and Submitted July 12, 2017 San Francisco, California
from the United States District Court No. 3:16-cv-06539-SI
for the Northern District of California Susan Illston, Senior
District Judge, Presiding
Michael F. Wright (argued), Los Angeles, California, for
M. Emery (argued) and Victoria Wong, Deputy City Attorneys;
Dennis J. Herrera, City Attorney; Office of the City
Attorney, San Francisco, California; for Defendant-Appellee.
Before: Susan P. Graber and Michelle T. Friedland, Circuit
Judges, and Consuelo B. Marshall, [*] District Judge.
panel affirmed the district court's Fed.R.Civ.P. 12(b)(6)
dismissal of an action brought pursuant to 42 U.S.C. §
1983 challenging San Francisco's sign-related
its Planning Code, San Francisco prohibits new billboards but
allows onsite business signs relating to activities
undertaken on the premises, subject to various rules.
Noncommercial signs are exempt from the rules. Plaintiff, an
advertiser that rents the right to post signs on the premises
of third-party businesses, alleged that the City's
Planning Code violates the First Amendment by exempting
noncommercial signs from its regulatory ambit.
panel held that the distinction drawn between commercial and
noncommercial signs in the City's Planning Code survived
intermediate scrutiny under Central Hudson Gas &
Electric Corp. v. Public Service Commission, 447 U.S.
557 (1980). The panel held that the distinctions directly
advanced the City's substantial interests in safety and
aesthetics and was not impermissibly underinclusive.
GRABER, CIRCUIT JUDGE.
Contest Promotions, LLC, rents advertising space from
businesses in cities around the country, including San
Francisco, and places third-party advertising signs in that
space, framed by text inviting passersby to enter the
business and win a prize related to the sign. Through its
Planning Code, San Francisco prohibits new billboards but
allows onsite business signs subject to various rules.
Noncommercial signs are exempt from the rules. In this, the
latest of several challenges that Plaintiff has mounted to
San Francisco's sign-related regulations, Plaintiff
argues that the distinction between commercial and
noncommercial signs violates the First Amendment. The
district court dismissed the complaint. Reviewing the order
of dismissal de novo, Friedman v. AARP, Inc., 855
F.3d 1047, 1051 (9th Cir. 2017), we affirm.
other local governments, the City and County of San
Francisco, Defendant here, uses its Planning Code to regulate
outdoor advertising, including billboards. The purposes of
Planning Code Article 6, which contains the advertising
rules, include "promot[ing] the aesthetic and
environmental values of San Francisco, "
"protect[ing] public investment in and the character and
dignity of public buildings, streets, and open spaces, "
"protect[ing] the distinctive appearance of San
Francisco, " and "reduc[ing] hazards to ...