Can You Be Forced to Get Your Halloween Scares From a Billboard?

by Greenberg Glusker Fields Claman & Machtinger LLP

Ask her to name the scariest movie of all time?  Who Framed Roger Rabbit, of course.  She saw it once (and only once) at the age of four, and the scene near the end, in which the flattened Judge Doom re-inflates himself and reveals the malevolent Toon lurking beneath his popped-out prosthetic eyeballs, scarred her for life.  And so, our family will always fast-forward past the melting of Nazi agent Toht in Raiders of the Lost Ark, decline to mourn the loss of Mad-Eye Moody in Harry Potter and The Deathly Hallows, Part I, and just steer clear of the absolute abomination that is Large Marge in Pee Wee’s Big Adventure.

I mention all this so that you will understand the sense of abject horror and dread I experienced when, several weeks ago, I drove to work down Motor Avenue and found myself face to face with a giant, eerie nun, her face as white as alabaster, crying (or bleeding?) black liquid from alien-like eyes.  It was a (thoroughly disturbing) billboard for American Horror Story: Asylum looming over the entrance to Fox Studios.  Adjacent to our beloved dog park.  Big as the Times Square Jumbotron.  I knew my daughter would freak out, and freak she did.

She insisted that I call the studio and demand that the billboard be removed immediately, which gave us the perfect opportunity to discuss that little thing called the First Amendment.  Once I got going, she quickly went from billboard-ed to bored, and ultimately resolved to cover her eyes with a sweatshirt if I would simply shut up.  But the issue stuck with me.  As an attorney, I’m comfortable with the fact that First Amendment expression should not be unduly chilled by a ten-year-old with a (perhaps unreasonable) eye phobia.  But the mom in me took umbrage at this offensive (or at least unsettling) billboard content.  Should Fox have the right to upset my kid on a daily basis in its attempt to bring more “eyeballs” to its advertisers?

I’m not the first parent to consider waging a battle against a billboard.  Many others have, for example, lamented that provocative billboard ads for strip clubs or hook-up hotlines prompt unwelcome Freeway Facts of Life inquiries from their curious five year olds.  (For my part, I’ve always found myself wondering about the distinction between the “Live Nude Nudes” available near the airport and the apparently Deceased Clothed Nudes you might find elsewhere.)  One Bel Air resident succeeded earlier this year in convincing tastefully-named strip club Xposed to remove a billboard located near a major neighborhood school bus stop.  Another Valley mom similarly convinced an advertising company to remove an AIDS-prevention billboard featuring a giant inflated condom.

So what does it take to take down a billboard?  The “shame on you” campaigns launched by incensed citizens certainly have proven effective.  On the eve of the upcoming Presidential election, for example, Clear Channel Outdoor just succumbed to pressure from community activists (and maybe a few moms) crying intimidation and voter suppression when it removed 30 menacing billboards from African-American and Latino neighborhoods in Ohio and Wisconsin (which had been paid for by an anonymous donor), which threatened “Voter Fraud is a Felony.”

But when “won’t somebody please think of the children?” isn’t enough, can concerned citizens look to regulations to clean up their (billboard-laden) streets?

Cities and towns can certainly regulate signs.  But there are limits.  What limits?  When the Supreme Court tried to address that question, a badly divided court came up with an opinion that has been described by legal commentators — unflatteringly — as a veritable “Tower of Babel.”  On the one hand, the court recognized that protection of community aesthetic values and promotion of traffic safety are appropriate government interests that may serve as a basis to uphold a city’s sign regulations in the face of a First Amendment challenge.  On the other hand, the Court gave virtually no guidance as to precisely what a town would have to show to justify a sign ordinance.  Here’s what we can say:

Aesthetic considerations are a legitimate basis, at least in part, for regulation.  (But aren’t aesthetic judgments completely subjective?)  Obscene content is not protected by the First amendment, but offensive content is.  (So which is which?  I don’t know, but Here Comes Honey Boo Boo is allowed to exist, so I guess it’s merely offensive and not technically obscene.)  Regulations that are not content or viewpoint-neutral are not allowed, but regulations that impose reasonable restrictions on the “time, place, and manner” of communications are okay.  (But are ordinances limiting or prohibiting billboard advertising of alcohol a permissible reasonable “time place, and manner” restriction or an impermissible content restriction?  Permissible…unless they aren’t.)  Commercial speech is still entitled to constitutional protection…but less than noncommercial speech.  (So what speech is commercial and what speech is non-commercial?  A “film that’s making millions of dollars by telling the story of a kid who’s making billions of dollars”:  noncommercial.  But an advertisement for the same movie?  Quite possibly not.)

If you can divine from all that whether any given regulation is permissible, cheers to you.  I’d gladly buy you a drink — as long as it wasn’t advertised near a school or residential area, since that can be banned.

So what about the “horrible” American Horror Story billboard?  Whether it could be regulated away could well hinge on whether it is considered commercial or noncommercial speech.  Though that question has never been directly tested, the Ninth Circuit Court of Appeals recently held that a proposed billboard for Ryan Seacrest’s E! News television show, featuring giant faces of Seacrest and co-host Giuliana Rancic, did not fall within a “noncommercial speech” exemption in the City of Los Angeles’s signage ordinances.  As Judge Kim Wardlaw wrote in the appellate decision:  “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.”

More likely than not, my daughter’s least favorite ad presents intertwined speech, including both an invitation to participate in a commercial transaction (Watch our incredibly creepy show!) as well as noncommercial expression entitled to heightened First Amendment protection (Look at this highly artistic and stylized image which communicates the content of our incredibly creepy show!).  And some might even say that Seacrest’s giant, smiling face is more annoying and offensive than that of a bleached, bleeding nun.  In any event, the nun has been taken down, and so I guess we’ll never know for sure how that battle would shake out.  At least my kid is happy.  But then again, she hasn’t seen the unsettling local billboard for Sinister yet.

Oh well.  I guess Sheriff Leigh Brackett was right — It’s Halloween, everyone’s entitled to one good scare.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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