When the 6.9 magnitude Loma Prieta earthquake struck in 1989, I was in a classroom in Santa Cruz, California—a mere 10 miles from the epicenter—listening to a professor lecture on the comparative economies of advanced capitalist states.

The wood-framed campus building was new—there was no damage. But the town's charming main street, Pacific Avenue, was lined with old brick buildings. Almost all of them collapsed or were so compromised that they had to be razed. Three people were killed by falling bricks.

So yes, I understand why Portland, Oregon is concerned about its many unreinforced masonry buildings—especially since experts predict there's a 20 percent chance the city will be hit by a major earthquake in the next 50 years.

But the Portland city's council's proffered solution—prominently posted placards warning that the buildings might be unsafe in an earthquake, as well as similar notices in leases—was, shall we say, legally shaky.

In a preliminary injunction blocking the new ordinance, a federal judge has ruled that it “seeks to compel speech that is not narrowly tailored to address a compelling government interest.”

It was a novel First Amendment victory for Davis Wright Tremaine's John DiLorenzo on behalf of Portland property owners and a coalition so diverse he compared it to the “the lounge scene in Star Wars.”

The property owners and their lawyers initially envisioned a challenge based on real estate claims such as diminution of value and inverse condemnation, DiLorenzo said.  (“Building owners have real estate lawyers. The typical building owner doesn't have a First Amendment lawyer,” he pointed out.)

In his pitch, DiLorenzo convinced the group “to think out of the box” and try something new—plus if they won his way, they'd be entitled to recoup attorney fees.

Lest this sound like I'm lauding a victory against earthquake safety measures—no, that's not it.  

In an ideal world, all buildings would be retrofitted to meet seismic safety standards. No one wins if a building collapses in an earthquake—not the owners, the city, or the people inside.

Other cities such as Berkeley, California have made retrofitting mandatory, and DiLorenzo readily concedes Portland has the legal right to do the same.

But retrofitting is expensive. For example, plaintiff Jim Atwood testified that it would cost $1.8 million to upgrade his historic Glade Hotel—approximately twice the replacement value of the building. And Portland—which in its budget passed last month was forced to lay off parks department workers and close community centers—has not been willing to offer any financial assistance such as tax credits or grants to help offset the costs.

If the city made retrofitting mandatory, the reality is that many of the city's 1,500 unreinforced masonry commercial buildings would wind up being demolished rather than upgraded, thousands of people would be displaced, and the character of Portland itself would change. That's why tenants unions concerned about loss of affordable housing, the NAACP concerned about disparate impact on black neighborhoods and black churches, and MusicPortland—a coalition of music venues located in cool old buildings—all came out against it.

So never mind, no mandatory retrofitting.

The warning placards were a clumsy compromise that put the onus on property owners.

But U.S. Magistrate Judge John Acosta said no. “The city's failure to garner support for mandatory retrofitting does not give it permission to burden [unreinforced masonry] building owners with its message in a manner contrary to the First Amendment,” he wrote.

Acosta continued, “After reviewing the extensive record and listening to two full days of testimony in this action, at bottom it appears to this court that defendants lacked the political will or public support to achieve its desired goal: mandatory retrofits. However, defendants may not burden speech to accomplish indirectly what the City Council lacked the political will or public support to accomplish directly.”

According to Portland's mayor, the point of the placards was to “build awareness of seismic risk, about what to do if you're in an unreinforced masonry building, to duck, cover, not to get out, and it also builds market demand for seismic improvements to these buildings.”

Except the placards don't actually say anything about what to do in an earthquake.

“The court finds that while promoting public safety is a compelling governmental interest, the city's shifting post-hoc rationalizations do little to advance the city's stated purposes for passing the ordinance,” Acosta wrote. “Even presuming that defendants' stated interests in 'building awareness of seismic risk' and promoting public safety are compelling, they have not demonstrated that the placard provision is narrowly tailored to achieve those interests.”

A city-sponsored public awareness campaign on earthquake safety, for example, might be more effective and wouldn't infringe anyone's First Amendment rights, the judge suggested.

To DiLorenzo, the ordinance amounted to “the Scarlet Letter approach,” he said. “The concept was to shame the building owners.”

Except brick buildings aren't the only ones that fare poorly in earthquakes. Structures made of non-ductile concrete; those with “soft-story” construction (typically where the first floor is a garage) and those built in “liquifaction zones” (e.g. on a landfill) can be equally or more dangerous in earthquakes, but the warning notice doesn't apply to them.

Why not? The record suggests city officials were afraid to make the requirement too broad.

“Here, the ordinance has singled out [unreinforced masonry] building owners for treatment without adequate explanation,” Acosta found.

The balance of equities and public interest favor granting an injunction, the judge concluded. The ordinance “would permit defendants to infringe on the speech rights of a handful of Portlanders while failing to take steps to actually increase seismic awareness for all Portlanders.”