Asian American Business Group
v. City of Pomona
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
4. Hoffman v. U.S., 767 F.2d 1431, 1434-35
(9th Cir. 1985).