LATHAM & WATKINS LLP James K. Lynch (CA Bar No. … · LATHAM & WATKINS LLP Richard P. Bress (Pro...

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MOTION FOR A PRELIMINARY INJUNCTIONCASE NO. 3:15-cv-03415

LATHAM & WATKINS LLPJames K. Lynch (CA Bar No. 178600) [email protected]

505 Montgomery Street, Suite 2000 San Francisco, California 94111-6538 Telephone: +1.415.391.0600 Facsimile: +1.415.395.8095 LATHAM & WATKINS LLP

Richard P. Bress (Pro Hac Vice Pending) [email protected] Michael E. Bern (Pro Hac Vice Pending) [email protected] John S. Cooper (Pro Hac Vice Pending) [email protected]

555 Eleventh Street, NW, Suite 1000 Washington, DC 20004-1304 Telephone: +1.202.637.2200 Facsimile: +1.202.637.2201 Attorneys for Plaintiff The American Beverage Association Additional Counsel on Signature Page

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

THE AMERICAN BEVERAGE ASSOCIATION, CALIFORNIA RETAILERS ASSOCIATION, CALIFORNIA STATE OUTDOOR ADVERTISING ASSOCIATION,

Civil Action No. 3:15-cv-03415 MOTION FOR A PRELIMINARY INJUNCTION Date: TBD Time: TBD Judge: TBD Courtroom: TBD

Plaintiffs,

v.

THE CITY AND COUNTY OF SAN FRANCISCO,

Defendant.

Case3:15-cv-03415-JCS Document14 Filed07/24/15 Page1 of 24

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TABLE OF CONTENTS Page

NOTICE OF MOTION ....................................................................................................................1

RELIEF SOUGHT ...........................................................................................................................1

MEMORANDUM OF POINTS AND AUTHORITIES .................................................................1

INTRODUCTION ...........................................................................................................................2

LEGAL STANDARD ......................................................................................................................4

DESCRIPTION OF THE ORDINANCE ........................................................................................5

ARGUMENT ...................................................................................................................................6

I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS ......................................6

A. The City Properties Affected By The Ordinance Are At Least Limited Public Forums ..........................................................................................................6

B. The Ordinance Violates The First Amendment .......................................................7

1. The Ordinance’s Selective Advertising Ban Violates the First Amendment .........................................................................................7

a. The Ordinance’s Advertising Ban Impermissibly Discriminates Based On Viewpoint .................................................7

b. The Ordinance’s Advertising Ban Unreasonably Restricts Participation In Limited Public Forums ...........................................9

2. The Ordinance’s Restriction Of Producers’ Use Of Their Own Names Violates the First Amendment .......................................................11

a. The Ordinance’s Restriction Of Producers’ Use Of Their Own Names Discriminates Unlawfully Based On Identity ...........11

b. The Ordinance’s Restriction Of Producers’ Use Of Their Own Names Unreasonably Restricts Plaintiffs’ Participation In A Limited Public Forum ......................................12

c. The Restriction Of Producers’ Use Of Their Own Names Impermissibly Prohibits Plaintiffs From Engaging In Non-Commercial Speech .......................................................................13

II. ENFORCING THE ORDINANCE DURING THE PENDENCY OF THIS LAWSUIT WOULD IRREPARABLY HARM PLAINTIFFS .........................................14


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III. THE BALANCE OF HARMS FAVORS A PRELIMINARY INJUNCTION ORDER .....................................................................................................15

IV. A PRELIMINARY INJUNCTION WOULD ADVANCE THE PUBLIC INTEREST .........................................................................................................16

CONCLUSION ..............................................................................................................................17


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TABLE OF AUTHORITIES

Page

CASES

Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) .................................................................................................. 4

Ashcroft v. ACLU, 542 U.S. 656 (2004) ................................................................................................................ 14

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ................................................................................................................ 14

Brown v. Cal. Dep’t of Transp., 321 F.3d 1217 (9th Cir. 2003) ............................................................................................ 7, 10

Buckley v. Valeo, 424 U.S. 1 (1976) .................................................................................................................... 11

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557 (1980) .............................................................................................................. 2, 8

Cogswell v. City of Seattle, 347 F.3d 809 (9th Cir. 2003) .................................................................................................... 7

Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985) .................................................................................................... 6, 7, 9, 12

Doe v. Harris, 772 F.3d 563 (9th Cir. 2014) .................................................................................................. 16

Elrod v. Burns, 427 U.S. 347 (1976) ................................................................................................................ 14

Erznoznik v. Jacksonville, 422 U.S. 205 (1975) ................................................................................................................ 14

Hills v. Scottsdale Unified Sch. Dist. No. 48, 329 F.3d 1044 (9th Cir. 2003) .................................................................................................. 6

Hopper v. City of Pasco, 241 F.3d 1067 (9th Cir. 2001) ................................................................................................ 10

KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261 (11th Cir. 2006) ............................................................................................... 15

Klein v. City of San Clemente, 584 F.3d 1196 (9th Cir. 2009) ................................................................................................ 16


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Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011 (9th Cir. 2009) ................................................................................................ 13

Metro Lights, L.L.C. v. City of Los Angeles, No. CV 04-1037 GAF (Ex), 2004 WL 5464306 (C.D. Cal. Sept. 21, 2004), rev’d and remanded, 551 F.3d 898 (9th Cir. 2009) ................................................................ 16

Newsom ex rel. Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d 249 (4th Cir. 2003) .................................................................................................. 15

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983) .................................................................................................................. 10

Police Dep’t of Chicago v. Mosley, 408 U.S. 92 (1972) .................................................................................................................... 2

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) ........................................................................................................ 2, 11

Republican Party of Minn. v. White, 536 U.S. 765 (2002) .................................................................................................................. 9

Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65 (1st Cir. 2004) ....................................................................................................... 7

Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781 (1988) ................................................................................................................ 14

Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995) .............................................................................................................. 7, 8

Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) .................................................................................................................. 9

Sammartano v. First Judicial Dist. Court, 303 F.3d 959 (9th Cir. 2002) .................................................................................. 6, 14, 15, 16

Seattle Mideast Awareness Campaign v. King Cnty., 781 F.3d 489 (9th Cir. 2015) .......................................................................................... 6, 9, 10

Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281 (9th Cir. 2013) .................................................................................................. 5

Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011) ............................................................................................ 2, 7, 8, 9, 11

United States v. Stevens, 559 U.S. 460 (2010) ................................................................................................................ 14


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Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620 (1980) ................................................................................................................ 14

Vivid Entm’t, LLC v. Fielding, 774 F.3d 566 (9th Cir. 2014) .................................................................................................... 5

Ward v. Rock Against Racism, 491 U.S. 781 (1989) ................................................................................................................ 13

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) ...................................................................................................................... 4

STATUTES

S.F. Ordinance No. 98-15, amending S.F. Admin. Code § 4.20 ............................ 1, 2, 5, 8, 10, 15

S.F. Ordinance No. 100-15, adding art. 42, div. I, §§ 4200-4206 to San Francisco Health Code .............................................................................................................................. 2

OTHER AUTHORITIES

BART, Advertising Opportunities, https://www.bart.gov/about/business/advertising ..................................................................... 6

Clear Channel Airports, Where We Are, http://clearchannelairports.com/where-we-are/ ....................................................................................................................................... 6

Elena Kagan, Regulation of Hate Speech and Pornography after R.A.V., 60 U. Chi. L. Rev. 873 (1993) ............................................................................................................ 7

San Francisco Travel, Banners and Permits for Conventions, http://www.sanfrancisco.travel/banners-and-permits-conventions .............................................................. 6

SFMTA, Advertising, http://www.sfmta.com/services/business-services/advertising ................................................................................................................... 6


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NOTICE OF MOTION

PLEASE TAKE NOTICE that on August 28, 2015, at 9:00 AM or as soon thereafter as

may be convenient for the Court, Plaintiffs The American Beverage Association (“ABA”),

California Retailers Association (“CRA”), and California State Outdoor Advertising Association

(“CSOAA”) will bring for hearing this motion for a preliminary injunction.

RELIEF SOUGHT

Plaintiffs respectfully request a preliminary injunction that will prohibit Defendant the

City and County of San Francisco (“the City”) from enforcing or causing to be enforced any

provision of San Francisco Ordinance No. 98-15, amending S.F. Admin. Code § 4.20, the

Ordinance entitled “Ordinance amending the Administrative Code to prohibit advertising of

sugar-sweetened beverages on City property,” (“S.F. Admin. Code § 4.20” or “the Ordinance”)

or any regulations implementing this Ordinance, to prevent imminent and irreparable harm to

Plaintiffs or their members and harm to the public. The Ordinance violates the First Amendment

of the Constitution of the United States. Preliminary relief is needed to afford this Court time to

decide in an orderly fashion the important constitutional issues raised by the Ordinance, which

may be enforced against Plaintiffs’ members beginning July 25, 2015.

MEMORANDUM OF POINTS AND AUTHORITIES

Government regulation often affects speech indirectly, presenting complicated and

difficult First Amendment issues. Not this time. The First Amendment violation here is direct

and flagrant.

The City and County of San Francisco enacted an ordinance on June 25, 2015 that

explicitly discriminates based on the viewpoint and the identity of the speaker. See San

Francisco Ordinance No. 98-15, amending S.F. Cal. Admin. Code § 4.20 (June 25, 2015),

available at https://sfgov.legistar.com/View.ashx?M=F&ID=3844152&GUID=9AEE5498-

CEF5-4D66-B326-48C8FD8002C4. It expressly bans all advertising promoting sugar-

sweetened beverages on City property, while expressly allowing all advertising there that

criticizes or discourages consumption of sugar-sweetened beverages. It also expressly targets


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and punishes producers of sugar-sweetened beverages by prohibiting them from using their

names to promote events—even political, social, cultural, or athletic events—on City property.

Plaintiffs include associations of sugar-sweetened beverage producers, retailers, and

outdoor advertisers. In this lawsuit, they seek permanent injunctive and declaratory relief with

respect to this Ordinance.1 But pending that permanent remedy, they seek a preliminary

injunction. Absent preliminary relief, enforcement of the Ordinance will cause Plaintiffs

irreparable harm by suppressing their speech in violation of the First Amendment throughout the

duration of the suit. Plaintiffs request a preliminary injunction to enable them to proceed with

their challenge to this unconstitutional Ordinance without suffering the irreparable harm that its

enforcement will otherwise cause.

INTRODUCTION

Under the First Amendment, “a government, including a municipal government vested

with state authority, ‘has no power to restrict expression because of its message, its ideas, its

subject matter, or its content.’” Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015) (quoting

Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95 (1972)). Laws that “impose[] a burden

based on the content of speech and the identity of the speaker” are highly disfavored and subject

to “heightened scrutiny.” Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2665-67 (2011). A law

burdening “[c]ommercial speech is no exception.” Id. at 2664. The Supreme Court has

definitively rejected the “highly paternalistic” view that the government should have wide

latitude to regulate commercial speech in favor of a model that empowers people to make their

own choices in the marketplace of ideas. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv.

Comm’n, 447 U.S. 557, 561-62 (1980).

1 This lawsuit is directed against two unconstitutional ordinances enacted by the City—the one at issue in this Motion, and one that compels advertisers of sugar-sweetened beverages to broadcast the City’s message in certain advertisements. S.F. Admin. Code § 4.20; San Francisco Ordinance No. 100-15, adding art. 42, div. I, §§ 4200–4206 to San Francisco Health Code (2015), available at https://sfgov.legistar.com/View.ashx?M=F&ID=3844184&GUID=59549F25-8D8A-4E07-BE7D-D1683A53BEAE. The latter ordinance will be enforced beginning July 25, 2016. At an appropriate time, Plaintiffs will seek a preliminary injunction against that ordinance as well.


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The Ordinance is precisely the kind of “paternalistic” speech regulation that the courts

have long condemned. Its purpose and effect is to discriminate against certain speech because

the City disagrees with its content, and certain speakers because the City disagrees with their

viewpoint. And the ordinance’s speech restrictions bear no relationship to the intended purpose

of the forums in which it operates. It is starkly incompatible with the First Amendment.

The Ordinance violates Plaintiffs’ First Amendment rights in at least five ways, each of

which is sufficient to justify the entry of a preliminary injunction enjoining its enforcement.2

First, the Ordinance discriminates on the basis of viewpoint by suppressing speech that

the City disfavors while allowing conflicting speech the City favors.

Second, the Ordinance’s prohibition against commercial advertisements for sugar-

sweetened beverages on City property is not reasonably related to the purpose of the forums

where these advertisements are placed. This speech ban does not, for example, make City buses,

bus stops, or light rail more reliable or safe.

Third, the Ordinance’s ban on sugar-sweetened beverage producers’ use of their own

names when sponsoring products and events on City property impermissibly discriminates based

on the identity of speakers because the City disagrees with their viewpoints.

Fourth, the Ordinance’s ban on sugar-sweetened beverage producers’ use of their own

names when sponsoring products and events on City property unreasonably restricts speech in

the forums to which it applies.

Fifth, prohibiting sugar-sweetened beverage producers from using their names effects an

overbroad and impermissible prior restraint by suppressing substantial speech—even core non-

commercial speech—promoting any non-charitable event or product on City property.

These flagrant constitutional violations compel the limited equitable relief sought by this

Motion under the established four-part test for a preliminary injunction:

2 The Ordinance is also so vague in material respects that it violates Plaintiffs rights under the due process clause of the Fourteenth Amendment. See Compl. ¶¶ 107-14. Because the Ordinance so flagrantly violates the First Amendment, it is unnecessary to consider Plaintiffs’ due process argument for present purposes.


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• Plaintiffs are likely to succeed on the merits of their constitutional claims, which rest on

the application of hornbook First Amendment law;

• The harms that Plaintiffs will otherwise suffer from enforcement of the Ordinance—

injuries to their First Amendment free speech rights—are irreparable as a matter of law;

• The balance of harms overwhelmingly favors Plaintiffs. The City has no legitimate (let

alone substantial or compelling) interest in enforcing this unconstitutional Ordinance.

That is especially true because, given the Ordinance’s numerous exemptions and

exceptions, sugar-sweetened beverages will in any event continue to be advertised in

myriad other ways and forums throughout the City—including elsewhere on City

property. Plaintiffs, by contrast, face immediate and categorically irreparable harm from

the enforcement of the Ordinance; and

• A preliminary injunction to preserve the status quo would advance the paramount public

interest in safeguarding First Amendment speech rights, and (again, recognizing that such

advertisements will be aired regardless in numerous other ways and forums) the public

interest will not be threatened in any way by the continuation of the banned

advertisements on City property during the pendency of this litigation.

The Court should grant this Motion and issue a preliminary injunction enjoining

enforcement of the Ordinance pending its final judgment in this case.

LEGAL STANDARD

A plaintiff seeking a preliminary injunction must establish (1) that it is likely to succeed

on the merits, (2) that it is likely to suffer irreparable harm in the absence of preliminary relief,

(3) that the balance of equities tips in its favor, and (4) that an injunction would be in the public

interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

These factors are analyzed within this circuit under a “sliding scale” approach. Alliance

for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). “Under this approach,

the elements of the preliminary injunction test are balanced, so that a stronger showing of one

element may offset a weaker showing of another.” Id. at 1131. Thus, Plaintiffs need “only show

that there are ‘serious questions going to the merits’—a lesser showing than likelihood of success


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on the merits—[and] then a preliminary injunction may still issue if the ‘balance of hardships

tips sharply in the plaintiff's favor,’ and the other two Winter factors are satisfied.” Shell

Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (emphasis added in

original) (citation omitted).

If this Court finds that Plaintiffs are likely to succeed on the merits as to any substantial

part of the Ordinance, moreover, it should enjoin enforcement of the entire Ordinance, because

its provisions are closely intertwined and not expressly severable. See Vivid Entm’t, LLC v.

Fielding, 774 F.3d 566, 573-77 (9th Cir. 2014) (analyzing whether provisions are severable to

determine whether to enjoin enforcement of all or some provisions of Ordinance with

invalid provisions).

DESCRIPTION OF THE ORDINANCE

The Ordinance prohibits any advertising of sugar-sweetened beverages “on any property

owned by or under the control of the City and County of San Francisco,” with certain permanent

exemptions. The first exemption allows the advertising of sugar-sweetened beverages on City

properties where the City benefits from the sale or production of sugar-sweetened beverages—

that is: “property used for operation of a restaurant, concert or sports venue, or other facility or

event where the sale or production of Sugar-Sweetened Beverages is permitted.” S.F. Admin.

Code § 4.20(a), (d). The second exemption allows advertising on City property by a state, local,

nonprofit, or other entity designed to communicate the alleged health hazards of sugar-sweetened

beverages or encourage people not to drink or to stop drinking sugar-sweetened beverages. Id.

§ 4.20(b). In short, while commercial speech favoring sugar-sweetened beverages is banned on

most City property, speech hostile to sugar-sweetened beverages remains welcomed

without restriction.

The Ordinance also prohibits any company that produces sugar-sweetened beverages

from using its name, or the name of any sugar-sweetened beverage, to promote any product or

any non-charitable event on City property. Id. § 4.20(b). This prohibition goes beyond

regulating commercial speech and would bar a company from using its name to promote even

political, cultural, or athletic events throughout the City.


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ARGUMENT

I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS

The Court should grant this Motion for a Preliminary Injunction and enjoin the City from

enforcing the Ordinance because it violates Plaintiffs’ First Amendment rights in

numerous ways.

A. The City Properties Affected By The Ordinance Are At Least Limited

Public Forums

The City-owned properties on which Plaintiffs’ speech will be banned are all either

traditional public forums, in which speech is permitted virtually free of government restriction,

or at least “limited public forums.” The City’s parks, squares, and thoroughfares are traditional

public forums. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985).

Other properties where the City permits private advertising3 have been held by the Ninth Circuit

to constitute limited public forums. See, e.g., Seattle Mideast Awareness Campaign v. King

Cnty., 781 F.3d 489, 496-98 (9th Cir. 2015) [hereinafter SeaMAC]. Although the government

has greater leeway to regulate the content of speech in limited public forums, it must regulate in

a manner that is viewpoint-neutral and reasonable in light of the purpose served by the forum.

Id. at 499;4 Hills v. Scottsdale Unified Sch. Dist. No. 48, 329 F.3d 1044, 1050 (9th Cir. 2003).

3 For example, San Francisco invites the public to advertise in its public transit system and in other public spaces. See, e.g., SFMTA, Advertising, http://www.sfmta.com/services/business-services/advertising (last visited July 21, 2015); BART, Advertising Opportunities, https://www.bart.gov/about/business/advertising (last visited July 21, 2015); San Francisco Travel, Banners and Permits for Conventions, http://www.sanfrancisco.travel/banners-and-permits-conventions (last visited July 21, 2015) (the Moscone Center); Clear Channel Airports, Where We Are, http://clearchannelairports.com/where-we-are/ (last visited July 21, 2015) (listing San Francisco Airport as one managed by Clear Channel Airports). 4 To the extent the advertising restriction applies to any nonpublic forums, the same limitation on government restrictions on speech would apply. See Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 966 (9th Cir. 2002) (“Restrictions on free expression in a nonpublic forum are constitutional only if the distinctions drawn (1) are ‘reasonable in light of the purpose served by the forum’ and (2) are ‘viewpoint neutral.’” (citation omitted)).


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B. The Ordinance Violates The First Amendment

1. The Ordinance’s Selective Advertising Ban Violates the

First Amendment

The Ordinance violates the First Amendment because it expressly discriminates among

advertisements based on viewpoint and unreasonably restricts speech in limited public forums.

a. The Ordinance’s Advertising Ban Impermissibly Discriminates

Based On Viewpoint

It is fundamental that the government may not grant one favored message a legally-

mandated advantage over another in the marketplace of ideas. See, e.g., Ridley v. Mass. Bay

Transp. Auth., 390 F.3d 65, 91 (1st Cir. 2004) (citing Elena Kagan, Regulation of Hate Speech

and Pornography after R.A.V., 60 U. Chi. L. Rev. 873, 889 (1993)); accord Cogswell v. City of

Seattle, 347 F.3d 809, 815 (9th Cir. 2003) (“[O]nce the government has chosen to permit

discussion of certain subject matters, it may not then silence speakers who address those subject

matters from a particular perspective.”). This is black letter law. See, e.g., Rosenberger v.

Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995) (The First Amendment “forbid[s]

the State from exercising viewpoint discrimination, even when the limited public forum is one of

its own creation.”); Cornelius, 473 U.S. at 806 (“[T]he government violates the First

Amendment when it denies access to a speaker solely to suppress the point of view he espouses

on an otherwise includible subject.”); Ridley, 390 F.3d at 87-89 (holding MBTA’s attempt to ban

advertisements by a group promoting marijuana legislation unconstitutional because it was

motivated by distaste for the group’s viewpoint); Brown v. Cal. Dep’t of Transp., 321 F.3d 1217,

1223-25 (9th Cir. 2003) (holding that defendant agency’s use of its permit policy to favor the

display of the American flag over signs and banners with messages of dissent constituted

impermissible viewpoint discrimination). And this black-letter law applies without exception

when the government regulates commercial speech. Sorrell, 131 S. Ct. at 2663 (“The First

Amendment requires heightened scrutiny whenever the government creates ‘a regulation of

speech because of disagreement with the message it conveys.’ … Commercial speech is no

exception.” (citation omitted)).


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The Ordinance violates this fundamental First Amendment tenet by banning

advertisements promoting sugar-sweetened beverages from City property based on the City’s

disagreement with the advertisements’ viewpoint. This is not subtle. The Ordinance expressly

prohibits all advertising favoring sugar-sweetened beverages, and it just as expressly allows any

speech that is designed to communicate the alleged health hazards of sugar-sweetened beverages

or encourage people not to drink or to stop drinking sugar-sweetened beverages. Compare S.F.

Admin. Code § 4.20(a) (“No advertising of … Sugar-Sweetened Beverages shall be allowed on

any property owned by or under the control of the City and County of San Francisco ….”), with

S.F. Admin. Code § 4.20(b) (expressly permitting “any advertisement sponsored by a state, local,

nonprofit or other entity designed to (1) communicate the health hazards of … Sugar-Sweetened

Beverages, (2) encourage people … not to drink … or to stop drinking … Sugar-

Sweetened Beverages”).

This stark viewpoint discrimination is no different for First Amendment purposes from a

regulation allowing advertising only for organic foods, only for domestic cars, or only for

country music. Regardless of the City’s purportedly benign motives, overt viewpoint

discrimination is incompatible with the First Amendment. See, e.g., Rosenberger, 515 U.S. at

838-39 (holding viewpoint discrimination impermissible even assuming motivation to comply

with the Constitution’s Establishment Clause).

That should be the end of the analysis, but even if viewpoint discrimination were ever

justifiable, the City cannot begin to justify this viewpoint discrimination under the applicable

heightened First Amendment scrutiny. The government will rarely, if ever, have a legitimate

(much less substantial or compelling) interest in prohibiting truthful speech about a lawful

product. See, e.g., Sorrell, 131 S. Ct. at 2667-68 (finding viewpoint-discriminatory prohibition

on commercial speech would fail under either strict scrutiny or intermediate scrutiny pursuant to

Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U.S. 557, 566 (1980)).

And this case is no exception. The City cannot credibly claim a compelling or substantial

governmental interest in suppressing the advertising of sugar-sweetened beverages on City

property when its Ordinance expressly allows such advertising on numerous City properties


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where the City benefits from the sale or production of such beverages. In addition, the vast

amount of sugar-sweetened beverage advertising that is unaffected by the Ordinance—including

in newspapers, magazines, television, radio, electronic and social media, etc.—demolishes any

suggestion that the City has a substantial or compelling interest in suppressing the relatively

limited amount of such advertising that the Ordinance forbids on City property. See Republican

Party of Minn. v. White, 536 U.S. 765, 780 (2002) (A “‘law cannot be regarded as protecting an

interest of the highest order, and thus as justifying a restriction on truthful speech, when it leaves

appreciable damage to that supposedly vital interest unprohibited.’” (citation omitted)); see also

Rubin v. Coors Brewing Co., 514 U.S. 476, 489 (1995) (finding act failed to directly and

materially advance the government’s interest when act’s exceptions “directly undermine[d] and

counteract[ed] its effects.”). The Ordinance also, on its face, is insufficiently tailored to survive

heightened scrutiny. If the City wants its opinions to win out in the marketplace of ideas, it has

innumerable ways to get its message out without hobbling the opposition. See, e.g., Sorrell, 131

S. Ct. at 2671 (noting state could “express [its] view through its own speech” but “may not

burden the speech of others in order to tilt public debate in a preferred direction”).

b. The Ordinance’s Advertising Ban Unreasonably Restricts

Participation In Limited Public Forums

In addition to impermissibly discriminating against speech based on its viewpoint, the

Ordinance’s ban on sugar-sweetened beverage advertising on City property also violates the First

Amendment because it unreasonably restricts Plaintiffs’ participation in the limited public

forums where the City generally permits private advertising.

A subject-matter or speaker-based exclusion from a limited public forum is permissible

only if it meets both of two requirements: (1) it must be “‘reasonable in light of the purpose

served by the forum,’” a requirement that “focuses on whether the exclusion is consistent with

‘limiting [the] forum to activities compatible with the intended purpose of the property’”; and (2)

it must be based on a standard that is definite and objective. SeaMAC, 781 F.3d at 499

(alteration in original) (quoting Cornelius, 473 U.S. at 806, and Perry Educ. Ass’n v. Perry Local


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Educators’ Ass’n, 460 U.S. 37, 49 (1983)) (citing Hopper v. City of Pasco, 241 F.3d 1067, 1077

(9th Cir. 2001)).

In SeaMAC, for example, the Ninth Circuit upheld Seattle’s decision to exclude certain

provocative advertisements about the Israeli-Palestinian conflict on city buses pursuant to a

policy prohibiting advertising of “‘material that is so objectionable under contemporary

community standards as to be reasonably foreseeable that it will result in harm to, disruption of,

or interference with the transportation system.’” Id. at 493 n.1 (quoting contract). The Ninth

Circuit found the restriction reasonable because, in light of the realistic prospect that such

advertising could “result in harm to, disruption of, or interference with the transportation

system,” the prohibition advanced the purpose of the property—to provide safe and reliable

public transportation. Id. at 503. On the other hand, in Brown, the Ninth Circuit rejected the

defendant agency’s policy of requiring individuals to obtain permits to hang signs and other

banners except for American flags from highway overpasses. The Court found the agency’s

“proffered justification that the display of flags, which poses the dual safety risks of falling

objects and motorist distraction, increases highway safety” to be “patently unreasonable.” 321

F.3d at 1223.

Like the government policy in Brown, the Ordinance’s ban on sugar-sweetened beverage

advertising violates the First Amendment because it is not reasonable in light of the purpose of

the limited public forums where the advertisements would be placed.5 The principal purpose of

buses and subway cars, for example, is to provide “safe and reliable public transportation.” See

SeaMAC, 781 F.3d at 500. And there is no plausible safe-transit justification for banning

advertising of sugar-sweetened beverages—the City has not claimed, and cannot claim, that

sugar-sweetened beverage advertising makes public transportation less safe or reliable. 6

5 The Ordinance exempts city property “used for operation of a restaurant, concert or sports venue, or other facility or event where the sale or production of Sugar-Sweetened Beverages is permitted.” S.F. Admin. Code § 4.20(d). 6 The Ordinance also prohibits covered advertisements throughout most of San Francisco International Airport, unless the sale of a sugar-sweetened beverage at any restaurant or store in the airport is sufficient to exempt the entirety of the Airport from the advertising ban—one of the many respects in which the Ordinance is impermissibly vague. See Compl. ¶ 112.


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The City is also in no position to argue that sugar-sweetened beverage advertising is

inconsistent generally with the purpose of City property. Not only does the City allow

consumption of sugar-sweetened beverages in most of its properties, but it also allows (and

benefits from) the sale or production of sugar-sweetened beverages in certain City properties,

and the Ordinance expressly exempts those City properties from the Advertising Ban. The ban

against advertising sugar-sweetened beverages in other City advertising forums is an

unreasonable restriction on protected commercial speech.

2. The Ordinance’s Restriction Of Producers’ Use Of Their Own

Names Violates the First Amendment

The Ordinance’s restriction of sugar-sweetened beverage producers’ use of their own

names violates the First Amendment because it discriminates facially based on the identity of the

speaker, it is unreasonable, and it impermissibly suppresses both commercial and core non-

commercial speech.

a. The Ordinance’s Restriction Of Producers’ Use Of Their Own

Names Discriminates Unlawfully Based On Identity

The Ordinance impermissibly discriminates based on the identity of the speaker by

prohibiting producers of sugar-sweetened beverages from using their own names in any

promotion on City property—regardless of whether they are advertising a sugar-sweetened

beverage or promoting a different product or event altogether. “[T]he concept that government

may restrict the speech of some elements of our society in order to enhance the relative voice of

others is wholly foreign to the First Amendment.” Buckley v. Valeo, 424 U.S. 1, 48-49 (1976).

“Because ‘[s]peech restrictions based on the identity of the speaker are all too often simply a

means to control content,’” the Supreme Court has insisted that “‘laws favoring some speakers

over others demand strict scrutiny when’”—as here—“‘the [government’s] speaker preference

reflects a content preference.’” Reed, 135 S. Ct. at 2230 (first alteration in original) (citation

omitted); see also Sorrell, 131 S. Ct. at 2664-65 (rejecting state’s argument “that heightened

judicial scrutiny is unwarranted because its law [was] a mere commercial regulation,” where the

statute “impose[d] a burden based on the content of speech and the identity of the speaker”).


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The Ordinance’s restriction of producers’ use of their names cannot survive heightened

scrutiny because the City has no plausible substantial or compelling interest in erasing from its

traditional or limited public forums the names of sugar-sweetened beverage producers, and that

erasure is not narrowly tailored to advance any legitimate (much less substantial or compelling)

governmental interest. It is well settled that “the government violates the First Amendment

when,” as here, “it denies access to a speaker solely to suppress the point of view he espouses on

an otherwise includible subject.” See Cornelius, 473 U.S. at 806.

b. The Ordinance’s Restriction Of Producers’ Use Of Their Own

Names Unreasonably Restricts Plaintiffs’ Participation In A

Limited Public Forum

Like its prohibition against sugar-sweetened beverage advertising, the Ordinance’s ban

on producers’ use of their own names unreasonably restricts Plaintiffs’ participation in the City’s

limited public forums. Indeed, this name ban is even more unreasonable because the link

between the prohibition and whatever harm the City purports to be addressing is far more

attenuated and the scope of speech suppressed is far broader.

The City will not be able to establish a reasonable relationship between this name ban

and the purposes of any limited public forums at issue, because there is no plausible forum-

specific rationale for prohibiting all promotions of any kind—whether commercial, athletic,

musical, social, or political—from including the names of sugar-sweetened beverage producers.

This ban is even more irrational than the Ordinance’s advertising ban because, in addition to

producing sugar-sweetened beverages, many beverage companies, restaurants, and other

businesses (including many members of the ABA and CRA) whose names will be stricken from

public spaces also produce and sell a broad range of products that have no added sugar, including

bottled water, diet soft drinks, and the like. Yet the Ordinance bars them from using their names

when promoting any of those other products on City property, solely because of their status as

producers of sugar-sweetened beverages. This name ban is therefore not tied in any meaningful

way even to the City’s desire to monopolize the public debate over the health effects of sugar-

sweetened beverages; rather, it simply punishes all businesses that have the temerity to produce


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sugar-sweetened beverages. To banish a speaker’s very name and silence its voice, simply

because it produces lawful products of which the City disapproves—except, apparently, when

the City is itself benefiting from their sale—is a remarkable and grievous violation of the

First Amendment.

c. The Restriction Of Producers’ Use Of Their Own Names

Impermissibly Prohibits Plaintiffs From Engaging In Non-

Commercial Speech

The Ordinance’s prohibition against the use of a producer’s name, or the name of any of

its sugar-sweetened beverages, in any advertisement promoting any non-charitable event on City

property—even events in traditional public forums like the City’s streets and parks—constitutes

an impermissible prior restraint on non-commercial as well as commercial speech.

“Prior restraints on speech are disfavored and carry a ‘heavy presumption’ of invalidity.”

Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1023 (9th Cir. 2009)

(citation omitted). A prior restraint need not actually result in suppression of speech to be

constitutionally invalid. Id. “‘The relevant question [in determining whether something is a

prior restraint] is whether the challenged regulation authorizes suppression of speech in advance

of its expression ….’” Id. (alterations in original) (quoting Ward v. Rock Against Racism, 491

U.S. 781, 795 n.5 (1989)). The Ordinance does so by its plain terms.

Under the plain language of the Ordinance, sugar-sweetened beverage producers are

uniquely prohibited from posting on City property advertisements promoting their sponsorship of

any sort of event—political rally, the symphony, sporting events, conferences regarding any

topic (even water sustainability or fair labor practices), parades on city streets, and so on—

regardless of whether the event has anything to do with sugar-sweetened beverages. Much of

this prohibited speech is core, non-commercial speech. The Ordinance would, for instance,

prohibit a beverage producer from including its name in a promotion for a nutrition conference—

or even a political fundraiser in support of opponents of sugar-sweetened beverage ordinances—

on City property. In that context, the company’s name within the promotional materials is not

“commercial,” but even if it could be viewed that way, the speech is so “inextricably intertwined


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with otherwise fully protected speech” that the prohibition would still be subject to strict

scrutiny. Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 796 (1988).7

Moreover, even if the Ordinance’s name ban were valid with respect to beverage

producers’ commercial speech—as explained above, it is not—it nevertheless must be

invalidated in total as overbroad, because it impermissibly restricts core non-commercial speech

in a “substantial” way, judged in relation to any purported “plainly legitimate sweep.” Broadrick

v. Oklahoma, 413 U.S. 601, 615 (1973); see, e.g., United States v. Stevens, 559 U.S. 460, 482

(2010) (invalidating as unconstitutionally overbroad a statute criminalizing the commercial

creation, sale, or possession of certain depictions of animal cruelty); Erznoznik v. Jacksonville,

422 U.S. 205, 217-18 (1975) (invalidating as unconstitutionally overbroad a city ordinance

making it illegal for drive-in theater operators to show movies including nudity if the film could

be seen from a public street or place).

The burden of defending this prior restraint falls on the City. Ashcroft v. ACLU, 542 U.S.

656, 660 (2004) (“[T]he Constitution demands that content-based restrictions on speech be

presumed invalid, and that the Government bear the burden of showing their constitutionality.”

(citation omitted)). The City cannot begin to meet that burden. As demonstrated in section

I.B.(1)(a), supra at 7-9, the City has no legitimate, much less compelling, reason to excise the

names of sugar-sweetened beverage producers entirely from the public spaces to which the ban

applies, and this prohibition is not narrowly tailored to advance any compelling governmental

interest. This name ban is unquestionably invalid.

II. ENFORCING THE ORDINANCE DURING THE PENDENCY OF THIS

LAWSUIT WOULD IRREPARABLY HARM PLAINTIFFS

It is well established that “[t]he loss of First Amendment freedoms, for even minimal

periods of time, unquestionably constitutes irreparable injury” that qualifies the plaintiff for

injunctive relief. See Elrod v. Burns, 427 U.S. 347, 373 (1976); Sammartano, 303 F.3d at 973.

7 Commercial speech that is inextricably “intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues” is treated as political speech and is fully protected by the First Amendment. Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 632 (1980).


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Indeed, “‘[u]nder the law of this circuit, a party seeking preliminary injunctive relief in a First

Amendment context can establish irreparable injury sufficient to merit the grant of relief by

demonstrating the existence of [even] a colorable First Amendment claim.’” Sammartano, 303

F.3d at 973 (citation omitted).

As detailed above, the Ordinance impermissibly violates Plaintiffs’ free speech rights in

multiple and distinct ways: it discriminates against Plaintiffs because of their viewpoint; it

unreasonably interferes with their participation in limited public forums; it discriminates against

the speech of many Plaintiffs based on their identities; and it suppresses even their core, non-

commercial speech. These harms are irreparable as a matter of law and support issuance of a

preliminary injunction.

III. THE BALANCE OF HARMS FAVORS A PRELIMINARY

INJUNCTION ORDER

The City will not suffer any material harm from a preliminary injunction that would

allow an efficient, orderly adjudication of this litigation.

First, because the Ordinance is facially unconstitutional, the City can suffer no cognizable

harm from its abeyance. See, e.g., KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272

(11th Cir. 2006) (stating that defendant “has no legitimate interest in enforcing an

unconstitutional ordinance”); Newsom ex rel. Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d

249, 261 (4th Cir. 2003) (explaining that defendant is in “no way harmed” by a preliminary

injunction that prevents it from enforcing an unconstitutional regulation).

Second, the City has not identified, and cannot identify, a pressing need to enforce the

Ordinance immediately. It cannot credibly maintain that allowing continued advertising of

sugar-sweetened beverages or the continued promotion of non-charitable events by the affected

companies on City property poses any imminent threat—to public health or anything else. See

S.F. Admin. Code § 4.20. The City, after all, has exempted its own commercial interests from

the Ordinance by allowing such advertisements on City properties where the City benefits from

the sale or production of sugar-sweetened beverages; it has exempted from the Ordinance’s

scope leases, permits, or agreements that precede the Ordinance’s effective date; and it has


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exempted advertisements on national and local television and radio, in newspapers, magazines,

and flyers, and on websites and on social media. Accordingly, regardless of whether the

Ordinance is in effect, sugar-sweetened beverages will continue to be advertised widely

throughout the City. The relatively narrow scope of advertising that the Ordinance would

prohibit in the course of this litigation undercuts any claim the City may assert against a

preliminary injunction here. See Metro Lights, L.L.C. v. City of Los Angeles, No. CV 04-1037

GAF (Ex), 2004 WL 5464306 (C.D. Cal. Sept. 21, 2004) (reasoning that the minimal effect

plaintiff’s signs may have on defendant’s interests did not outweigh plaintiff’s interest in First

Amendment freedoms and preserving the existence of its business, “especially when the

[defendant] itself is acting affirmatively to undermine its own asserted interests on a much larger

scale”), rev’d and remanded on other grounds, 551 F.3d 898 (9th Cir. 2009).

By contrast, regardless of the amount of their speech that is curtailed, Plaintiffs would

suffer irreparable injury to their First Amendment rights from enforcement of the Ordinance.

The balance of harms accordingly favors Plaintiffs.

IV. A PRELIMINARY INJUNCTION WOULD ADVANCE THE

PUBLIC INTEREST

Finally, a preliminary injunction would advance the public interest. Protecting First

Amendment rights is unequivocally in the public interest, and courts in this Circuit “have

consistently recognized the significant public interest in upholding First Amendment principles.”

Sammartano, 303 F.3d at 974; see also Doe v. Harris, 772 F.3d 563, 583 (9th Cir. 2014) (finding

that, where plaintiff established a likelihood of success on the merits of his First Amendment

challenge, a preliminary injunction was warranted because “the public interest favors the

exercise of First Amendment rights”). Viewpoint discrimination, unreasonable speech

restrictions, and prior restraints harm the public interest. Absent a preliminary injunction, the

Ordinance will infringe upon both Plaintiffs’ free expression rights and the rights of others

subjected to the same restrictions. See generally Klein v. City of San Clemente, 584 F.3d 1196,

1208 (9th Cir. 2009) (finding that a preliminary injunction furthered the public interest where the

challenged Ordinance infringed on the free speech rights not only of plaintiff, “but also of


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anyone seeking to express their views [through leafleting] in the City of San Clemente.”). It will

also deprive consumers of the full universe of information relevant to their dietary choices. The

public interest would not be served by the City’s expenditure of time, money, and effort to

suppress open discussion of the issues and enforce an unconstitutional Ordinance.

For all of these reasons, the public interest would be served by entry of a

preliminary injunction.

CONCLUSION

For the forgoing reasons, Plaintiffs respectfully request that this Court grant this Motion

for a preliminary injunction, and enjoin enforcement of the Ordinance pending its entry of final

judgment in this lawsuit.

Dated: July 24, 2015 Respectfully submitted,

LATHAM & WATKINS LLP By /s/James K. Lynch

James K. Lynch8 LATHAM & WATKINS LLP 505 Montgomery Street Suite 2000 San Francisco, CA 94111-6538 T +1.415.391.0600 F +1.415.395.8095 [email protected]

8 I hereby attest that concurrence in the filing of this document has been obtained from each of the other Signatories.


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Richard P. Bress Michael E. Bern John S. Cooper LATHAM & WATKINS LLP 555 Eleventh Street, NW Suite 1000 Washington, D.C. 20004-1304 Direct Dial: +1.202.637.2200 Fax: +1.202.637.2201 [email protected] [email protected] [email protected] Attorneys for Plaintiff The American Beverage Association Theodore B. Olson (#38137) Andrew S. Tulumello (#196484) Helgi C. Walker (Pro Hac Vice Pending) Jacob T. Spencer (Pro Hac Vice Pending) GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036-5306 T +1.202.955.8668 F +1.202.530.9575 [email protected] [email protected] [email protected] [email protected] Charles J. Stevens (#106981) Joshua D. Dick (#268853) GIBSON, DUNN & CRUTCHER LLP 555 Mission Street San Francisco, CA 94105-0921 T +1.415.393.8233 F +1.415.374.8469 [email protected] [email protected] Attorneys for Plaintiff California State Outdoor Advertising Association Thomas S. Knox (#73384) KNOX, LEMMON & ANAPOLSKY, LLP 300 Capitol Mall, Suite 1125 Sacramento, CA 95814 T +1.916.498.9911 F +1.916.498.9991 [email protected] Attorneys for Plaintiff California Retailers Association


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