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Lone Star Security and Video, Inc v. City of Los Angeles; City of Santa Clarita; City of Rancho Cucamonga

July 2, 2012

LONE STAR SECURITY AND VIDEO, INC., PLAINTIFF,
v.
CITY OF LOS ANGELES; CITY OF SANTA CLARITA; CITY OF RANCHO CUCAMONGA; CITY OF LOMA LINDA., DEFENDANTS.



The opinion of the court was delivered by: Otis D. Wright, II United States District Judge

O

ORDER DENYING LONE STAR'S MOTION FOR PRELIMINARY INJUNCTION [33]

Under newly enacted statutes, California municipalities may regulate "mobile billboard advertising displays," and impound such a vehicle even if otherwise legally parked on a public street. Plaintiff Lone Star Security and Video, Inc. operates a fleet of these mobile billboards, many of which have been cited or removed by traffic enforcement. Lone Star seeks a preliminary injunction to stop this enforcement, arguing that the Defendant cities violate Lone Star's First Amendment rights because they are impermissibly regulating content-based speech.*fn1 For the reasons discussed below, Lone Star's Motion for Preliminary Injunction is DENIED.

I.LEGAL STANDARD

A preliminary injunction is an extraordinary remedy never awarded as of right. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). A plaintiff seeking a preliminary injunction must establish that: (1) it is likely to succeed on the merits;

(2) it is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in its favor; and, (4) an injunction is in the public interest. Id. at 374; Stormans, Inc. v. Selecky, 571 F.3d 960, 978 (9th Cir. 2009). The Court addresses each of these factors in turn.

II.DISCUSSION

A.Likelihood of success on the merits

A "mobile billboard advertising display" is defined as "an advertising display that is attached to a wheeled, mobile, non-motorized vehicle, that carries, pulls, or transports a sign or billboard, and is for the primary purpose of advertising." Cal. Veh. Code § 395.5. Using this definition, Lone Star contends that the mobile billboard regulations are content based because they prohibit only advertising. (Reply 8.) To enforce these regulations, Lone Star asserts that law enforcement must: "(1) determine whether or not the vehicle is displaying any content at all, and

(2) determine whether that content is 'advertising' or something else." (Id. at 12.) And because these regulations are content based, strict scrutiny applies-a standard that these regulations do not satisfy. (Mot. 19.)

A regulation is content based if either the underlying purpose of the regulation is to suppress particular ideas, or if the regulation singles out particular content for differential treatment. Berger v. City of Seattle, 569 F.3d 1029, 1051 (9th Cir. 2009). If the regulation is found to be content neutral, then its restrictions on time, place, and manner must also be narrowly tailored to serve a significant governmental interest, and must leave open ample alternative channels for communication of that information. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

1."Advertising" describes the activity, not the content

Lone Star's argument centers solely on the word "advertising," appearing three times in the statute. Though conceding that "advertising" is not defined in the statute, Lone Star suggests that it means commercial speech, as opposed to non-commercial speech. (Reply 12.) For example, if a mobile billboard displays an American flag, Lone Star contends that this is not "advertising"-but rather, non-commercial speech; at the very least, mixed speech. (Mot. 21.) Thus, because law enforcement will have to distinguish content to assess whether a mobile billboard constitutes "advertising," Lone Star argues these regulations are overbroad. (Reply 12.)

The Court disagrees with this tenuous argument. When looking at the plain language of the statute, the Court finds that the word "advertising" refers to an activity, and not to content. Thus, where "advertising" is used as an adjective in the phrase "advertising display," this connotes that these mobile billboards are used to show something, but not necessarily an advertisement. Where "advertising" is used in the phrase "for the primary purpose of advertising," this suggests that these vehicles are for the ...


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