This week, a federal district court in Wisconsin ruled that Adams Outdoor Advertising’s claims that the Madison sign ordinance is unconstitutional could not survive summary judgment. The ruling in the city’s favor is further support for the proposition that Reed v. Town of Gilbert does not upset longstanding commercial speech doctrine.
The Madison sign ordinance generally prohibits billboard advertising in most areas of the city. Where they are permitted, billboards are subject to strict regulation as to setback, height, sign area, and spacing between signs. The city also operates an exchange program, whereby owners of signs that are removed due to redevelopment can “bank” their sign area and obtain a permit in another area of the city. The city also prohibits digital signs.
Beginning in 2016, Adams Outdoor sought permits for billboards in the city. It first sought to avail itself of the sign exchange program with respect to one of its signs, but the city determined that the sign was not eligible for the banking program. Adams Outdoor then submitted 26 applications to the city in 2017 seeking to modify or replace existing billboards. The city denied 25 of the 26 permits on the grounds that the sign ordinance did not permit the modifications in question. Adams Outdoor appealed 22 of the denials to the city’s Urban Design Commission, while also filing a lawsuit in federal court. After the filing of the lawsuit, the city adopted a variety of amendments to its sign ordinance, to ensure that the ordinance complied with Reed.
After finding that Adams Outdoor had standing to raise a facial challenge to the billboard ban, although it did not have standing to challenge portions of the sign ordinance that do not apply to its signs, the court considered whether Adams Outdoor’s claims were precluded under the doctrine of res judicata. In 1993, the city and Adams Outdoor had entered into a stipulated judgment in another case in which Adams Outdoor challenged the city’s billboard ban, but which resulted in the city granting Adams Outdoor 16 billboard permits. The court rejected Adams Outdoor’s arguments that changes in the city’s sign ordinance and First Amendment law—mostly stemming from the changes wrought by Reed—could defeat the city’s claim preclusion defense.
Although the court found that Adams Outdoor’s claims were precluded, the court continued to evaluate the billboard company’s First Amendment claims. However, the court found that those claims would have failed anyway. The court determined that the ban on billboard advertising in the city, as well as the ban on digital advertising, were not content based. The court observed that Reed did not address regulation of commercial speech, and further observed that Reed did not invalidate the on-premises/off-premises distinction used to regulate billboards. The court also distinguished Thomas v. Bright, the Sixth Circuit’s recent case that appeared to question the on-premises/off-premises distinction. The Madison ordinance was then evaluated as a time, place, and manner regulation under intermediate scrutiny, and the court found that it was constitutional under the First Amendment, as it directly advanced the city’s interests in public safety and aesthetic beautification.
The court also rejected Adams Outdoor’s claims that the ordinance was vague, that it constituted an improper prior restraint, and that it violated the Equal Protection Clause of the Fourteenth Amendment. With respect to the prior restraint question, the court determined that the eligibility criteria for the advertising sign bank program were not so broad as to give the zoning administrator undue discretion.
Adams Outdoor Adver. Ltd. Partnership v. City of Madison, No. 17-cv-576-jdp, 2020 WL 1689705 (W.D. Wis. Apr. 7, 2020).