Late last month, a federal court in Michigan granted in part and denied in part a motion to dismiss First Amendment claims filed by a billboard company, International Outdoor, against the City of Troy. The billboard company claimed that Troy’s sign ordinance was content based and unconstitutional, and that it imposed an unconstitutional prior restraint. The city moved to dismiss the plaintiff’s claims, and further argued that the billboard company lacked standing to bring the claims.
The court first reviewed the city’s challenge to International Outdoor’s standing, which asserted that International Outdoor failed to plead redressability. In a short response, the court held that, because the challenge was a facial challenge to the entire sign ordinance, if the court were to strike down the entire ordinance, the plaintiff’s injury would be redressed.
Second, the court reviewed the billboard company’s challenge that the sign code was content based. Much like the sign code at issue in Reed, the Troy sign ordinance defined and regulated certain signs with reference to a sign’s message. For example, the code excepted from certain regulations a variety of temporary signs, including political, real estate, garage sale, directional, and holiday signs. The court held, much like the Supreme Court in Reed, that the ordinance was content based on its face. The court also reviewed the regulations under the Central Hudson test applicable to commercial speech regulations, and found that most of the plaintiff’s advertising was commercial in nature. Applying the usual deference afforded to regulations of commercial speech, the court found that the regulations as to commercial speech were permissible under Central Hudson, and granted the city’s motion to dismiss on that claim.
As to the plaintiff’s prior restraint claim, the court denied the city’s motion to dismiss. The plaintiff complained that the variance criteria as applied to signs were vague and granted unbridled discretion to administrative officials, because they simply required the city’s board of appeals to consider such criteria as the public interest, effects on nearby properties, and hardship or practical difficulty of complying with the sign regulations. The court found that the city failed to articulate how its criteria were narrow, objective, and definite as required by the First Amendment, and further observed that the city’s failure to impose a time limit on decision-making violated applicable prior restraint law. The court thus allowed the prior restraint claim to move forward.
International Outdoor, Inc. v. City of Troy, ___ F. Supp. 3d ___, 2017 WL 2831702 (E.D. Mich. Jun. 30, 2017).