Late last week, in a case that involved made-for-TV shenanigans by a local police officer, the Seventh Circuit Court of Appeals ruled that a town’s total ban on signs, flags, and banners within 100 feet of an interstate highway could survive with respect to overhead signs, but remanded the case for additional proceedings with respect to other parts of the ban.
Campbell, Wisconsin bans all signs, flags, and banners along interstate highways. The town enacted its regulation after members of the community hung political protest banners containing messages commonly identified with the Tea Party on a pedestrian overpass over Interstate 90.
Following the enactment of the regulation, the local police began issuing citations to individuals displaying signs along the highway. Some of the individual sign-posters took videos of the police issuing citations—including in response to the protesters’ display of American flags and other patriotic signs along the interstate highway. Concerned about the videos, in an apparent attempt at vigilante justice, the local police chief posted the name and email address of one of the Tea Party sign-posters on same-sex dating and pornographic websites. The police chief also took to local newspapers to accuse the man of failing to pay his taxes.
The sign-poster, Gregory Luce, along with one of his fellow sign-posters, filed a lawsuit, alleging that the prohibition on signs, flags, and banners violated the First Amendment. He also filed a claim under 42 U.S.C. § 1983, alleging the police chief of acting under the color of state law in committing First Amendment violations. The police chief subsequently resigned.
The Seventh Circuit found that the police chief’s acts did not constitute state action, and thus he was not liable under 42 U.S.C. § 1983 for First Amendment violations. The court went on to find that the regulation, which was content neutral, was not required to be supported by empirical evidence relating to traffic safety as the plaintiffs contended. The Seventh Circuit observed that the Supreme Court never required speech regulations to be supported with empirical evidence, and that, in many cases, speech regulations have been upheld where supported by non-empirical evidence. The court stated:
“It does not take a double-blind empirical study, or a linear regression analysis, to know that the presence of overhead signs and banners is bound to cause some drivers to slow down in order to read the sign before passing it. When one car slows suddenly, another may hit it unless the drivers of the following cars are alert—and, alas, not all drivers are alert all the time.”
While the court upheld the district court’s grant of summary judgment to the town with respect to overhead signs, the Seventh Circuit noted that the town had not offered any evidence to support the 100-foot buffer from the interstate highway. The appeals court thus remanded to the district court for additional findings as to whether the 100-foot buffer was supported by a significant governmental interest and narrow tailoring.