Attention Sign Companies And Outdoor Advertisers: New Ninth Circuit Decision Partially Invalidates On First Amendment Grounds Permit Scheme Regulating Commercial Weddings

Sign litigation, especially litigation over the constitutionality of ordinances and regulations affecting signage, often involves familiar, but competing, concepts. Although the courts recognize that outdoor advertising signs are subject to certain protections as "commercial speech" under the First Amendment, municipalities and agencies nevertheless hold significant authority to regulate signage. So long as the regulations on signage are content neutral and further the recognized governmental interests in protecting traffic safety and eliminating visual blight, the regulations are generally upheld. However, where an ordinance or regulatory scheme affords local officials too much -- or in the courts' parlance, "unbridled" -- discretion over whether to approve, deny or condition the approval of a sign, the courts are willing to step in and strike down the offending regulation. Although not a sign case, a new opinion out of the Ninth Circuit, Kaahumanu v. State of Hawaii, 2012 DJAR 7472 (9th Cir., June 6, 2012), offers a wonderful illustration of these competing principles.

Background Facts

The plaintiffs in Kaahumanu were a Native Hawaiian pastor who performs religious wedding ceremonies, and Maui Wedding and Event Professionals Association, an association of individuals and businesses providing commercial services for weddings. Plaintiffs brought First Amendment and other constitutional challenges to regulations and associated guidelines that require permits for "commercial weddings" on Hawaii's public beaches.

Public beaches in Hawaii are under the jurisdiction of Hawaii's Department of Land and Natural Resources ("DLNR"). In November 2002, DLNR began to regulate commercial activities on "unencumbered" public beaches -- i.e., public beaches that have not been set aside for any purpose, by statute, executive order, or other means to a governmental agency; or are encumbered by lease, license, permit, easement, or other document issued by DLNR. DLNR regulations provide, "[n]o person shall engage in commercial activities of any kind without a written permit from the board or its authorized representative."

An applicant seeking a permit for a commercial event, including a wedding ceremony, is subject to several terms and conditions. Among other things, a permittee can reserve a "right-of-entry area" for up to two hours in exchange for payment of a fee. The applicant must obtain insurance and agree to indemnify DLNR against losses. The...