Thursday, September 14, 2017

The Tennessee Freedom of Speech Act, Tenn. Code Ann. §2-7-143

The Tennessee Freedom of Speech Act, Tenn. Code Ann. § 2-7-143, was passed by the Tennessee General Assembly during its last session. The act provides as follows:

This state, a local government, or any other political subdivision of this state:

(A) Shall not regulate the shape or quantity of political or campaign posters or signs placed on private property that is located more than one hundred feet (100') from a polling place if the signs or posters are placed on the property by the owner of the property or any lawful resident of a residence on the property;

(B) May prohibit, notwithstanding subdivision (b)(1)(A), any political or campaign poster or sign covered by this section from exceeding:

(i) For commercial property, thirty-two square feet (32 sq. ft.) in size; and

(ii) For residential property, sixteen square feet (16 sq. ft.) in size; and

(C) Notwithstanding subdivision (b)(1)(A), may adopt reasonable restrictions limiting the number of political campaign signs or posters that may be placed on property; provided, that such restrictions authorize an owner or resident to place at least one (1) poster or sign on the property per candidate, issue, or subject . . .

There is however, a significant constitutional issue: how to determine whether a particular sign is a "political or campaign poster or sign" without reading the sign? And if you have to read the sign in order to determine whether it is "political," isn't the regulation content-based in violation of Reed v Town of Gilbert, 135 S.Ct. 2218 (2015)? In fact, in Reed, the issue was whether or not different regulations for political, religious, and other signs amounted to content-based regulation leading to strict scrutiny under the First Amendment, which in turn led the US Supreme Court to conclude that the regulations were unconstitutional.

Is this just not the same thing, only instead of being enacted at the local level, enacted by the state legislature? In light of the majority opinion in Reed, how can this piece of legislation possibly be considered constitutional?

In my opinion, it frankly cannot. We have in fact, a case out of the Western District here in Tennessee, invalidating the state Billboard act on similar grounds. Thomas v Schroer, 2017 WL 1208672. 

I guess perhaps possibly one way of avoiding difficulties might be for all local governments to enact a zoning regulation which allows temporary non-commercial signs on all properties not to exceed the sizes set forth in the statute. In that way, so long as the sign is temporary, the local government would not need to decide what kind of assign it actually is.

Perhaps another way to approach the same problem would have been to allow any temporary sign, 60 days before an election, to be placed on commercial and residential properties with the signs to be removed within a week after the election.

Another potential problem, or signs on industrial properties permitted without any regulation whatsoever under the terms of the statute? While signage on commercial and residential properties are limited to 32 square feet and 16 square feet respectively, there is no mention of an ability by the local government to regulate signs on industrial property.

I haven't heard of any litigation concerning this provision, but surely it's just a matter of time.