s failure to regulate

every sign that it might have reached, had Defendant (or its

voters) instead enacted another law that exhausted the full

breadth of its legal authority.

CONCLUSION

The distinction drawn between commercial and

noncommercial signs in Article 6 of the Planning Code

survives intermediate scrutiny under Central Hudson. 
CONTEST PROMOTIONS V. SAN FRANCISCO 15

Accordingly, we affirm the dismissal of Plaintiff’s First

Amendment claims.4

AFFIRMED.

4 Plaintiff also argues that the district court erred by refusing to enjoin

the accrual of penalties while this litigation is pending, in violation of the

due process principle set forth in Ex Parte Young, 209 U.S. 123, 147–48

(1908). This claim is moot because no penalties ever were assessed.