FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRUCE BOYER, an individual, No. 19-55723
Plaintiff-Appellant,
D.C. No.
v. 2:19-cv-00560-
R-JPR
CITY OF SIMI VALLEY,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted June 11, 2020
San Francisco, California
Filed October 14, 2020
Before: Eric D. Miller and Danielle J. Hunsaker, Circuit
Judges, and Douglas L. Rayes, * District Judge.
Opinion by Judge Hunsaker
*
The Honorable Douglas L. Rayes, United States District Judge for
the District of Arizona, sitting by designation.
2 BOYER V. CITY OF SIMI VALLEY
SUMMARY **
Civil Rights
The panel reversed in part and affirmed in part the
district court’s dismissal, pursuant to Federal Rule Civil
Procedure 12(b)(6), of an action challenging the
constitutionality of the City of Simi Valley’s regulations
prohibiting mobile billboards on public property unless they
qualify as authorized emergency or construction-related
vehicles.
The district court found that the City’s ordinances were
content-neutral and reasonable time, place, and manner
restrictions that did not violate the First Amendment.
The panel inferred, from the Simi Valley Municipal
Code § 4-9.501, that the City believed it was “reasonable and
necessary” to exempt authorized vehicles from displaying
billboards on public property to “protect the health, safety,
and welfare” of the community. The panel stated that the
City’s ordinance exempting authorized emergency or
construction-related vehicles from the prohibition on mobile
billboard advertising made sense only if the panel assumed
that authorized vehicles were more likely to display
messages that promote public health, safety, and welfare
than nonauthorized vehicles. The panel stated that to
execute its purpose of health, safety and welfare, the City
enacted an ordinance that preferred speakers likely to spread
messages consistent with its purpose. The panel held that
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BOYER V. CITY OF SIMI VALLEY 3
this was a prudent preference, a reasonable rationale, and a
content-based choice that triggered strict scrutiny.
The panel held that the exemption could not be justified
as a mere codification of the government speech doctrine
because the exemption did not limit authorized vehicles to
displaying only those messages made by government entities
or that were effectively controlled by the City. Because the
exemption allowed authorized vehicles to display messages
that were not subject to government control, the exemption
could not avoid strict scrutiny based on the government
speech doctrine. Noting that the parties had not briefed the
strict scrutiny standard on appeal or below, the panel
declined to apply this standard in the first instance and
instead instructed the district court on remand to consider
plaintiff’s claims consistent with its opinion.
The panel affirmed the district court’s dismissal of
plaintiff’s state law claims and held that the district court did
not err in declining plaintiff’s request to remand the claims
to state court. Because the district court had subject matter
jurisdiction over plaintiff’s claims under 28 U.S.C. § 1367,
it could evaluate them on the merits and dismiss them with
prejudice at the same time it dismissed plaintiff’s federal
claims.
4 BOYER V. CITY OF SIMI VALLEY
COUNSEL
George M. Wallace (argued), Wallace Brown & Schwartz,
Pasadena, California, for Plaintiff-Appellant.
Danielle C. Foster (argued) and Jill Williams, Carpenter
Rothans & Dumont, Los Angeles, California, for Defendant-
Appellee.
OPINION
HUNSAKER, Circuit Judge:
Bruce Boyer challenges the constitutionality of the City
of Simi Valley, California’s regulations prohibiting mobile
billboards on public property unless they qualify as
authorized emergency or construction-related vehicles. The
district court dismissed Boyer’s claims on the pleadings,
concluding the restrictions are content-neutral, reasonable
time, place, and manner restrictions that do not infringe the
First Amendment right of freedom of speech. It also
dismissed Boyer’s state law claims. We reverse in part,
affirm in part, and remand.
I. BACKGROUND
In 2016, defendant-appellee City of Simi Valley (City)
adopted an ordinance that prohibits the parking or standing
of “mobile billboard advertising display[s] on any public
street, alley or public lands in the City.” Simi Valley
Municipal Code (SVMC) § 4-9.601. The ordinance
authorizes peace officers and certain City employees to
impound mobile billboard advertising displays (mobile
billboards) parked illegally under SVMC § 4-9.601. SVMC
§ 4-9.603. Certain authorized vehicles—emergency vehicles
BOYER V. CITY OF SIMI VALLEY 5
and vehicles used “for construction, repair or maintenance
of public or private property”—are exempt from the ban on
mobile billboard advertising displays. 1 SVMC § 4-9.701
(Authorized Vehicle Exemption or Exemption).
Viewing the allegations in the light most favorable to
Boyer, Naruto v. Slater, 888 F.3d 418, 421 (9th Cir. 2018),
he utilizes various “vehicles, including trailers attached to
and detached from motor vehicles, and other non-motorized
vehicles that may qualify as ‘mobile billboard advertising
displays’ within the City of Simi Valley for the purposes of
speech and expression.” Boyer parks his mobile displays “in
locations where parking of most any other vehicle is
permitted.” And on various occasions, the City has
impounded or threatened to impound his vehicles and
displays.
In December 2018, Boyer sued the City in state court,
targeting the City’s ordinances regulating mobile billboard
advertising displays. He argued that the ordinances at issue
violated his First Amendment right to freedom of speech and
that they were invalid because they were preempted by
California state law. The City timely removed the case to
federal court. After the City answered, Boyer filed a First
Amended Complaint, and the City moved to dismiss under
Federal Rule Civil Procedure 12(b)(6).
1
A mobile billboard is not a motor vehicle but instead is “an
advertising display that is attached to a mobile, nonmotorized vehicle,
device, or bicycle, that carries, pulls, or transports a sign or billboard,
and is for the primary purpose of advertising.” SVMC § 4-9.602. While
common sense may seem to exclude “authorized vehicles” from this
definition, the City offers “peace officer patrol bicycles” and
“construction trailers” as examples that would qualify as both authorized
vehicles and mobile billboards.
6 BOYER V. CITY OF SIMI VALLEY
The district court granted the City’s motion, concluding
the City’s ordinances were content-neutral and reasonable
time, place, and manner restrictions that did not violate the
First Amendment. It also dismissed Boyer’s state law claims.
Although the district court granted Boyer leave to amend
certain claims not at issue here, Boyer chose not to do so.
Instead, he asked the district court to dismiss all his federal
claims and remand his state law claims back to California
court. Shortly thereafter, the district court dismissed Boyer’s
case in its entirety. This appeal followed. We have
jurisdiction under 28 U.S.C. § 1291 and review dismissals
under Federal Rule of Civil Procedure 12(b)(6) de novo. In
re Facebook, Inc. Internet Tracking Litig., 956 F.3d 589, 597
(9th Cir. 2020).
II. DISCUSSION
A. Boyer’s First Amendment Claims
The First Amendment, applied via the Fourteenth
Amendment, “prohibits state and local governments from
enacting laws ‘abridging the freedom of speech.’” Lone Star
Sec. & Video, Inc. v. City of Los Angeles, 827 F.3d 1192,
1197 (9th Cir. 2016) (quoting U.S. Const. amend. I).
Content-based regulations—those that target speech based
on its topic, idea, or message—are presumptively invalid. Id.
To survive, they must pass strict scrutiny: the government
must prove “they are narrowly tailored to serve compelling
state interests.” Reed v. Town of Gilbert, 576 U.S. 155, 163
(2015). Even content-based regulations that “seem entirely
reasonable” may fail strict scrutiny. Id. at 171 (internal
quotation and citation omitted).
The Supreme Court has cautioned that speaker-based
regulations “are all too often” content-based regulations in
disguise. Id. at 170. When a regulation makes speaker-based
BOYER V. CITY OF SIMI VALLEY 7
distinctions, we ask whether that “speaker preference
reflects a content preference.” Id. (quoting Turner
Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 658 (1994)).
If it does, we treat it the same as any other content-based
regulation and apply strict scrutiny. Id.
To determine whether a regulation is content based, we
first consider whether, “on its face, it draws distinctions
based on the message a speaker conveys.” Lone Star,
827 F.3d at 1198 (internal quotation and citation omitted). If
the regulation is facially neutral, we determine whether “it is
nevertheless a content-based regulation of speech because it
cannot be justified without reference to the content of the
regulated speech.” In re Nat’l Sec. Letter, 863 F.3d 1110,
1123 (9th Cir. 2017) (internal quotation and citation
omitted).
Boyer concedes the mobile billboard advertising
prohibition, SVMC § 4-9.601–603, standing alone, is
content neutral under Lone Star. Sure enough, the City’s
prohibition is almost identical to the prohibition upheld in
Lone Star. However, unlike the ordinances examined in
Lone Star, the City’s ordinance exempts certain authorized
vehicles from the ban on mobile billboards. And Boyer
argues that this Authorized Vehicle Exemption transforms
an otherwise content-neutral prohibition into a content-
based restriction on speech.
Under the Exemption, authorized emergency and
construction, repair, or maintenance vehicles are not subject
to the “provisions . . . regulating the operation, parking and
standing of vehicles.” SVMC § 4-9.701. Both parties agree
the Authorized Vehicle Exemption applies to the mobile
billboard regulations and, therefore, a mobile billboard may
be parked on a public street if it qualifies as an authorized
vehicle. Id.; see also SVMC § 4-9.601.
8 BOYER V. CITY OF SIMI VALLEY
In exempting authorized emergency and construction,
repair, or maintenance vehicles, Boyer asserts that the City
ordinances prefer certain speakers over others. That is, an
authorized vehicle can contain a mobile billboard and park
on Simi Valley streets but nonauthorized vehicles containing
mobile billboards cannot. The City agrees. The question the
parties disagree on—and the question we must answer—is
whether allowing certain speakers to park mobile billboards
on public property but not others reflects a content
preference. Boyer argues the Authorized Vehicle Exemption
“is inescapably a content-based distinction.” We agree.
On its face, the Authorized Vehicle Exemption is content
neutral. See Lone Star, 827 F.3d at 1200. The Exemption is
framed by vehicle category—it does not expressly restrict
the topic, idea, or message that an authorized vehicle could
display via a mobile billboard advertising 2 display. See
SVMC §§ 4-9.701, .702. Apparently, an authorized vehicle
could display a mobile billboard with a political message, a
2
Lone Star forecloses reading the word “advertising” as limiting the
exemption to commercial speech. 827 F.3d at 1199. California courts
have defined “advertise” extremely broadly in the mobile billboard
context. See Showing Animals Respect & Kindness v. City of West
Hollywood, 166 Cal. App. 4th 815, 819–20 (2008). Under California
law, making something known to the public, whether the subject is
commercial or not, is advertising. Id. In Lone Star, the court noted, the
“California Court of Appeal has already recognized that the word
‘advertising’ refers to the activity of displaying a message to the public,
not to any particular content that may be displayed.” 827 F.3d at 1199.
It continued, quoting from the California Court of Appeal: “The term
‘advertise’ is not limited to calling the public’s attention to a product or
a business. The definition of ‘advertise’ is more general: ‘to make
something known to[;] . . . to make publicly and generally known[;] . . .
to announce publicly . . . . ’ Thus, although the subject of the matter
brought to notice may be commercial, it is not necessarily so.” Id.
(internal citations omitted).
BOYER V. CITY OF SIMI VALLEY 9
public-safety message, a paid message, or an infinite
plethora of other messages, all of which would be allowed.
Id. An officer determining whether the ordinance was
violated would not have to consider the content of the
speech. See Lone Star, 827 F.3d at 1200. Instead, the officer
would need evaluate only the manner of speech (whether it
is part of a mobile billboard); the place of speech (whether it
is located on public property); and the speaker (whether the
display is an authorized vehicle). SVMC §§ 4-9.601, .701.
Because the Exemption does not facially distinguish
between speakers based on the message they convey, we
consider whether the speaker preference is justifiable
“without reference to the content” of the speech. Nat’l Sec.
Letter, 863 F.3d at 1123 (internal quotation and citation
omitted).
We struggle to identify a justification for allowing
speech only from authorized emergency and construction,
repair, or maintenance vehicles that does not rely on content,
and the City offers none. The City cites SVMC § 4-9.501 as
setting forth the purpose of the relevant ordinances. That
provision states, in pertinent part, that the parking
regulations at issue are “reasonable and necessary to protect
the health, safety, and welfare of the citizens of the City.”
From this we infer that the City believed it was “reasonable
and necessary” to exempt authorized vehicles from
displaying billboards on public property to “protect the
health, safety, and welfare” of the community. SVMC § 4-
9.501.
But that justification makes sense only if we assume that
authorized vehicles are more likely to display messages that
promote public health, safety, and welfare than
nonauthorized vehicles. In other words, how else could
allowing authorized vehicles to display messages via mobile
10 BOYER V. CITY OF SIMI VALLEY
billboards protect the health, safety, and welfare of City
residents if not because those authorized vehicles are likely
to display public-safety related messages? 3 Thus, to execute
its purpose, the City enacted an ordinance that prefers
speakers likely to spread messages consistent with its
purpose. This is a prudent preference, a reasonable rationale,
and a content-based choice that triggers strict scrutiny. See
Reed, 576 U.S. at 170. Even “perfectly rational” sign
ordinances must yield to the “clear and firm rule governing
content neutrality [that] is an essential means of protecting
the freedom of speech.” Id. at 171. That firm rule mandates
strict scrutiny review whenever an ordinance allows some
messages, but not others, based on content—no matter how
sensible the distinction may be. Id.
Although neither party raises the issue, we pause briefly
to consider whether the government speech doctrine saves
the Authorized Vehicle Exemption. In his Reed concurrence,
Justice Alito noted that “government entities may also erect
their own signs consistent with the principles that allow
governmental speech” and that “[t]hey may put up all
manner of signs to promote safety.” Id. at 175 (Alito, J.,
concurring) (internal citation omitted). Under Justice Alito’s
view, a content preference for government speech is not a
content-based restriction at all. Id.
Here, however, it does not appear that the Authorized
Vehicle Exemption can be justified as a mere codification of
3
Arguably, the Exemption could also promote public safety by
limiting the number of speakers who can display mobile billboards—
potentially limiting the number of distracting signs—but the City does
not advance that argument. And it fails regardless because, even if
allowing fewer mobile billboards promotes public safety, it still does not
explain why the City chose to allow only speakers likely to display
messages consistent with its overall public safety goal.
BOYER V. CITY OF SIMI VALLEY 11
the government speech doctrine. See Pleasant Grove City v.
Summum, 555 U.S. 460, 467 (2009) (“The Free Speech
Clause restricts government regulation of private speech; it
does not regulate government speech.”). Certainly, some of
the speech by authorized vehicles covered by the Authorized
Vehicle Exemption would qualify as government speech.
See SVMC §§ 4-9.701, .702 (exempting certain government
vehicles from the mobile billboard advertising prohibition).
But it is not clear that all speech permitted by the Exemption
qualifies as government speech. See SVMC § 4-9.701
(exempting authorized construction vehicles from the
mobile billboard advertising prohibition).
As written, the Exemption does not limit authorized
vehicles to displaying only those messages made by
government entities or that are “effectively controlled” by
the City. See Pleasant Grove City, 555 U.S. at 473
(extending the government speech doctrine to authorized
private communication that is “effectively controlled” by the
government). Indeed, the exemption neither limits
authorized vehicles to displaying City-approved messages
nor provides that a vehicle will lose its authorization when it
speaks beyond the scope of its authority. See SVMC § 4-
9.701. For example, a construction trailer could display a
city-mandated message like “Lane Closed Ahead,” see
SVMC § 7-1.247 (mandating safety devices like “signs”
whenever work encroaches on City streets), and private
messages like “Drive Slow” or “Happy Holidays.” Two of
these messages promote public safety. SVMC § 4-9.501.
And all three messages are allowed under the Exemption.
Yet, only one message, “Lane Closed Ahead,” is speech that
is “effectively controlled” by the City.
If the Exemption subjected every message an authorized
vehicle could promote via mobile billboard to City control,
12 BOYER V. CITY OF SIMI VALLEY
it would not matter that the exemption can be justified only
with reference to content because the regulation would likely
fit within the government speech doctrine. But where the
Exemption allows authorized vehicles to display messages
that are not subject to government control, we do not see how
the Authorized Vehicle Exemption can avoid strict scrutiny
based on the government speech doctrine.
In sum, we conclude that exempting certain authorized
vehicles from the ban on mobile billboard advertising
displays can be justified only based on content. And, as
indicated, the City does not advance any other justification.
Because the district court concluded the ordinances were
content neutral, it evaluated the sufficiency of Boyer’s
complaint against the wrong standard. We therefore vacate
its order granting the City’s motion to dismiss regarding
Boyer’s First Amendment claims. As the parties have not
briefed the strict scrutiny standard here or below, we decline
to apply this standard in the first instance and instead instruct
the district court on remand to consider Boyer’s claims
consistent with this opinion. Koala v. Khosla, 931 F.3d 887,
904 (9th Cir. 2019) (reversing Rule 12(b)(6) dismissal and
remanding for district court to reconsider First Amendment
claim under proper framework).
B. Boyer’s State Law Claims
Boyer argues that the district court, after dismissing his
federal claims, erred by not remanding his state preemption
claims back to California state court or dismissing them
without prejudice. Notably, Boyer concedes that the district
court correctly applied California law and that several
California Court of Appeal cases “bound” the district court.
Nonetheless, he argues that because he seeks to “attack and
overturn” prevailing California authority, this court should
BOYER V. CITY OF SIMI VALLEY 13
reverse the district court so that he can “bring this issue”
before the California appellate courts. This argument fails.
Because the district court had subject matter jurisdiction
over Boyer’s claims under 28 U.S.C. § 1367, it could
evaluate them on the merits and dismiss them with prejudice
at the same time it dismissed Boyer’s federal claims.
Contrary to the parties’ briefing, this is not a case where a
state law claim lingered after the federal claims were
dismissed. See Carnegie-Mellon Univ. v. Cohill, 484 U.S.
343, 350 (1988) (holding district courts have discretion
whether to dismiss state law claims after all the federal
claims are dismissed and explaining the factors courts should
consider when doing so). Instead, both claims were
dismissed at the same time. Indeed, the district court even
allowed Boyer to amend some of his federal claims not at
issue here—that is, Boyer’s federal claims continued after
his state claims were dismissed—not vice versa. In such
circumstances, the district court did not need to consider the
factors regarding whether to retain supplemental jurisdiction
over a state law claim.
III. CONCLUSION
The City’s mobile billboard regulations favor certain
speakers because the City favors the likely speech of those
speakers. Therefore, the district court erred in concluding the
regulations are not content based. The district court did not
err, however, in declining Boyer’s request to remand his
state law claims to state court.
REVERSED IN PART, AFFIRMED IN PART, and
REMANDED for further proceedings. The parties shall
bear their own costs.