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

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This change created something of a predicament for Image Media Advertising because it also repealed the council’s prior approval of several Image Media signs, and the city’s building commissioner refused to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

One of International Outdoor’s billboards in the Detroit area. Source: International Outdoor.

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

A digital billboard in New Jersey. Source: nj.com.

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

The Ron Paul sign in question in the Texas Highway Beautification Act case. Source: Austin Chronicle.

The Texas Highway Beautification Act permits “political” signs to be displayed no more than 90 days before an election and 10 days after an election.  Because this provision regulates speech based on its content, two weeks ago, the Texas Court of Appeals found the entire Highway Beautification Act violates the First Amendment to the U.S. Constitution.  The court’s decision in Auspro Enterprises, LP v. Texas Department of Transportation is a major blow to state and local efforts to control billboard advertising.

The case began in 2011 when a head shop owner in Bee Cave, Texas, Auspro Enterprises, displayed a sign advocating the election of Ron Paul for President outside of the time limits prescribed by the Highway Beautification Act.   The state Department of Transportation brought an enforcement action against the landowner
Continue Reading Texas Court Deals Setback to Billboard Restrictions

It’s been a little while since we’ve done a news update, but here are some of the good stories we’ve been tracking over the past several weeks:

  • There’s been a big outcry over an aspiring politician’s decision to post a billboard along a state highway in Polk County, Tennessee.
  • The City of Boston’s Landmarks Commission

This post was authored by Otten Johnson summer law clerk Matt Bender.  Matt is a rising third-year law student at the University of Denver Sturm College of Law.

A Tennessee case is inquiring into the “similarly situated” requirement for Equal Protection claims and will likely decide the constitutionality of the Tennessee Billboard Act (TBA).  While the outcome of the case is far from finalized, Thomas v. Schroer, which stems from the denial of the plaintiff’s sign application, has already raised some interesting questions about the reach of the First Amendment under Reed v. Town of Gilbert.
Continue Reading How Similar is “Similarly Situated”? And the Constitutionality of the Tennessee Billboard Act