October 15, 2012 3:44pm PT by Eriq Gardner
Ryan Seacrest Billboard Denied Constitutional Protection by Appeals Court
Not even the face of Ryan Seacrest is sufficient excuse for erecting a billboard in Los Angeles without a permit.
On Monday, the 9th Circuit Court of Appeals ruled in favor of of the city of L.A. in a First Amendment battle with Wayne Charles and Fort Self Storage over a sign advertising Seacrest's E! News program.
After losing at the district court level, Charles appealed to higher authorities on his argument that a billboard that featured the then-hosts of E! News, Seacrest and Giuliana Rancic, constituted "noncommercial protected speech" within the meaning of the City's sign ordinance.
"We are called upon to write another chapter in 'the story of billboards,' wrote 9th Circuit judge Kim Wardlaw in the opinion.
Charles originally sued L.A. in 2010 seeking an exemption from billboard ordinances for the proposed Seacrest sign as well as others intended to display "content related to motion pictures, theatrical productions, television and radio programming, music, books, newspapers, paintings, and other works of art."
But a district court nixed Charles' attempt by determining that the Seacrest sign was expressing commercial rather than noncommercial content — a key distinction because commercial speech gets less protection under the First Amendment.
The ruling on Monday by the 9th Circuit reaches a similar conclusion.
"The sign consists only of photographs of the program's hosts and the name of the program; no other message is conveyed," says Wardlaw. "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."
The judge goes on to express some nuance in interfusing advertising restrictions with speech freedoms. (After all, the Supreme Court's famous Citizens United case started out when the producer of an anti-Hillary Clinton film wanted to advertise it during election season.)
Lest the ruling be read too far, Judge Wardlaw continues: "Faced with the need to ensure that First Amendment-protected 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."
And although the headline of the ruling indicates a defeat to the extent of the First Amendment, Judge Wardlaw also writes words affirming exceptions to commercial speech principles that will come as tremendous comfort to those in Hollywood who are increasingly fearful of liability over the use of famous celebrities.
For example, a news outlet that wants to put out a banner ad touting an exclusive or showing a picture of its publication with some celebrity featured might worry about triggering a legal claim.
But the judge writes, "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."
Wardlaw also finds, unlike the district court that reviewed the case, that judges should indeed review First Amendment challenges rather than deferring such decisions to city officials.
Nevertheless, despite all the nods to the great weight of free speech protections, Judge Wardlaw ultimately rejects Charles' "novel argument" that advertisements for noncommercial works are themselves "inherently noncommercial speech."
Which means that if Los Angeles thinks that Ryan Seacrest's face on a billboard poses problems relating to traffic safety or aesthetics, it has the power to do something about it.
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