Tennessee’s Billboard Act has been declared unconstitutional by a recent federal court decision. Under the terms of that decision, all of the state’s billboard regulations will be rendered void, allowing new billboards to spring up willy nilly on highways throughout the state.
The good news is that the state Legislature can readily amend the statute to solve the constitutional problem and keep the state’s regulation of commercial signage virtually intact.
The bad news is that the Legislature is on the verge of adjourning for the year without having lifted a finger to do so. Sen. Richard Briggs, who serves on the Senate Transportation Committee, says that, “We were told by the lawyers involved that we didn’t need to legislate.” A spokesman for the state Attorney General’s Office, which is known to be handling the matter, will only say, “The litigation is still pending. Both sides have been requested to submit briefs regarding possible remedies.”
In fact, Federal District Judge Jon McCalla has already ruled that, “The Court finds the Billboard Act is an unconstitutional, content-based regulation of speech.” In a footnote to his decision, he opined that “if it were clear from the face of the statute” that the provisions he found unconstitutional could be “severed” from the rest of the act then he could let “constitutional provisions stay in effect.” But he concluded that, “The Court, however, is unpersuaded that the Billboard Act, as written, is severable in this manner.”
In a brief submitted May 3, Tennessee Attorney General Herbert Slatery is now trying to persuade McCalla otherwise. He argues that, “It is apparent from the face of the Billboard Act that the General Assembly would have enacted the statute even if the provisions found by the Court to be content-based regulations [were eliminated]….The General Assembly no doubt would have preferred some billboard regulation to none.”
In Texas, by contrast, after its billboard act was struck down on virtually identical grounds last fall, the Legislature has moved promptly to enact a bill to fix the defects. While the state is also making an appeal, the bill’s sponsor, Sen. Kirk Watson of Austin, advised his colleagues that, “I think we are very unlikely to win on appeal.”
Since nearly all state billboard acts are patterned after the 1965 federal Highway Beautification Act, it’s hard to fathom at first blush why they are only getting invalidated in court now. The impetus for the court intrusion was a 2015 U.S. Supreme Court decision striking down a sign ordinance in an Arizona town that set differing standards for political, religious, and other noncommercial signs. The court ruled that these represented what have come to be called “content-based” regulations that unconstitutionally infringed upon free speech.
Neither that decision, nor any other, cast doubt upon state laws that set standards for highway billboards including their spacing, size, and lighting and that require a permit. These have long been justified on grounds that highway safety and aesthetic considerations can trump commercial free speech as long as the regulations are “content neutral.”
The decision that struck down the Tennessee law on April 3 involved, almost ironically, the one category of highway signage that is exempt from regulation: namely, “on premise” signs on property advertising either (1) that the property is for sale or lease or (2) activities conducted on the property. A Memphis provocateur who had been feuding with TDOT for years erected a billboard on his property displaying only an American flag. When TDOT ordered it to be torn down because it didn’t meet the criteria for exemption, he sued. In McCalla’s decision striking down the law, he ruled that these criteria were content-based and therefore verboten.
In a bit of a tutorial on the way the First Amendment has evolved, McCalla went on to explain that, “Not all speech is equally protected. The degree of protection afforded by the First Amendment depends on whether the activity sought to be regulated constitutes commercial or non-commercial speech…. The government may impose stricter regulations on commercial speech than on non-commercial speech.”
Because the sign in question was plainly non-commercial, its prohibition failed to withstand the “strict scrutiny” and “compelling state interest” tests required to justify such action, McCalla ruled.
In the aftermath of the decision, a lawyer who has represented numerous scenic organizations with an interest in the case wrote Gov. Bill Haslam and Attorney General Slatery urging immediate enactment of a severability clause as a “no-brainer.” The Jacksonville-based specialist in billboard law, William Brinton, also offered two amendments to the Tennessee statute that he believed would solve the problem altogether.
The fix that most appeals to me is one adopted by the city of Indianapolis after its sign ordinance was struck down in 2015 on highly similar grounds. The city added a provision to the ordinance stating with elegant simplicity that “Noncommercial messages may be displayed on any sign authorized to display commercial messages.” The amended ordinance has been upheld by an Indiana federal district court.
In his brief, Slatery actually invites McCalla to make a “determination” that the offending sections of the Billboard Act “violate the First Amendment of the U.S. Constitution as applied to signs displaying non-commercial speech.” But Brinton continues to believe that a legislative remedy would be more conclusive and less problematic. There’s no telling when or how McCalla will rule on the matter.
Joe Sullivan is the former owner and publisher of Metro Pulse (1992-2003) as well as a longtime columnist covering local politics, education, development, business, and tennis. His new column, Perspectives, covers much of the same terrain.
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