| Section IV |
On-Line Issues: J |
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J. Cities, States Gain Edge
Outdoor advertisers and government officials continued to battle over billboards in 2002, resulting in a mixed bag of federal and state court decisions. Billboards possess a law unto themselves, as articulated 22 years ago by the U.S. Supreme Court in Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981). In that decision, the High Court intimated that cities could regulate billboards and treat commercial outdoor advertising more harshly than noncommercial messages.
Over the past year, state and local governments prevailed more often than not, as courts paid deference to the governments’ claims that such ordinances advanced their substantial interests in traffic safety and aesthetics. This occurred even though there was no concrete evidence that billboards actually lead to more auto accidents.
The Supreme Court of Montana upheld city and county billboard laws in Montana Media, Inc. v. Flathead County, No. 01-694, 2003 Mont. LEXIS 23 (Mont. Feb. 13, 2003). The laws in Whitefish and Flathead County, Mont., subject commercial signs to greater restrictions than noncommercial signs. The city ordinance further imposes greater restrictions on off-premise signs than on-premise signs.
The state high court determined that Metromedia controlled the analysis, even though later non-billboard U.S. Supreme Court decisions have granted more protection to commercial speech. “We conclude that while the Supreme Court has considered numerous commercial speech issues since, Metromedia remains the controlling law in billboard cases,” the court wrote.
The state high court interpreted Metromedia to allow greater restrictions on commercial billboards and commercial off-site billboards than other billboards and signs. “The city’s ordinance is more narrowly tailored than the ordinance in Metromedia and restricts speech no more than is necessary to achieve its objective,” the court wrote.
The state high court also rejected the argument that the city and county laws created an unconstitutional prior restraint on speech. The court punted on resolving the question of whether the prior restraint doctrine applies in commercial speech cases, saying that the question was “subject to debate.” The court did determine that the laws provided necessary procedural safeguards to avoid a prior restraint problem.
The Supreme Court of Iowa upheld a state law regulating outdoor advertising along public highways in Immaculate Conception Corp. v. Don Bosco High School, No. 174/01-1493, 2003 Iowa Sup. LEXIS 17 (Iowa Jan. 23, 2003). State law prohibited “advertising devices” within 660 feet of highways. The problem was that Don Bosco High School had 37 “booster” signs on the outfield wall of its baseball field. These signs were located within 660 feet of, and were visible from, the highway.
The booster signs contained information about local businesses, including their addresses, phone numbers, and slogans. The high school challenged the law on First Amendment grounds, contending that the law was impermissibly content based because it treated on-premise and off-premise signs differently. The state supreme court rejected this argument, citing Metromedia for the principle that “offsite commercial billboards may be prohibited while onsite commercial billboards are permitted.”
Then, the state high court applied the familiar test from Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). The law advanced the state’s substantial interests in traffic safety and aesthetics. The high school contended that the law violated the prong of Central Hudson that requires a commercial speech restriction to directly and materially advance the government’s substantial regulatory interest.
The high school argued that the Department of Transportation failed to put forth any evidence showing that its ordinance directly and materially advanced its interests. But, the state high court responded that “the DOT does not need statistics or reports to enforce the plain mandate of the statute” and that “it is the challenger who bears the burden of overcoming the presumptive constitutionality of a statute by negating every reasonable basis on which the law might be upheld.”
Finally, the court determined that the law was not too extensive, pointing out that the ordinance restricting off-premise advertising was less restrictive than the San Diego ordinance in Metromedia. “In summary, Iowa Code Section 306C.11 draws a legitimate distinction between on-premise and off-premise signs and regulates the signage at issue here consistent with constitutional norms pertaining to commercial speech,” the court concluded.
An adult business sued in Florida state court, contending that Florida laws regulating billboards imposed an unconstitutional prior restraint on speech and impermissibly silenced its commercial speech. The legal dispute arose after the Florida Department of Transportation issued a citation to the business for failing to obtain a permit for its outdoor advertising sign located near an interstate highway. State law required a permit before erecting any sign on the state or federal highway system. The law did provide exceptions for on-site commercial signs and government-owned signs.
The Court of Appeal of Florida, First District, determined that the laws were constitutional in Café Erotica v. Florida Dept. of Transportation, 830 So. 2d 181 (Fla. Dist. Ct. App. 2002). The court first determined that there were no unconstitutional prior restraints. Under First Amendment jurisprudence, laws often must contain certain procedural requirements to protect against censorship. In Freedman v. Maryland, 380 U.S. 51 (1965), the Supreme Court established three procedural requirements to ensure that governmental administrative decisions do not operate as unconstitutional prior restraints on expression:
· The censor must bear the burden of going to court and offering proof in court.
· Any restraint prior to judicial review can be imposed only for a specified brief period during which the status quo must be maintained.
· “A prompt final judicial determination must be assured.”
However, in Thomas v. Chicago Park District, 534 U.S. 316 (2002), the Supreme Court determined that the Freedman procedural requirements are not applicable to content-neutral permitting schemes in a public park. Because the business had conceded that the statutes were content neutral, the Court determined that the “statutes and rules do not necessitate the application of the Freedman procedural requirements.” The Court then applied the Central Hudson test to determine that the regulations were constitutional.
In Paradigm Media Group, Inc. v. City of Irving, No. 3:01-CV-612-R, 2002 U.S. Dist. LEXIS 14133 (N.D. Tex. July 31, 2002), a federal district court in Texas granted summary judgment to the city of Irving, Texas, in a billboard suit.
The city’s sign ordinance prohibited the construction of new billboards within the city after June 1999. Paradigm Media Group sued after it was denied 42 applications for sign permits to build various billboards. The ordinance prohibited off-site outdoor advertising but allowed various forms of on-premise signs and “multi-tenant directory signs.” The ordinance also contained an exemption for off-site advertising at sports facilities, such as Texas Stadium (home of the Dallas Cowboys professional football team).
The court applied the Central Hudson test and ruled in favor of the city. The city easily met the “substantial interest” requirement by citing the two substantial interests identified in Metromedia: traffic safety and aesthetics.
The court then determined that the ordinance directly advanced the government’s interest because there is a generalized relationship between restrictions on outdoor advertising and traffic safety. The court also relied on “extensive findings” in the city’s plan showing how the reduction of billboards would reduce visual clutter and improve the city’s overall aesthetics.
Finally, the court determined that the ordinance was not too extensive because it allowed outdoor advertising in three circumstances: (1) onsite monument and pole signs; (2) billboards that existed before the June 1999 ban; and (3) advertising structures at sports facilities.
Outdoor advertisers did not lose all court challenges, however. In fact, a federal district court in California ruled favorably for an outdoor advertiser in Horizon Outdoor, LLC v. City of Industry, 228 F. Supp. 2d 1113 (C.D. Cal. 2002). The dispute arose after Horizon obtained permission from two landowners in Industry to post off-site advertising displays in commercial areas near an interstate highway. The city, however, refused to issue permits for the signs.
Horizon then challenged the city’s sign ordinance in federal court. The ordinance provided that “no sign or advertising matter of any kind shall be placed or maintained on any property in the city without first obtaining a permit from the city manager.”
The ordinance further prohibited “off-site advertising displays” within 660 feet of, and visible from, highways unless the applicant demonstrated approval of the California Department of Transportation. The sign ordinance also allowed the city manager to issue permits for certain types of signs, including signs for shopping centers, freestanding commercial stores, office buildings, and gasoline stations.
The federal district court determined that the sign ordinance violated the Central Hudson test because the city failed to produce any evidence showing that its ordinance directly and materially advanced its substantial interests in traffic safety and aesthetics. “For example, the City has not presented any statistics indicating that the number of accidents on the stretch of Interstate 60 in the City has declined along with the number of billboards along that route,” the court wrote.
The court also determined that the ordinance violated the final prong of Central Hudson because it was too extensive, writing: “the Sign Ordinance bans all off-site signs regardless of whether a new sign would cause visual blight or create a safety hazard.”
The ordinance also failed to contain adequate procedural safeguards, according to the court. “It does not set a deadline by which the City must act after a party submits an application for a permit,” the court wrote. “It does not provide for an appeals process after a permit is denied.”
--David L. Hudson, Jr.
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