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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

Bourbon Street in New Orleans. Source: neworleans.com.

This week, a federal district court denied the City of New Orleans’s motion to dismiss a First Amendment claim challenging the application of the city’s short-term rental law.

Plaintiff Dawn Adams Wheelahan challenged the city’s short-term rental regulations on a variety of grounds.  The city had revoked her license to rent her property on a short-term basis, in part for failing to display her license on the property or in her advertising of the property for short-term rental.  Wheelahan brought several claims against the city, including a Fifth Amendment takings claim, an Eighth Amendment excessive fines claim, and other constitutional claims.  Included in the complaint were claims of an unconstitutional prior restraint and content-based restrictions under the First Amendment.  The plaintiff argued, in essence, that the city’s permitting requirement and other restrictions on short-term rentals operated as a prior restraint on her advertising of the short-term rental, and that the requirement that she include her license in advertising was content based, compelled speech.
Continue Reading Court Denies New Orleans’s Motion to Dismiss First Amendment Claim Against Short-Term Rental Ordinance

In a case involving violations of nearly every First Amendment protection for speech in public places, a federal court recently enjoined enforcement of new Chicago restrictions on speech in the city’s famed Millennium Park.  Evidently hoping to safeguard quiet contemplation of the “Bean” (pictured here) and all but a few other areas of the park, the City enacted an ordinance prohibiting a range of speech.

Visitors contemplate Cloud Gate in Chicago’s Millennium Park. Source: Wikimedia Commons, Sharon Mollerus

The ordinance outlawed conduct “that objectively interferes with visitors’ ability to enjoy the Park’s artistic displays” and the “making of speeches and the passing out of written communications” outside a few specified areas.  It did not, however, provide any guidance as to how to enforce those prohibitions—leading to an astonishing interaction in which a park employee explained that religion could not be discussed in the park.  On February 20th, the U.S. District Court for the Northern District of Illinois concluded these provisions violated the First Amendment and issued a preliminary injunction barring their enforcement.

The parties challenging the ordinance were a group of college-student evangelists and petition circulators whom the city had rebuffed in their attempts to champion their causes in Millennium Park.  Among Chicago’s various attractions, the park held special appeal for the challengers because
Continue Reading Federal Court Enjoins Chicago Park Speech Regulations

A sign welcomes visitors to Bentley Manor in Shavano Park. Source: mytexashomeresource.com

It is a rare free speech case where a court finds a regulation content based, but still upholds the regulation.  That very scenario played out in a federal district court in Texas, when it upheld the City of Shavano Park’s sign regulation prohibiting certain banner signs.

Shavano Park, a suburb of San Antonio, has a sign code that controls the placement of signs on private property.  The code allows one temporary sign per residential lot, with some additional allowances when properties are for sale or during election seasons.  The code also allows the placement of banner signs in residential zoning districts, with some limitations.  These limitations include that such signs may be erected by a homeowners’ association, they may be placed at entrances to residential neighborhoods, no more than one banner sign is allowed per owner, and banner signs are only permitted in the week before the first Tuesday in October, which coincides with National Night Out.  The sign code’s stated rationale for its restrictions focuses largely on aesthetics.
Continue Reading Texas City’s Banner Sign Limitation Found Content Based, But Survives First Amendment Challenge

A marine mammal swims at Six Flags in Vallejo, California. Source: San Francisco Chronicle.

Last week, the federal Ninth Circuit Court of Appeals found that Vallejo, California’s requirement that a person obtain a permit before using a sound amplification is likely unconstitutional.  The court’s decision reverses the district court’s order denying the plaintiff’s motion for preliminary injunction, and allows the case to proceed to additional stages of litigation.

Joseph Cuviello is an animal rights activist in Vallejo who wished to protest alleged animal mistreatment at Six Flags Discovery Park, an amusement park.  Cuviello has been active in protesting Six Flags since 2006.  In 2014, Cuviello decided to begin protesting on a public sidewalk outside of the park, using a bullhorn.  Vallejo, however, requires a permit for the use of sound amplification devices, and the city imposes restrictions on the use of such devices.  Cuviello filed suit against the city, challenging the permit requirement as an unconstitutional prior restraint, and the ordinance as impermissibly vague and content based.  Cuviello eventually abandoned the latter arguments, and the court’s decision focused entirely on the prior restraint question.
Continue Reading Ninth Circuit Finds That Permit Requirement For Bullhorns Violates First Amendment

Last week, the Tenth Circuit Court of Appeals issued an order denying a motion by the plaintiff in the case of Evans v. Sandy City for an en banc rehearing.  In ruling on the motion, the court issued a revised opinion.  In the revised opinion, the court reaffirmed that Sandy City, Utah’s prohibition on sitting …

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.
Continue Reading Texas City’s Sign Code Found Content Based, Unconstitutional