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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The plaintiff in the case against Sandy City, Utah, who sought to overturn the city’s median restriction.

Earlier this summer, the Tenth Circuit Court of Appeals held that Sandy City, Utah’s restriction on sitting or standing in a street median of less than 36 inches in width met constitutional muster.  Although the regulation was principally aimed at addressing panhandling activity, the court found the regulation to be content neutral, affirming an earlier district court ruling in the case.  The court’s decision appears to offer an avenue for local governments to address safety concerns associated with panhandling, without treading on constitutionally unstable ground.

The Supreme Court’s 2015 decision in Reed v. Town of Gilbert resulted in the invalidation of many restrictions on panhandling in municipalities around the United States.  To get around the legal defects associated with panhandling prohibitions, municipalities—like Sandy City—have adopted general restrictions on sitting, standing, and remaining in street medians to achieve the same ends.
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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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An Adams Outdoor billboard in Pennsylvania. Source: Adams Outdoor.

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.
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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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One of the signs at issue in the case. Source: Riverfront Times.

In a case that we reported on around this time last year, late last month, the Eighth Circuit Court of Appeals reversed a federal district court’s ruling denying a motion for preliminary injunction against Bel-Nor, Missouri’s “one sign” rule.  The Eighth Circuit’s ruling means that the city will be temporary enjoined from enforcing the law.

The facts of the case are discussed in our earlier post.

The court of appeals had no problem finding that the city’s sign regulation violated the First Amendment.  The law allows just one freestanding yard sign, as well as one flag.  The definition of “flag” in the city’s code indicates that the object must be a “symbol of a government or institution,” thus drawing a distinction based on the message a speaker conveys.  Applying the Supreme Court’s holding in Reed v. Town of Gilbert, the court found the regulation was content based.  The court then found that the code was not narrowly tailored so as to pass muster under strict scrutiny.
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Earlier this month, a federal district court in Kansas awarded summary judgment to a plaintiff who claimed that the City of Williamsburg’s sign code violated the First Amendment.

The plaintiff, Eric Clark, placed several signs and other objects in a city right-of-way easement.  The city issued a notice of violation, which set off a series of interactions between the city’s code enforcement officer and Clark, and Clark issued several letters to the city claiming various violations of his civil rights.  Although the city desisted from further enforcement action, Clark, representing himself, filed a lawsuit against the city.
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The American Legion in Howell Township. Source: www.whmi.com.

Two weeks ago, a federal district court granted the motion to dismiss of Joe Daus, the zoning administrator for Howell Township, Michigan, in a case challenging the township’s billboard regulations.

Crossroads Outdoor is a billboard company that sought to install a sign on property owned by the local American Legion post in Howell Township.  The township, through Daus, denied the variance on the grounds that it was not permissible to place the sign in the parking lot of the American Legion.  After some back and forth on the application, the township eventually passed a moratorium on new signs in 2018 pending the adoption of a new sign ordinance.  Crossroads’s sign application has not yet been approved.
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An apartment advertised for short-term rental. Source: Creative Commons.

Last month, the federal Ninth Circuit Court of Appeals affirmed a district court’s denial of a preliminary injunction in a case initiated by HomeAway and Airbnb challenging the City of Santa Monica, California’s short-term rental regulations.  The plaintiffs in the case alleged violations of the First Amendment right to freedom of association.

Located on the Pacific coast and known as a tourist destination, by early 2018, Santa Monica had nearly 2,000 Airbnb or HomeAway listings—in a city of just 90,000 residents.  In response to the various problems created by short-term rentals, the city council passed an ordinance limiting short-term rentals to only “home-shares,” where the resident of the unit is present during the rental period.  Santa Monica also collects taxes on short-term rentals, requires licenses, and imposes disclosure obligations on hosts.  HomeAway and Airbnb filed a variety of challenges to the ordinance, and moved for a preliminary injunction, which was denied by the district court.
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