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
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.
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. Continue Reading No Discovery on Legislators’ Personal Motivations for Sign Code Overhaul, says District Judge
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
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
Last week, the Ninth Circuit Court of Appeals upheld San Francisco’s prohibition on new off-site commercial billboards, rejecting a First Amendment claim to the contrary made by a billboard company. The case reaffirms the distinction between commercial and noncommercial speech regulation under the First Amendment, and limits the scope of Reed v. Town of Gilbert.
Since 2002, San Francisco has prohibited the erection of new off-site billboards—which advertise products or services not available on the property where the billboards are located—while allowing new on-site business signs. The prohibition amounts to an effective ban on new billboards in San Francisco, although billboards that predated the ban are allowed to remain in place. The plaintiff, Contest Promotions, LLC, is a billboard company that challenged San Francisco’s regulation under the First Amendment. The district court for the Northern District of California granted a motion to dismiss filed by the City and County of San Francisco. Continue Reading Ninth Circuit Allows San Francisco’s Billboard Ban to Stand
Late last month, a federal court in Michigan granted in part and denied in part a motion to dismiss First Amendment claims filed by a billboard company, International Outdoor, against the City of Troy. The billboard company claimed that Troy’s sign ordinance was content based and unconstitutional, and that it imposed an unconstitutional prior restraint. The city moved to dismiss the plaintiff’s claims, and further argued that the billboard company lacked standing to bring the claims.
The court first reviewed the city’s challenge to International Outdoor’s standing, which asserted that International Outdoor failed to plead redressability. In a short response, the court held that, because the challenge was a facial challenge to the entire sign ordinance, if the court were to strike down the entire ordinance, the plaintiff’s injury would be redressed. Continue Reading Billboard Company’s Challenge to Michigan Sign Code Survives Motion to Dismiss
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 a surprising decision, the New Jersey Supreme Court found earlier this month that a township ordinance prohibiting digital billboards violated the free speech provisions of the U.S. and New Jersey constitutions.
Franklin Township, New Jersey, a suburban community in Somerset County, enacted sign regulations that allowed billboards in zoning districts near interstate highways. The regulations prohibited digital billboards. The township justified its regulations on the basis of traffic safety and aesthetics. Various township bodies suggested that the ban on digital billboards was enacted because the township did not have sufficient information on the safety of digital billboards in order to craft appropriate regulations. Because state law imposes dispersal requirements on billboards, it was established that the township could have just three static billboards and just one digital billboard.
In 2009, E&J Equities sought a variance to allow the placement of a digital billboard in the township. Because digital billboards were not allowed, the request was brought before the township’s Zoning Board of Adjustment. The ZBA did not approve the application.
Thereafter, E&J brought an action against the township in state trial court. The trial court found that the township failed to meet intermediate scrutiny Continue Reading New Jersey Supreme Court: Digital Billboard Ban Unconstitutional