This post was authored by Otten Johnson summer law clerk Matt Bender. Matt is a rising third-year law student at the University of Denver Sturm College of Law.
A Tennessee case is inquiring into the “similarly situated” requirement for Equal Protection claims and will likely decide the constitutionality of the Tennessee Billboard Act (TBA). While the outcome of the case is far from finalized, Thomas v. Schroer, which stems from the denial of the plaintiff’s sign application, has already raised some interesting questions about the reach of the First Amendment under Reed v. Town of Gilbert.
On May 16, 2016, Judge Jon P. McCalla of the United States District Court of the Western District of Tennessee considered the State of Tennessee’s Motion for Summary Judgment as to the plaintiff’s Equal Protection claim and challenge to the constitutionality of the TBA. First, the court noted that an Equal Protection claim requires the plaintiff to demonstrate that he was treated differently than “similarly situated” persons. Here, Judge McCalla found that the plaintiff could not satisfy this element because no approved sign applications in the locality were similarly situated. In reaching this conclusion, the court specifically distinguished the plaintiff’s application for a sign on a site zoned for residential, agricultural, and floodplain uses, displaying an off-premises, non-commercial message in support of the U.S. Olympics team, from (1) commercial, on-premises advertisements; (2) non-commercial, on-premises messages in support of American troops; (3) signs on a site zoned for commercial-highway uses; and signs that, although otherwise similar, were (4) approved in 1993 by a different Tennessee Department of Transportation commissioner or (5) “grandfathered in after the [TBA] was passed.” Thus, the court granted summary judgment on this issue, concluding that the plaintiff failed to establish a genuine issue of material fact.
Next, relying on its prior ruling on a preliminary injunction in this matter, the court noted that the TBA was content-based under Reed and would therefore, be subject to strict scrutiny. The court determined that the TBA was facially content-based because its categorization between on-premises and off-premises signs “draws distinctions based on the message a speaker conveys.” Nonetheless, Judge McCalla’s Order concluded that summary judgment was not appropriate as there were still disputed issues of material fact relating to whether the state’s interest in “protecting highways, promoting aesthetics, and retaining federal funding for compliance with the Highway Beautification Act” were compelling interests that could overcome strict scrutiny.
While Judge McCalla’s characterization of the law under Reed may sound straightforward, the order appears to ignore Justice Alito’s concurring opinion in Reed, as well as several other federal cases decided since Reed, all of which suggest that the on-premises/off-premises distinction remains valid. Indeed, Thomas v. Schroer is the only post-Reed case involving commercial billboards that seems to indicate that Reed may have changed the law applicable to such signs.
We will continue to follow this case as it develops. The implications of a court potentially invalidating some or all of a state highway advertising act are significant for state highway departments, billboard advertising companies, property owners, and others.