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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This past summer, the Seventh Circuit Court of Appeals found that a billboard company’s challenge to a billboard restriction in Bellwood, Illinois was mooted by the fact that the company lost its lease on the property that it intended to construct a billboard.  The court affirmed dismissal of the company’s First Amendment, equal protection, and antitrust claims.

In 2005, Paramount Media obtained leasehold rights to a property in the village abutting I-290, a high-traffic interstate corridor outside of Chicago.  Although it sought the necessary state permits for a billboard, it failed to seek permits from the village.  In 2009, the village amended its sign code to prohibit new billboards.  The village later amended the code again to allow billboards on village-owned property.  Paramount then sought to lease village-owned property along the interstate, but was rebuked, as the village had leased its property to another billboard company.
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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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A recent discovery dispute over Madison, Wisconsin’s revised sign codes recently provided a reminder regarding the evidence that is and isn’t relevant in a Free Speech challenge.  And let’s not bury the lede: a legislator’s private motivations for amending the sign code, the court concluded, don’t matter.

A only-in-Wisconsin billboard. Photo credit: Environmental Protection Agency, public domain

Adams Outdoor Advertising, a billboard operator, brought a facial and as-applied First Amendment challenge to Madison’s sign code after the city’s 2017 overhaul severely restricted off-site advertising.  The challenge itself is ongoing and Adams Outdoor contends that Reed v. Town of Gilbert’s test for content-based regulations—and not Central Hudson’s more permissive test for commercial speech regulations—should invalidate Madison’s new approach.

In the hopes of bolstering that contention, Adams Outdoor submitted discovery requests for information about the purpose of the 2017 amendment and, in particular, legislators’ personal motivations for adopting it.  The city refused to provide the information, invoking legislative privilege, and the dispute eventually reached the court.
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The U.S. District Court for the Eastern District of Missouri recently sided with a St. Louis-area locality of 1,500 best known as the home of the events behind The Exorcist, upholding its sign code against a motion for preliminary injunction.  The principle facts were these: the City of Bel-Nor code allows one double-faced stake-mounted yard sign per improved parcel.  Plaintiff Lawrence Willson placed three such signs in his yard, a window sign near his front door asking first responders to rescue his pets, and an “Irish for a Day” flag in his garden.  Bel-Nor cited him for violating the one-sign-per-yard ordinance, but did not take issue with the window sign or garden flag, although they too likely violated its sign code.

Lawrence, represented by the ACLU, sought a preliminary injunction to enjoin Bel-Nor from enforcing its entire sign code ordinance, arguing that the ordinance violated his Constitutional right to Free Speech.  The district court rejected the request with a rote application of First Amendment principles.
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After years of extending the power of aldermanic privilege to oversized billboard approvals, the Chicago city council recently dispatched with an aspect of that practice, to the evident disappointment of at least one of its beneficiaries.  Under that longstanding policy, an alderman (Chicago’s term for a city council member) could recommend, and the council would order, that the city’s building commissioner issue or deny a permit for an oversized billboard proposed in the alderman’s ward—the requirements of the city’s zoning ordinance notwithstanding.  In an effort to create a more cohesive scheme, however, the city council recently eliminated the portion of that policy which had allowed it to order approval of oversized billboards conflicting with the zoning ordinance.

This change created something of a predicament for Image Media Advertising because it also repealed the council’s prior approval of several Image Media signs, and the city’s building commissioner refused to
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Signs on the pedestrian overpass in Campbell, Wisconsin. Source: Milwaukee Journal.

Late last week, in a case that involved made-for-TV shenanigans by a local police officer, the Seventh Circuit Court of Appeals ruled that a town’s total ban on signs, flags, and banners within 100 feet of an interstate highway could survive with respect to overhead signs, but remanded the case for additional proceedings with respect to other parts of the ban.

Campbell, Wisconsin bans all signs, flags, and banners along interstate highways.  The town enacted its regulation after members of the community hung political protest banners containing messages commonly identified with the Tea Party on a pedestrian overpass over Interstate 90.

Following the enactment of the regulation, the local police began issuing citations to individuals displaying signs along the highway.  Some of the individual sign-posters took videos of the police issuing citations—including in response to the protesters’ display of American flags and other patriotic signs along the interstate highway.  Concerned about the videos, in an apparent attempt at vigilante justice, the local police chief posted the name and email address of one of the Tea Party sign-posters on same-sex dating and pornographic websites.  The police chief also took to local newspapers to accuse the man of failing to pay his taxes. 
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Sam Shaw and one of his signs. Source: Indiana Public Media.

Last week, a federal district court in Indiana ruled that the enforcement of the City of Bedford’s sign ordinance would not be enjoined, finding that the sign code was content neutral, supported by a significant governmental interest, and narrowly tailored.  The court’s denial of the preliminary injunction indicates that the ordinance is likely to survive constitutional scrutiny.
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One of International Outdoor’s billboards in the Detroit area. Source: International Outdoor.

Late last month, a federal court in Michigan granted in part and denied in part a motion to dismiss First Amendment claims filed by a billboard company, International Outdoor, against the City of Troy.  The billboard company claimed that Troy’s sign ordinance was content based and unconstitutional, and that it imposed an unconstitutional prior restraint.  The city moved to dismiss the plaintiff’s claims, and further argued that the billboard company lacked standing to bring the claims.

The court first reviewed the city’s challenge to International Outdoor’s standing, which asserted that International Outdoor failed to plead redressability.  In a short response, the court held that, because the challenge was a facial challenge to the entire sign ordinance, if the court were to strike down the entire ordinance, the plaintiff’s injury would be redressed.
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