Photo by Peter Kaminski, used pursuant to Creative Commons 2.0 license.

Fewer than six months after it was enacted as an “emergency” measure, a Cincinnati ordinance singling out billboards for special taxes has succumbed to a constitutional challenge. The ordinance, which met legal headwinds from the start, transparently aimed to make life miserable for the city’s billboard operators and consisted of two primary components: (1) a special tax on revenues from billboard advertising and (2) a hush provision preventing those operators from telling advertisers about the tax.  An Ohio judge wasted little time in finding both provisions unconstitutional and made a preliminary injunction against the ordinance’s enforcement permanent last month.

The billboard tax itself unconstitutionally singled out a recognized means of communication for negative treatment.  Reviewing the First Amendment’s provenance and analogizing to established case law, the court explained that Cincinnati could no more levy a special tax on billboards than it could impose a special newspaper tax.  As efforts to suppress a medium of communication, and as taxes on the exercise of constitutional rights, billboard and newspaper taxes were equally inimical to the First Amendment’s aims.

The ordinance’s don’t-talk-about-the-tax provision met the same fate.  Cincinnati attempted to justify the restriction as constitutional limitation on commercial speech that prevented billboard operators from mischaracterizing the tax or otherwise misleading advertisers.  The court disagreed.  In its view, the hush provision was not a regulation of commercial speech.  Rather, it was a content-based restriction that prevented operators from making political statements about taxes, conveniently shielded Cincinnati’s city council from negative reactions to a tax increase, and instead forced operators to bear the blame for any cost increases.  The city’s fears about mischaracterization did not suffice to justify the restriction in the face of strict scrutiny.

The ordinance’s shortcomings were obvious from the start, and last month’s permanent injunction sealing its fate followed both a preliminary injunction and a temporary restraining order enjoining the city from enforcing the ordinance.

A full copy of the court’s preliminary injunction analysis is available here.