The United States Court of Appeals for the Sixth Circuit issued an opinion on September 11, 2019, affirming that Tennessee’s Billboard Regulation and Control Act of 1972 is unconstitutional based on its content-based regulation of free speech.
The opinion also stated, “[t]his is neither a close call nor a difficult question.”
In fact, “If not for Tennessee’s proferred disputes,” the Court would have labeled it “indisputable.”
On appeal from the United States District Court for the Western District of Tennessee at Memphis, the Sixth Circuit Court Chief Judge Guy R. Cole, Jr. and Circuit Judges Alice M. Batchelder and Bernice B. Donald heard oral arguments on January 30, 2019, in the case of William Harold Thomas, Jr. v. Clay Bright, Commissioner of Tennessee, Department of Transportation.
The case named Governor Bill Lee’s January 15, 2019, appointee as Commissioner of the Department of Transportation, Clay Bright.
The case has its start with Tennessee’s 1972 Billboard Act, which was enacted in response to Congress’ 1965 Federal Highway Beautification Act (HBA). The HBA was intended to “protect the natural and scenic beauty along federal-aid highways by, among other things, controlling billboards in rural, scenic and agricultural areas,” according to Scenic America.
Tennessee’s Billboard Act, by mirroring and complying with the HBA in maintaining effective control of signs within 660 feet of an interstate or primary highway, ensures full Federal funding of which 10 percent is tied to Tennessee’s Billboard Act.
The Billboard Act requires that anyone intending to post a sign along a Tennessee roadway must apply to the Tennessee Department of Transportation (TDOT) for a permit, unless one of the Act’s exceptions applies to the sign.
Signage excepted from TDOT permits include a for sale or lease sign for the property.
The other exception is advertising on the property where the sign is located that has the purpose of identifying the activity, product or service conducted on the property. This is referred to as the on-premises exception.
The background of the case, which goes back more than a dozen years and includes previous state and federal court litigation, was covered in the September 2019 Sixth Circuit Court opinion.
In 2006, William Harold Thomas, Jr., an owner of over 30 billboards in Tennessee, applied to TDOT for a permit to put up a billboard on a vacant lot for the purposes of commercial advertisement. TDOT denied the permit application, but Thomas constructed the billboard and put up his sign anyway.
TDOT sued Thomas in state court, claiming that Thomas violated the Billboard Act and that his billboard could not satisfy the on-premises exception, because it was located on a vacant lot with no on-premises activity.
According to the Sixth Circuit Court’s opinion, the trial court found “substantial evidence of selective and vindictive enforcement” against Thomas.
The opinion cited emails from TDOT employees who worked with Thomas’ competitor to “defeat” him.
TDOT employees also sent unsolicited emails to Thomas’ advertising customers, suggesting that his billboards were illegal and that associating with Thomas would reflect “negatively” on them.
In response, the trial court granted a temporary restraining order (TRO), which forbid TDOT from enforcing the Billboard Act against Thomas’ vacant lot billboard.
There was some subsequent back and forth between the Tennessee Court of Appeals and the trial court until 2012, during which period Thomas stopped posting commercial advertising on the vacant lot billboard and posted a message about free speech.
Thomas later changed the sign to “Go USA!” imposed over a large American flag in support of the USA Olympic Team in the 2012 summer games.
The Tennessee trial court found that Thomas’ conveyance of an idea was not commercial advertising and did not qualify for TDOT’s enforcement under Tennessee’s Billboard Act. TDOT appealed again and the Tennessee Court of Appeals again reversed.
While that case is still ongoing, in 2013, Thomas sued in the Western District of Tennessee Federal Court, alleging that the Billboard Act was an unconstitutional restriction of speech in violation of the First Amendment.
The District Court ultimately agreed, holding that the Billboard Act is unconstitutional as applied to Thomas’ vacant lot billboard sign.
Thomas sought to expand his relief by asking the District Court to permanently enjoin TDOT from enforcing the Billboard Act against all signs, or at least all of his signs. The District Court permanently enjoined Tennessee from enforcing the Billboard Act against Thomas’ vacant lot sign.
Thomas resumed commercial advertising on his vacant lot sign, and Tennessee then appealed to the Sixth Circuit Court the District Court’s judgement that the on-premises exception is an unconstitutional restriction of Thomas’ non-commercial speech at the vacant lot billboard location.
The Sixth Circuit Court’s 21-page opinion, written by Judge Batchelder, is enlightening, even snarky in the examples used to demonstrate the points made, and most definitely harsh on TDOT’s Billboard Act.
The largest portion of the opinion, consisting of about 14 pages, is dedicated to “analysis.” The analysis reviewed topics labeled exceptions as restrictions, severability, content-based restrictions, strict scrutiny and Tennessee’s policy arguments, before presenting the two-sentence, four-line conclusion, affirming the District Court’s opinion.
The longest section of the analysis – content-based restrictions – starts off with a paragraph that reads, “The Billboard Act’s on-premises exception scheme is a content-based regulation of (restriction on) free speech. Although we discuss this at length, this is neither a close call nor a difficult question. If not for Tennessee’s proffered disputes, we would label this ‘indisputable.’”
Judge Batchelder spells out that when a case implicates a core constitutional right – such as a First Amendment right – the applied level of scrutiny is based on whether the restriction is content-based or content-neutral.
Under the first Amendment, the state may regulate certain aspects of speech but has “no power to restrict expression because of its message, its ideas, its subject matter or its content,” Judge Batchelder explains by quoting Police Dep’t of City of Chicago v. Mosley.
As such, content-based regulations are “presumptively unconstitutional” and analyzed under strict scrutiny, according to Reed v. Town of Gilbert, the 2015 unanimous Supreme Court decision that “has had a palpable impact on First Amendment jurisprudence,” as stated in a review of the case.
Because the Billboard Act’s exception is based on a combination of its location and its purpose of identifying the activity, product or service offered at that same premises, a TDOT official must read the content of the message and identify, assess and categorize the activity conducted at the location to determine whether the exception applies.
Tennessee argued that nothing at the vacant lot billboard location could satisfy the on-premises exception because nothing happens at the vacant lot.
The opinion states the scheme, rather than being rendered content-neutral, redoubles the importance of the message content.
Posing hypothetical placements of Thomas’ “Go USA” sign on a U.S. Olympic Committee facility, an unaffiliated athletic training facility, a retail store selling U.S. Olympic Team merchandise, an NBC station broadcasting the games, among others, Judge Batchelder questions which activities, products or services fall satisfactorily within the meaning, function or purpose of the sign so as to meet the exception.
Then she asks, “More importantly who decides?” and answers “The Tennessee official decides.”
Presenting an opposing vantage point of the state’s argument, the opinion went on to state, “Suppose the sign said: ‘vacant lot, lots of vacancy,’ ’free air – stop and enjoy some,’ or ‘fill wanted.’ Those messages might or could be the lot’s activities, products or services.”
Tennessee contends that sign content is irrelevant, that what matters is location. In other words, “signs can say whatever they want so long as they are in the correct location.”
“But, Tennessee’s argument is specious,” says Judge Batchelder.
To the Sixth Circuit Court, Tennessee proffered three “compelling state interests”: public aesthetics, traffic safety and safeguarding the constitutional rights of property owners and furthers its interests of the first two through enforcement of the Billboard Act and general prohibition of signage.
The Supreme Court has repeatedly found that a state’s interest in public aesthetics to be only “substantial” and not “compelling.”
Tennessee conceded that no court has ever found public aesthetics to be a “compelling” interest, provided no persuasive arguments that it is compelling, but nonetheless urged the Circuit Court to “break new ground.” The Court declined to do so.
Traffic safety, however, is a different scenario and in the Fourth Amendment context, the Supreme Court has recognized a “compelling” interest in highway safety, upholding a Massachusetts “implied consent” law for breathalyzer tests and upholding an Ohio law that required public bus drivers to submit to random drug testing.
With regard to Tennessee’s argument that it has a compelling interest in safeguarding the constitutional rights of business and property owners – namely their First Amendment rights through the on-premises exception to the Billboard Act, Judge Batchelder responds reflecting the obviousness of the state’s argument, “It is undoubtedly true that a state’s interest in complying with its constitutional obligations is compelling.”
Judge Batchelder opined that neither the Supreme Court nor the Sixth Circuit Court had issued any such holding of the state’s compelling interest in the First Amendment context, and doing so would also break new ground, which the Sixth Circuit Court declined, once again, to do.
The Court has held elsewhere that the state must show that its justifications for a restrictive law are genuine, not hypothesized or invented after the fact in response to litigation, implying that’s what both the HBA and Tennessee’s Billboard Act have done.
“Here, we have persuasive evidence that Congress in enacting the HBA, and in turn Tennessee in enacting the Billboard Act were motivated almost exclusively by aesthetic, not public safety, concerns,” wrote Judge Batchelder.
Tennessee argued that safeguarding the constitutional rights of property owners is achieved through the Billboard Act’s exceptions, including the on-premises exception.
Judge Batchelder says that Tennessee’s Billboard Act’s “ready exceptions” undermine the state’s professed concern for traffic safety by allowing significant commercial signage that serves Tennessee’s economic interests, which the state agrees are not compelling.
Content-based restriction of non-commercial speech subjects it to “strict scrutiny,” and in order for it to survive, the state must prove “that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest,” as established in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett.
To establish that the regulation restricting free speech is narrowly tailored, government bears the burden of showing that the regulation advances the state’s compelling interest in a direct and material way. Conversely, the state’s burden is not carried if the regulations provide only ineffective or remote support of the claimed compelling interest.
Thomas argued that the Billboard Act’s regulations are both over-inclusive – implicating more speech than necessary to advance the state’s interest, and under-inclusive because its exemptions discriminate on the basis of the signs’ message.
Under-inclusiveness, by picking and choosing which subjects or speakers are exempted, the state may “attempt to give one side of a debatable public question an advantage in expressing its views to the people,” Judge Batchelder quoted from First Nat. Bank v. Bellotti.
Judge Batchelder opined that the challenge by Thomas is more appropriately one of under-inclusiveness with the Billboard Act’s, “most obviously,” general speech restriction and selected restrictions clearly lending itself to such examination.
Tennessee’s Billboard Act was found to be under-inclusive in two ways with the first being the discrimination of non-commercial messages on the basis of content.
A hypothetical example relative to a sign, “Abortion is murder!” erected on a crisis pregnancy center was used for Judge Batchelder to demonstrate the point. The sign would presumably qualify under the Billboard Act’s on-premises exemption, because message is related to the activities at the center.
But the property owner next door who provides no abortion-related services could not erect a sign that says “Keep your laws off of my body!” under Tennessee’s Billboard Act.
The conclusion: “Two identically situated signs about the same ideological topic – one sign/speaker/message is allowed; the other is not,” wrote Judge Batchelder.
She went on to say that favoring on-premises related speech over speech on, but unrelated to the premises, the Tennessee’s Billboard Act “has the effect of disadvantaging the category of non-commercial speech that is probably the most highly protected: the expression of ideas,” quoting from Ackerley Commc’ns. Of Mass., Inc. v. City of Cambridge.
Tennessee’s Billboard Act is also under-inclusive, opined Judge Batchelder, because it discriminates against non-commercial speech on but unrelated to the premises, while allowing on-premises commercial speech.
Demonstrating the point through another example, Judge Batchelder presents a pet store that sources its dogs from a notorious puppy mill and erects a sign on its premises that reads, “We have the most dogs around – and can always pump out more! Come get one!”
Such a sign would presumably qualify for TDOT’s on-premises exemption, because the message is related to the on-premises commercial activity of the pet store, wrote Judge Batchelder.
However, the property owner across the street, posed Judge Batchelder, who offers no services regarding animals could not, under Tennessee’s Billboard Act, erect an otherwise identical sign that reads, “Puppy Mills are Animal Cruelty!”
Judge Batchelder says the first example, which would be allowed, is unsettling commercial advertising, while the second example of non-commercial protest is prohibited speech under Tennessee’s Billboard Act.
The opinion states that this contradicts established First Amendment case law, which has “consistently accorded non-commercial speech a greater degree of protection than commercial speech,” Judge Batchelder quoted from Metromedia, Inc. v. City of San Diego.
By placing a burden “more heavily on ideological than on commercial speech” Tennessee’s Billboard Act represents “a peculiar inversion of First Amendment values,” the opinion referenced from John Donnelly & Sons v. Campbell.
The Court’s review of the record and language of the Billboard Act lead to one more “inescapable conclusion”: the on-premises exception is tailored to promote Tennessee’s economic interests.
That exception, Tennessee argued, is sufficient First Amendment protection.
The protection the state says is afforded through the Act – allowing property owners to say whatever they want, so long as the message relates to the activities, goods or services at the premises – was likened by Judge Batchelder to Henry Ford’s famous line about options for the original Model T: “Customers can choose any color they want, so long as it is black.”
The Sixth Circuit determined that Tennessee’s Billboard Act, being “hopelessly under-inclusive” by not being narrowly tailored to further the state’s compelling interest, is an unconstitutional restriction on non-commercial speech.
Before getting to the Sixth Circuit Court, the District Court previously found that Tennessee’s Billboard Act was not severable. Therefore, the commercial or off-premises aspects of the Act were not preserved by the District Court, even though Thomas did not allege that that portion was unconstitutional.
On appeal to the Sixth Circuit Court, Tennessee did not raise severability, so the Circuit Court did not “disturb” the District Court’s determination that the entire Billboard Act, as applied in Thomas’ case, is unconstitutional inasmuch as the on-premises exception is not severable from it.
The Sixth Circuit Court agreed with the District Court, that it is for Tennessee’s state legislature, and not the court, to clarify the intent of the Billboard Act.
Laura Baigert is a senior reporter at The Tennessee Star.