Agenda - Planning Commission - 01/07/2010

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o () ( ... -~ Zoning Bulletin November 10,20091 Volume31 No. 21 RTM then sued the -city.in federal court. RTM alleged that the Code's disparate treatment of commercial and noncommercial speech violated the First Amendment of the United States Constitution. Finding there were no material issues of fact in dispute, and deciding on the law alone, the federal district court issued summary judgment in favor of the city. It found that the Code did not violate the First Amendment. It concluded that: the fact that commercial signs in the city were far more numerous than noncommercial signs provided an "adequate rationale for treating them differently given the objective of reducing visual clutter and distraction along public roadways." RTM appealed. DECISION: Affirmed. The United States Court of Appeals for the Fifth Circuit held that the Code's prohibition on off-premises commercial signs did not vio- late the First Amendment's Free Speech Clause in treating commercial signs' differently than noncommercial signs. In so holding, the court explained that comtnerci~l speech restrictions were evaluated under a four-part framework: (1) The First Amendment protects commercial speech only if that speech concerns lawful activity and is not misleading. A restriction on otherwise protected commercial speech is valid only if it: "(2) seeks to implemerit a substantial govern- ment interest"; "(3) directly -advances that interest"; and "(4) reaches no - further than necessary to accomplish the given objective." - RTM had argued that the Code was unconstitutional and invalid because it failed to satisfy the second and third prongs of that frame- work. More specifically, RTM argued that the Code: "failed to articu- late any reason for distinguishing between commercial and noncom- mercial billboards relevant to safety and aesthetics." The court acknowledged that where an ordinance's distinction be- tween commercial and noncommercial billboards produces only a '''min- ute' benefit," the ordinance would be invalid in violation of the First Amendment. However, where there was a "reasonable fit" between (1) an ordinance's distinction between commercial and noncommercial bill- boards and (2) the asserted interests (i.e., safety and aesthetics), the ordi- nance would be found valid. In other words, if a city could justify ban- ning commercial speech "based on the severity of its contribution to the city's problems (either from number or particularized harm)," the city could treat commercial and noncommercial speech differently. Here, the court found that the Code was valid because there was a- "reasonable fit" between the Code and the asserted interests of safety and aesthetics. The Code "was specifically crafted to address the safety and aesthetic concerns associated with billboards." Also the city produced "substantial evidence that: (1) the vast majority of the area billboards [were] commercial[;] and (2) the [Code] [had] been effective, reducing @ 2009 Thomson Reuters 3 31