Asian American Business Group
v. City of Pomona
(excerpts)

716 F.Supp. 1328 (C.D. Cal. 1989)


Between 1980 and 1987 more than 100,000 Asian immigrants settled in the San Gabriel Valley suburbs east of Los Angeles, bringing rapid and visible changes. Signs with Chinese, Vietnamese, and Korean characters began to sprout in local business districts. In response, some Official English advocates sought to impose legal limits on the amount of foreign languages (or Asian characters) on business signs. Such ordinances were passed, usually on public-safety grounds, in Monterey Park, Temple City, Rosemead, and San Gabriel, among other cities. Despite its relatively small Asian population, Pomona followed suit in 1988. It enacted an ordinance providing that if local businesses displayed signs featuring "foreign alphabetical characters," they must "devote at least one-half of the sign area to advertising copy in English alphabetical characters." A group of Asian business owners challenged the law as a violation of constitutional guarantees of free speech and equal protection under the First and Fourteenth amendments. U.S. District Judge Robert M. Takasugi agreed, in a decision issued on July 14, 1989.

By requiring one-half of the space of a foreign alphabet sign to be devoted to English alphabetical characters, the [Pomona city] ordinance regulates the cultural expression of the sign owner. Since the language used is an expression of national origin, culture, and ethnicity, regulation of the sign language is regulation of content. A person's primary language is an important part of, and flows from, his/her national origin. Choice of language is a form of expression as real as the textual message conveyed. It is an expression of culture.

Speech is not commercial merely because it proposes a transaction or because there is an economic motivation.<1> Although the signs regulated by the ordinance have a commercial aspect to them, it is not that aspect that the ordinance regulates. It is the aspect of expression of culture and national origin that is being regulated. As a regulation of noncommercial speech, the ordinance must meet the standard of strict scrutiny it must serve a compelling governmental interest and be narrowly tailored to meet the interest.<2>

The governmental interest cited by [the City of Pomona] is the ready identification of commercial structures to facilitate the reporting of emergencies. Defendant City argues that if a person telephoning the police or fire department to report an emergency cannot read the sign identifying the location of the emergency, the response will be delayed. This is a compelling state interest.

It appears that the ordinance is not narrowly tailored to further the defendant City's stated interest. An undisputed portion of the ordinance requires that addresses be posted in Arabic numerals. Identification by street address would appear to be the most expedient way in which to report the location of an emergency. Requiring "advertising copy in English alphabetical characters" would not necessarily insure the posting of a sign that would be helpful in reporting the location. ...

The defendant City does not require any business or commercial establishment to have a sign on the premises stating the name of the establishment. If that is the case and if, as defendants argue, street address is insufficient identification for reporting a location in an emergency, it is very curious that defendant City has chosen to require only establishments having foreign alphabet signs to post a sign naming their buildings. Such a limitation renders the ordinance equally limited in its effectiveness in furthering the stated government interest and, as such, casts suspicion on the genuineness of said stated interest.

The ordinance fails the "narrowly tailored" test for another reason: It takes one-half of all signs written in foreign characters without regard to the size and location of the sign or the amount of space necessary to identify the building. There is no reason suggested for seizing such a large portion of the signs nor an explanation provided as to why the ordinance was not drafted to limit the space taken to that necessary to identify the building. ... [This requirement] is clearly more extensive than necessary to serve the stated interest. Whether a regulation of commercial or noncommercial speech, the ordinance violates the freedom of speech. ...

Although an equal protection claim must generally show intent to discriminate, a showing of intent is unnecessary if the law has an overly discriminatory character.<3> The subject ordinance expressly discriminates against sign owners who use foreign alphabetical characters in their signs. ... [T]he use of foreign languages is clearly an expression of national origin. As such, the ordinance overtly discriminates on the basis of national origin.

There are two independent reasons for applying the strict scrutiny test to this equal protection claim: First, the ordinance burdens the freedom of expression, a fundamental interest, in that it seizes one-half of the sign space; and second, the ordinance discriminates based on a suspect classification national origin.<4> Of course, the ordinance does not expressly refer to national origin; instead it refers to use of foreign alphabetical characters. If this were not sufficient to label it national origin discrimination and, hence, a suspect classification triggering the application of strict scrutiny, cities could avoid such heightened scrutiny by passing discriminatory laws that merely restrict those who speak foreign languages.

"To withstand strict scrutiny a statute must be precisely tailored to serve a compelling state interest."<5> This is the same test as the "narrowly tailored" test applied to the plaintiff's [freedom of] speech claim and yields the same result -- a finding of unconstitutionality. Furthermore, focusing on the distinction/discrimination made by the ordinance and examining its relationship to stated government interest results in the conclusion that although the distinction/discrimination (singling out business establishments having foreign characters on their signs) may have a rational relationship to the stated interest (facilitating the reporting of emergencies), that relationship is not strong enough to justify the discrimination where, as here, there are many other nondiscriminatory ways to more effectively further the stated interest, such as requiring all businesses to have identifying signs. ...

1. Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 66-67 (1982).

2. Pacific Gas & Electric v. California P.U.C., 475 U.S. 1, 19 (1986).

3. Wayte v. U.S., 470 U.S. 598, 608 n.10 (1985).

4. Hoffman v. U.S., 767 F.2d 1431, 1434-35 (9th Cir. 1985).

5. Ibid.