Reed invalidates highway sign distance and permit regulations

Thomas v. Schroer, 2017 WL 1208672, No. 13-cv-02987 (W.D.
Tenn. Mar. 31, 2017)
Reed may or may
not work a sea change in First Amendment law generally, but it has definitely
worked a sign change.
The Tennessee Department of Transportation (TDOT)
promulgates and enforces regulation of billboards and outdoor advertising signs
under Tennessee’s Billboard Regulation and Control Act of 1972 and under the
Federal Highway Beautification Act of 1965. 
Regulated billboards and signs under the Billboard Act are subject to
location and/or permit and tag restrictions, e.g., they may not be “within six
hundred sixty feet (660′) of the nearest edge of the right-of-way and visible
from the main traveled way of the interstate or primary highway systems …
without first obtaining from the commissioner a permit and tag.” Some signs,
however, are exempted if they relate to the sale/lease of property on which
they’re located or if they advertise activities conducted on the property on
which they are located—these are known as on-premise signs.  Because, to qualify as an on-premise sign,
one must compare the content of the sign to the activities on the premises, the
court found the restriction content-based, and because it regulated all signs
rather than just commercial signs, it had to survive strict scrutiny, which it
did not.
The court commented that commercial sign regulations are
subject to intermediate scrutiny, not to Reed’s
strict scrutiny, but here the regulation affected both kinds of speech. 
Justice Alito described an off-premises/on-premises
distinction as content neutral in his concurrence in Reed, but the court here found that would only be true if a
regulation defined an on-premises sign “as any sign within [x] feet of a
building,” rather than also considering the relationship between the content
and the building’s use.  [The Reed dissents, too, pointed out that a
number of the examples were content-based if you define content-based without
any reference at all to the reasons we might want to protect speech against
government regulation. Even if you do that, it seems plausible that no lawful
content is barred by this regulation, depending on the use of the building.] 
First, the state’s interests were not compelling. The state
identified interests in preventing the proliferation of billboards, improving (1)
aesthetics and (2) traffic safety. These are substantial or significant
interests, but not compelling interests. 
Nor were they properly related to the speech-based distinctions made by
the regulation—the distinction between on-premises-related content and other
messages.  One of the defendant’s
witnesses testified that signs with more content and signs outside the driver’s
field of vision may create greater distractions, i.e. “I would know the golden
arches for McDonald’s or BP for gasoline, I know that that facility sits at the
bottom of that sign; and it’s a very quick glance and back to the road.”  So that’s an interesting claim about the
shorthand function of trademarks, but the court found it unrelated to
off-premises/on-premises distinctions.
In fact, the court reasoned, the on-premises/off-premises
distinction could interfere with the state’s interests, because “a small sign
with muted colors that says “Knowledge is Power” off of 1-40 would require a
permit and tag, and compliance with the six-hundred-sixty (660)- foot
restriction. Conversely, a large sign with loud colors that states ‘This
property is for sale. Right here. This one. The one this sign is on. Look at
this sign. Look at this property,’ would require no permit or tag, and could be
placed closer to another sign and the roadway.”
Even assuming the state’s interests were compelling, the law
wasn’t narrowly tailored. The state argued that “[o]n- premise signs enhance
safety by helping drivers locate relevant businesses and activities”; “[t]he
impact on aesthetics [by on-premises signs] is minimal because the signs are
already integrated with the current land use”; “[o]n-premise signs are
inherently self-regulating … [because] [o]wners of businesses do not want to
spend valuable real estate putting up a number of signs—that space is better utilized
for the business itself;” and off-premises signs are distracting.  But the state didn’t show that on-premises
signs were less distracting than off-premises signs, or that they had less
impact on aesthetics. “[T]he State’s conclusory assertion that business owners
do not want to put up numerous signs is speculative and lacks evidentiary
support. The assertion would certainly not be true for many firework vendors.”   
The law was also overinclusive because it regulated
off-premises signs that were not highly distracting, and underinclusive because
it didn’t regulate distracting on-premises signs.  The law was also not the least restrictive
means to further the state’s interests.
First, the state could limit its regulation to only
commercial speech; similar regulations have been upheld after Reed
While a non-commercial/commercial distinction might be less effective
than the current regulation, it wouldn’t be ineffective.  Second, size restrictions might be a
content-neutral alternative furthering the traffic safety interest.  [Really? 
What is a “sign”?  How do you make
that determination content-neutral?] 
Spacing requirements could also work, if they also allowed business
owners to erect additional signs within a certain distance of a building.  An ordinance that exempted only signs that
complied with the Manual on Uniform Traffic Control Devices might also be
An alternative regulation might also “require all signs,
regardless of content, to be a particular size, use a particular font (or a set
of fonts), be limited to a particular colors, face a particular direction, or
stand at a particular height, etc.” [Note that this might face federal
preemption issues given federal protections for the display of registered
Anyway, bye-bye sign regulation.

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