David L. Hudson, Jr. …
Digital billboards represent an improved and exciting medium of communication yet face continued discrimination from city and county ordinances across the country. Digital billboards employ LED technology, illuminating multiple messages that are easy to see. Yet the technology and speech-enhancing capabilities are ignored.
Digital billboards have been met with a frosty reception by city and country regulators. Some regulations ban digital billboards entirely. Others ban them as off-premise signs, while allowing a few as on-premise signs. Still others impose overly draconian zoning restrictions. These myriad restrictions on digital billboards violate the First Amendment.
For example, the U.S. Court of Appeals for the Sixth Circuit upheld a Michigan town’s zoning law prohibiting digital billboards within 4,000 feet of another digital billboard in Hucul Advertising LLC v. Charter Township of Gaines. http://www.opn.ca6.uscourts.gov/opinions.pdf/14a0047p-06.pdf. This is akin to how city regulators treat exotic dance clubs, dispersing them from each other. A 4,000-foot zoning restriction restricts too much speech.
The First Amendment protects different mediums of communication. In Metromedia, Inc. v. City of San Diego (1981) http://caselaw.findlaw.com/us-supreme-court/453/490.html, the U.S. Supreme Court declared that “[b]illboards are a well-established medium of communication, used to convey a broad range of different kinds of messages” and quoted approvingly from a lower court judge who recognized that billboards are a “venerable medium for expressing political, social and commercial ideas.”
The discrimination against digital billboards is baffling, as the enhanced technology benefits not only advertisers and consumers but also society in general. Digital billboards frequently feature FBI Most Wanted or Amber Alert messages. Shouldn’t city and county regulators support technology that protects members of the community, including kidnapped children?
Regulators often trot out the familiar refrains of enhancing traffic safety and prohibiting visual clutter. The safety rationale is dubious at best. Digital billboards pose no greater safety hazards to motorists than other visible structures from the road. Traffic safety is harmed by people texting on their cell phones or following other cars too closely, not from signs.
Visual clutter is a shopworn interest advanced by government regulators against newsracks, signs, and leafleting – all time-honored methods of communication. Digital billboards are pleasing to the eye, much more so than many static billboards that may show wear and tear.
Last year the Supreme Court of New Jersey invalidated a ban on digital billboards in E & J Equities v. Board of Adjustment of Township of Franklin, https://law.justia.com/cases/new-jersey/supreme-court/2016/a-40-14.html. “Although we do not consider the digital billboard ban equivalent to a total ban on a medium of communication, it is a form of communication that is subject to the protection of the First Amendment,” the court wrote.
Digital billboards communicate a multitude of messages and contribute to the free flow of information. They represent a pristine example of how improved technology enhances communication and the venerable First Amendment principle of the public’s right to receive information and ideas.
Digital billboards should be supported and applauded, not treated with disrespect.
David L. Hudson, Jr. is the author of First Amendment: Freedom of Speech (Thomson Reuters, 2012), http://legalsolutions.thomsonreuters.com/law-products/Legal-Almanac-Series/The-First-Amendment-Freedom-of-Speech/p/100025424, and a co-editor of The Encyclopedia of the First Amendment, https://mtsu.edu/first-amendment/.