James Lombardo v. Bruce Warner, in His Official Capacity as Director of the Oregon Department of Transportation

Opinion by Judge TASHIMA; Dissent by Judge B. FLETCHER

OPINION

James Lombardo appeals the dismissal of his First Amendment and Due Process challenges to the highway billboard provisions of the Oregon Motorist Information Act (“OMIA”). He seeks declaratory and injunctive relief on two grounds: (1) that the OMIA is a content-based regulation that favors commercial over non-commercial speech; and (2) that the OMIA vests unbridled discretion in state officials and lacks necessary procedural safeguards. 1 We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we uphold the OMIA as a content-neutral time, place, and manner restriction.

BACKGROUND

Lombardo initially alleged that the OMIA violated his First Amendment rights by prohibiting him from displaying on his residence a 12-square-foot sign reading “For Peace in the Gulf.” We remanded an earlier appeal in 1999 when Oregon revised the OMIA to permit signs not exceeding 12 square feet. On remand, Lombardo amended his complaint under 42 U.S.C. § 1983 to allege that the OMIA violated his constitutional rights by preventing him from displaying a 32-square-foot sign reading “For Peace in the Gulf.” Defendant moved to dismiss the…

dissenting:

I respectfully dissent. The OMIA allows commercial messages where non-commercial speech is not permitted, draws content-based distinctions among non-commercial billboards and includes an essentially standardless variance procedure. I would reverse the district court’s dismissal of Lombardo’s First Amendment claims because billboard regulations that prefer commercial speech or that apply content-based rules to non-commercial speech are presumptively unconstitutional and because the First Amendment requires licensing schemes to include narrowly-drawn, definite standards capable of meaningful judicial review.

I.

The OMIA imposes substantial restrictions on core protected speech. See Kaplan v. County of Los Angeles, 894 F.2d 1076, 1079 (9th Cir.1990) (“Political speech lies at the core of the First Amendment’s protections.”). James Lombardo could erect a 60-square-foot sign that says “Lombardo Lives Here,” but he cannot erect a 60-square-foot sign that says “Vote Bush.” Or.Rev.Stat. § 377.725(13) (providing that no permits may be issued for new offsite, or “outdoor advertising,” signs); Or.Rev.Stat. § 377.735(c) (allowing onsite, or “on-premises,” signs). If Lom-bardo…

353 F.3d 774 James LOMBARDO, Plaintiff-Appellant, v. Bruce WARNER, in his official capacity as Director of the Oregon Department of Transportation, Defendant-Appellee. No. 02-35269. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 2, 2003 — Seattle, Washington. Filed December 29, 2003. Alan R. Herson, Jacksonville, Oregon, for the Plaintiff-Appellant. Janet A. Metcalf, Assistant Attorney General, Salem, Oregon, for the Defendant-Appellee. Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, District Judge, Presiding. D.C. No. CV 98-3001 MRH. Before: Betty B. FLETCHER, Warren J. FERGUSON, and A. Wallace TASHIMA, Circuit Judges. Opinion by Judge TASHIMA; Dissent by Judge B. FLETCHER. OPINION TASHIMA, Circuit Judge: 1 James Lombardo appeals the dismissal of his First Amendment and Due Process challenges to the highway billboard provisions of the Oregon Motorist Information Act ("OMIA"). He seeks declaratory and injunctive relief on two grounds: (1) that the OMIA is a content-based regulation that favors commercial over non-commercial speech; and (2) that the OMIA vests unbridled discretion in state officials and…