As a company that sells advertising space on benches in public areas, Bench Billboard Company has a long and storied litigation history against municipalities in Ohio and Kentucky. In this most recent iteration, the BBC challenged the constitutionality of Colerain Township’s (a Cincinnati suburb) restriction on signage in its right of way after the Township
Simi Valley, California, like many cities, bans mobile advertising displays on public streets. It also, however, exempts certain authorized vehicles from the general ban. The district court considered that scheme a permissible content-neutral regulation of speech and dismissed plaintiff Bruce Boyer’s complaint challenging its constitutionality.
Last month, the Ninth Circuit reversed in a published opinion reasoning that Simi Valley’s authorized vehicle exemption amounted to a speaker-based—and in turn, content-based—regulation. Following that conclusion, it returned the case to the district court for further proceedings to determine whether…
Continue Reading Ninth Circuit Holds California City’s Mobile Advertising Ban Content-Based, Subject to Strict Scrutiny
A billboard company’s challenge to the Troy, Michigan sign variance standards–which we reported on three years ago–has now resulted in an appellate decision that has the potential to greatly change commercial speech regulation as we know it. Two weeks ago, the Sixth Circuit Court of Appeals ruled that the city’s sign code was an unconstitutional prior restraint and was content-based in its regulation of temporary signs. The most remarkable aspect of the decision, however, was the court’s conclusion that any content-based commercial sign regulation should now be subjected to strict scrutiny analysis, which is nearly always fatal to a sign regulation.
The Troy sign ordinance allows property owners to post one ground sign of up to 12 feet in height and not exceeding 100 square feet, plus one additional ground sign, so long as the second sign is set back 200 feet from a right-of-way, is no more than 25 feet tall, does not exceed 300 square feet in area, and is not less than 1,000 feet from any other sign exceeding 100 square feet. International Outdoor sought to install 672-square-foot, double-sided advertising signs in Troy that did not meet the foregoing requirements and sought a variance. The criteria used by the city’s appeals board were threefold: “(1) the variance would not be contrary to the public interest or general purpose and intent of this Chapter; and (2) the variance does not adversely affect properties in the immediate vicinity of the proposed sign; and (3) the petitioner has a hardship or practical difficulty resulting from the unusual characteristics of the property that precludes reasonable use of the property.” The board denied the variance for failure to meet the criteria.…
Continue Reading In Billboard Company’s Challenge to a Michigan Sign Ordinance, the Sixth Circuit Finds That Content-Based Commercial Speech Regulations Are Now Subject to Strict Scrutiny
Last week, the U.S. Fifth Circuit Court of Appeals issued a ruling that the City of Austin, Texas’s sign ordinance was content based and unconstitutional due to the fact it impermissibly distinguished between on-premises and off-premises signs. The Fifth Circuit’s ruling follows a similar ruling by the Sixth Circuit in a challenge to a Tennessee state law governing billboards, and sets up the possibility of further confusion in the area of billboard regulation.
In the Austin case, two billboard companies sought permits to convert existing billboards to digital signs. The city denied the permits on the ground that its sign code prohibits new off-premises signs (i.e. signs that advertise business or services not located on the property on which the sign is located) and that conversion of existing billboards to digital faces would change the technology of a nonconforming sign in violation of the code. The billboard companies challenged the denial in state court. The city removed the case to federal court. During the pendency of the litigation, the city amended its sign code to allow the substitution of noncommercial messages on any commercial sign in the city. Following a bench trial, the district court determined that the sign code was content neutral and denied the billboard companies’ request for declaratory judgment.…
Continue Reading Austin, Texas Sign Ordinance Declared Content Based, Unconstitutional
In late April, in a case filed by an adult bookstore challenging the application of Kentucky’s Billboard Act to one of its advertisements, a federal judge of the Western District of Kentucky found the entire Billboard Act to violate the First Amendment.
Lion’s Den is a chain of adult “superstores” with locations along major highways throughout the Midwestern United States. At one particular location along I-65 in Kentucky, Lion’s Den affixed one of its billboards to the side of a truck trailer, such that it was visible from the highway. The Kentucky transportation department ordered Lion’s Den to remove the sign, on the grounds that it was not secured to the ground and located on a mobile structure and because the store lacked a permit for the billboard. The basis for the state’s order was that the Kentucky Billboard Act prohibited the sign. Under the statute, however, the regulations in question were only applied to off-premises signs.…
Continue Reading Federal Judge Rules Kentucky’s Billboard Act Unconstitutional In Its Entirety
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.…
Continue Reading Billboard Company’s Challenge to Madison, Wisconsin Sign Code Fails
A federal district court in Texas recently found that the City of Cedar Park’s sign code was content based and unconstitutional due to its failure to distinguish between commercial and noncommercial billboards.
A billboard company sought permits to convert existing billboards to digital signs, as well as to erect new signs. The city denied the permit applications for failure to comply with the city’s sign code, and the billboard company sued. In its lawsuit, the billboard company argued that the city’s decision to distinguish between on- and off-premises signs was content based, because it applied to noncommercial signs in the same manner as commercial signs. Generally speaking, the government may not distinguish between the content or message of various noncommercial signs. Per the billboard company, a code enforcement officer would be required to determine the permissibility of the sign based on its content, in violation of the First Amendment. The federal district court agreed and granted summary judgment in favor of the plaintiff. About a month ago, the court denied the city’s motion for reconsideration.…
Continue Reading Texas City’s Sign Code Found Content Based, Unconstitutional
This past summer, the Seventh Circuit Court of Appeals found that a billboard company’s challenge to a billboard restriction in Bellwood, Illinois was mooted by the fact that the company lost its lease on the property that it intended to construct a billboard. The court affirmed dismissal of the company’s First Amendment, equal protection, and antitrust claims.
In 2005, Paramount Media obtained leasehold rights to a property in the village abutting I-290, a high-traffic interstate corridor outside of Chicago. Although it sought the necessary state permits for a billboard, it failed to seek permits from the village. In 2009, the village amended its sign code to prohibit new billboards. The village later amended the code again to allow billboards on village-owned property. Paramount then sought to lease village-owned property along the interstate, but was rebuked, as the village had leased its property to another billboard company.…
Continue Reading Billboard Company Loses Suit Against Illinois Village
Earlier this month, the Sixth Circuit Court of Appeals struck down Tennessee’s outdoor advertising statute, finding it to be content-based in violation of the First Amendment. The court’s ruling affirms an earlier ruling by a federal district court.
A billboard owner challenged the Tennessee Billboard Act after he posted a sign supporting the 2012 U.S. Olympic Team. The sign was located on vacant land, and the owner had failed to secure a permit from the Tennessee Department of Transportation for the billboard, as required by the law. The transportation department’s rationale for denying the permit was that it was not entitled to the law’s exception to permitting for on-premises signs, which the law generally defined as relating to the premises on which the sign was posted. While the TBA was generally intended to apply exclusively to commercial off-premises speech, the state’s denial of a permit to the plaintiff appeared to apply to noncommercial speech, i.e., the owner’s support for the Olympic team.…
Continue Reading In Sweeping Ruling, Federal Appeals Court Invalidates Tennessee Billboard Law
In a case that we’ve reported on previously, the Third Circuit Court of Appeals held last week that the Pennsylvania Department of Transportation’s rules pertaining to billboard permitting violate the First Amendment. The court’s decision is yet another in a string of decisions from around the country making it more difficult for government to restrict the proliferation of off-premises signage.
To refresh our readers’ memory, Pennsylvania regulates billboards under its Outdoor Advertising Control Act of 1971. That law prohibits the placement of billboards within 500 feet of a highway interchange or rest area, with an exception for official signs or on-premises “for sale or lease” signs. The law also requires that a billboard advertiser obtain a permit from the state’s transportation department, but does not set forth a timeframe for such a permit to be processed.
Adams Outdoor, a billboard company, sought to install a billboard in Hanover Township, Pennsylvania. After processing the permit application for over a year, the state’s transportation department eventually denied the permit on the grounds that the sign violated the interchange restriction. Adams challenged the interchange restriction and permitting procedures under the First Amendment, and also claimed that the billboard law was unconstitutionally vague.…
Continue Reading Pennsylvania’s Billboard Rules Found to Violate First Amendment