May It Please The Court

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May It Please The Court
by Leonard Rivkin
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Quote of the Day - We reach a lot of people through television, but billboards are seen daily and serve as a constant reminder. - John Walsh, America's Most Wanted
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Signs, Signs Everywhere There's Signs. Except in San Diego And Maybe Beaumont

Laws about billboard signs rarely make the news, except when a sign company wants to plant one near your business or home, or in these two cases, in your city.  Big signs make easy targets for politicians because attacking them generally garners support among constituents.  After all, how many sign owners are voters?  Not very many.  Recently, the courts got in on the act, too.

The first of November was a banner day, so to speak, for the advancement of sign law.  If you're a company who owns billboards, it was half good and half bad.  If you're a city trying to prevent billboards from going up, it was half bad and half good.  The Ninth Circuit came out with two, side-by-side opinions about the First Amendment right of free speech and the constitution.

The sum and substance of the rulings go like this.  In San Diego, if you own a business, it's likely you will be able to put up a sign to advertise your business, as long as it's on or near your business and small.  If you want to erect a freeway-sized billboard, then you probably won't have too much luck.  The Ninth Circuit upheld the City's size and height restrictions, which pretty much eliminate big signs.

In the Inland Empire City of Beaumont, it doesn't pay for politicians to play with their sign ordinances.  It looks too much like you're trying to play favorites, and if there's one thing the Constitution won't tolerate, it's favorites.  Equal treatment under the law is the call of the day.

In fact, it was equal treatment under the law that doomed the signs in San Diego, and equal treatment under the law that gave the signs a second chance in Beaumont.  It's a law school professor's dream.  Two cases involving virtually the same law and at first glance similar facts, decided the opposite way.  Both lawsuits challenged sign ordinances based on the free speech right embodied in the First Amendment and the equal protection right in the Fourteenth Amendment. 

Notice I said "at first glance."

That's the rub.  Most issues in the law are fact sensitive, and that's what makes it a horse race.  Let me explain.   In Beaumont, sign company Outdoor Media Group applied for a permit to erect four signs.  In response, the City repealed its sign ordinance and then enacted a new one.  OMG claimed it suffered an equal protection violation because the sign ordinance discriminated between commercial and noncommercial billboards.

In San Diego, the sign ordinance makes no distinction between commercial and noncommercial speech.  It simply limits the size and placement of any sign, no matter what the content.  Therefore, the regulations were content-neutral and limited only time, place and manner restrictions. The Court found that San Diego's purpose in enacting the sign code was to optimize communication and protect the City's public and aesthetic character. It furthers these interests by setting its restrictions according to the width of public rights-of-way and the speed limit.   Get Outdoors, II, the sign company challenging these restrictions, lost because everyone was treated equally.  There's just not going to be any more big signs in San Diego.

The lesson for cities is an easy one:  don't discriminate and permit some signs to do one thing and others to do something entirely different.  Treat everyone the same, and you will have a constitutionally attack-proof ordinance.  For sign companies, the lesson is equally easy.  Look at the ordinances first and then pick your battles.  Or just find an empty stretch of well-traveled freeway.

Posted by J. Craig Williams on Tuesday, November 06, 2007 at 23:12 Comments (0)


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