off-site signs

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On Thursday, in the case of City of Austin v. Reagan National Advertising, a case on which we’ve previously reported, the U.S. Supreme Court ruled that the City of Austin, Texas’s off-premises sign regulations were permissible under the First Amendment.  The Court’s ruling ensures that state billboard laws and thousands of local sign regulations that distinguish between on-premises (i.e. signs whose messages relate to an activity occurring on the same property where the sign is located) and off-premises signs (i.e. billboards) will remain intact and constitutional.

In the case, 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 and further prohibited technological changes to nonconforming signs, violated the First Amendment.  The appeals court’s decision was based on the conclusion that the regulation was content based.  Under prior cases, including the 2015 ruling in Reed v. Town of Gilbert, the Court determined that laws that regulate the message or subject matter of signs are constitutionally suspect.  The appeals court’s holding in the 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.
Continue Reading U.S. Supreme Court Rules in Favor of Austin, Texas in Billboard Case, Upholds Off-Premises Sign Regulations

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

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

A billboard for Lion’s Den (not a truck trailer). Source: i70signshow.com.

In late April, in a case filed by an adult bookstore challenging the application of Kentucky’s Billboard Act to one of its advertisements, a federal judge of the Western District of Kentucky found the entire Billboard Act to violate the First Amendment.

Lion’s Den is a chain of adult “superstores” with locations along major highways throughout the Midwestern United States.  At one particular location along I-65 in Kentucky, Lion’s Den affixed one of its billboards to the side of a truck trailer, such that it was visible from the highway.  The Kentucky transportation department ordered Lion’s Den to remove the sign, on the grounds that it was not secured to the ground and located on a mobile structure and because the store lacked a permit for the billboard.  The basis for the state’s order was that the Kentucky Billboard Act prohibited the sign.  Under the statute, however, the regulations in question were only applied to off-premises signs.
Continue Reading Federal Judge Rules Kentucky’s Billboard Act Unconstitutional In Its Entirety

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

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

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.
Continue Reading Pennsylvania’s Billboard Rules Found to Violate First Amendment

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

In a case that we reported on back in March, the California Supreme Court denied to review a state appellate court decision upholding Los Angeles’s ban on off-premises billboards.  The billboard company that was the plaintiff in the case sought to have the California courts interpret the state’s constitution to prohibit the on-premises/off-premises distinction…

The proposed billboard in this case was over three times the maximum sign area permitted by the City's sign code.
The proposed billboard in this case was over three times the maximum sign area permitted by the City’s sign code.

In a recent decision from the Michigan Court of Appeals, an applicant challenged a provision that gave the board of zoning appeals (BZA) discretion to approve signs that do not comply with the sign ordinance. The applicant, who had submitted an application for a sign that did not comply with the sign ordinance, brought an appeal to the BZA in accordance with a provision that said the BZA may grant a special permit for signs that do not otherwise comply only if the proposed sign meets certain specific standards. Those standards generally required that the sign be consistent with the purpose and intent of the sign code, be compatible with the surrounding neighborhood, and not be detrimental to the public safety or welfare or any adjacent land use, but reserved the discretion to grant the special permit to the BZA. The applicant’s facial challenge alleged that the discretion to grant the special permit constituted a prior restraint that “has the potential for becoming a means of suppressing a particular point of view.” The court disagreed, noting that the applicant could have received a permit for a billboard that met the sign code without applying for a special permit (and thus being subject to the BZA’s discretion), and moreover that the discretion, absent any evidence of an unconstitutional application, was sufficiently limited by the requirement that a proposed sign meet the specifically enumerated standards for approval.
Continue Reading Optional “Special Permit” Process Does Not Place Unbridled Discretion in Government