A recent discovery dispute over Madison, Wisconsin’s revised sign codes recently provided a reminder regarding the evidence that is and isn’t relevant in a Free Speech challenge.  And let’s not bury the lede: a legislator’s private motivations for amending the sign code, the court concluded, don’t matter.

A only-in-Wisconsin billboard. Photo credit: Environmental Protection Agency, public domain

Adams Outdoor Advertising, a billboard operator, brought a facial and as-applied First Amendment challenge to Madison’s sign code after the city’s 2017 overhaul severely restricted off-site advertising.  The challenge itself is ongoing and Adams Outdoor contends that Reed v. Town of Gilbert’s test for content-based regulations—and not Central Hudson’s more permissive test for commercial speech regulations—should invalidate Madison’s new approach.

In the hopes of bolstering that contention, Adams Outdoor submitted discovery requests for information about the purpose of the 2017 amendment and, in particular, legislators’ personal motivations for adopting it.  The city refused to provide the information, invoking legislative privilege, and the dispute eventually reached the court.

Although the court doubted the city’s assertion of privilege, it mostly ignored that concern in favor of addressing a more basic problem with Adams Outdoor’s request: even if the company could obtain the information it wanted, that information was irrelevant.  Irrespective of whether Central Hudson or Reed applied, the court observed, neither requires reference to a legislator’s improper motive.  Rather, both demand that the government identify an interest and establish that the interest meets the applicable level of scrutiny.  Legislators’ individual inclinations simply aren’t part of the inquiry, and thus the court denied Adams Outdoor’s request to compel discovery regarding the same.

Adams Outdoor Advert. Ltd. P’ship v. City of Madison, 17-CV-576-JDP, 2018 WL 3242282, at *1 (W.D. Wis. July 3, 2018)