682 F.2d 847
TAXPAYERS FOR VINCENT, an unincorporated political
association, and Candidates' Outdoor Graphics
Service (COGS), a California
MEMBERS OF the CITY COUNCIL OF the CITY OF LOS ANGELES; the
City of Los Angeles; and Edward D. Longley as Director of
the Bureau of Street Maintenance for the City of Los
United States Court of Appeals,
Argued and Submitted Jan. 7, 1982.
Decided July 30, 1982.
Wayne S. Canterbury, San Francisco, Cal., for plaintiffs-appellants.
Anthony S. Alperin, Deputy City Atty., Los Angeles, Cal., for defendants-appellees.
Appeal from the United States District Court for the Central District of California.
Before NELSON and REINHARDT, Circuit Judges, and EAST, District Judge.
NELSON, Circuit Judge:
Appellants, Taxpayers for Vincent ("Taxpayers") and Candidates' Outdoor Graphics Service ("COGS"), contest the constitutionality of Los Angeles Municipal Code § 28.04, which prohibits the posting of signs on numerous types of public property. They brought suit against the City of Los Angeles and its representatives ("City") for declaratory and injunctive relief, claiming that the ordinance is unconstitutional on its face under the first and fourteenth amendments. The district court denied interim relief. Taxpayers and COGS then moved for partial summary judgment, reserving the issues of damages and attorney's fees. The City filed a cross-motion for summary judgment, which, after briefing and oral argument, the district court granted. Taxpayers and COGS filed a timely appeal.
In reviewing a grant of summary judgment we " 'need decide only whether any genuine issue of material fact remains for trial and whether the substantive law was correctly applied.' " Gaines v. Haughton, 645 F.2d 761, 769 (9th Cir. 1981), cert. denied, --- U.S. ----, 102 S.Ct. 1006, 71 L.Ed.2d 297 (1982) (quoting Inland Cities Express, Inc. v. Diamond National Corp., 524 F.2d 753, 754 (9th Cir. 1975)). We freely review questions of law. 645 F.2d at 770.
Section 28.04 provides, in part, as follows:
(a) No person shall paint, mark or write on, or post or otherwise affix, any hand-bill or sign to or upon any sidewalk, crosswalk, curb, curbstone, street lamp post, hydrant, tree, shrub, tree stake or guard, railroad trestle, electric light or power or telephone or telegraph or trolley wire pole, or wire appurtenance thereof or upon any fixture of the fire alarm or police telegraph system or upon any lighting system, public bridge, drinking fountain, life buoy, life preserver, life boat or other life saving equipment, street sign or traffic sign.
The issue presented is whether the ordinance, as presently drafted, is facially unconstitutional under the first and fourteenth amendments to the United States Constitution.
In a recent case, Rosen v. Port of Oakland, 641 F.2d 1243 (9th Cir. 1981), we suggested certain general principles that must be applied in analyzing statutes or ordinances which regulate first amendment rights:
First, the law is presumptively unconstitutional and the state bears the burden of justification.... Second, the law must bear a "substantial relation" to a "weighty" governmental interest.... The law cannot be justified merely by the showing of some legitimate governmental interest.... Third, the law must be the least drastic means of protecting the governmental interest involved; its restrictions may be "no greater than necessary or essential to the protection of the governmental interest."
Id. at 1246 (citations omitted).
Applying these general principles to the specific requirements of the ordinance, we conclude that the ordinance is unconstitutional on its face. The decision of the district court must be reversed.I
THE PRESUMPTION OF UNCONSTITUTIONALITY
Taxpayers and COGS want to post temporary election campaign posters. The first amendment free speech guarantee "has its fullest and most urgent application precisely to the conduct of campaigns for political office." Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35, 41 (1971). Further, this circuit has recognized that
means of political communication are not entirely fungible; political posters have unique advantages. Their use may be localized to a degree that radio and newspaper advertising may not. With exception of handbills, they are the least expensive means by which a candidate may achieve name recognition among voters in a local election.
Baldwin v. Redwood City, 540 F.2d 1360, 1368 (9th Cir. 1976), cert. denied, 431 U.S. 913, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977). Thus, it is clear that significant first amendment interests are involved, the presumption of unconstitutionality applies, and the state bears the burden of justification.
SUBSTANTIAL RELATION TO A WEIGHTY GOVERNMENTAL INTEREST
The City argues that its ordinance prohibiting the posting of signs, hand-bills and the like on public objects is justified by the following governmental interests: prevention of interference with the normal uses of public objects, prevention of visual clutter, and prevention of traffic hazards. As these are all legitimate governmental concerns, we will consider the relative significance of these interests and the importance of the challenged ordinance to their realization. Baldwin, 540 F.2d at 1366-67.
The City's first asserted justification is that the posting of signs and hand-bills on public objects must be prohibited to prevent interference with the normal and primary uses of those objects, many of which uses are intimately connected with public safety. The Supreme Court has said:
The nature of a place, "the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable." ... The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time. Our cases make clear that in assessing the reasonableness of a regulation, we must weigh heavily the fact that communication is involved; the regulation must be narrowly tailored to further the State's legitimate interest.
Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222, 232 (1972) (quoting Wright, The Constitution on the Campus, 22 Vand.L.Rev. 1027, 1042 (1969)) (emphasis added).
Although a silent vigil would not unduly interfere with the use of the reading room of a public library and is thus permitted there, Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966), a person wishing to make a speech constitutionally could be prohibited from making his speech in the reading room where it would disturb those seeking the quiet of the library. Similarly, a municipality can prohibit noisy demonstrations that disrupt the normal activities of a school. Grayned, 408 U.S. at 117-19, 92 S.Ct. at 2304-05, 33 L.Ed.2d at 233-34. The Grayned Court clearly recognized that one manner of expression might be protected in a place, while another manner of expression might not be protected in the same place. 408 U.S. at 116-19, 92 S.Ct. at 2303-05, 33 L.Ed.2d at 232-34.
The City argues that the ordinance is necessary to prevent posters from obscuring City signs and from obscuring or obstructing access to fire hydrants, and to ameliorate dangers to City workers who must on occasion climb utility poles. These are significant and weighty interests which, if impossible to protect by less restrictive alternatives (see part III infra ), may be sufficient to rebut the presumption of unconstitutionality.
The City's second justification for the ordinance is that it prevents visual clutter. While it is clear that promoting an aesthetic environment by reducing visual clutter is a substantial governmental interest, it is less clear that the City's ordinance is significantly related to that interest. As Justice Brennan said in Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981):
It is no doubt true that the appearance of certain areas of the city would be enhanced by the elimination of billboards, but "it is not immediately apparent as a matter of experience" that their elimination in all other areas as well would have more than a negligible impact on aesthetics.
Id. at 530-31, 101 S.Ct. at 2904, 69 L.Ed.2d at 829 (Brennan, J., concurring).
Before deferring to the City's judgment, we must be convinced that the City is "seriously and comprehensively addressing aesthetic concerns with respect to its environment." Id. See John Donnelly & Sons v. Campbell, 639 F.2d 6, 23 (1st Cir. 1980) (Pettine, J., concurring), aff'd, 453 U.S. 916, 101 S.Ct. 3151, 69 L.Ed.2d 999 (1981). Here the City has not offered to demonstrate that it is engaged in "a comprehensive coordinated effort in its commercial and industrial areas to address other obvious contributors to an unattractive environment. In this sense, the ordinance is underinclusive." 453 U.S. at 531, 101 S.Ct. at 2904, 69 L.Ed.2d at 829. Thus, the City has failed to make a sufficient showing, even for purposes of summary judgment, that its asserted interest in aesthetics and preventing visual clutter is substantial.
The final justification asserted by the City for the ordinance is that it prevents traffic hazards. Although this, too, may be a substantial interest, and although some portion of the ordinance may properly be directed at this concern, viewing the ordinance as a whole, we find that this particular justification is insufficient as a matter of law. The City has not offered to prove facts that raise any genuine issue regarding traffic safety hazards with respect to the posting of signs on many of the objects covered by the ordinance. See id. at 528 & n.7, 101 S.Ct. at 2903-04 & n.7, 69 L.Ed.2d at 828 & n.7. To the contrary, it is readily apparent that no substantial traffic hazard problem would result from permitting the posting of certain materials on much of the property subject to the ordinance.
In summary, the only interest of the City that might be substantial enough to rebut the presumption of unconstitutionality of the ordinance is the interest in preventing interference with the normal and primary uses of public objects, many of which uses are connected with public safety. We now consider whether the ordinance is the least drastic means of protecting that interest.
THE LEAST DRASTIC MEANS OF PROTECTING GOVERNMENTAL INTERESTS
Taxpayers and COGS seek to attach their signs only to the cross-wires of utility poles, or other places where they would not interfere with the normal functioning of the public objects involved. They do not, for example, seek the right to post signs on fire hydrants, trees, or shrubs, or to obscure traffic or street signs. Taxpayers and COGS concede that the posting of political signs may be subject to reasonable regulation as to time, place, and manner of use, but argue that there is nothing inherent in the use of political signs which would justify an absolute ban against their use in public places. See Grayned, 408 U.S. at 115-16, 92 S.Ct. at 2302-03, 33 L.Ed.2d at 231-32; Hague v. C. I. O., 307 U.S. 496, 515-16, 59 S.Ct. 954, 964, 83 L.Ed. 1423, 1436-37 (1939). We agree that there are less restrictive alternatives to banning all posting of political signs.
Instead of a general ban, the City might regulate the size, design, and construction of the posters, Baldwin, 540 F.2d at 1370, institute clean up or removal requirements, id., or provide more stringent regulations for the areas of the City more in need of protection, see Metromedia, 453 U.S. at 530-31, 101 S.Ct. at 2904-05, 69 L.Ed.2d at 829-30 (Brennan, J., concurring). Moreover, the City might specifically prohibit the erection of signs that obscure hydrants, traffic signs, and signals, or that block motorists' lines of sight. We also think it clear that the City might prohibit the posting of signs on trees or shrubs. Thus, some specific prohibitions might be constitutional, but we cannot conclude that all those set forth in the present ordinance are.
While we cannot be certain that these alternatives we have suggested, or others that may be devised by the City, will be successful, we conclude that in light of the first amendment interests involved, some alternatives should be tried. See United States Postal Service v. Council of Greenburg Civic Associations, 453 U.S. 114, 154, 101 S.Ct. 2676, 2698, 69 L.Ed.2d 517, 546 (1981) (Stevens, J., dissenting). See generally Ratner, The Function of the Due Process Clause, 116 U.Pa.L.Rev. 1048, 1110-11 (1968) (discussion of judicial use of less intrusive alternatives).
We conclude that the City has, at best, put forth only one weighty governmental interest to which the ordinance is substantially related and has failed to convince this court that there do not exist less drastic means of protecting that interest. It has failed to rebut the presumption of unconstitutionality of the ordinance.
We, therefore, reverse the district court's grant of summary judgment in favor of the City. We conclude as a matter of law that Taxpayers and COGS are entitled to a grant of partial summary judgment and remand this case to the district court for entry of partial summary judgment in accordance with this opinion. The district court may then proceed to decide the issues of damages and attorney's fees.
REVERSED AND REMANDED.