Citizens for Free Speech & Equal Justice, LLC v. City of San Jose

1

CITIZENS FOR FREE SPEECH AND EQUAL JUSTICE, LLC, et al., Plaintiffs, v. CITY OF SAN JOSE, Defendant.

No. 18-cv-01919-BLF

United States District Court, N.D. California, San Jose Division

August 1, 2022

ORDER GRANTING THE CITY'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE PERMIT REQUIREMENTS EXEMPTION AND THE POLICY 6-4 EXEMPTION [Re: ECF No. 106]

BETH LAB SON FREEMAN United States District Judge

In this case, Plaintiffs Citizens for Free Speech and Equal Justice LLC and GTL Enterprises, LLC allege that certain provisions of the City of San Jose's Municipal Code related to signs are unconstitutional under the First and Fourteenth Amendments. The Court previously issued an order granting in part and denying in part the parties' cross-motions for partial summary judgment. ECF No. 75. In that order, the Court denied the parties' requests for summary judgment on the exemption for signs erected by the City because the issue was inadequately briefed. See ECF No. 75 at 24-26, 41-42. The denial was without prejudice to filing a subsequent motion (or cross-motions) for partial summary judgment limited to the issue of City-erected signs. Id. at 42.

The City has now filed a partial motion for summary judgment on the two exemptions for signs erected by the City: (1) the permit requirements exemption, and (2) the Council Policy 6-4 exemption. See ECF No. 106 (“MSJ”); see also ECF No. 112 (“Reply”). Plaintiffs oppose the motion. See ECF No. 109 (“Opp.”). The Court held a hearing on the motion on July 21, 2022. ECF No. 129. For the following reasons, the Court GRANTS the City's motion as to both exemptions.

I. BACKGROUND

Section 23.02.1310.B of the City's sign ordinance provides as follows:

Signs erected by the City are exempt from permit requirements but shall comply with all other requirements of this Title provided, however, that signs erected on City owned land pursuant to Council Policy 6-4, shall comply with Council Policy 6-4, in lieu of the requirements of this Title.

ECF No. 55-2 (Joint Statement of Undisputed Facts (“JSOF”)), Ex. 7 at 31-32. Section 23.02.1310.B accordingly divides City-erected signs into two types. First are signs erected on City-owned land pursuant to Council Policy 6-4, which must comply with that Policy instead of the requirements of the City's sign ordinance (the “Policy 6-4 Exemption”). Id. Second are signs erected by the City, which must comply with all provisions of the City's sign ordinance except that the City need not comply with the ordinance's “permit requirements” (the “Permit Requirements Exemption”). Id.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Partial summary judgment that falls short of a final determination, even of a single claim, is authorized by Rule 56 in order to limit the issues to be tried.” State Farm Fire & Cas. Co. v. Geary, 699 F.Supp. 756, 759 (N.D. Cal. 1987). The moving party “bears the burden of showing there is no material factual dispute,” Hill v. R+L Carriers, Inc., 690 F.Supp.2d 1001, 1004 (N.D. Cal. 2010), by “identifying for the court the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). In judging evidence at the summary judgment stage, “the Court does not make credibility determinations or weigh conflicting evidence, and is required to draw all inferences in a light most favorable to the nonmoving party.” First Pac. Networks, Inc. v. Atl. Mut. Ins. Co., 891 F.Supp. 510, 513-14 (N.D. Cal. 1995). For a court to find that a genuine dispute of material fact exists, “there must be enough doubt for a reasonable trier of fact to find for the [non-moving party].” Corales v. Bennett, 567 F.3d 554, 562 (9th Cir. 2009).

III. DISCUSSION

At issue in this motion are Plaintiffs' facial^[1] challenges to the two sign exemptions contemplated in section 23.02.1310.B: (1) the Permit Requirements Exemption, and (2) Policy 64 Exemption. The City moves for summary judgment on both exemptions, and the Court divides its discussion accordingly.

A. Applicable Law

The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws “abridging the freedom of speech.” Reed v. Town of Gilbert, 135 S.Ct. 2218, 2226 (2015) (quoting U.S. CONST. amend. I). Under the First Amendment, therefore, “a government, including a municipal government vested with state authority, has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Id. (internal quotation marks omitted). “Content-based laws - those that target speech based on its communicative content - are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Id.

“Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” Reed, 135 S.Ct. at 2226. A court, therefore, must “consider whether a regulation of speech ‘on its face' draws distinctions based on the message a speaker conveys.” Id. In addition, the Supreme Court has considered laws to be content based, even “though facially content neutral,” where the “laws cannot be justified without reference to the content of the regulated speech.” Id.; see Foti v. City of Menlo Park, 146 F.3d 629, 638 (9th Cir. 1998) (“A speech restriction is content-neutral if it is justified without reference to the content of the regulated speech.” (internal quotation marks omitted)). That is, an ordinance is content based if it discriminates “based on ‘the topic discussed or the idea or message expressed.'” City of Austin, Texas v. Reagan Nat'l Advertising of Austin, LLC, 142 S.Ct. 1464, 1474 (2022) (quoting Reed, 135 S.Ct. at 2218).

B. Permit Requirements Exemption

The City first moves for summary judgment on Plaintiffs' facial challenge to the Permit Requirements Exemption. Under this Exemption, “[s]igns erected by the City are exempt from permit requirements but shall comply with all other requirements of this Title.” § 23.02.1310.B. The import of this language is undisputed: Where the City displays its own message on a sign that is not on City-owned property pursuant to Policy 6-4, the City is required to comply with all provisions of the sign ordinance, except that it need neither pay a fee to itself nor file a permit application.

The City argues that it is entitled to summary judgment on the Permit Requirements Exemption because it satisfies intermediate scrutiny. The City relies on the Ninth Circuit's holding in G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064 (9th Cir. 2006), that an identical permit requirements exemption was subject to intermediate scrutiny because it was a speaker-based, and not a content-based, restriction. MSJ at 4-5. Plaintiffs respond that it is only through the permitting process that a sign permit may be denied, and so the Permit Requirements Exemption effectively exempts the City from the other requirements of the sign ordinance. See Opp. at 1-3. Plaintiffs also assert that the City justifies the Permit Requirements Exemption on solely content-based grounds, which should result in application of strict scrutiny rather than intermediate scrutiny. Id. Plaintiffs also dispute whether G.K. Ltd. remains good law after Reed. Id. at 3 n.1.

i. What Level of Scrutiny Applies

The Court first must determine what level of scrutiny applies by evaluating if the Permit Requirements Exemption is content-based. Laws that are content-based must satisfy strict scrutiny, see Reed, 135 S.Ct. at 2227, while laws that are speaker-based and content-neutral must satisfy intermediate scrutiny, see Recycle for Change v. City of Oakland, 856 F.3d 666, 669 (9th Cir. 2017).

The Court agrees with the City that, based on the G.K Ltd., there is no genuine dispute of material fact that the Permit Requirements Exemption is subject only to intermediate scrutiny because it is speaker-based rather than content-based. In G.K. Ltd., the Ninth Circuit evaluated a section of Lake Oswego's sign ordinance that provided that “public signs, signs for hospital or emergency services, legal notices, railroad signs and danger signs” needed to comply with the sign ordinance, but were not “subject to the City's permit and fee process.” 436 F.3d at 1076. As to public signs, signs for hospital or emergency services, and railroad signs, the Ninth Circuit found that the provisions were speaker-based because they reflected “the City's preference for not subjecting certain entities-public agencies, hospitals and railroad companies-to the requirements of the permitting and fee scheme.” Id. at 1077. The exemptions “sa[id] nothing of the City's preference for the content of th[o]se speakers' messages, nor d[id] they allow the City to discriminate against disfavored speech.” Id. The Ninth Circuit noted that the speakers were still subject to the other provisions of the sign ordinance “concerning the type, number and characteristics of signs that are permissible in the City; it is just that certain speakers need not obtain permits (and pay the associated fee) before posting their signs.” Id. Finally, “[t]hat the law affect[ed] plaintiffs more than other speakers d[id] not, in itself, make the law...