On Monday, the U.S. Supreme Court granted the City of Austin, Texas’s petition for writ of certiorari in a case that may determine the legal fate of states’ and local governments’ efforts to restrict billboard advertising.

In the case, which we reported on previously, Austin denied permits to two billboard companies that were seeking to convert existing, static billboards to digital signs.  The billboard companies challenged, and the city removed to federal court.  The district court rejected the billboard companies’ challenge.  The Fifth Circuit Court of Appeals reversed, holding that the city’s sign code, which prohibited the erection of new off-premises advertising signs (i.e. signs that advertise goods and services that are not available on the property on which the sign is located) and further prohibited technological changes to nonconforming signs, violated the First Amendment.  The appeals court concluded that the regulation was content based.  Content based laws implicate the Supreme Court’s 2015 ruling in Reed v. Town of Gilbert, where the Court determined that laws that regulate the message or subject matter of signs are constitutionally suspect.  The appeals court’s holding in the City of Austin case was premised upon the fact that the off-premises advertising restriction related specifically to the content of a sign.  Under the sign code, if the sign’s message related to goods and services on the property where the sign was located, it would be permissible; if the message addressed other matters, it would be prohibited.  This, the court found, was impermissible.
Continue Reading U.S. Supreme Court to Review Austin Billboard Case

In a recent case out of Fall River, Massachusetts, the state supreme court found a panhandling law so riddled with constitutional problems as to require entire invalidation.  Plaintiffs, each a homeless person who sometimes panhandled to meet their basic needs, sought declaratory and injunctive relief against a state law that criminalized signaling to a motor vehicle on a public way “for the purpose of solicitating any alms, contribution or subscription or selling of any merchandise,” but expressly permitted the same conduct undertaken for other purposes or by a nonprofit organization.  They alleged violations of free speech rights under the First Amendment and state constitution.

Continue Reading Massachusetts Supreme Court Strikes Down State Panhandling Law

Recent litigation against the city of Fort Worth has once again confirmed that localities should steer clear of content-based sign codes and free-wheeling approval processes.  Dallas’s neighbor learned that lesson after a federal district court struck down portions of its regulations, concluding they were both content-based and a prior restraint, and also unable to survive strict scrutiny.

The case arose from plaintiff Brookes Baker’s efforts to place crosses in the city right-of-way alongside an abortion clinic.
Continue Reading Federal District Court Strikes Down Fort Worth’s Prohibition and Exemption Scheme for Materials in the Right-of-Way

In a case of first impression within the Sixth Circuit, a district court held that a city’s interest in protecting the exercise of a permit holder’s First Amendment rights is—at least in some circumstances—a significant interest supporting the content-neutral regulation of speech.

In 2018, Johnson City, Tennessee granted a Special Events Permit to LGBTQ organization TriPride to hold a parade and festival in a city park. At the festival, city officers enforcing the Special Events Policy moved religious protesters from blocking the park’s entrance. The protesters filed suit, claiming that this allegedly arbitrary enforcement violated their rights to free speech and free exercise of religion.


Continue Reading District Court Upholds Tennessee City’s Enforcement of Policy Against Special Event Interference

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.

A mobile billboard roaming the streets. Source: Wikimedia Commons, SammySosaa

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

Earlier this year, the federal Court of Appeals for the Eleventh Circuit upheld a district court’s denial of a preliminary injunction requested by a street preacher who alleged that a county government had infringed upon his First Amendment rights.

Adam LaCroix is a street preacher who discusses “Biblical principles of sexual morality” outside public venues

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

Panhandlers on a street median in Oklahoma City. Source: KGOU.

Last week, the federal Court of Appeals for the Tenth Circuit ruled that an Oklahoma City law prohibiting people from remaining on street medians violated the First Amendment.  The law was challenged by a diverse group, including panhandlers, minority political parties, and even joggers.

In 2015, apparently in response to concerns regarding panhandling, Oklahoma City passed a law that prohibited individuals from sitting, standing, or remaining in street medians throughout the city.  Although the law was motivated by concerns regarding panhandlers, the city sought to justify the law with the presentation of safety statistics regarding pedestrians in street medians.  A group of plaintiffs sued the city, and it revised the ordinance in 2017 to limit the law’s coverage to medians along streets with speed limits of 40 miles per hour or greater.  Again, the city justified its amended law with safety information.
Continue Reading Tenth Circuit Strikes Down Oklahoma City Median Restrictions

One of the plaintiffs’ billboards in Austin, Texas. Source: Reagan National Advertising.

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

An Adams Outdoor billboard in Madison. Source: Madison.com.

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