In an extremely interesting billboard case recently decided by the US District Court for the Western District of Tennessee, the Tennessee Billboard Regulation and Control Act of 1972, Tenn. Code Ann. §54-21-101 et seq., was held unconstitutional. Actually, the Billboard Act certainly seemed to be a fit candidate for constitutional scrutiny, particularly after the recent US Supreme Court decision in Reed v Town of Gilbert, 135 S Ct 2218 (2015). I had occasion several years ago to get involved in a billboard case and was frankly stunned to learn that the Sixth Circuit had upheld the on/off premises distinction in the context of noncommercial speech. So for example, if the Billboard owner wanted to announce his or her support for American veterans, for example, unless the property on which the billboard was established operated some veterans relief organization, it was not an on premise sign and prohibited. Thus, noncommercial speech faced a significantly greater burden than commercial speech. Thomas v Schroer, 2017 WL 1208672.
While this state of affairs was difficult to understand before the Reed decision in 2015, once that decision was handed down, it became clear that any regulation which required categorization of a sign by reading the sign was subject to strict scrutiny under the First Amendment, and as a result, was likely to be determined to be unconstitutional. Nevertheless, the state regulations concerning billboards here in Tennessee were never changed.
In this case, Thomas displayed an image of the American flag, and at different times content referencing the holiday season along with the American flag. Because he never obtained a permit for the sign, the state sought to have the sign removed: it did not in fact comply with the state regulations anyway. The court applied strict scrutiny because the regulations had an impact on the plaintiffs noncommercial speech. In effect, if the sign is deemed to be on premise, then it need not comply with the locational requirements otherwise established. But since its difficult to establish noncommercial speech as on premise, the rule actually discriminates against noncommercial speech, which should be given more favorable treatment, not less.
Having concluded that the Billboard Act was subject to survive strict scrutiny, the court then looked at the reasons advanced by the state as compelling in order to justify the regulations. These reasons included safety, recreational value of public travel, tourism, economic development, scenic beauty and the investment in public highways. Perhaps understandably, the District Court found none of these as being a compelling state interest. Furthermore, the Billboard Act was not narrowly tailored to advance the state’s compelling interest, even if it had any.
The court also concluded that the act was both overinclusive and underinclusive. It is overinclusive because the Billboard Act is content based inasmuch as the application of the exemptions hinges on the content of the sign. While the state wants to limit highly distracting signs which might have an impact on traffic safety, the net effect of the state act leaves an off premise sign of enormous size regulated in the same manner as a small on premise sign.
The court also concluded that the act was underinclusive in that there is no rationale as to why signs displaying non-premise related content would mar the aesthetics in such a way as to merit arbitrary restrictions such as permits and tags. In essence, the act would permit large ostentatious on premise signs closely placed together while restricting small, muted off premise signs. As the court indicated, “aesthetics are not measured by how relevant the signs content is to the on premise activity.”
This is an extremely interesting case which almost certainly will go on up to the Sixth Circuit. It will be interesting to see what happens on appeal.