G.K. Ltd. Travel v. City of Lake Oswego ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
G.K. LTD. TRAVEL, an Oregon 
corporation; WH GILLISON;
RAMSAY SIGNS, INC., an Oregon
No. 04-35416
corporation; KATHLEEN KUSUDO,
Plaintiffs-Appellants,
 D.C. No.
CV-02-01147-GMK
v.
OPINION
CITY OF LAKE OSWEGO; SANDY
INGALLS,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Argued and Submitted
September 15, 2005—Portland, Oregon
Filed January 26, 2006
Before: Raymond C. Fisher, Ronald M. Gould and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Fisher
1097
G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO 1101
COUNSEL
John F. Winston (argued), Sherwood, Oregon, and Douglas
M. Bragg, Tualatin, Oregon, for the plaintiffs-appellants.
Timothy J. Sercombe (argued) and Carra L. Sahler, Preston,
Gates & Ellis, LLP, Portland, Oregon, for the defendants-
appellees.
OPINION
FISHER, Circuit Judge:
Plaintiffs-appellants (“plaintiffs”) are the owners of a pole
sign used to advertise their travel business in the City of Lake
Oswego (“City”).1 With the stated purpose to reduce visual
1
A pole sign is defined as a “free standing sign erected on one or more
supports which are more than 30 inches above the adjacent ground sur-
face.” Lake Oswego Sign Code (“LOC”) § 47.03.015.
1102 G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO
blight and protect traffic and traveler safety, the City has
enacted a sign code ordinance (“Sign Code” or “Code”) regu-
lating the type, size and design of all signs erected within its
borders. The Sign Code prevents plaintiffs from continuing to
use their pole sign, because that form of sign is severely
restricted. Plaintiffs challenge the constitutionality of the Sign
Code, raising multiple as-applied and facial claims. The dis-
trict court granted summary judgment to the City, in large
part, and plaintiffs appeal. We have jurisdiction pursuant to
28 U.S.C. § 1291, and affirm.
I. Background
A. Plaintiffs’ Pole Sign
Plaintiff Ramsay Signs, Inc. (“Ramsay”) owns a 42.5-
square-foot pole sign that has been used since 1980 in Lake
Oswego. Ramsay leased its pole sign to Journeys! of Lake
Oswego (“Journeys!”) in 1996 for the purpose of advertising
the Journeys! travel business. In February 2001, plaintiff G.K.
Ltd. Travel (“G.K.”) purchased Journeys! along with the pole
sign lease and instructed Ramsay to change the copy of the
pole sign to advertise G.K.’s travel business. Ramsay accord-
ingly changed the text on the sign from “Journeys! of Lake
Oswego, Formerly Apollo Travel” to “G.K. Ltd. Travel
Groups Tours Cruises Complete Travel Services Domestic &
International.” The City’s Code Enforcement Specialist,
Sandy Ingalls, notified the plaintiffs that because they were
changing the copy on their pole sign as a new business, the
sign had to conform with the Sign Code. Conformity, in this
case, meant removing the sign altogether because the Sign
Code prohibits pole signs in Lake Oswego unless statutorily
defined special circumstances exist, none of which were
applicable to plaintiffs. See LOC § 47.04.100(1).2
2
Section 47.04.100(1) provides,
A non-conforming sign in all zones other than the EC zone as
described and established by the Lake Oswego Zoning Code may
G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO 1103
Plaintiffs sought and were denied a permit to change their
pole sign’s text without having to remove the sign itself. The
City eventually cited plaintiffs for violating the Sign Code
and insisted that plaintiffs remove the pole sign. Plaintiffs
then sought a variance for their sign, but this too was denied
by the City Planning Director. Plaintiffs appealed the variance
denial to the City Development Review Commission and the
City Council, both of which affirmed the Planning Director.
Plaintiffs then filed suit in federal district court.
Plaintiffs insist that their pole sign is a cheap, effective and
significant means of attracting clients and, without the sign,
plaintiffs will lose a substantial amount of income. Plaintiffs
seek to have the Sign Code declared unconstitutional.
B. The Sign Code
As stated in a memorandum of the City of Lake Oswego’s
Department of Planning and Development, the Sign Code is
the City’s response to a State of Oregon instruction to cities
and counties to adopt comprehensive land use plans with the
aim of “encourag[ing] design of public and private facilities
and structures which enhance community beauty.” See Or.
Rev. Stat. § 197.175(2)(a). In 1994 the City passed the current
version of the Sign Code in order to cure earlier perceived
constitutional defects. By regulating all signs in the City, the
Sign Code seeks, among other things, to reduce visual clutter,
preserve the City’s aesthetics and protect traffic and traveler
safety. See LOC § 47.03.010 (“The City Council finds that to
protect the health, safety, property and welfare of the public,
to provide the neat, clean, orderly and attractive appearance
of the community . . . .”). In developing and amending the
be maintained or undergo a change of copy without complying
with the requirements of this chapter, with the exception that any
change for a new business or use or any changes in a wall sign
which is painted on a structure will comply with this chapter at
such time as change in copy or alteration occurs.
1104 G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO
Sign Code, the City’s Planning Commission conducted public
hearings, considered the success other cities had experienced
with their own sign codes and reviewed an Urban Land Insti-
tute study on signage and communities. Notably, during
Council deliberations concerning the Sign Code, businesses
presented recommendations to the City, many of which were
incorporated.
The Council’s consultative process culminated in the cur-
rent Code, which limits the number and type of signs permit-
ted in the City. The Code lays out specifications for all signs
and, importantly for plaintiffs, generally prohibits pole signs.
The Code is not triggered for the many preexisting signs in
most of the City’s zones until a new business or use requires
a change in copy of the sign or the sign is altered.3 LOC
§ 47.04.100 (the “grandfather clause”). However, pole signs
had to conform to the Sign Code by May 21, 2004; in other
words, almost all pole signs in Lake Oswego were to have
been removed by this date. See G.K. Ltd. Travel v. City of
Lake Oswego, 2004 U.S. Dist. LEXIS 6984 at *3 (D. Or. Mar.
29, 2004) (“G.K. Ltd. Travel I”). In addition to regulating the
dimensions and characteristics of all signs in the City, the
Code includes a permit and design review process that
requires those seeking to erect a sign to allow City officials
to review the sign for readability, clarity and compatibility.
LOC §§ 47.10.400, 47.06.200(4), 47.06.200(5). If a permit is
denied, the permit-seeker may appeal to the City Develop-
ment Review Commission and ultimately to the City Council.
The Code also contains exemptions from the City’s permitting
process. If an exemption applies, the sign still must “comply
with all provisions and regulations of [the Code],” but a per-
mit is not required prior to installation. LOC §§ 47.06.205,
47.08.300. Specifically, the Code exempts “[p]ublic signs,
3
A “change of copy” is defined as “the change of logo and/or message
upon the face or faces of a legal sign.” LOC § 47.03.015. “Alter” is
defined as “[a]ny change to a sign excluding change of copy or mainte-
nance — when there is no change of use, or occupancy or ownership.” Id.
G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO 1105
signs for hospital or emergency services, legal notices, rail-
road signs and danger signs” from the permitting process.
LOC § 47.06.205(4). The Code also exempts temporary signs
from the permitting requirement so long as the temporary sign
goes up within a specified time period triggered by the occur-
rence of an enumerated event, such as an election or the sale,
lease or rental of property.4 See, e.g., LOC § 47.08.300(B)(1).
Finally, the Code incorporates a variance procedure to ease
the burden of the Code’s application in some cases. LOC
§ 47.12.500.
C. Plaintiffs’ Claims
Focusing on the Sign Code’s restrictions on pole signs,
plaintiffs raise two as-applied challenges to the Code claiming
that the Code’s size and type limitations and the Code’s
grandfather clause unconstitutionally regulate plaintiffs’
speech on the basis of content. Plaintiffs want these provi-
sions stricken from the Sign Code and suggest that without
these provisions, the balance of the Sign Code should be ren-
dered unenforceable. Plaintiffs further claim that the ban on
pole signs is an unconstitutional ban on a protected medium
of speech as applied to the plaintiffs, because pole signs are
“a unique form of communication.”
Plaintiffs also attack the Sign Code by way of several facial
challenges, asserting that they are entitled to declaratory,
injunctive and monetary relief. Plaintiffs argue that the Code,
particularly its exemptions from the permitting process, its
grandfather clause and its design review process allowing
officials to read signs for clarity and readability, represents a
facially unconstitutional regulation of noncommercial and
4
Temporary sign is defined as “[a]ny sign, banner, pennant, valance or
advertising display constructed of cloth, canvas, light fabric, cardboard,
wallboard or other like materials, with or without frames, and any other
type sign not permanently attached to the ground, or a structure, intended
to be displayed for a short period of time only.” LOC § 47.03.015.
1106 G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO
commercial speech based on content or viewpoint, or alterna-
tively represents an unreasonable time, place or manner regu-
lation. They also challenge the Code as a facially
unconstitutional preference for commercial over noncommer-
cial speech because of the treatment of temporary signs in res-
idential zones. LOC § 47.08.300(B). Finally, plaintiffs claim
the permitting scheme (including the design review provision
of the Code), LOC §§ 47.10.400, 47.06.200(4), is an unlawful
prior restraint on speech and unconstitutionally vague.5
D. District Court Disposition
The district court, in large part, granted summary judgment
for the City. In ruling on the content neutrality of the Sign
Code, the district court meticulously reviewed provisions of
the Code challenged by plaintiffs as content based. The dis-
trict court determined that the vast majority of the provisions
were content neutral, but found that a limited portion of the
Code was content based. Specifically, citing Desert Outdoor
Adver. v. City of Moreno Valley, 103 F.3d 814, 820 (9th Cir.
1996), the district court found content based the exemptions
from the permit requirements for danger signs, official notices
and “no solicitation” signs, LOC §§ 47.06.205(4),
47.06.205(10). It also found content based the allowance,
without a permit, of temporary signs in commercial or indus-
trial zones for charitable fundraising events, LOC
§ 47.08.300(B)(2)(c), because the court found it represented
the City’s preference for a certain message. The district court
ordered these subsections stricken from the Sign Code, but
found the Code otherwise constitutional. G.K. Ltd. Travel I,
2004 U.S. Dist. LEXIS 6984 at *24, 48. The City does not
appeal these rulings. The district court also granted summary
judgment to the City on the plaintiffs’ as-applied claims.
5
In district court, plaintiffs also raised equal protection and takings
arguments. The district court granted summary judgment for the City on
these claims and plaintiffs do not appeal.
G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO 1107
We review de novo the constitutionality of a local ordi-
nance. See RUI One Corp. v. City of Berkeley, 371 F.3d 1137,
1141 (9th Cir. 2004). We focus, primarily, on plaintiffs’ chal-
lenge to the pole sign regulations and plaintiffs’ facial chal-
lenges to the Sign Code summarized above. More
specifically, we address five issues: (1) whether the Sign
Code’s regulation of pole signs is constitutional; (2) whether
the Sign Code otherwise is a constitutional, content-neutral
time, place or manner restriction on speech; (3) whether the
Sign Code’s regulation of temporary signs in residential zones
indicates an impermissible preference for commercial over
noncommercial speech; (4) whether the Sign Code’s permit-
ting scheme is an unconstitutional prior restraint; and (5)
whether the Sign Code, and specifically its design review
clause allowing City officials to review signs for “compatibil-
ity,” is unconstitutionally vague. In all respects, we hold the
Sign Code a constitutional and permissible government regu-
lation.
II. Pole Sign Regulation
The Code restricts the availability of pole signs as a carrier
of communication in the City. See, e.g., LOC §§ 47.04.100,
47.04.102, 47.10.405(1)(D), 47.10.410(1)(D). However,
pole signs are permissible in the City’s general commer-
cial zones “when necessary to provide vision clearance at
driveways or intersections and when there is no alternative,
visible on-building or monument sign location.” LOC
§ 47.10.410(1)(D). Plaintiffs urge that because the Sign Code
bans their pole sign, it is an unconstitutional regulation of
plaintiffs’ speech and that the Code impermissibly bans a pro-
tected medium of expression in violation of City of Ladue v.
Gilleo, 512 U.S. 43, 54 (1994) (holding unconstitutional a
city’s ban on all residential signs, because they are a “venera-
ble means of communication that is both unique and impor-
tant”).
[1] The “government may impose reasonable restrictions
on the time, place, or manner of engaging in protected speech
1108 G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO
provided that they are adequately justified without reference
to the content of the regulated speech.” City of Cincinnati v.
Discovery Network, Inc., 507 U.S. 410, 428 (1993) (internal
quotation marks and citation omitted). In addition to being
justified without reference to content, the restrictions must be
“narrowly tailored to serve a significant governmental interest
and . . . leave open ample alternative channels for communi-
cation of the information.” Ward v. Rock Against Racism, 491
U.S. 781, 791 (1989) (citing Clark v. Community for Creative
Non-Violence, 468 U.S. 288, 293 (1984)).
A. Justified Without Reference to Content
To pass muster under Ward, the challenged regulation must
first be “justified without reference to the content of the regu-
lated speech.” Id. Our primary concern is determining
whether a regulation of speech was adopted out of disagree-
ment with a message sought to be conveyed. “The govern-
ment’s purpose is the controlling consideration.” Id. However,
we need not engage in a searching inquiry of the legislature’s
motive to determine the government’s purpose. Rather,
“whether a statute is content neutral or content based is some-
thing that can be determined on the face of it; if the statute
describes speech by content then it is content based.” Menotti
v. City of Seattle, 409 F.3d 1113, 1129 (9th Cir. 2005) (citing
City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425,
448 (2002) (Kennedy, J., concurring)) (internal quotation
marks omitted).
[2] The pole sign restriction is not a “law[ ] that by [its]
terms distinguish[es] favored speech from disfavored speech
on the basis of the ideas or views expressed.” Turner Broad.
Sys. v. FCC, 512 U.S. 622, 643 (1994). The Code restricts all
pole signs across the City’s general commercial zones without
creating exceptions for preferred content. Cf. Foti v. City of
Menlo Park, 146 F.3d 629, 636 (9th Cir. 1998). The burdens
imposed by these pole sign restrictions are borne equally by
all of the City’s residents. See Turner Broad. Sys., 512 U.S.
G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO 1109
at 643. Further, plaintiffs offer no evidence suggesting illicit
motive or bias on the part of the City or that the City banned
pole signs in general, or their pole sign in particular, because
of a desire to stifle certain viewpoints. See City Council of Los
Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984).
Plaintiffs argue that the Code’s grandfather clause, LOC
§ 47.04.100, exempting the City’s preexisting signs from
compliance with the Sign Code until there has been a change
in copy or alteration, is content based because it requires City
officers to “read a sign’s message to determine if the sign is
exempted from the ordinance.” Foti, 146 F.3d at 636. It is not
clear, however, that officers merely examining the face of the
sign to determine whether its text or graphics have changed
in a technical sense renders the grandfather provision content
based. Regardless, at this point, we need not determine
whether the grandfather clause as applied to plaintiffs is an
unconstitutional content-based regulation of speech, because
all pole signs, including preexisting, grandfathered ones, were
to be brought into compliance with the Sign Code’s mandates
by May 21, 2004. See GK Ltd. Travel I, 2004 U.S. Dist.
LEXIS 6984 at *3; LOC § 47.04.100(5). Therefore, the ques-
tion of the constitutionality of the grandfather clause as
applied to pole signs is now moot. See Clark v. City of Lake-
wood, 259 F.3d 996, 1011 (9th Cir. 2001) (“[A] case is moot
when the issues presented are no longer ‘live’ or the parties
lack a legally cognizable interest in the outcome.”) (internal
citations omitted).
[3] We conclude that the City’s restriction on plaintiffs’
pole sign is not a content-based regulation of plaintiffs’
speech. We therefore turn to whether the City’s interest in
regulating pole signs is significant, whether the restriction is
narrowly tailored and whether plaintiffs retain ample alterna-
tive channels to communicate their message.
B. Significant Government Interest
[4] Content-neutral time, place or manner restrictions must
advance a significant government interest in order to be con-
1110 G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO
stitutional. See Ward, 491 U.S. at 791. Through the Code’s
statement of purpose, the City asserts numerous interests in
passing its sign regulations, including its pole sign restriction.
Section 47.03.010 states:
The City Council finds that to protect the health,
safety, property and welfare of the public, to provide
the neat, clean, orderly and attractive appearance of
the community, to improve the effectiveness of
signs, to provide for safe construction, location, erec-
tion, and maintenance of signs, to prevent prolifera-
tion of signs and sign clutter, and to minimize
adverse visual safety factors to travelers on public
highways and on private areas open to public travel,
it is necessary to regulate [signs] . . . .
[5] Of the justifications for the Sign Code and its restriction
on pole signs, the two most prominent are the preservation of
the City’s aesthetic quality and the protection of travel safety.
These are oft-invoked objectives with a rich history of judicial
endorsement, and sometimes skepticism. See Foti, 146 F.3d
at 637 n.8. Against the backdrop of numerous decisions of the
Supreme Court and this court, we do not doubt that Lake
Oswego’s interests in its appearance and the safety of the pub-
lic are significant and well established. See Taxpayers for Vin-
cent, 466 U.S. at 807 (“The problem addressed by this
ordinance — the visual assault on the citizens of Los Angeles
presented by an accumulation of signs posted on public prop-
erty — constitutes a significant substantive evil within the
City’s power to prohibit.”); Metromedia, Inc. v. City of San
Diego, 453 U.S. 490, 507 (1981) (“Nor can there be substan-
tial doubt that the twin goals that the ordinance seeks to fur-
ther — traffic safety and the appearance of the city — are
substantial governmental goals.”); Foti, 146 F.3d at 637.
Plaintiffs seem to argue that even if the general interests in
preventing visual blight and ensuring travel safety are signifi-
cant, they are not significant for Lake Oswego because the
G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO 1111
City has neither established that it has a problem with visual
blight or travel safety, nor that the pole sign restriction would
actually advance the City’s asserted interests.6 In the absence
of such evidence, plaintiffs contend, the Sign Code is a consti-
tutionally defective means for advancing any governmental
interest, significant or otherwise.
[6] These arguments are not convincing. As to whether the
City’s interests are actually served by the Sign Code, we gen-
erally defer to the legislative body passing the law in deter-
mining whether the government’s ends are advanced by a
regulation. See City of Lakewood, 259 F.3d at 1015. Further,
the Sign Code, including the pole sign restriction, was the
result of much legislative deliberation, a dynamic dialogue
with the City’s residents and businesses and extensive hear-
ings; these conversations, along with Council reliance on the
experience of other cities, produced strong evidence of the
need for sign restrictions and the form these restrictions
should take.7 This evidence provided the City with legitimate
and relevant bases for advancing its Sign Code and restricting
the availability of pole signs. See Lorillard Tobacco v. Reilly,
533 U.S. 525, 555 (2001) (“We have permitted litigants to
justify speech restrictions by reference to studies and anec-
dotes pertaining to different locales altogether, or even, in a
case applying strict scrutiny, to justify restrictions based
6
Plaintiffs also argue that the City’s willingness to exempt certain, pre-
existing signs from the regulations indicates that the City’s interests are
not substantial. See LOC § 47.04.100. However, the City’s interests are
advanced by substantial reduction in offensive signage even when all such
signs are not immediately removed. “We [do not] require that the Govern-
ment make progress on every front before it can make progress on any
front.” United States v. Edge Broad. Co., 509 U.S. 418, 434 (1993). See
also Moser v. FCC, 46 F.3d 970, 974 (9th Cir. 1995).
7
At one City public hearing, a resident characterized pole signs as a “vi-
sual pollution.” Furthermore, a Department of Planning and Development
memorandum indicates that businesses “approached the City requesting
monument signs to replace pole signs which become less visible as street
trees grow taller.”
1112 G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO
solely on history, consensus, and ‘simple common sense.’ ”);
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51-52
(1986) (“The First Amendment does not require a city, before
enacting such an ordinance, to conduct new studies or pro-
duce evidence independent of that already generated by other
cities, so long as whatever evidence the city relies upon is rea-
sonably believed to be relevant to the problem that the city
addresses.”).
C. Narrowly Tailored
[7] A content-neutral regulation designed to advance signif-
icant government interests must be narrowly tailored to be
constitutional. Narrow tailoring requires that the regulation
actually advance the government’s interests, but it need not do
so in the least restrictive or least intrusive way. See State Uni-
versity of New York v. Fox, 492 U.S. 469, 479 (1989); Ward,
491 U.S. at 799. “So long as the means chosen are not sub-
stantially broader than necessary to achieve the government’s
interest . . . , the regulation will not be invalid simply because
a court concludes that the government’s interest could be ade-
quately served by some less-speech-restrictive alternative.”
Id. at 800.
[8] Plaintiffs argue that the restriction on pole signs is not
narrowly tailored because it goes further than necessary to
achieve the City’s interests in aesthetics and traffic safety. We
do not agree. The Code permissibly and in a narrowly tailored
way limits the prominence of plaintiffs’ advertising sign by
restricting its length and position. See Foti, 146 F.3d at 641
(in holding a sign restriction to be narrowly tailored, we noted
“[t]he restrictions on the size and number of picket signs are
reasonable legislative judgments in light of the City’s concern
for traffic safety.”). Because of their height, pole signs, as
defined by Lake Oswego, can reasonably be perceived by the
City to be aesthetically harmful and distracting to travelers.
See Metromedia, 453 U.S. at 510 (“It is not speculative to rec-
ognize that billboards by their very nature, wherever located
G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO 1113
and however constructed, can be perceived as an ‘esthetic
harm.’ ”). Severely limiting their presence in Lake Oswego
directly serves the City’s purposes. See Taxpayers for Vin-
cent, 466 U.S. at 808 (“By banning these signs, the City did
no more than eliminate the exact source of the evil it sought
to remedy.”). The Sign Code’s pole sign restriction is a nar-
rowly tailored means of achieving the City’s significant inter-
ests.
D. Ample Alternative Channels
[9] Even a narrowly tailored content-neutral regulation
must not foreclose too many channels of expression; there
must be ample alternative opportunities for a speaker to con-
vey his or her message. In our analysis, however, we are cau-
tioned against invalidating government regulations for failing
to leave open ample alternative channels unless the regulation
foreclose[s] “an entire medium of public expression across the
landscape of a particular community or setting.” Colacurcio
v. City of Kent, 163 F.3d 545, 555 (9th Cir. 1998) (citing
Metromedia, 453 U.S. at 525-27 (Brennan, J., concurring)).
[10] Although it restricts the availability of pole signs in the
City, the Code says nothing about other non-sign-based forms
of communication such as handbills, radio, television, news-
paper or telemarketing. See Bland v. Fessler, 88 F.3d 729,
736 (9th Cir. 1996). Even with respect to signage, the Code
itself authorizes wall signs, monument signs, awning and can-
opy signs, blade signs and overhanging signs, allowing plain-
tiffs a “reasonable opportunity” to communicate their
message. See LOC §§ 47.03.015, 47.10.412, 47.10.415,
47.10.420; Menotti, 409 F.3d at 1141 (citing City of Renton,
475 U.S. at 54). In light of these ample alternatives, we can-
not invalidate the Sign Code merely because it restricts plain-
tiffs’ preferred method of communication.8 See Taxpayers for
8
More extensive restrictions banning “a venerable means of communi-
cation that is both unique and important” might be unconstitutional. City
1114 G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO
Vincent, 466 U.S. at 812 (“[T]he First Amendment does not
guarantee the right to employ every conceivable method of
communication at all times and in all places”); Kovacs v.
Cooper, 336 U.S. 77, 88-89 (1949) (“That more people may
be more easily and cheaply reached by sound trucks . . . is not
enough to call forth constitutional protection for what those
charged with public welfare reasonably think is a nuisance
when easy means of publicity are open.”).
[11] In sum, we hold that the Sign Code’s pole sign restric-
tion is justified without reference to the content of the regu-
lated speech, is narrowly tailored to achieve the City’s
significant interests in aesthetics and traffic and traveler safety
and, although it forecloses the availability of pole signs, it
leaves open ample alternative means of communicating the
plaintiffs’ advertising message. The City’s pole sign restric-
tion, as applied to plaintiffs, is constitutional.
III. Content Neutrality of the Remaining
Provisions of the Sign
Plaintiffs next contend that even if the City may properly
regulate and restrict their pole sign, the Code impermissibly
infringes on the First Amendment rights of third parties. At
the outset we note that plaintiffs need not establish standing
of Ladue, 512 U.S. at 54. However, plaintiffs do not prove that pole signs
occupy such a “venerable” position in Lake Oswego. For example, there
is no explanation why plaintiffs consider pole signs to be “unique and
important” in Lake Oswego or that monument or on-building signs would
not effectively serve plaintiffs’ communicative interests. Indeed, other
businesses encouraged the City to have monument signs replace pole
signs. See Taxpayers for Vincent, 466 U.S. at 812 (“Notwithstanding
appellees’ general assertions in their brief concerning the utility of politi-
cal posters, nothing in the findings indicates that the posting of political
posters on public property is a uniquely valuable or important mode of
communication, or that appellees’ ability to communicate effectively is
threatened by ever-increasing restrictions on expression.”). For this rea-
son, plaintiffs’ as-applied challenge to the Sign Code as “banning a medi-
um” also fails.
G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO 1115
prior to bringing this form of facial challenge, which seeks to
invalidate the entire ordinance. See Foti, 146 F.3d at 635
(“The second type of facial challenge is an exception to our
general standing requirements: the plaintiff argues that the
statute is written so broadly that it may inhibit the constitu-
tionally protected speech of third parties, even if his own
speech may be prohibited. A successful challenge to the facial
constitutionality of a law invalidates the law itself.”) (internal
citations omitted). In evaluating plaintiffs’ facial challenge,
we apply the same content-neutrality test articulated in Ward
and addressed more fully above in our discussion of the
Code’s pole sign restriction.
A. Justified Without Reference to Content
Plaintiffs identify several portions of the Code that they
urge us to hold content based. The vast majority of plaintiffs’
identified provisions clearly are not content — or viewpoint
— based. There is no indication either on the face of the ordi-
nance or in the evidence in the record that the City’s purpose
in adopting the Sign Code, and its size and type restrictions,
was to regulate speech on the basis of content. See Madsen v.
Women’s Health Ctr., 512 U.S. 753, 763 (1994) (“We . . .
look to the government’s purpose as the threshold consider-
ation.”); see also City of Ladue, 512 U.S. at 48 (“It is common
ground that governments may regulate the physical character-
istics of signs. . . .”); Foti, 146 F.3d at 640 (“We have upheld
restrictions on the size and aggregate area of signs posted on
private property based on a city’s interests in aesthetics.”)
(internal citations omitted).
Although most of the provisions describe the type and
dimensions of permissible signs, plaintiffs do identify a few
potentially suspect portions of the Code, quoting Foti, 146
F.3d at 636, and asserting that “in this circuit a regulation of
speech is ‘content-based [if] a law enforcement officer must
read a sign’s message to determine if the sign is [regulat-
ed.]’ ” These possibly content-based provisions are: (1) An
1116 G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO
exemption from the permit requirement for public signs, hos-
pital or emergency signs, legal notices, railroad signs and dan-
ger signs, LOC § 47.06.205(4); and for temporary signs
during enumerated events, like elections, LOC § 47.08.300(B)
(1)(a) (during elections, residents are exempt from the permit
requirements otherwise imposed on temporary signs). (2) One
section that grandfathers in old, nonconforming signs but
requires these signs to conform with the regulations when the
sign is altered. LOC §§ 47.04.100, 47.04.102. (3) The design
review provision (incorporated into the Code’s permitting
process) that requires City officials to review signs for clarity
and readability. LOC § 47.06.200(5). We review each provi-
sion below, and hold that neither the Code as a whole nor
these provisions in particular regulate speech on the basis of
content. Therefore, the Sign Code is content neutral.
1. Exemptions of Certain Signs from the Permit
Requirement
a. Speaker-based exemptions9
Section 47.06.205(4) provides, “public signs, signs for hos-
pital or emergency services, legal notices, railroad signs and
danger signs” must comply with the Sign Code, but need not
be subject to the City’s permit and fee process. Plaintiffs
insist that the limited exemptions of section 47.06.205(4) ren-
der the Sign Code content based because the City is express-
ing a preference for certain types of speech. We disagree.
[12] The City interprets these provisions as providing
exemptions to certain speakers and not to particular content.
9
We do not understand plaintiffs as challenging the speaker-based
exemptions of LOC § 47.06.205(4) on equal protection grounds. Cf. Foti,
146 F.3d at 637-38 (refusing to address whether a picketing and sign ordi-
nance that granted an exemption for government speech violated equal
protection because plaintiffs failed to present these arguments to the dis-
trict court).
G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO 1117
See G.K. Ltd. Travel I, 2004 U.S. Dist. LEXIS 6984 at *16;
see also LOC § 47.03.015 (defining public signs as “a sign
erected and maintained by a public agency within the right-of-
way of a street or alley”). Like the district court, we hold this
construction to be reasonable.10
The Supreme Court in Turner Broad. Sys., Inc. v. FCC
stated
[S]peaker-based laws demand strict scrutiny when
they reflect the Government’s preference for the sub-
stance of what the favored speakers have to say (or
aversion to what the disfavored speakers have to say)
. . . . [L]aws favoring some speakers over others
demand strict scrutiny when the legislature’s speaker
preference reflects a content preference.
512 U.S. at 658. In this case, the Sign Code reflects the City’s
preference for not subjecting certain entities — public agen-
cies, hospitals and railroad companies — to the requirements
of the permitting and fee scheme.11 The exemptions are purely
10
In evaluating § 47.06.205(4) of the Sign Code, the district court found
that exempting legal notices and danger signs from the permit and fee
requirements of the Code was constitutionally impermissible. The district
court reasoned that there are no obvious owners for legal notices or dan-
ger signs (as opposed to hospital or railroad signs) and the City’s limiting
construction was therefore inapplicable. The court ordered these subsec-
tions severed from the ordinance, relying on Desert Outdoor Adver. where
we concluded that exemptions in a sign ordinance for “official notices”
and “warning” signs were content based. See G.K. Ltd. Travel I, 2004 U.S.
Dist. LEXIS 6984 at *18 (citing Desert Outdoor Adver., 103 F.3d at 820).
The City has not appealed the district court’s ruling and we do not rule on
the constitutionality of the severed exemptions.
11
We have previously questioned the constitutionality of a “wholesale
exemption for government speech,” but we do not read Lake Oswego’s
Sign Code to provide such an exemption. See Foti, 146 F.3d at 637.
Rather, the public agency exemption applies only to the permitting
scheme; public agencies are otherwise required to follow the substantive
requirements of the Sign Code. See LOC § 47.06.205 (“The following
1118 G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO
speaker based according to the City’s reasonable construction
of the provision and say nothing of the City’s preference for
the content of these speakers’ messages, nor do they allow the
City to discriminate against disfavored speech. That is, plain-
tiffs have not shown that the City preferred the substance of
railroad company messages, for instance, over travel agency
messages and therefore exempted the railroad companies
from the permitting process. See One World One Family Now
v. City & County of Honolulu, 76 F.3d 1009, 1012 n.5 (9th
Cir. 1996) (“Because [the] exemptions don’t enable the city
to discriminate against ideas it disfavors, they don’t render the
ordinance content-based.”). Moreover, these institutional
speakers are still subject to the mandates of the Sign Code
concerning the type, number and characteristics of signs that
are permissible in the City; it is just that certain speakers need
not obtain permits (and pay the associated fee) before posting
their signs. That the law affects plaintiffs more than other
speakers does not, in itself, make the law content based. See
Ward, 491 U.S. at 791 (“A regulation that serves purposes
unrelated to the content of expression is deemed neutral, even
if it has an incidental effect on some speakers or messages but
not others.”).
b. Event-based exemptions
[13] Likewise, the permit exemption for temporary signs in
residential zones is not content based. Indeed, the provision
creating this exemption explicitly demands content neutrality.
See LOC § 47.08.300(B)(1) (“In any residential zone tempo-
rary signage shall be allowed for each and every lot. This
signage shall not be restricted by content, but is usually and
signs shall comply with all provisions and regulations of this chapter;
However [sic], no fee, permit or application is required.”). Furthermore,
the exemption here for public signs is more narrowly drawn because the
Code exempts only those signs “erected and maintained by a public
agency within the right-of-way of a street or alley.” LOC § 47.03.015.
G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO 1119
customarily used to advertise real estate sales, political or
ideological positions, garage sales, home construction or
remodeling, etc.”) (emphasis added). Section 47.08.300(B)
imposes only temporal and size restrictions on temporary
signs. For example, homeowners may erect a temporary sign
concerning any topic whatsoever on their property without a
permit so long as that sign goes up not more than 90 days
prior to an election, stays up not more than five days follow-
ing the election and is no larger than six square feet. See LOC
§ 47.08.300(B)(1)(a). Likewise, a homeowner may put up
“[o]ne temporary sign not exceeding six square feet provided
the sign is removed within fifteen days from the sale, lease or
rental of the property or within seven days of completion of
any construction or remodeling.” LOC § 47.08.300(B)(1)(b).
Such exemptions indicate the City’s recognition that during
certain times, more speech is demanded by the citizenry
because of the event (e.g., a real estate transaction or election)
but the City does not limit the substance of this speech in any
way. The exemption for temporary signs does not manifest
the City’s desire to prefer certain types of speech or regulate
signage by its content. Therefore, this exemption, too, is con-
tent neutral.
Neither the speaker- nor event-based exemptions implicate
Foti insofar as neither requires law enforcement officers to
“read a sign’s message to determine if the sign is exempted
from the ordinance.” Foti, 146 F.3d at 636. In the speaker cat-
egory, officers decide whether an exemption applies by iden-
tifying the entity speaking through the sign without regard for
the actual substance of the message. In the case of event-
based exemptions to the permitting process, the officer must
determine only whether a specific triggering event has
occurred and if the temporary sign has been erected within the
specified time frame. Plainly, the City anticipates that signs
will relate to the triggering event, but the ordinance, by its
own terms, does not mandate the temporary sign comply with
content restrictions. Although it may seem “bizarre” to plain-
tiffs to read the ordinance as allowing temporary signs,
1120 G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO
regardless of content, during certain events, this is precisely
what the ordinance says and it reveals the extent the City is
willing to go to avoid content-based restrictions on expres-
sion. See G.K. Ltd. Travel I, 2004 U.S. Dist. LEXIS 6984 at
*21.
2. Grandfather clause
Plaintiffs argue that the Sign Code’s grandfather clause,
LOC § 47.04.100(1), is content based under Foti because, in
order to evaluate whether the pre-existing sign must now con-
form to the Code, the City official must “read [the] sign’s
message” and determine whether there has been a “change of
logo and/or message upon the face” of the sign or if the sign
has otherwise been altered.12 See Foti, 146 F.3d at 636; LOC
§ 47.03.015 (defining “change of copy”). Plaintiffs attempt to
broaden Foti to stand for the proposition that any time an
ordinance requires a law enforcement officer to read a sign,
the ordinance must be content based. We reject such an
expansive reading. The Foti test actually turns on “whether
the ordinance singles out certain speech for differential treat-
ment based on the idea expressed,” id. at 636 n.7; enforce-
ment officials having to read a sign is persuasive evidence of
such a purpose but may not always be dispositive.
In Foti, we evaluated a Menlo Park ordinance banning all
signs on all public property. The law, however, exempted
“open house,” safety, traffic and public information signs.
Relying on our earlier ruling in Desert Outdoor Adver. v. City
of Moreno Valley, 103 F.3d 814, 820 (9th Cir. 1996), we con-
cluded that these exemptions were content based “because a
law enforcement officer must read a sign’s message to deter-
mine if the sign is exempted from the ordinance.” Foti, 146
F.3d at 636. Menlo Park was clearly expressing a preference
12
In regards to pole signs, the Code’s grandfather clause lapsed as of
May 21, 2004. See LOC § 47.04.100(5). In regards to other types of signs,
however, the grandfather clause remains in force.
G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO 1121
for certain types of signs by exempting them from the city’s
general prohibition. The only way to determine if a sign was
the type qualified to receive Menlo Park’s favorable treatment
was to evaluate the content and substantive message of the
sign.
[14] Unlike in Menlo Park, here, City officials have to read
signs only to determine whether the text of the sign or a logo
on the sign has changed — i.e., whether it is a verbatim repli-
cation of the original text or an exact duplication of the previ-
ous logo. As the City notes, even those who speak no English
could perform this superficial review function by placing the
former sign next to the new sign and examining the characters
and elements on both. Unlike Foti’s exemptions, the grandfa-
ther clause does not require Lake Oswego officials to evaluate
the substantive message on the preexisting sign and the clause
certainly does not favor speech “based on the idea expressed.”
Id. at 636 n.7. A grandfather provision requiring an officer to
read a sign’s message for no other purpose than to determine
if the text or logo has changed, making the sign now subject
to the City’s regulations, is not content based. See Hill v. Col-
orado, 530 U.S. 703, 720 (2000) (“We have never held, or
suggested, that it is improper to look at the content of an oral
or written statement in order to determine whether a rule of
law applies to a course of conduct.”).
3. Design review provision
[15] Section 47.06.200(5) allows City officials, during the
permitting process, to review signs for “clarity and readabili-
ty.” Plaintiffs suggest that this provision allows City officials
to prefer certain speech and regulate all messages on the basis
of content. The City counters by offering a limiting construc-
tion, asserting that clarity and readability refer only to legibil-
ity and not intelligibility. G.K. Ltd. Travel I, 2004 U.S. Dist.
LEXIS 6984 at *22. Without the City’s construction, the pro-
vision would be suspect; however, we consider the City’s lim-
iting construction reasonable. See Village of Hoffman Estates
1122 G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO
v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n.5
(1982) (“In evaluating a facial challenge to a state law, a fed-
eral court must, of course, consider any limiting construction
that a state court or enforcement agency has proffered.”).
Review for legibility entails, for example, an official reading
a sign to ensure that its text is visible from streets so as not
to distract passing motorists. Legibility review does not allow
the City to regulate the substance of the message contained in
a sign. We hold that the design review provision, as limited
by the City’s construction, is content neutral.
B. Remaining Ward Factors
1. Significant interest
[16] The Sign Code, in total, is a content-neutral regulation
of speech. We must still determine whether the Code is nar-
rowly tailored to achieve significant government interests and
leaves open ample alternative channels for communication.
As explained in our discussion of the pole sign regulation,
part II.B supra, the City’s interests in regulating speech to
preserve aesthetics and protect traffic and traveler safety are
significant.
2. Narrow tailoring
[17] We have already concluded that the pole sign restric-
tion is narrowly tailored and similarly conclude that the
remainder of the Sign Code’s regulations are narrowly tai-
lored to achieve the City’s significant interests. The City’s
regulations, limiting the type, size and number of signs per-
missible within its borders, are “reasonable legislative judg-
ments in light of the City’s concern[s] . . . .” Foti, 146 F.3d
at 641.13 For example, pole signs and internally illuminated
signs may distract travelers as they are driving down the
13
Further evidence of the City’s desire to tailor the Sign Code is found
in the Code’s variance procedure. City officials may grant a variance so
a party can avoid the strictures of the Code where “[s]trict application of
the [C]ode requirement would deny the applicant a reasonable opportunity
to communicate by sign in a manner similar to like persons or uses
because of an unusual or unique circumstance . . . .” LOC
§ 47.12.500(2)(A).
G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO 1123
City’s streets, posing a hazard to traffic safety. See id. (“A fif-
teen square foot sign carried by a protester on a public side-
walk, when compared to a three square foot sign, may block
drivers’ views of road signs and traffic conditions, intimidate
pedestrians, and obstruct the safe and convenient circulation
of pedestrians on the sidewalk.”) Additionally, the prolifera-
tion of temporary signs in the City’s residential zones may
create visual clutter and otherwise distract from the City’s
neat and orderly appearance. Without these restrictions, it is
difficult to imagine how the City would achieve its goals of
preserving aesthetics and protecting traffic safety. “Here, no
less restrictive means of accomplishing the government’s
objectives is readily apparent.” Bland, 88 F.3d at 736; see
also Ward, 491 U.S. at 799 (“[T]he requirement of narrow
tailoring is satisfied so long as the . . . regulation promotes a
substantial government interest that would be achieved less
effectively absent the regulation.”) (internal citation and quo-
tation marks omitted).
3. Ample alternative channels
[18] In Taxpayers for Vincent, the Supreme Court evalu-
ated a severely restrictive Los Angeles ordinance prohibiting
the posting of signs on public property. 466 U.S. 789 (1984).
The Court upheld this prohibition as a valid, content-neutral
time, place or manner restriction. In its discussion of the
availability of ample alternative channels for communication,
the Court noted,
The Los Angeles ordinance does not affect any indi-
vidual’s freedom to exercise the right to speak and
to distribute literature in the same place where the
posting of signs on public property is prohibited. To
the extent that the posting of signs on public prop-
erty has advantages over these forms of expression,
there is no reason to believe that these same advan-
tages cannot be obtained through other means. To
the contrary, the findings of the District Court indi-
1124 G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO
cate that there are ample alternative modes of com-
munication in Los Angeles. Notwithstanding
appellees’ general assertions in their brief concern-
ing the utility of political posters, nothing in the
findings indicates that the posting of political posters
on public property is a uniquely valuable or impor-
tant mode of communication, or that appellees’ abil-
ity to communicate effectively is threatened by ever-
increasing restrictions on expression.
Id. at 812 (internal citation omitted). Similarly, the Sign Code,
although significantly restricting pole signs and regulating the
type and manner of other signs, does not threaten the ability
of Lake Oswego residents to “communicate effectively.” Res-
idents of the City may resort to any number of alternative
channels for communication; indeed, the Code does not pro-
hibit residents from communicating through signs so long as
those signs otherwise comply with the Code’s restrictions.14
[19] We hold that the Sign Code is a valid content-neutral
restriction on the time, place or manner of speech, narrowly
tailored to serve the City’s significant interests without imper-
missibly limiting the alternative channels for communication.
“[T]he ordinance does not create an unacceptable threat to the
‘profound national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide-open.’ ”
Id. at 817 (citing New York Times Co. v. Sullivan, 376 U.S.
254, 270 (1964)).
IV. Commercial/Noncommercial Speech Distinction
[20] “[A]n ordinance is invalid if it imposes greater restric-
tions on noncommercial than on commercial billboards or
14
Several sections of the Code list allowable signs (subject to the City’s
permitting process), including, in various zones, blade, cornice, awning,
monument, window and canopy signs. See LOC §§ 47.10.410(D),
47.10.412(1), 47.10.415, 47.10.420.
G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO 1125
regulates noncommercial billboards based on their content.”
Nat’l Adver. Co. v. City of Orange, 861 F.2d 246, 248 (9th
Cir. 1988) (citing Metromedia, 453 U.S. at 513, 516). Plain-
tiffs claim that various subsections of section 47.08.300, regu-
lating temporary signs in residential zones, violate
Metromedia’s rule. Section 47.08.300 contains a list of events
(e.g., an election or the sale, lease or rental of a property), the
occurrence of which allows a resident to erect a temporary
sign, not exceeding listed dimensions, for a limited time
period. The City states that temporary signs need not concern
a specific, enumerated topic, such as the sale of property, but
can be about any subject matter so long as the sign is dis-
played during the relevant time period and is within the
Code’s size limits.
[21] The sections challenged do not indicate the City’s
preference for commercial speech nor do they regulate based
on the content of speech. See LOC § 47.08.300(B)(1) (“This
signage shall not be restricted by content . . . .”). Rather, the
regulations exempt signs from the Code’s permit requirement
during certain events. For example, 90 days prior to an elec-
tion and five days afterwards, a resident may erect a tempo-
rary sign not exceeding six square feet without a permit.
§ 47.08.300 (B)(1)(a). The City insists that the temporary sign
could contain a purely commercial message so long as it
meets the Code’s temporal and size limitations. The district
court was convinced by the City’s argument, stating, “it is a
fair reading of the provisions and demonstrates the lengths to
which the City has gone to regulate signs without doing so on
the basis of content.” G.K. Ltd. Travel I, 2004 U.S. Dist.
LEXIS 6984 at *21. The fact that no officer must read the
temporary sign’s message to determine if it falls into the
Code’s permit exemption further evidences the content neu-
trality of the temporary sign provision. See Nat’l Adver. Co.,
861 F.2d at 248.
[22] We are similarly convinced that section 47.08.300
does not impermissibly favor commercial over noncommer-
1126 G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO
cial messages, nor does it regulate noncommercial messages
on the basis of content. Where, as here, the Code is “neutral
with respect to noncommercial messages,” the Metromedia
concern about cities distinguishing between myriad communi-
cative interests is not implicated. Clear Channel Outdoor, Inc.
v. City of Los Angeles, 340 F.3d 810, 814 (9th Cir. 2003); see
also Metromedia, 453 U.S. at 514.
V. Prior Restraint
Plaintiffs contend that the permitting requirement of section
47.10.400 is an unconstitutional prior restraint on speech.
That section provides:
It is unlawful and a civil violation for any person to
erect, construct, alter or relocate any sign without
first obtaining a permit pursuant to the provisions of
this chapter unless a provision of this chapter specifi-
cally exempts a sign from the permit requirement.
LOC § 47.10.400(1). The City acknowledges that the review
authorized by the permitting scheme authorizes “some discre-
tion,” but asserts that City officials are not reviewing signs
based on content. Plaintiffs attack the City’s permitting
scheme on two grounds: first, it does not contain adequate
procedural protections for speakers and, second, it gives
unbridled discretion to local law enforcement officials.
A. Procedures
[23] Generally, prior restraints are constitutionally suspect
and may stand only if they are imposed for a short period of
time and provide a process for adequate and swift appeal to
a judicial body. See Freedman v. Maryland, 380 U.S. 51, 57-
59 (1965). In Freedman, the Court evaluated a film review
procedure whereby a state law required a film exhibitor to
submit his film to a censor prior to having it displayed at a
local theater. The Court held that such a review process sur-
G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO 1127
vives constitutional scrutiny only if the system incorporates
“procedural safeguards designed to obviate the dangers of a
censorship system.” Id. at 58. Plaintiffs argue that the Sign
Code does not satisfy the Freedman dictate because the
Code’s permitting scheme fails to contain necessary proce-
dural safeguards such as a process for swift appeal to a judi-
cial body. However, in Thomas v. Chicago Park District, the
Court evaluated a content-neutral licensing scheme that was
challenged under the Freedman prior restraint doctrine and
concluded, “Freedman is inapposite because the licensing
scheme at issue here is not subject-matter censorship but
content-neutral time, place, and manner regulation of the use
of a public forum.” 534 U.S. 316, 322 (2002); accord S. Or.
Barter Fair v. Jackson County, 372 F.3d 1128, 1138 (9th Cir.
2004) (a permitting scheme requiring permits even for private
gatherings did not violate Freedman “because it is content-
neutral, [and therefore] the Act need not contain the proce-
dural safeguards required of content-based regulations.”).
Likewise, because we have held that the Sign Code is content
neutral, the procedural requirements of the prior restraint doc-
trine need not be satisfied. Id. at 1137 (“[N]one of the Freed-
man safeguards are required of content-neutral time, place,
and manner permit schemes.”) (quoting Thomas, 534 U.S. at
320-23).
B. Unbridled Discretion
[24] The prior restraint doctrine requires review of both the
law’s procedural guarantees and the discretion given to law
enforcement officials. Even though content-neutral laws need
not incorporate the strict procedural guarantees of Freedman,
they must avoid placing unbridled discretion in the hands of
government officials. See FW/PBS, Inc. v. City of Dallas, 493
U.S. 215, 225-26 (1990). The requirement of sufficient direc-
tion for City officials seeks to alleviate the threat of content-
based, discriminatory enforcement that arises “[w]here the
licensing official enjoys unduly broad discretion in determin-
ing whether to grant or deny a permit . . . .” Chicago Park
1128 G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO
Dist., 534 U.S. at 323. To avoid impermissible discretion, the
challenged ordinance should “contain adequate standards to
guide the official’s decision and render it subject to effective
judicial review.” Id.
The Code requires most who seek to speak through the
medium of a sign to obtain a permit from a City official. See
LOC § 47.10.400. The plaintiffs argue that this permit pro-
cess, authorizing City officials to review signs for compatibil-
ity, LOC § 47.06.200(4), fails to contain the standards
demanded in Chicago Park District and thus renders the Code
an unlawful prior restraint.15 Plaintiffs believe that there are
few, if any, limits on the discretion of permitting officials so
the officials may reject signs merely because they do not like
the message conveyed or the speaker. We disagree.
The City may deny permits only when the sign does not
comport with the Code’s reasonably specific size and type
criteria or is not compatible with the surrounding environ-
ment. Both reference to the surrounding environment and the
“compatibility” determination are explicitly defined in the
Code. Officials are to look only to the proposed sign’s rela-
tionship “with other nearby signs, other elements of street and
site furniture and with adjacent structures.” Id. In determining
whether the sign is compatible, the Code instructs permitting
officials to consider a limited and objective set of criteria,
namely “form, proportion, scale, color, materials, surface
treatment, overall sign size and the size and style of lettering.”
Id. Additionally, the Code requires that most permit applica-
tions be processed within 14 days of receipt of the applica-
tion, instructs applicants what to include in the application
and allows for appeal to the City Council. See LOC
15
Section 47.06.200(4) provides that signs must “be compatible with
other nearby signs, other elements of street and site furniture and with
adjacent structures. Compatibility shall be determined by the relationships
of the elements of form, proportion, scale, color, materials, surface treat-
ment, overall sign size and the size and style of lettering.”
G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO 1129
§ 47.10.400; see also Chicago Park Dist., 534 U.S. at 324
(favorably noting that the Park District must respond to a per-
mit application within 28 days). General provisions of the
City of Lake Oswego Code also require that the permitting
official state the reasons for his or her decision to either grant
or deny a permit so as to facilitate effective review of the offi-
cial’s determination. See LOC § 50.81.015 (2005) (“Approval
or denial of a [minor development permit] application shall be
accompanied by written findings that explain the criteria and
standards considered relevant to the decision, state the facts
relied upon in rendering the decision and explain the justifica-
tion for the decision based on the criteria, standards and facts
set forth.”); cf. City of Lakewood v. Plain Dealer Pub. Co.,
486 U.S. 750, 769 (1988) (holding unconstitutional a news-
rack permitting ordinance in part because “nothing in the law
as written requires the mayor to do more than make the state-
ment ‘it is not in the public interest’ when denying a permit
application.”). Requiring the articulation of reasons ensures
that the compatibility determination is properly limited in
scope and allows the Sign Code to be “enforceable on
review.” Chicago Park Dist., 534 U.S. at 324; see also S. Or.
Barter Fair, 372 F.3d at 1140 (“These limits objectively con-
strain the governing body’s discretion and allow effective
judicial review.”).
[25] This case is distinguishable from Desert Outdoor
Adver. v. City of Moreno Valley where we invalidated as an
unlawful prior restraint an ordinance requiring residents to
obtain permits prior to installing off-site signs. 103 F.3d at
818-19. The permitting official made determinations upon
finding that the proposed display “will not have a harmful
effect upon the health or welfare of the general public . . . and
will not be detrimental to the aesthetic quality of the commu-
nity or the surrounding land uses.” Id. at 817. In concluding
that the ordinance impermissibly vested unbridled discretion
in the hands of local officials, we stated “[The ordinance]
contains no limits on the authority of City officials to deny a
permit . . . . Moreover, City officials can deny a permit with-
1130 G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO
out offering any evidence to support the conclusion that a par-
ticular structure or sign is detrimental to the community.” Id.
at 819. In Lake Oswego, however, the standard governing
compatibility review is much more specific — “compatibility
shall be determined by the relationship of . . .” — than mere
reference to “the aesthetic quality of the community or sur-
rounding land uses.” And, as already noted, Lake Oswego
permitting officials must explain why the sign is incompatible
and therefore not worthy of a permit. We are satisfied that the
Sign Code contains appropriate standards “cabining the
administrator’s discretion.” S. Or. Barter Fair, 372 F.3d at
1140.
[26] Plaintiffs also complain that the Code’s design review
clause is so subjective that permitting officials are allowed to
censor expression. However, plaintiffs fail to point to any sec-
tion of the Code giving officials the discretion to restrict signs
by content. Plaintiffs are unable to identify a single case of
actual censorship of content by the permitting authority. See
S. Or. Barter Fair, 372 F.3d at 1140 (in rejecting unbridled
discretion claim, we noted, “we lack actual evidence of a pat-
tern of abuse.”); cf. City of Lakewood, 486 U.S. at 758. In
almost all instances, the parties have been able to come to res-
olution regarding the compatibility issues raised by the per-
mitting official.16 Sometimes, as plaintiffs identify, the
dialogue with the City breeds resentment or frustration on the
part of the permit seeker as businesses do not want to negoti-
ate their sign design with the City. Nonetheless, frustration of
those who are regulated by the Sign Code is not sufficient evi-
dence that the regulators are granted unbridled discretion.
Absent evidence of government abuse, we are unwilling to
conclude that the Code operates as an unlawful prior restraint.
“[W]e think that this abuse [of the permitting process] must
be dealt with if and when a pattern of unlawful favoritism
appears, rather than by insisting upon a degree of rigidity that
16
In only one case did an applicant appeal the denial of a permit and this
appeal ended favorably for the applicant.
G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO 1131
is found in few legal arrangements.” Chicago Park Dist., 534
U.S. at 325. See also S. Or. Barter Fair, 372 F.3d at 1139
(“Should abuse occur, it may be remedied adequately through
as-applied challenges like the Fair’s § 1983 claim.”).
The City’s permitting scheme includes standards that “are
reasonably specific and objective, and do not leave the deci-
sion to the whim of the [permitting official].” Chicago Park
Dist., 534 U.S. at 324 (internal citation and quotation marks
omitted). Although the design review criteria are somewhat
elastic and require reasonable discretion to be exercised by
the permitting authority, this alone does not make the Sign
Code an unconstitutional prior restraint. See Ward, 491 U.S.
at 794 (“While these standards are undoubtedly flexible, and
the officials implementing them will exercise considerable
discretion, perfect clarity and precise guidance have never
been required even of regulations that restrict expressive
activity.”).
VI. Vagueness
[27] A government regulation may be unconstitutionally
vague for two reasons. First, the regulation may fail to give
persons of ordinary intelligence adequate notice of what con-
duct is proscribed; second, it may permit or authorize “arbi-
trary and discriminatory enforcement.” Hill v. Colorado, 530
U.S. 703, 732 (2000). “[T]hese vagueness concerns are more
acute when a law implicates First Amendment rights and,
therefore, vagueness scrutiny is more stringent.” Cal. Teach-
ers Ass’n v. State Bd. of Educ., 271 F.3d 1141, 1150 (9th Cir.
2001).
Plaintiffs contend that the Sign Code is unconstitutionally
vague, but fail to point to specific provisions of the Code that
are suspect. They focus most of their energy arguing that the
Code does not notify the citizenry of what conduct is prohib-
ited. To support their claim, plaintiffs again identify state-
1132 G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO
ments from City residents expressing frustration with the
City’s design review policy.
[28] The Sign Code appears quite clearly to describe what
conduct is permitted in the City. The Code provides explicit
sign size and type requirements. See, e.g., LOC §§ 47.04.115,
47.08.300. For example, a business, like G.K., that seeks to
put up a pole sign is adequately aware, through the text of the
Code itself, that it generally may not do so without an exemp-
tion (granted only in limited circumstances), LOC
§ 47.10.410(D), or a variance, LOC § 47.12.500. The Code
states which signs are exempt from permitting. For example,
a resident seeking to place a sign on her property during elec-
tions knows that so long as the sign is within certain dimen-
sions, she may do so without a permit. The Code offers a
thorough and precise list of definitions for the various types
of signs. See LOC § 47.03.015. And the Code requires most
parties to obtain a permit prior to erecting a sign, thereby pre-
venting unexpected citations. Thus, “it is clear what the ordi-
nance, as a whole, prohibits.” Hill, 530 U.S. at 733.
In addition to providing notice of what conduct is punish-
able, the clarity of the Code’s proscriptions avoids the fear of
arbitrary and discriminatory enforcement. City officials may
not punish sign owners simply for displaying a message with
which they disagree — the sign must violate one of the spe-
cific provisions of the Code. Similarly, the City will punish
those who allow temporary signs to remain on their property
more than five days following an election (unless some other
exemption applies). See LOC § 47.08.300(B)(1). City offi-
cials are to enforce the Code as it is written and the City pro-
vides sufficient guidance in the Code’s numerous sections to
avoid “delegat[ing] basic policy matters to policemen, judges,
and juries for resolution on an ad hoc and subjective basis.
. . .” Grayned v. City of Rockford, 408 U.S. 104, 108-09
(1972).
With respect to the Code’s permitting process, which we
have already held is not an invalid prior restraint, there is
G.K. LTD. TRAVEL v. CITY OF LAKE OSWEGO 1133
admittedly an element of subjectivity to the determination of
“compatibility.” LOC § 47.06.200(4). However, this subjec-
tivity, alone, does not render the Code unconstitutionally
vague. The City is not obligated to provide numerical or oth-
erwise technical definitions of the bounds of compatibility.
See Grayned, 408 U.S. at 110 (“Condemned to the use of
words, we can never expect mathematical certainty from our
language.”). Furthermore, the impreciseness of compatibility
is mitigated by the clarity of the rest of the design review sec-
tion directing officials to determine compatibility with refer-
ence to form, color, shape, size, etc. LOC § 47.06.200(4); see
Gammoh v. City of La Habra, 395 F.3d 1114, 1120 (9th Cir.
2005) (“[O]therwise imprecise terms may avoid vagueness
problems when used in combination with terms that provide
sufficient clarity.”).
[29] Plaintiffs would have us invalidate the entire Code
because of the reasonable subjectivity of the design review
process. We will not do so. “Vagueness doctrine cannot be
understood in a manner that prohibits governments from
addressing problems that are difficult to define in objective
terms.” Id. at 1121. See also Cal. Teachers Ass’n, 271 F.3d
at 1151 (“[E]ven when a law implicates First Amendment
rights, the constitution must tolerate a certain amount of
vagueness.”). The Sign Code is not unconstitutionally vague.
The district court’s grant of summary judgment in favor of
the City is AFFIRMED.