RANDAL R. MORRISON’S

Quick-read summaries of recent court decisions on the regulation of signs, billboards, and public forum.

See contact info, disclaimer, and disclosures at the end of this newsletter.

STUDENT BANNER - "BONG HITS 4 JESUS." Student at public high school in Juneau Alaska displayed a large banner stating "Bong Hits 4 Jesus" off-campus at an event which was sponsored by the school. The school principal directed the student to take down the banner. Student sued, claiming violation of free speech. The Ninth Circuit held that the student had a free speech right to display the banner, and that the school had not demonstrated a risk of "substantial disruption" of school activities. (Frederick v. Morse, 439 F.3d 1114, 2006). U.S. Supreme Ct. decision: The message could reasonably be interpreted as promoting illegal drug use. The free speech rights of students in public school are not as great as adults in other settings. Deterring student drug use is an important, perhaps compelling, interest. Schools can prohibit student expression which promotes illegal drug use. Three Justices (Stevens, Souter, Ginsberg) dissented. Morse v. Frederick, U.S. Supreme Ct. No. 06-278, June 25, 2007 (2007 WL 1804317). Picture of the banner: http://static.flickr.com/112/314136425_c92e5f113d_o.jpg

See also: school violated student’s free speech rights by censoring certain drug-related images on a seventh-grade student’s shirt emblazoned "George W. Bush - Chicken-Hawk-In-Chief." Guiles v. Marineau, 461 F.3d 320 (2^nd Cir. 2006). U.S. Supreme Ct. declined the case on June 29, 2007.

Picture of the shirt here.

NUDE ANTI-WAR DEMONSTRATION. Artist wished to present an anti-war artwork consisting of nude persons assembled into the shape of a peace sign, on a Florida public beach. Under state law, officials required that the participants wear at least a thong, and if female, a bikini top. District court granted a preliminary injunction, restraining enforcement of the state law, and suggested that a barrier screen could solve the problem. A screen was set up, but the artist presented the display outside the barrier. Later, the district court refused to make the injunction permanent, concluding that prohibition on public nudity was no greater than necessary to protect the public. U.S. Supreme Ct. unanimous decision: Artist’s initial success on the preliminary injunction did not make the artist a "prevailing party" under the federal civil rights statute, 42 USC 1988; "prevailing party" entitlement to fee award is determined by the final outcome of the case. Sole v. Wyner, U.S. Supreme Court No. 06-531, June 4, 2007 (2007 WL 1582904).

Related image: http://www.angelfire.com/oz/newscompass/newscompass/nakedprotesters.jpg

BILLBOARD PERMITS - STANDING. Billboard company could not challenge portions of a sign ordinance which were claimed to grant "unbridled discretion." The law banned all billboards, so there was no discretion in denying the permits. Granite State Outdoor v. Ft. Lauderdale FL, 11^th Cir. No. 05-12531 (9/6/2006) (194 Fed.Appx. 754, 2006 WL 2560679), rehearing and rehearing en banc denied. U.S. Supreme declined the case June 4, 2007, No. 06-1175.

FREE SPEECH - TATTOOS. In an unreported decision, the Virginia Supreme Court rejected claims that zoning restrictions on tattoo parlors violated the First Amendment. U.S. Supreme Ct. declined the case 6/18/07, Lasting Beauty v. Chesapeake VA, Case No. 06-1374.

ANTI-GAY SIGNS. City’s decision to remove anti-homosexuality protestor Rev. Ralph Ovadal from pedestrian bridges over freeways did not violate his free speech rights. Madison WI city law prohibited the display of hand-carried signs on freeway overpasses, regardless of message, and prevented traffic safety problems from reactions, pro or con, of drivers in heavy, high speed traffic below. Ovadal v. Madison WI, 469 F.3d 625 (7^th Cir. 2006). U.S. Supreme declined the case 6/4/07, No. 06-1318. Related images: http://my.execpc.com/~awallace/wcusign.jpg and http://www.pccmonroe.com/images/Newsletter%20Images/0901_3.jpg

Time Limit on Permit Processing. Billboard company submitted one permit application which violated a rule requiring 1,000' separation between billboards. The city apparently lost the application. Several months later, without inquiring into the status of the application, signco filed suit, charging that the city’s sign regulation system violated its First Amendment rights, including timely decision on permits. City then adopted new sign ordinance, completely banning all new billboards and imposing a 45 day limit for permit decisions. Decision: Signco has standing to challenge the lack of a time limit, but this "does not provide it a passport to explore the constitutionality of every provision of the" original sign ord. A time limit is not constitutionally required when the permitting procedure is content neutral. Both the original and new sign ordinances are content neutral as to billboards; the "on-site/off-site" distinction concerns location , not message. There is no indication the city intended to stifle any particular message. The delay in decision on the first application was, at worst, negligent; that is not enough to show an intent to violate constitutional rights. Summary judgment in favor the city, affirmed. Covenant Media of SC v. North Charleston,* 4^th Cir. No. 06-1894, __ F.3d __, 2007 WL 1953381.

Mootness / Standing. After billboard permits were denied, signco sued the city, claiming unconstitutionality of the sign ordinance. About 90 days later, city adopted a new sign law. Decision: signco fails "redressability," which is constitutionally required for standing (the right to sue). "[A] favorable decision for KH Outdoor with respect to the sign code provisions challenged would not allow it to build its proposed signs, because the sign permit applications failed to meet other statutes and regulations that were not challenged." The technical drawings for the sign structures were for another city, and were submitted by a sign contractor who was not licensed in Florida. KH Outdoor v. Clay County FL, 482 F.3d 1299 (11^th Cir. No. 06-11070, 3/29/2007).

More billboard cases decided primarily on standing and / or mootness: Advantage Media v. Eden Prairie, 456 F.3d 793 (8^th Cir. 2006), Maverick Media Group, Inc. v. Hillsborough County FL, MD FL No. 8:02-cv-947, 2007 WL 1455963, 5/16/07, Lockridge v. Oldsmar FL, MD FL NO. 8:03-cv-1246, 475 F.Supp.2d 1240, 2/27/07, Covenant Media NC v. Monroe NC, WD NC No. 3:04-cv-586, 2007 WL 655319, 3/1/07, Covenant Media IL v. Des Plaines IL, ND IL No. 04 C 8130, 476 FS2d 967, 3/7/07.

Standing of governmental litigants. [Case 1] Downtown Development Agency was not injured in any particular way by Zoning Board approval of variance to allow "supergraphics" on downtown building; thus DDA had no standing and court had no jurisdiction. City of Detroit Downtown Development Authority v. US Outdoor, Michigan Ct of Appeals No. 262311, 2007 WL 1094410, 4/12/07. [Case 2] Although City Council itself would have standing to sue the city solicitor challenging his authority to settle a billboard lawsuit, individual members of the Council did not have standing to bring the suit. Goode v. City of Philadelphia, ED PA No. 07-cv-000901, 2007 WL 1810693, 6/20/07.

Overbreadth Standing: In an earlier decision, city’s size and height rules for billboards were upheld as constitutional, but left other issues open. Prime Media v. Brentwood TN,** 398 F.3d 814 (6^th Cir. 2005). On second appeal, held: "Prime Media’s standing with regard to the size and height requirements does not magically carry over to allow it to litigate other independent provisions of the ordinance without a separate showing of an actual injury under those provisions." Signco lacks standing to present challenges on behalf of unknown, third parties who are not before the court. (See full discussion of the "overbreadth standing" issue in CAMP v. Atlanta, 451 F.3d 1257 (11^th Cir. 2006).) City’s optional "advisory letter of compliance," which replaced the prior permitting scheme, was not a "prior restraint on speech." Trial court’s dismissal of the case is affirmed. Prime Media v. Brentwood (II),** 484 F.3d 343 (6^th Cir. 5/8/07). Another case following Brentwood: Signco never submitted an application for a billboard that was within the allowable size and height limits, and thus never gave city an opportunity to reject it under the challenged content-based off-premises limitations. Thus, signco has no constitutionally recognized damage, and lacks standing. Summary judgment to city. Norton Outdoor v. Pierce Township, SD OH No. 1:05cv401, 2007 WL 1577747, 5/30/07.

Permit Exemption. Sign code of Rapid City SD exempted "public purpose signs" from permit requirement. Relying on this exemption, Epic Outdoor began constructing four electronic readerboards in railroad rights of way. Building Official issued stop work order; Epic appealed to City Council, which allowed Epic to complete the signs. Lamar Outdoor then sued, claiming the Council lacked authority to overrule Building Official’s order. Decision: City Council acted within its jurisdiction. Lamar’s suit fails. Lamar Outdoor v. Rapid City, SD Supreme Ct. No. 24015, 731 NW2d 199, 4/4/07.

"Car For Sale" Signs. Citizen displayed "for sale" sign on his car and parked it on a city street in front of his home. City law forbade parking a car on city street for purpose of "displaying it for sale" or "advertising." When cited, he challenged the law as unconstitutional. The original 3-judge panel of the Sixth Circuit ruled, 2-1, in an unpublished decision, that the law was valid. 6^th Cir. Case No. 04-4414 (5/19/2006). However, when the case was reconsidered by a 15 judge "en banc" panel, 8 judges found that the city had not sufficiently justified its law restricting commercial speech. Seven judges dissented. Pagan v. Fruchey, Sixth Cir. No. 04-4414, 6/29/2007, __ F.3d __, 2007 WL 1853692.

Rebuilding. After nonconforming billboard was destroyed by tornado, owner Clear Channel removed it and applied for permit to rebuild. City denied the permit because city code prohibits new billboards, and also stated: "[t]he right to maintain any nonconforming sign shall terminate and shall cease to exist whenever the sign structure is destroyed, or is damaged as described in subsection 902.4.6.e...." which "states that a sign is damaged when the structural support has failed either by fracture or by exceeding its yield point." Decision: signco had notice of the sign’s nonconformity, and was given the opportunity to be heard. Denial of rebuilding permit upheld. Clear Channel v. Myrtle Beach SC, SC Supreme Ct. No. 26272, 372 SC 230, 642 SE2d 565, 2/20/07. Similar cases: Studio 205 v. Brewton AL, Alabama Supreme Ct. No. 1051801, 4/13/07 (2007 WL 1098551), Bill Salter Advertising v. Brewton AL, SD AL No. 07-0081, 2007 WL 1266126, 5/26/07 (continuing enforcement of post-Hurricane Ivan billboard moratorium is enjoined).

Electronic Message Board: City law states: "no nonconforming sign shall be structurally altered, enlarged, moved or replaced, . . . unless such sign is brought into compliance with the provisions of this ordinance." Billboard owner Adams installed "a large, black, electronic message board on [a] billboard. The zoning administrator directed Adams to remove the billboard within 30 days." Adams argued that the "electronic message board did ‘not increase the force in any structural element by more than [five percent]’ and was not, therefore, ‘structural’ as defined by the International Building Code’." Decision: "While the message board did not increase the billboard’s height, length, or the square footage of its advertising surface area, it did, however, increase the billboard’s depth. Thus, . . . the addition of the message board ‘enlarged’ the billboard in both dimension and weight." City acted properly in ordering removal of the billboard. Adams Outdoor v. Board of Zoning Appeals, Virginia Beach VA, Virginia Supreme Court No. 061272, 6/8/07 (2007 WL 1651100).

See also: City law banning all electronic message center signs was valid under the "time, place and manner" test; the rule was content neutral, since it made no exceptions for time and temperature or any other message type. Naser Jewelers v. Concord NH, D NH No. 06-cv-400, 2007 WL 1847307, 6/25/2007.

Sign Ordinance Challenge. Interpreting the US Constitution, the Georgia Supreme Court held: "The First Amendment requires the government to decide on a case-by-case basis which categories of commercial speech should be banned so as to further a specific and substantial governmental interest, and not, as the Fulton County ordinance does, impose a ban all commercial speech outright and then provide which categories are worthy of being made legal. Banning all signs, including all commercial signs, and then deciding on a case-by-case basis which ones will be permitted is the antithesis of the narrow tailoring that is required under the First Amendment, even in the context of commercial speech. . .[T]he broad sweep and basic structure of the Fulton County ordinance, whereby all signs are presumed to be illegal and are then permitted only on a case-by-case determination, does not comport with the First Amendment." Fulton County GA v. Galberaith, GA Supreme No. S07A0032, 2007 WL 1804387, 6/26/07.

Protest Signs in Historic District. Resident of historic district posted signs – spray painted on plywood sheets – on his residential property, protesting proposed real estate development. He was cited for violating rules for signs in historic district, including prior approval by Historic District Review Board, and 32 sf size limit. Decision: The time required to go through the approval process denies free speech for a time, and is invalid for that reason. However, the local law "is constitutional when applied to general principles of architecture and design, even though its specific application to the content of any signage would not be." Lusk v. Village of Cold Spring NY, Second Cir. No. 05-4999, 475 F.3d 480 (1/31/07).

Contrast: Protestors displayed signs critical of city officials on residential and business properties in historic district, and were criminally cited for displaying signs without permits. When the defendants challenged the law, city amended it to exempt from permitting non-commercial, temporary, and small (under 12 sf) signs, and imposed time limit for decisions on permit apps. Decision: The new rules are content neutral and pass the applicable test for constitutionality. Riel v. Bradford PA, Third Cir. No. 05-4425, 485 F.3d 736, 5/3/07.

Conversion. Sign originally permitted for on-site use could not be converted to off-site use. Philadelphia v. Steen Outdoor, Commonwealth Ct PA, Nos. 576 C.D.2006, 726 C.D.2006, 2007 WL 1731423, 6/18/2007; Pallco v. West Hollywood CA, Cal. App. No B186378, 2007 WL 914771, 3/28/07 (not officially published).

Binding new owners. [Case 1] Landlord could evict billboard because predecessor, who built the sign, never got a permit; sign was illegal from the beginning. Clear Channel v. Schrem Partnership, WA Ct Appeals No. 57326-8-I, 2007 WL 1589435, 6/4/07 (not officially published). [Case 2]: New owner of billboards was bound by previous owner’s settlement agreement with city, even though settlement agreement was not recorded and did not state that it bound successors. Crossroads Media v. Village of Baldwin MI, WD MI No. 1:06-cv-514, 2007 WL 772901, 3/12/07. [Case 3] New owner did not show hardship required for variance to allow site, previously used for accessory sign, to be used for billboard. Society Created to Reduce Urban Blight v. Zoning Board of Adjustment Phila., Commonwealth Ct. PA, 921 A2d 536, 5/25/07.

Sign Spinners. Although city could ban all portable signs, a general ban on portable signs with content-based exceptions was unconstitutional. Attorneys’ fee award to plaintiff: $165,000. Ballen v. Redmond WA, Ninth Cir. No. 04-35606, 466 F.3d 736 (9^th Cir. 10/20/2006). 

Tri-vision billboards. State regs were amended in 1999 to explicitly prohibit tri-vision displays; signco says the rule does not apply to signs built before 1999. Decision: prior law also prohibited tri-visions, and was not unconstitutionally vague. Lamar Adv. v. Texas DOT, Tx Ct Appeals No. 03-06-00356, 2007 WL 1790584, 6/20/07.

Highway Beautification. [Case 1] City approved "graphics plan," which allowed murals without limit as to size and spacing. OH DOT charged the approval was invalid as violating state law implementing the federal Highway Beautification Act. Decision: Because the Director of DOT never designated the subject locations as part of the national highway system, OH DOT had no regulatory authority and could not challenge the approvals. Proctor v. Orange Barrel, OH App. NO 06AP-762, 2007 WL 1816284, 6/21/07. [Case 2] Tennessee Dept. of Transportation properly denied billboard permits; local gov’t zoning change was "spot zoning for the purpose of allowing billboards," and violated state version of HBA. Phillips v. TN DOT, TN App. Ct. No. M2006-00912, 2007 WL 1237695, 4/26/07.

Disappointed Bidder. Regional Transportation Authority invited bids for private contractors to manage program for advertising on vehicles, shelters, and benches. After the contract was awarded to Clear Channel, disappointed bidder Marco Advertising sued in federal court, claiming a due process violation. Decision: State law did not require the RTA to accept the best bid. Marco had no property right in the contract. The case presents no federal question, and is dismissed. Marco Outdoor v. Regional Transportation Authority, Fifth Circuit No. 05-30875, __ F.3d __, 2007 WL 1723107, 6/15/07.

Regulatory power. Local communities had no authority to regulate advertising activities by Massachusetts Bay Transportation Authority. State law granted the Authority the power to provide transportation and to ‘sell, lease or otherwise contract for advertising in or on the facilities of the authority." MBTA v. Somerville MA, Superior Ct MA, No. 06:4616, 2007 WL 1129404, 4/2/07.

NATO Protests. NATO defense ministers held a conference at a hotel in Colorado Springs CO. To deter terrorist attacks and explosives, police set up a security zone around the hotel, and closed the streets to all except attendees, media, hotel employees and local residents. City denied permission for six protestors to demonstrate for one hour on the public sidewalk around the hotel. However, they did demonstrate on the periphery of the zone. Decision: "the City’s interest in providing security to a gathering of defense officials is of the highest order. . . . Courts have historically given special deference to other branches in matters relating to foreign affairs, international relations, and national security; even when constitutional rights are invoked by a plaintiff." Furthermore, "[P]rotesting on the periphery of the security zone allowed the Citizens to present their views to the conference delegates and international media. They were not wholly cut off from their intended audience, such that there were no ample alternatives to a protest within the security zone itself." No constitutional violation. Citizens for Peace in Space v. City of Colorado Springs CO, Tenth Circuit No. 05-1391, 477 F.3d 1212, 2/28/2007.

Political Shirt. Mayor told citizen Cleveland he could not wear T-shirt, with message concerning on-going mayoral race, at meetings of city commission. At the same meeting the mayor also told one of her own supporters he could not wear a campaign button during the meeting. Mayor testified she thought there was a policy of "no campaigning in City Hall or on municipal property;" however, no such written rule or policy existed. The City later allowed political campaign messages to be displayed on participants clothing and allowed Cleveland to wear the T-shirt at the next City meeting. Decision: City commission meetings are "limited public fora, where certain groups of speakers may discuss certain subjects." The prohibition of campaign messages was content-based, but viewpoint-neutral, and was applied equally. There was no free speech violation. Cleveland v. Cocoa Beach FL, 11^th Cir. No. 03-16514, 2007 WL 869055, 3/23/07. Similar case: Video tape showed Plaintiff was unruly at city council meetings, and was called "out of order" and removed. Case dismissed. Olasz v. Welsh, WD PA No. 06-348, 2007 WL 1830669, 6/25/07.

Summum Religion. City park commemorates city’s history with various monuments, including a Ten Commandments monument erected in 1971. Summum, a small religious group, sought to place its "seven aphorisms" monument - physically similar to the existing 10 Commandments monument - in the park. City declined, saying the proposed monument did not meet the city’s criteria for permanent displays in the park: all permanent displays had to directly relate to the history of the city or be donated by groups with long-standing ties to the community. Decision: The standards are content based and restrict religious expression in a traditional public forum (city park). Trial court is ordered to grant a preliminary injunction requiring the city to permit the display of Summum’s monument in the park. Summum v. Pleasant Grove UT, Tenth Cir. No. 06-4057, 483 F.3d 1044, 4/17/07. Note: this religious group promotes "modern mummification" - see www.summum.org and http://en.wikipedia.org/wiki/Summum .

Similar cases: Summum v. Duchesne UT, Tenth Cir. No. 05-4162 and others, 482 F.3d 1263, 4/17/07, Summum v. Ogden UT, 297 F.3d 995 (Tenth Cir. 2002), Summum v. Callaghan, 130 F.3d 906 (Tenth Cir. 1997); Van Orden v. Perry, 545 U.S. 677 (US Supreme 2005) (and several cases listed therein), ACLU Nebraska v. Plattsmouth NE, 419 F.3d 772 (Eighth Cir. 2005).

Campus Speech. Itinerant, unaffiliated street preacher was denied opportunity to preach and speak on library lawn at public university. Decision: a public university cannot deny use of open spaces to certain speakers because of their message, but it can deny access based on a neutral criterion, such as being invited to speak on campus by a faculty member or student group. "The limits that Vincennes University has placed on the use of the library lawn are consistent with limiting university facilities to activities that further the interests of the university community. The limits are constitutional." Gilles v. Blanchard, Seventh Cir. No. 06-1441, 477 F.3d 466, 2/17/07, rehearing denied 3/12/07.

Jews For Jesus. Religious proselytor was charged with violating Oyster Bay NY town law which required "special permission of the town board" before "making a speech" or "making an appeal of any kind" in a park or beach. Decision: the law has no guidelines or standards regarding when the special permission will be granted or denied; it is unconstitutional for conferring unbridled discretion on a prior restraint system. People v. Mendelson, District Ct., Nassau County NY, 834 NYS 2d 445, 15 Misc.3d 925, 4/4/07.

_________

Contact Info:

The Sign Regulation / Public Forum Bulletin is published by Randal R. Morrison, member of the State Bar of California, Sabine & Morrison Attorneys, P.O. Box 531518, San Diego CA 92153-1518. Email: rrmatty@yahoo.com. Website: www.signlaw.com .

Disclaimer:

This newsletter is published for informational purposes only, and does not constitute legal advice. If you have a legal question related to sign regulation or public forum, contact an attorney qualified in those fields. Receipt of, or reading of, this newsletter, does not form an attorney - client relationship.

Disclosure:

On cases marked with (*) a single asterisk after the title, Randal Morrison served as counsel to the public entity. On cases marked with (**) a double asterisk, he wrote or contributed to a "friend of the court" (amicus) brief, in support of the public entity.

Copyright:

Copyright 2007 Randal R. Morrison, all rights reserved.