A San Francisco sign ordinance bans the use of off-site commercial signs, including billboards. These signs advertise products or services that are generally not sold on the premises where the signs are placed. In contrast, the ordinance permits on-site commercial signs, providing that such signs advertise the “primary” product, service, or other activity sold, offered, or conducted on the premises where the sign is placed. An advertising company brought suit against the city, claiming that the ordinance’s focus on primary versus all other business activities or products renders the ordinance a content-based restriction on commercial speech that violated the company’s First Amendment right.
Public Citizen filed an amicus brief in support of San Francisco to refute the company’s claim that the ordinance, if content-based, should be subject to strict scrutiny under Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). It explained that intermediate First Amendment review under Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), applies, regardless whether the ordinance is held to be content-based. On August 16, 2017, the Ninth Circuit issued its opinion holding that, as Public Citizen argued, intermediate scrutiny continues to govern challenges to commercial speech restrictions regardless of whether they are characterized as “content-based,” and that San Francisco’s sign ordinance is constitutional under such scrutiny.