Maldonado v. Kempton ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NANO MALDONADO, 
Plaintiff-Appellant,
v.
JEFF MORALES, in his capacity as
Director of the California No. 06-15657
Department of Transportation,
Defendant,  D.C. No.
CV-02-03167-CRB
and
WILL KEMPTON, in his capacity as
Director of the California
Department of Transportation,
Defendant-Appellee.

NANO MALDONADO, 
Plaintiff-Appellant,
No. 07-15535
v.
WILL KEMPTON, in his capacity as  D.C. No.
CV-02-03167-CRB
Director of the California
OPINION
Department of Transportation,
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted
August 13, 2008—San Francisco, California
Filed February 25, 2009
2145
2146 MALDONADO v. KEMPTON
Before: Eugene E. Siler, Jr.,* M. Margaret McKeown, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge McKeown
*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.
2150 MALDONADO v. KEMPTON
COUNSEL
Dennis Scott Zell, Fogarty & Zell, LLP, Millbrae, California,
for the plaintiff-appellant.
Ronald W. Beals, Assistant Chief Counsel, California Depart-
ment of Transportation Legal Division, Sacramento, Califor-
nia, for the defendant-appellee.
Michael F. Wright, Case Knowlson, Jordan & Wright, LLP,
Los Angeles, California, for the amicus.
OPINION
McKEOWN, Circuit Judge:
Nano Maldonado has raised a number of constitutional
challenges to the California Outdoor Advertising Act. Cal.
Bus. & Prof. Code § 5200, et seq. As a consequence of a leg-
islative amendment in 2008, the Act bars offsite commercial
advertising but does not restrict non-commercial speech. Cal.
Bus. & Prof. Code § 5275. Although some of Maldonado’s
claims are now moot because of this amendment, he continues
to challenge application of the Act to his effort to display off-
premises advertising on a highway billboard. This appeal is
Maldonado’s second trip to our court and requires us, once
again, to reiterate our commercial speech jurisprudence
involving billboards. We dismiss as moot Maldonado’s appeal
from the district court’s injunction and affirm the district
court’s grant of summary judgment on his other claims.
I. BACKGROUND
Maldonado has had a long-running dispute with the Cali-
fornia Department of Transportation (“Caltrans”) over the use
of a billboard on his property. In the early 1990s, he
MALDONADO v. KEMPTON 2151
purchased property in Redwood City, California, that is adja-
cent to U.S. Highway 101. This land is in an area of Highway
101 that has been classified as “landscaped freeway.” In 1993,
Maldonado applied to Caltrans for a permit to use his bill-
board for offsite advertising. Because California’s Outdoor
Advertising Act (“COAA”) bars property owners from using
billboards along a landscaped freeway to advertise for offsite
businesses, Caltrans denied the application. See Cal. Bus. &
Prof. Code §§ 5440, 5442. Maldonado’s efforts to skirt the
offsite advertising ban have resulted in lengthy litigation at
the state and federal level over the last ten years.
After Maldonado continued using the billboard for offsite
advertising despite numerous citations, Caltrans sued him in
California state court for nuisance. See People v. Maldonado,
86 Cal. App. 4th 1225, 1228-29 (Cal. Ct. App. 2001). The
state court trial judge found in favor of Caltrans and enjoined
Maldonado from continuing to violate the COAA. Id. at 1229-
30. The injunction barred Maldonado from: (1) “posting or
displaying any advertising on his billboard without first hav-
ing obtained from [Caltrans] either a permit for outdoor
advertising, or an exemption from or waiver of the permit
requirement;” (2) “posting or displaying any on premise
advertising which does not direct the viewer to the billboard
location for purposes of conducting business;” (3) “posting or
displaying any on premise advertising for activities not con-
ducted on [his] premises;” and (4) “posting or displaying any
on premise advertising for products or services which are only
incidental or secondary to the principal business activity con-
duct on [his] premises.” Id. at 1233-35 (internal quotations
and citations omitted). The state court of appeals upheld all
but the first of these prohibitions. Id.
Despite the injunction, Maldonado persisted in using his
billboard for offsite advertising and was twice cited for con-
tempt. He then sued in federal court, alleging the COAA vio-
lated the First Amendment, both facially and as applied to
him. The district court dismissed the case on procedural
2152 MALDONADO v. KEMPTON
grounds. We reversed that dismissal. See Maldonado v. Har-
ris (“Maldonado II”), 370 F.3d 945, 956 (9th Cir. 2004). On
remand, the district court held that the COAA unconstitution-
ally privileged commercial speech over non-commercial
speech because it permitted onsite commercial speech but
barred onsite non-commercial speech. Maldonado v. Kempton
(“Maldonado III”), 422 F. Supp. 2d 1169, 1178 (N.D. Cal.
2006). The district court enjoined enforcement of the COAA
against non-commercial speech on billboards where onsite
advertising is allowed. Id. at 1178. The district court later
found that the COAA, as amended by the injunction, is consti-
tutional and granted summary judgment against Maldonado
on his other claims.
Maldonado now challenges the district court’s injunction
and summary judgment ruling. He argues that the district
court’s injunction was not an appropriate remedy for the stat-
ute’s unconstitutional preference for commercial speech. He
claims that the COAA is overbroad and vague, that it imposes
unconstitutional prior restraints on speech, that it violates
equal protection, and that it violates substantive due process.
He also claims that the state court injunction barring him from
violating the COAA imposes a separate unconstitutional
restraint on his First Amendment rights.
II. ANALYSIS
A. JURISDICTION
Before addressing Maldonado’s substantive claims, we first
resolve three threshold issues: whether the amendment to the
COAA moots Maldonado’s claims, whether he has standing
to raise his claims, and whether his claims about the criminal
enforcement provisions are ripe. See Kescoli v. Babbitt, 101
F.3d 1304, 1308 (9th Cir. 1996) (“If the appeal is moot, we
lack jurisdiction.”); Steel Co. v. Citizens for a Better Environ-
ment, 523 U.S. 83, 88-89 (1998) (standing is a jurisdictional
question that ordinarily must be resolved before addressing
MALDONADO v. KEMPTON 2153
the merits); Texas v. United States, 523 U.S. 296, 301-302
(1998) (courts should not reach the merits of unripe issues).
1. Mootness
On January 1, 2008, after the district court’s injunction and
after the two appeals consolidated in this case were filed, the
California legislature amended the COAA. The new section,
§ 5275, reads:
Notwithstanding any other provision of this chapter,
the director may not regulate noncommercial, pro-
tected speech contained within any advertising dis-
play authorized by, or exempted from, this chapter.
Cal. Bus. & Prof. Code § 5275.
[1] With this amendment, the COAA now exempts non-
commercial speech from regulation by Caltrans. The question
then is whether this statutory change moots Maldonado’s
appeal. Mootness is “ ‘the doctrine of standing set in a time
frame.’ ” Abdala v. I.N.S., 488 F.3d 1061, 1063 (9th Cir.
2007) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs., Inc., 528 U.S. 167, 189 (2000)). “A statutory
change . . . is usually enough to render a case moot, even if
the legislature possesses the power to reenact the statute after
the lawsuit is dismissed.” Native Village of Noatak v, Blatch-
ford, 38 F.3d 1505, 1510 (9th Cir. 1994).
Before enactment of this new provision, the district court
held that the COAA impermissibly favored commercial over
non-commercial speech, because it provided an exception
only for onsite commercial advertising and not for non-
commercial messages. The district court remedied this consti-
tutional infirmity by enjoining Caltrans from enforcing the
COAA against non-commercial speech: “the Court will enjoin
the State from enforcing COAA to prohibit non-commercial
2154 MALDONADO v. KEMPTON
speech wherever the Act permits commercial speech.” Mal-
donado III, 422 F. Supp. 2d at 1178.
Section 5275 incorporates the same solution to the constitu-
tional problem that the district court implemented via the
injunction, specifically carving out non-commercial speech
from regulation. Cal. Bus. Prof. Code § 5275. Now that the
statute has been amended to exempt non-commercial speech,
the injunction is moot.1 See Railway Labor Executives’ Ass’n
v. Gibbons, 455 U.S. 457, 465 n.8 (1982) (noting that the
amendment of a law removing sections declared unconstitu-
tional by a district court mooted that court’s injunction).
Despite the changes to the COAA, Maldonado argues that
because Caltrans stated that it will not change its enforcement
policy, his claims are not moot. However, what Caltrans actu-
ally said is that it never enforced the COAA against non-
commercial speech, even when the text of the law permitted
it to do so. This statement was not a threat to flout the new
law, but rather a promise to follow it.
[2] Four of Maldonado’s claims against the COAA were
predicated on the COAA as reformed by the district court:
(1) the COAA is overbroad and vague; (2) the COAA is
enforced via unconstitutional prior restraints; (3) the grandfa-
thering provision violates equal protection; and (4) the COAA
violates the suppression doctrine and substantive due process.
These claims do not depend on the lack of statutory exception
for non-commercial speech and thus remain live controver-
sies.
[3] Maldonado’s claim that the state court injunction bars
him from exercising his First Amendment Rights is also unaf-
1
Maldonado’s dispute over the injunction centers on the multiple claims
relating to the district court’s allegedly improper reformation of the stat-
ute, and claimed failure to comply with Federal Rule of Civil Procedure
65(d).
MALDONADO v. KEMPTON 2155
fected by the changes to the COAA. Although the purpose of
that injunction was to bar Maldonado from continued viola-
tion of the COAA, the language of the injunction bars him
from engaging in offsite advertising on his billboard, not sim-
ply from violating the COAA. Therefore, the change to the
COAA itself has no effect on this aspect of the state court
injunction. This claim is addressed below in our analysis of
prior restraint.
2. Standing
We next address Caltrans arguments that Maldonado lacks
standing to pursue his claims. Caltrans posits that because a
Redwood City ordinance also includes billboard restrictions,
some of Maldonado’s claims are not redressable. See Red-
wood City Sign Ordinance § 3.114 (2000) (amended 2007)
(prohibiting offsite advertising subject to enumerated excep-
tions such as community activity signs, open house signs,
garage sale signs, political signs and public event signs).2 Cal-
trans argues that even if Maldonado were to prevail on his
constitutional claims, the city ordinance would still prohibit
Maldonado’s advertising, hence obtaining relief in this court
would be fruitless.
Caltrans’s argument might have merit if the Redwood City
prohibitions were clearly identifiable, enforceable, and dis-
tinct from the federal challenge to the amended COAA. The
Seventh Circuit considered such a circumstance in Harp
Advertising Illinois, Inc. v. Village of Chicago Ridge, 9 F.3d
1290 (7th Cir. 1993). As we explained in a later case analyz-
ing Harp, “ ‘[a]n injunction against the portions of the sign
and zoning codes that [Harp] has challenged [i.e., the off-site
sign ban] would not let it erect the proposed sign; the village
2
In its brief, Caltrans cited to the statute enacted in 2000 but later sub-
mitted a letter alerting the court to a statutory change that clearly
exempted non-commercial messages. The amended version of the statute
is codified at Redwood City Code §§ 3.57-3.61, 3.71-3.72.
2156 MALDONADO v. KEMPTON
could block the sign simply by enforcing another, valid ordi-
nance [i.e., the size and height restrictions] already on the
books.’ ” Get Outdoors II, L.L.C. v. City of San Diego, 506
F.3d 886, 893 (9th Cir. 2007) (quoting Harp, 9 F.3d at 1292)
(alterations in original) (emphasis added).
[4] When evaluating redressability, the key question is
whether the harm alleged by the plaintiff is likely to be allevi-
ated by a ruling in its favor. See Harp, 9 F.3d at 1292 (“Law
like life deals in probabilities. A rule reducing the probability
of success causes a concrete injury for the same reason that
an . . . option to buy stock sells at a positive price.”). Mal-
donado’s constitutional challenge to the COAA applies with
equal force to the similarly-worded Redwood City ordinance,
which also bans offsite commercial advertising. Although the
Redwood City ordinance might present another obstacle in
Maldonado’s path were he to prevail in this litigation, it is one
that a favorable ruling here would likely allow him to sur-
mount. Therefore, the Redwood City Ordinance does not
defeat Maldonado’s standing to challenge the constitutionality
of the COAA.
Caltrans also questions Maldonado’s standing to challenge
the COAA provisions that were not applied to him, such as
COAA’s grandfathering provision, which exempted pre-
existing offsite advertisements from the Act. Although plain-
tiffs are generally limited to enforcing their own rights, stand-
ing is broader for facial First Amendment challenges. We
have long held that plaintiffs have standing to challenge
exceptions as underinclusive when the exception does not
apply to the plaintiff. See Ripplinger v. Collins, 868 F.2d
1043, 1048 (9th Cir. 1989) (“Plaintiffs . . . have standing to
claim a constitutional violation because others similarly situ-
ated are exempt from the operation of a state law adversely
affecting the plaintiffs.”). Similarly, a plaintiff alleging that a
statute is void for vagueness and overbreadth resulting in a
chilling effect on speech has standing even if the law is con-
stitutional as applied to him. See S.O.C., Inc. v. County of
MALDONADO v. KEMPTON 2157
Clark, 152 F.3d 1136, 1142-43 (9th Cir. 1998). These princi-
ples are sufficiently broad to grant Maldonado standing on his
First Amendment and equal protection claims.
3. Ripeness
[5] Finally, Caltrans insists that because Maldonado has not
actually been prosecuted, his complaint about the criminal
provisions of the COAA, Cal. Bus. & Prof. Code § 5464, is
purely hypothetical and should not be addressed by this court.
Although cast by Caltrans as a standing issue, this challenge
fits more neatly into the ripeness category. Ripeness is
intended to “prevent the courts, through avoidance of prema-
ture adjudication, from entangling themselves in abstract dis-
agreements.” Abbott Labs. v. Gardner, 387 U.S. 136, 148
(1967), overruled on other grounds by Califano v. Sanders,
430 U.S. 99 (1977). The role of the courts is “neither to issue
advisory opinions nor to declare rights in hypothetical cases,
but to adjudicate live cases or controversies.” Thomas v.
Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138
(9th Cir. 2000) (en banc).
[6] Ripeness is both a constitutional and a prudential doc-
trine. Portman v. County of Santa Clara, 995 F.2d 898, 902
(9th Cir. 1993). Under the constitutional inquiry, we look to
a three-part test: (1) whether the plaintiff has articulated a
concrete plan to violate the law in question; (2) whether there
has been a threat of prosecution from the state; and (3)
whether the statute at issue has previously been enforced.
Thomas, 220 F.3d at 1138-39. In other words, a “genuine
threat of enforcement” is sufficient to render a claim ripe for
review. City of Houston v. Hill, 482 U.S. 451, 459 n.7 (1987)
(citing Steffel v. Thompson, 415 U.S. 452, 475 (1974)). The
prudential inquiry weighs “the fitness of the issue for judicial
decision and the hardship to the parties of withholding court
consideration.” Abbott Labs., 387 U.S. at 149.
[7] The last time Maldonado came before this court, invok-
ing the framework described above, we held that his claims
2158 MALDONADO v. KEMPTON
were ripe. Applying the test for constitutional ripeness, we
held:
Maldonado’s suit fares well as far as the first and
third factors are concerned: Maldonado alleges that
his current conduct is in violation of COAA, and
Caltrans has undoubtedly enforced the statute against
Maldonado in the past. Although the second factor is
a closer question, it also tends to favor Maldonado:
while there may not have been specific threats of
enforcement against his current signs, the fact that an
injunction had been entered against Maldonado cer-
tainly qualifies as a threat of enforcement. We there-
fore conclude that Maldonado’s First Amendment
challenge meets the constitutional component of
ripeness.
Maldonado II, 370 F.3d at 953-54 (footnote omitted). As for
prudential ripeness, we held:
Maldonado’s suit meets the first prong because there
has been no contention that the record needs to be
developed further in order for the district court to be
able to address the constitutional challenge. . . . The
second factor also weighs in favor of Maldonado
because withholding consideration of his claims will
require him to risk being found in contempt of the
state court injunction in order to be able to challenge
the constitutionality of the statute.
Id. at 954. Caltrans offers nothing to change our analysis in
this appeal. Maldonado appears locked in a continuing battle
with the state over this billboard. The result is not hypotheti-
cal. Instead, there is a continuing cycle of contempt citations,
litigation and appeals.
MALDONADO v. KEMPTON 2159
B. OVERBREADTH AND VAGUENESS
1. Criminal Enforcement
Maldonado challenges the constitutionality of the COAA
provisions that punish violations of the ban on offsite adver-
tising as misdemeanor criminal offenses. See Cal. Bus. &
Prof. Code § 5464. Maldonado’s overbreadth claim is linked
to his vagueness claim. In effect, he argues that the distinction
between commercial and non-commercial speech is vague
and therefore fails to give sufficient notice of the prohibited
conduct and chills protected speech. Maldonado alleges the
statute is overbroad because the vagueness of this distinction
will result in some non-commercial speech being subjected to
the COAA.
[8] To be sure, courts must take extra care in determining
whether criminal statutes are vague or “reach[ ] a substantial
amount of constitutionally protected conduct” because of the
heightened risk of deterring people from engaging in constitu-
tionally protected conduct. City of Houston, 482 U.S. at 458.
Because of the nature of criminal sanctions, “[t]he standards
of certainty in statutes punishing for offenses is higher than in
those depending primarily on civil sanction for enforcement.”
Winters v. New York, 333 U.S. 507, 515 (1948).
[9] The standard for unconstitutional vagueness is whether
the statute “provide[s] a person of ordinary intelligence fair
notice of what is prohibited, or is so standardless that it autho-
rizes or encourages seriously discriminatory enforcement.”
United States v. Williams, ___ U.S. ___, 128 S. Ct. 1830,
1845 (2008) (citing Hill v. Colorado, 530 U.S. 703, 732
(2000)). The settled law of this circuit is that the commercial/
non-commercial and onsite/offsite distinctions are not uncon-
stitutionally vague. Clear Channel Outdoor, Inc. v. City of
Los Angeles, 340 F.3d 810, 814 (9th Cir. 2003) (“We have
relied on Metromedia to uphold sign ordinances that distin-
guish between onsite and offsite signs when that distinction
2160 MALDONADO v. KEMPTON
does not also prevent the erection of on-site non-commercial
signs.”) (citing Metromedia Inc. v. City of San Diego, 453
U.S. 490, 511-14 (1981)); Acklerley Communications of the
Northwest, Inc. v. Krochalis, 108 F.3d 1095 (9th Cir. 1997)
(upholding Seattle’s ban on offsite commercial advertising on
billboards); Outdoor Systems, Inc. v. City of Mesa, 997 F.2d
604, 613 (9th Cir. 1993) (“Because our First Amendment
jurisprudence recognizes a distinction between commercial
and non-commercial speech, government officials have to
place a particular message into one or the other category for
purposes of regulation. The potential difficulty of that catego-
rization in itself does not render the regulations unconstitu-
tional.”). Because the overbreadth and chilling effect claims
are dependent on the statute’s alleged unconstitutional vague-
ness, those claims also fail.
2. Suppression Doctrine
[10] Maldonado claims that the COAA is a violation of the
“suppression doctrine.” Maldonado’s brief lumped this claim
in with his substantive due process claim,3 but it is in fact a
First Amendment claim premised on City of Ladue v. Gilleo,
512 U.S. 43 (1994). In Ladue, the Supreme Court held that a
municipal ordinance banning nearly all types of signs,
although content-neutral, was unconstitutional because it
“suppress[ed] too much speech.” Id. at 55. In essence, the
suppression doctrine is an overbreadth doctrine that prevents
highly restrictive yet content-neutral limitations on speech
3
Maldonado’s apparent substantive due process arguments, namely that
the state cannot validly prohibit offsite advertising in urban areas, and “the
government’s asserted aesthetic and traffic safety interests” cannot over-
come his liberty and property interests, miss the mark. The basis for the
sign ban relates to signs in the aggregate, not to Maldonado’s billboard in
particular. See United States v. Edge Broadcasting Co., 509 U.S. 418, 427-
28 (1993). Nor do our billboard cases create an urban carve out. Rather
we have consistently upheld bans in urban areas, like Los Angeles. See,
e.g., Metro Lights v. City of Los Angeles, 551 F.3d 898, 914 (9th Cir.
2009).
MALDONADO v. KEMPTON 2161
from foreclosing or nearly foreclosing an entire medium of
expression:
[W]e have held invalid ordinances that completely
banned the distribution of pamphlets within the
municipality, Lovell v. City of Griffin, 303 U.S. 444,
451-452, 58 S. Ct. 666, 82 L. Ed. 949 (1938); hand-
bills on the public streets, Jamison v. Texas, 318
U.S. 413, 416, 63 S. Ct. 669, 87 L. Ed. 869 (1943);
the door-to-door distribution of literature, Martin v.
City of Struthers, 319 U.S. 141, 145-149, 63 S. Ct.
862, 87 L. Ed. 1313 (1943); Schneider v. State
(Town of Irvington), 308 U.S. 147, 164-165, 60
S. Ct. 146, 84 L. Ed. 155 (1939), and live entertain-
ment, Schad v. Mount Ephraim, 452 U.S. 61, 75-76,
101 S. Ct. 2176, 68 L. Ed. 2d 671
(1981). . . . Although prohibitions foreclosing entire
media may be completely free of content or view-
point discrimination, the danger they pose to the
freedom of speech is readily apparent—by eliminat-
ing a common means of speaking, such measures
can suppress too much speech.
Id.
[11] The COAA does not ban all signs, or even nearly all
signs, but only off premises, commercial billboards. Mal-
donado remains free to post any non-commercial messages or
to post onsite advertising on his billboard. This regulation is
substantially less restrictive than any the Supreme Court has
struck down under the suppression doctrine. We have upheld
similar restrictions in the past and did so just last month. See,
e.g., Metro Lights v. City of Los Angeles, 551 F.3d 898, 914
(9th Cir. 2009). Therefore, Maldonado’s suppression doctrine
claim fails.
C. PRIOR RESTRAINT
Under California law, violations of the COAA are public
nuisances that may be enjoined by the courts. Cal. Bus. &
2162 MALDONADO v. KEMPTON
Prof. Code § 5461. Maldonado argues that the state court
injunction barring him from continuing to violate the COAA
constitutes an unconstitutional prior restraint on speech. The
fact that the COAA allows such prior restraints, he claims,
renders it unconstitutional.
[12] That the statute allows injunctions against speech does
not itself render the COAA unconstitutional—“[n]ot all
injunctions that may incidentally affect expression . . . are
prior restraints.” Madsen v. Women’s Health Center, Inc., 512
U.S. 753, 763 n.2 (1994) (citations omitted). Content-neutral
injunctions that do not bar all avenues of expression are not
treated as prior restraints. Id.
[13] The content-neutral injunction against Maldonado is a
pointed one—it bars him from violating the COAA, namely
posting offsite advertising on his billboard. Maldonado, 86
Cal. App. 4th at 1234; see also Metro Lights, 551 F.3d at 912
(holding that a similar ordinance barring offsite commercial
advertising but permitting non-commercial and onsite com-
mercial advertising is “not by its terms a content-based regu-
lation”). The injunction does not limit his onsite advertising.
Nor does it bar him from posting non-commercial messages.
The injunction merely means “he may not use his billboard to
direct travelers to businesses that are not located [on his prem-
ises].” Maldonado, 86 Cal. App. 4th at 1234-35. In effect, the
injunction does no more than provide court-ordered compli-
ance with the statute.
The fact that the restriction is not a prior restraint does not
end the inquiry. Injunctions are subject to a higher level of
scrutiny than generally applicable laws:
There are obvious differences, however, between an
injunction and a generally applicable ordinance.
Ordinances represent a legislative choice regarding
the promotion of particular societal interests. Injunc-
tions, by contrast, are remedies imposed for viola-
MALDONADO v. KEMPTON 2163
tions (or threatened violations) of a legislative or
judicial decree.
Madsen, 512 U.S. at 764. Because of these differences
between injunctions and generally applicable ordinances, the
Supreme Court has counseled that “a somewhat more strin-
gent application of general First Amendment principles”
should be used to review injunctions. Id. at 765.
[14] In Madsen, the Court held that the appropriate test for
content-neutral injunctions was “whether the challenged pro-
visions of the injunction burden no more speech than neces-
sary to serve a significant government interest.” Id. at 765.
Madsen involved non-commercial speech by anti-abortion
protestors, whereas Maldonado has engaged in less protected
commercial speech. Whether Madsen’s stricter test for evalu-
ating an injunction applies equally to an injunction regulating
commercial speech is a distinction not addressed by the Court.
See generally Central Hudson Gas & Elec. Corp. v. Public
Serv. Comm’n, 447 U.S. 557, 562-63 (1980) (“The Constitu-
tion . . . accords a lesser protection to commercial speech than
to other constitutionally guaranteed expression.”) (citations
omitted). However, we need not reach that issue because even
under the Madsen test, the injunction is constitutional.
[15] California’s interest in improving aesthetics and safety
along its highways is significant. Metromedia, 453 U.S. at
511. Maldonado repeatedly violated the ban on offsite adver-
tising, prompting the state’s efforts to enjoin him from further
violations. The injunction only bars Maldonado from engag-
ing in conduct that is itself illegal, a narrower limit than that
upheld in Madsen, which involved a 36-foot no-protest buffer
zone around an abortion clinic. Madsen, 512 U.S. at 769-70.
Because the injunction bars only further violations of the
same, constitutionally valid law that Maldonado previously
violated, it “burdens no more speech than necessary to accom-
plish” the government’s interest in curtailing billboard adver-
tising. See id. at 754.
2164 MALDONADO v. KEMPTON
D. EQUAL PROTECTION
The COAA exempts billboards that were already in place
in 1967. Cal. Bus. & Prof. Code § 5364. Maldonado argues
that this exception violates equal protection because it permits
some speakers to maintain billboards with offsite commercial
advertising while barring him from doing so. Further, he
claims that because speech is involved, the grandfathering
clause is subject to strict scrutiny.
We have previously held that strict scrutiny under the
Equal Protection Clause is inappropriate where a law regulat-
ing speech is content-neutral, even where the speech at issue
was non-commercial. Jones Intercable of San Diego, Inc. v.
City of Chula Vista, 80 F.3d 320, 327 (9th Cir. 1996) (citing
Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 655
(1994)). The grandfathering clause of the COAA must sur-
vive, at most, an intermediate level of scrutiny. See Jones
Intercable, 80 F.3d at 327.
[16] The state’s interest is substantial and easily passes the
necessary scrutiny to overcome this equal protection chal-
lenge. The district court noted that banning new offsite bill-
boards but allowing legal nonconforming billboards to remain
“furthers the State’s significant interest in reducing blight and
increasing traffic safety,” even if all billboards are not elimi-
nated. The state government also has a strong financial inter-
est in allowing the grandfathered billboards to stay. Without
the exemption, the state would have to pay just compensation
to the billboard owners or risk losing the state’s full allotment
of federal highway money. See 23 U.S.C. § 131. Maldonado’s
complaint against grandfathering also overlooks an important
point—when he purchased the property in the early 1990s, the
offsite ban had been in effect for more than twenty years. His
sign was never legally permitted or maintained, so he is not
similarly situated to the grandfathered landowners. Maldona-
MALDONADO v. KEMPTON 2165
do’s equal protection challenge to the grandfathering provi-
sion fails.4
[17] Dismissed as moot with respect to Maldonado’s chal-
lenges to the district court’s injunction and affirmed as to the
district court’s grant of summary judgment on the remaining
claims.
DISMISSED IN PART; AFFIRMED IN PART.
4
Except to the extent that it is subsumed in his equal protection argu-
ment, we decline to address Maldonado’s passing references to “spot zon-
ing.” Arguments made in passing and inadequately briefed are waived.
Halicki Films, L.L.C. v. Sanderson Sales & Mktg., 547 F.3d 1213, 1229-
30 (9th Cir. 2008).