A billboard in Texas. Source: Austin American-Statesman.

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.
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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.
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New York City taxi cabs. Source: New York Post.

In a decision issued last week, the Second Circuit Court of Appeals ruled that New York City’s Taxi and Limousine Commission can restrict in-vehicle commercial advertising in for-hire vehicles, including yellow cabs, Uber, and Lyft.  The decision reverses an earlier ruling by a district court holding that the ban violated the First Amendment rights of advertisers.

New York City’s TLC regulates for-hire vehicles in the city.  For nearly 20 years, the TLC has prohibited commercial advertising in for-hire vehicles, except on screens installed in yellow cabs called “Taxi TV,” which otherwise allow patrons to use credit cards to pay their cab fares.  Noncommercial messages are permitted to be displayed in for-hire vehicles.  Vugo is a company that wished to sell a software platform for advertising in Uber and Lyft vehicles, which are not otherwise equipped with Taxi TV.  The TLC rules prohibited Vugo’s proposal, and Vugo sought relief in federal court. 
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The mural at the Lonsome Dove. Source: Bismarck Tribune.

This blog post was authored by Alexandra Haggarty, a summer clerk with Otten Johnson.  Alex is a rising 3L at the University of Colorado Law School.

A federal judge in North Dakota recently granted a temporary restraining order to enjoin the City of Mandan from enforcing a content-based ordinance regulating murals and signs.

The ordinance requires building owners to obtain a permit before displaying a sign or figurative wall mural.  A commission reviewing applications makes decisions based on guidelines and regulations, including those prohibiting murals that are commercial, have words as a dominant feature of the art, have political messages, or are on the front of the building.

The Lonesome Dove, a saloon that’s been a fixture on a main road for twenty-eight years, had until recently only decorated its exterior with beer ads.  Most recently, it had a Coors Light logo painted on the front wall.  Although the saloon never sought a permit for the logo, it was never cited for violation.  Seeking to reinvigorate its exterior, the saloon – not knowing it needed a permit – painted a 208 square-foot Western-themed “Lonesome Dove” mural on the front of the building in 2018. 
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An example of San Francisco’s warning label. Image credit: Behavioral Science and Policy. Used subject to license.

A San Francisco ordinance requiring health warnings on advertisements for some sugar-sweetened beverages has suffered an early defeat.  On January 31, the Ninth Circuit ruled, en banc, that the district court should have granted

Photo by Peter Kaminski, used pursuant to Creative Commons 2.0 license.

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
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New Jersey bars may now post signs this like this one. Source: steezdesign.com.

Last month, a federal court ruled that New Jersey’s prohibition on “BYOB” advertising—that is, advertising by drinking and entertainment establishments allowing patrons to bring their own alcoholic beverages—violated the First Amendment.  As a result of the court’s ruling, Garden State restaurants will now be allowed to post advertisements encouraging their patrons to bring their own wine and beer.

New Jersey law allowed patrons to bring wine or beer onto the premises of establishments that are not licensed to serve alcoholic beverages, but prohibited such establishments from advertising that it was permissible to do so.  An Atlantic City nightclub, Stiletto, filed suit in federal district court against Atlantic City and the state, seeking to invalidate the state law.  Stiletto wished to advertise that patrons could bring their own beverages to the nightclub.
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Photo Credit: Robert Coure-Baker. Used subject to creative commons license https://creativecommons.org/licenses/by/2.0/

In an effort to curb visual clutter and reduce litter, Chicago’s sign ordinance has, since 2007, prohibited posting “commercial advertising material” on city-owned property.  No longer, however.  Writing recently, the U.S. District Court for the Northern District of Illinois struck

The U.S. District Court for the Southern District of New York recently declared unconstitutional New York City’s ban on advertising in vehicles other than exempted taxis.  Under the city’s program, medallion and certain other taxis could display advertising, including seat-back television content and advertising, but other for-hire vehicles (“FHVs”), like those used for Lyft and