Next week, the Los Angeles Planning Commission will try once again to agree on a new set of billboard regulations it can send to the City Council for approval.
The badly split commission tried and failed this week to come up with a new ordinance, but the 151 pages of regulations over which it's struggling aren't likely to solve the problem anyway. Anybody who walks or drives the city's neighborhoods knows that many of them are being consumed by building-sized supergraphics and digital video billboards that make the word "assault" seem pallid.
The commission's current plan to deal with this plague is to have the council create new "sign districts" in as many as 21 areas -- including Encino, Westwood, Chinatown and virtually all of Wilshire Boulevard -- where these giant banners and video billboards would be permitted, while banning them elsewhere in the city.
But that's a losing strategy. As The Times' David Zahniser reported, billboard foes have made it clear that the proposals the commission is considering "would continue to make the city vulnerable to legal challenges. ... Advertising companies repeatedly have sued the city, saying that the council cannot ban signs on a citywide basis while approving them in certain locations, such as a Hollywood billboard district." And the companies will go on suing and blocking enforcement of any reasonable regulation as long as the city keeps trying to accommodate them.
Frankly, trying to be reasonable with the billboard lobby is like negotiating with terrorists. If you want to know what this fight really is about, consider that a digital billboard in L.A. generates about five times as much revenue as a conventional sign in the same location. Because the average conventional billboard along a major L.A. street generates about $18,000 a month, that means replacing it with one of these electronic monstrosities ups the owner's take to more than $1 million a year. On the most traveled city streets -- say Sunset, Wilshire or Olympic -- conventional billboard rates already run $30,000 a month.
Then there are the multistory vinyl supergraphics draping buildings all over town -- often in defiance of city regulations. These aren't simply a visual mugging but are in many cases part of a calculated strategy to take advantage of what remains a disputed area of law. That's what those mysterious Statue of Liberty images hanging alongside movie ads really are all about -- a cynical attempt to exploit the legal ambiguities in the U.S. Supreme Court's efforts to distinguish noncommercial speech from commercial speech.
Believe it or not, the notion that commercial speech -- what most of us call advertising -- is entitled to any legal protection is a relatively new one. It wasn't until 1976, in a case involving a Virginia pharmacy, that the U.S. Supreme Court ruled that commercial speech -- as opposed to pure and, particularly, political speech -- is entitled to a "qualified" 1st Amendment protection. The court held that while only a "compelling" governmental interest justifies restrictions on noncommercial speech, a "substantial" interest is sufficient to legitimize regulating commercial speech.
Nowhere has that distinction proved more difficult to apply than laws regulating billboards, where a string of court decisions stretching back to 1981 have produced three principles.
One is that aesthetic concerns about billboards do constitute a "substantial" interest. Second, local governments may distinguish between on-site commercial speech -- a sign over the door of a business -- and off-site speech such as an iPod ad on the side of a building. Third, governments may not allow commercial speech in a particular location but forbid noncommercial speech there. In other words, you can't tell a store owner he can have a sign that says "Acme Wedding Gowns" but forbid a banner over his window that says "No on Prop. 8."
That brings us back to the Statue of Liberty supergraphics. The owner puts them up (without a permit) as noncommercial speech that can't be banned. He hopes they'll then be grandfathered into any new rules -- and then he can switch them for commercial billboards.
The city can't win in a game like this because there are endless possibilities for ingenious litigators, paid by the deep-pocketed billboard lobby, to exploit. The only thing that will slice this legal equivalent of the Gordian knot is a ban on new billboards of any sort.
If we don't, life on the streets of L.A. will soon become little more than a sequence of product placements.