E! News Billboard Smacks of Commercial Speech

     (CN) – A billboard advertising E! News with giant pictures Ryan Seacrest and Giuliana Rancic is not exempt from Los Angeles sign laws, the 9th Circuit ruled Monday.
     Wayne Charles and Fort Self Storage claimed in a 2010 letter to the city, and in a subsequent declaratory-judgment action, that they did not need a permit to erect the billboard because it fell under a statutory exemption for noncommercial speech “related to motion pictures, theatrical productions, television and radio programming, music, books, newspapers, paintings, and other works of art.”
     Los Angeles disagreed and barred erection of the sign.
     U.S. District Judge Audrey Collins agreed, unconvinced by claims that the billboard should be considered “an adjunct of or incidental to the E! News television program, which enjoys the same First Amendment protection for noncommercial expression as the advertised news program itself,” according to the court.
     On appeal in the 9th Circuit, the billboard supporters insisted that the sign contains more than commercial speech.
     Considering whether “truthful advertisements for expressive works protected by the First Amendment are inherently noncommercial in nature,” the Pasadena-based federal appeals panel returned Monday with a resounding no.
     “The E! News billboard does not present intertwined speech,” Kim McLane Wardlaw wrote for a three-member panel. “The sign consists only of photographs of the program’s hosts and the name of the program; no other message is conveyed. 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 panel rejected the “novel argument” that truthful advertisements for noncommercial works are themselves “inherently noncommercial speech.”
     “The principle unifying the exceptions to the commercial speech doctrine for advertisements for protected works is the need to protect advertisers from tort actions that would otherwise threaten the ability of publishers to truthfully promote particular works,” Wardlaw wrote. “While lower courts have occasionally used imprecise, overbroad language in describing these exceptions, it is only in the narrow context of this principle that we have recognized that the noncommercial First Amendment status of an underlying expressive work extends to advertisements for that work. Appellants now seek to extrapolate from these limited exceptions a categorical rule: truthful advertisements for noncommercial speech always share the identical level of First Amendment protection as the underlying speech. That the law extends special protection to advertisements for First Amendment-protected works in the context of certain tort actions, however, does not support a sweeping rule that advertisements for protected speech are ‘noncommercial’ in all contexts.”

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