An animal rights group had every right to protest singer/actress Hilary Duff's performances at rodeos and bullfight arenas, but not on moving billboards in West Hollywood, Calif.
In a 2-1 decision Tuesday, California's 2nd District Court of Appeal in Los Angeles upheld the small city's ban on mobile billboard advertising after finding it doesn't violate the animal group's free-speech rights.
"The ordinance is content neutral," Justice Frances Rothschild wrote. "It draws no distinctions based on the content of the speech or the viewpoints expressed. Nor is there any evidence that 'the ordinance was designed to suppress certain ideas that the city finds distasteful or that it has been applied to [plaintiffs] because of the views that they express.'"
Retired Los Angeles County Superior Court Judge Richard Neidorf, who was sitting by assignment, concurred. But Justice Robert Mallano dissented, arguing that the city's ordinance targeted only commercial speech, not the kind of political content on the animal group's sign.
"The issue presented is, 'What is advertising?'" Mallano wrote. "I think of advertising as promoting a product or service -- commercial speech -- as opposed to promoting a political or social message, such as speaking against cruelty to animals -- non-commercial speech."
Steve Hindi, president of Showing Animals Respect and Kindness, or SHARK, an Illinois-based nonprofit that seeks to expose cruelty to animals, was pulled over in West Hollywood one night and fined more than $1,000 for violating the city's ban on mobile billboards. Hindi was driving the so-called "Tiger Truck," a vehicle that has four 100-inch video screens on all sides, showing animal abuse and blaring the sounds of creatures in distress.
Three of the videos the night Hindi was pulled over displayed bullfights, with signs reading "dumpduff.com" and "sharkonline.org" to protest the singer's apparent decision to perform at rodeos and bullfight arenas.
A trial court upheld the fine, with the 2nd District affirming on Tuesday. Rothschild said the ordinance applies to both commercial and non-commercial advertising and makes exceptions for city buses and taxis.
"Even though buses and taxis may display advertising on their roofs and sides," Rothschild wrote, "their 'primary purpose' is not advertising but transporting people from one place to another."
She also held that the ordinance was narrowly drawn to enhance traffic safety and to reduce visual clutter and pollution. "SHARK's Tiger Truck," she wrote, "is a classic example of the type of vehicle the city intended to ban from its streets."
Furthermore, Rothschild wrote, SHARK already gets its message out on the Internet and "offered no explanation why it could not use other methods of communication, such as advertising on buses and taxis, flyers, direct mailings, newspaper ads and speeches in public places."
Bryan Pease, a San Diego solo practitioner who represents SHARK, said his clients advertise in all those realms, "but happens to think this is a particularly effective method of communication because you are able to show people on the street a large video of cruelty going on behind doors."
He said the fact that there was a split court -- with the presiding justice of Division One dissenting -- "increases the chance we could get the California Supreme Court to accept review."
J. Stephen Lewis, a staff attorney for West Hollywood's Legal Services Division, said the dissent doesn't worry him because he thinks Mallano's reasoning "isn't consistent with First Amendment jurisprudence."
"Our view," he said, "is that our ordinance is a reasonable time, place and manner restriction on the way people speak rather than [on] the substance of what they are saying."
SHARK's billboard was especially distracting to motorists, he said. "Honestly, it was obnoxious. It basically was a movie theater on wheels, with bright lights and loud sounds."
The ruling is Showing Animals Respect and Kindness v. City of West Hollywood, 08 C.D.O.S. 11921.