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 Continue Reading Cincinnati “Billboard Tax” Found Unconstitutional Just Months After Enactment
In a case that we reported on earlier this year, a federal court in Pennsylvania has ruled that the failure to provide a deadline by which the government is required to make permitting decisions renders that state’s outdoor advertising law unconstitutional. Nonetheless, PennDOT can remedy the problem by simply imposing internal processing timeframes.
The facts of the case can be found in our earlier post.
On cross-motions for summary judgment, the court found that the permitting provisions of the act violated the First Amendment. Pennsylvania’s outdoor advertising law does not contain any deadlines by which the state must rule on a billboard permit application. Under the Supreme Court’s rulings in City of Littleton v. Z.J. Gifts and Thomas v. Chicago Park District, a content based law must have a clear permitting timeframe in order to satisfy constitutional scrutiny. The court determined that the Pennsylvania statute was content based, because it exempted “official signs” and “directional signs” from permitting. As there was no timeframe required for the issuance of other permits, the court invalidated the permitting provisions of the statute. Of course, PennDOT can remedy the constitutional violation by simply imposing internal permitting timeframes. Continue Reading Lack of Permitting Timeframes in Pennsylvania Billboard Law is Unconstitutional, But There’s An Easy Fix
Last month, a federal district court in Pennsylvania found that a billboard company’s challenge to the constitutionality of the state’s highway advertising law sufficiently stated a claim for relief and could proceed to further stages of litigation.
Pennsylvania’s highway advertising law contains a general prohibition on sign structures within 500 feet of a highway interchange or rest area, but the law exempts on-premises commercial and noncommercial signs (i.e. those advertising activities and products available on the property where the sign is located) and “official signs,” which are defined as those placed by public agencies.
Adams Outdoor Advertising, a billboard company, brought a First Amendment challenge, claiming that PennDOT, the state’s transportation department, had changed its interpretation of the highway advertising law, and had given varying directives regarding whether the 500-foot restriction applied to billboards on the opposite side of a highway from a rest area or interchange. Adams wanted to install a billboard opposite an interchange, but PennDOT had declined to issue a permit. Adams contended that PennDOT’s changed interpretation of the statute made it unconstitutionally vague. Adams further alleged that the lack of any timeframes in which PennDOT was required to act upon applications for sign permits also made the law unconstitutional.
The court first determined that it was not clear whether the law in question was content neutral, due in part to the exceptions to the permitting requirement. The court left for a later day the determination of whether it was content neutral, reasoning that even a content neutral law would be required to satisfy intermediate scrutiny. The court dismissed Adams’s vagueness claim, however, because it found that a person of ordinary intelligence could determine the meaning of the law from its face; the court was not persuaded that PennDOT’s changing interpretation of the statute rendered the law vague. The court went on to find, however, that because the law was not clearly content neutral on its face, the lack of any timeframe for the issuance of sign permits would potentially create a constitutional defect in the statute.
The court additionally dismissed substantive due process and equal protection claims as well.
Adams Outdoor Advertising Limited Partnership v. Penn. Dept. of Transp., No. 5:17-cv-01253, 2018 WL 822450 (E.D. Penn. Feb. 9, 2018).
After years of extending the power of aldermanic privilege to oversized billboard approvals, the Chicago city council recently dispatched with an aspect of that practice, to the evident disappointment of at least one of its beneficiaries. Under that longstanding policy, an alderman (Chicago’s term for a city council member) could recommend, and the council would order, that the city’s building commissioner issue or deny a permit for an oversized billboard proposed in the alderman’s ward—the requirements of the city’s zoning ordinance notwithstanding. In an effort to create a more cohesive scheme, however, the city council recently eliminated the portion of that policy which had allowed it to order approval of oversized billboards conflicting with the zoning ordinance.
This change created something of a predicament for Image Media Advertising because it also repealed the council’s prior approval of several Image Media signs, and the city’s building commissioner refused to Continue Reading District Court Rejects (Most) Challenges to Change in Chicago Sign Regulation Practice
Webcast— Special Topics in Planning and the First Amendment: Signs, Adult Businesses, Religious Land Uses, and More
December 14, 2017
1:00 p.m. – 2:30 p.m. EDT
CM | 1.50 | Law
CLE 1.50 through Illinois State Bar
The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Special Topics in Planning and the First Amendment: Signs, Adult Businesses, Religious Land Uses, and More on December 14 from 1:00 p.m. to 2:30 p.m. EDT. Registration for individuals is $20 for PLD members and $45 for nonmembers. Registration for two or more people at one computer is $140.
Planning and zoning in areas involving rights protected under the First Amendment, including the rights to free speech and freedom of religion, can be tricky. This webinar will review several areas in which planners interact with the First Amendment, including in the areas of signs, religious land uses, adult businesses, and even some other interesting areas such as the regulation of gun shops, tattoo parlors, public monuments, and other topics. Presenters will poll the audience at the beginning of the webinar to determine specific topics in which attendees are interested, and will tailor the presentation to attendees’ interests.
Speakers include Daniel Bolin of Ancel Glink, Brian Connolly of Otten Johnson Robinson Neff & Ragonetti, P.C., and Evan Seeman of Robinson & Cole LLP.
Last week, a federal district court in Nevada ruled on the City of Reno’s motion to dismiss several claims brought against it by a billboard company and landowner relating to the placement of off-premises billboards in the city.
The plaintiffs in the case are a billboard company called Strict Scrutiny Media (which perhaps implies the type of judicial review that the company wanted, but did not get, in this case) and the Independent Order of Odd Fellows Reno Lodge #14. SSM obtained billboard leases at three sites owned by the Oddfellows, constructed signs on all three locations, and obtained permits for the construction of one of the signs. In late 2016, the city informed SSM and Oddfellows that the permitted sign’s permit was invalid due to the fact that it was issued to a different sign operator, and also informed Oddfellows that two other signs that had been installed by SSM and Oddfellows were constructed without a permit in violation of the city’s code. Oddfellows and SSM then challenged the city’s action, and also challenged the city’s ban on the erection of new, permanent off-premises signs and the city’s exemptions to permit requirements for certain temporary or permanent on-premises signs. Continue Reading Court Allows First Amendment Claims to Move Forward in Reno Sign Code Case
We are pleased to announce the publication of a new book, Local Government, Land Use, and the First Amendment: Protecting Free Speech and Expression. The book is published by ABA Publishing, and was edited by the editor of Rocky Mountain Sign Law, Brian Connolly. Twelve authors contributed to the book, which contains chapters on everything from signs, religious land uses, adult businesses, the public forum doctrine, and government speech.
More about the new book is available from ABA:
This book is an re-mastered, retooled version of the ABA publication “Protecting Free Speech and Expression: The First Amendment and Land Use Law” which was published by the ABA.
The book contains some theoretical discussion of First Amendment law as it pertains to land use issues (e.g. sign and billboard regulation, regulation of artwork and aesthetics, regulation of religious land uses, regulation of adult businesses, etc.), but also provides information which will be relevant to practitioners, and will include some regulatory strategies and case studies. In order to strategically illustrate their points, the authors included cases as source material.
The book is available for purchase from ABA and will also be available on Amazon.
In a case that we reported on last year, a federal district court in California granted summary judgment in favor of the City of San Diego in a case involving art murals.
Some of the facts of the case are reported in our prior post. The San Diego sign code exempts from permitting “[p]ainted graphics that are murals, mosaics, or any type of graphic arts that are painted on a wall or fence and do not contain copy, advertising symbols, lettering, trademarks, or other references to the premises, products or services that are provided on the premises where the graphics are located or any other premises.” Otherwise, all signs visible from the right of way are required to obtain a permit, and signs on city-controlled property must obtain a permit as well. Messages on city-controlled property are limited to on-premises speech and “public interest” messages. As we previously noted, the plaintiff, a mural company, was granted approval to place two wall murals in San Diego, but received a violation for the placement of a third mural. The plaintiff believes that the annual Comic-Con event was given special treatment by the city, because certain signs posted around the city during the event were not issued citations. Continue Reading San Diego’s Motion for Summary Judgment Granted in Mural Case
Earlier this year, a federal district court in Washington granted the City of Port Orchard’s motion for summary judgment with respect to alleged violations of the First Amendment rights of Engley Diversified, Inc., a billboard company. Engley sought damages under federal and state law for what it alleged were wrongful denials of billboard permits by the city.
The case, which has a lengthy and twisted procedural history, stems from the submission of six permit applications by Engley to the city in 2010. Engley sought to construct three billboards in the city. The city’s code enforcement officer denied the permits, interpreting the sign code as prohibiting them. Engley appealed to the city’s hearing officer. During the pendency of the appeal, the city council enacted an ordinance prohibiting all off-premises advertising billboards throughout the city. The city’s hearing examiner subsequently denied the appeal on the merits, finding that the code enforcement officer’s interpretation of the sign code was not clearly erroneous. In December 2010, Engley appealed to the city council, Continue Reading City’s Denial of Billboard Permits Does Not Violate First Amendment: Federal Court
In August, the Third Circuit Court of Appeals affirmed a lower court decision holding that the Philadelphia airport’s advertising policy was unreasonable in light of the purposes of the advertising space, in violation of the First Amendment. The airport had previously enacted a policy that prohibited the display of any noncommercial advertising in city-owned advertising space.
The challenge was brought by the National Association for the Advancement of Colored People (NAACP), which wanted to place an advertisement in the airport that read “Welcome to America, home to 5% of the world’s people and 25% of the world’s prisoners. Let’s build a better America together. NAACP.org/smartandsafe.” The city rejected the advertisement.
The appeals court assumed for purposes of argument that the city’s airport advertising space was a limited public forum, but found that the advertising policy was not reasonable. The city’s purported interests in the prohibition of noncommercial advertising were to raise revenue and to avoid controversy in the airport. The court found that the prohibition on noncommercial advertising did not reasonably advance either goal, because there was no evidence that the restriction on noncommercial advertising would advance the airport’s revenue goals and the airport was otherwise full of televisions and newsstands that already contained noncommercial speech that could be controversial.
The Third Circuit’s analysis is interesting in several respects. The court undertook a long, detailed analysis of the litigation burdens in a limited public forum case. Philadelphia argued that the court should analyze the policy under the rational basis standard of review, where the burden of proof is on the plaintiff to demonstrate that the government’s policy was not rationally related to a legitimate governmental interest. However, the court, relying on several Supreme Court decisions, found that because the case addressed a fundamental right—the freedom of speech—the burden of proving that the policy was reasonable in light of the purposes of the forum was on the city. This approach to burdens in limited public forum cases imposes a higher standard on the government to ensure that a regulation is actually reasonable.
The court also went into a lengthy discussion about how the city could meet its burden in this instance. Again relying on prior Supreme Court precedent, the court found that a government need not back up every conclusion regarding speech in a limited forum with evidence, but some record evidence could be appropriate in helping the city to meet its burden. Noting the holding in United States v. Kokinda, the court indicated that common sense and historical experience can also underlie a government policy restricting certain speech from a limited public forum. With respect to the Philadelphia airport advertising policy, the court found that the city had provided neither record evidence nor any common sense rationale for the noncommercial speech prohibition. In particular, the court focused on the deposition of one of the airport’s managers, who admitted in his deposition that the noncommercial ban did not actually do anything to further the city’s interest in revenue and could not establish how the ban actually helped travelers avoid potentially offensive content.