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With a pair of decisions issued Friday, the 9th Circuit U.S. Court of Appeals leaned toward decreasing state regulation of billboard advertisers on First Amendment grounds. Both cases, one out of Oregon and one from California, were filed by plaintiffs attacking states’ authority to control roadside messages visible to drivers. Ninth Circuit Senior Judge Betty Fletcher led the charge in both matters. She wrote the unanimous opinion in Friday’s Maldonado v. Harris, 04 C.D.O.S. 4806, reinstating a Redwood City, Calif., man’s lawsuit against Caltrans in its enforcement of the state Outdoor Advertising Act, which controls the size and placement of billboards. Fletcher was joined by Judge Stephen Reinhardt and Court of International Trade Judge Jane Restani, sitting by designation, in overturning San Francisco U.S. District Judge Charles Breyer. Fletcher also wrote the dissenting opinion in Lombardo v. Warner, 03 C.D.O.S. 11152. The court announced Friday it has granted en banc review in the case. Over Fletcher’s objections, the December panel decision upheld the Oregon Motorist Information Act. In Maldonado, Fletcher and her colleagues had to decide only whether the plaintiff had the right to sue. The government argued that Nano Maldonado was barred, having already lost the issue in state court. Maldonado has been fighting since 1993 for permission to use a sign on a building he owns near the freeway for off-site advertising. However, he’s in an area that doesn’t allow that kind of advertising. The government obtained a state injunction against him, which he violated at least twice. Before filing his constitutional challenge, Maldonado posted political messages — “IN GOD WE TRUST” and “HELP STOP TERRORISM” — in combination with commercial ads. The state said it wasn’t trying to stop Maldonado’s political speech, only the commercial speech. Although the government argued that it’s too late for Maldonado to make First Amendment claims, Fletcher wrote Friday that such “claims are ripe for review.” Deputy Attorney General Daniel Weingarten said the government was reviewing Friday’s decision and had not decided whether to appeal. Maldonado’s attorney, Dennis Scott Zell of Burlingame’s Janet Fogarty & Associates, did not return a call seeking comment. In Lombardo, a three-judge panel upheld the constitutionality of Oregon’s billboard regulations. James Lombardo argued Oregon regulations favored commercial over non-commercial speech. He had put up a 32-square-foot sign on his own property that read “For Peace in the Gulf” — a reference to a 1994 U.S. Supreme Court ruling, City of Ladue v. Gilleo, 512 U.S. 43, which upheld the right to post a sign with that same message. It’s unclear how Friday’s decisions will interact. Both deal with constitutional challenges to state laws and do not involve interpretations of federal statutes. For now, it seems Fletcher is determined to make sure federal courts are hip-deep in the issues. “I would reverse the district court’s dismissal of Lombardo’s First Amendment claims because billboard regulations that prefer commercial speech or that apply content-based rules to noncommercial speech are presumptively unconstitutional and because the First Amendment requires licensing schemes to include narrowly drawn, definite standards capable of meaningful judicial review,” Fletcher wrote in her Lombardo dissent.

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