Agenda - Planning Commission - 06/01/2017

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Zoning Bulletin May 10, 2017 I Volume 11 I Issue 9 speech, in violation of the First Amendment Citation: Thomas v. Schroer, 2017 WL 1208672 (W.D. Tenn. 2017) TENNESSEE (03/31/17)—This case addressed the issue of whether a state statute, which regulated both commercial and non-commercial speech by banning some forms of both on the basis of content, violated the First Amendment. The Background/Facts: William H. Thomas ("Thomas") operated a business that involved posting outdoor advertising signs on various tracts of real property Thomas owned throughout Tennessee. Since ap- proximately 2006, the State of Tennessee (the "State") had sought to remove Thomas'signs that did not comply with Tennessee's Billboard Regulation and Control Act of 1972 (the `Billboard Act"). The Tennessee Department of Transportation (" 'DOT") promulgates and enforces billboards and outdoor advertising signs under the Billboard Act and the Federal Highway Beautification Act of 1965, as amended. Under the Billboard Act, regulated billboards and signs are subject to location and/or permit and tag restrictions. For example, regulated signs 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 obtain- ing from the commissioner a permit and tag." (T. C. A. § 54-21-104(a)) Notably, under the Billboard Act, some signs, may be exempted or qualify as exceptions under the Billboard Act's location and/or permit and tag restrictions. (See T.C.A. §§ 54-21-103(1)-(3) and §§ 54-21- 107(a)(1)-(2).) For example, billboards and signs may be exempted from certain regulations if they are advertising something related to the premises on which they are located. (See T.C.A. a§§ 54-21-103(1)-(3) and §§ 54-21-107(a)(1)-(2).) In practice, State agents label signs regulated under the Billboard Act as "off -premise" signs and label unregulated signs as "on -premise" signs. (See Rule of Tennessee Department of Transportation Maintenance Division, Control of Out- door Advertising, 1680-02-03.06). The State denied permits for Thomas's signs, including a sign located off Interstate-40 West in Memphis (hereinafter the "Crossroads Ford sign") for failure to meet certain distance regulations under the Billboard Act. Thomas' Crossroads Ford sign had displayed various messages over the years, including: in 2012, an American Flag with Olympic rings; and later that year, an American Flag. Over time, the State removed some of Thomas' other outdoor advertising signs. Eventually, Thomas sued the State, naming multiple Tennessee state officials in their official capacities. Among other things, Thomas al- leged that the Billboard Act was unconstitutional in violation of the First Amendment. The First Amendment prohibits laws that regulate or restrict expression based on content, providing greater protection from © 2017 Thomson Reuters 3