Agenda - Planning Commission - 06/01/2017

Home

May 10, 2017 I Volume 11 I Issue 9 Zoning Bulletin regulation for non-commercial speech. Here, Thomas argued that his Crossroads Ford sign was entitled to First Amendment protection as a display of non-commercial speech. He claimed that removal of his billboards under the Billboard Act violated his First Amendment rights. DECISION: Order finding Billboard Act an unconstitutional, content -based regulation of speech The United States District Court, W.D. Tennessee, Western Division, found that the Billboard Act was an unconstitutional, content -based regulation of speech, in violation of the First Amendment. In so holding, the court first explained that "[c]ontent-based laws — those that target speech based on its communicative content —are presumptively unconstitutional and may be justified only if the govern- ment proves that they are narrowly tailored to serve compelling state interests." Content -based laws are those that apply to a particular speech because of "the topic discussed or the idea or message expressed," said the court. Further, explained the court, "[w]hen a content -based regula- tion affects both commercial and non-commercial speech, the speech's nature determines the appropriate level of scrutiny." Here, the court found that the Billboard Act was subject to strict scrutiny (i.e., the most stringent review) because it was a content -based regulation that implicated Thomas's non-commercial speech. The State had argued that the Billboard Act was content neutral —entirely based on the location of the signs with on -premises versus off -premises restrictions. The court recognized that it was possible for a restriction that distinguishes between off- and on -premises signs to be content neutral, but not where, as it found here, the off-premises/on-premises distinction hinges on the content of the message. Here, the Billboard Act imposed location, permit, and tag requirements on signs, unless they qualified as an exception or exemption. The language of the Billboard Act required the State to assess the sign's content to determine if it was exempt. Signs that advertised activities conducted or the sale/ lease of the property on which they were located were exempted from the location, permit, and tag requirements (as "on -premises" signs). (T.C.A. §§ 54-21-103(1)-(3), 54-21-107(a)(1)-(2).) In practice, noted the court, the State also used a two-step inquiry known as the "premise and purpose test," which required that the sign's content identify an activity/sale/lease on the property where the sign was located before it qualified for exemption. (Rule 1680-02-03-.06(2)). Applied to Thomas, the court found that the State required regulation of Thomas's sign because its non-commercial message did not "speak[ ] up for the things going on there at that premise." "Even `though [the on-premises/off- premises distinction appeared] facially content neutral, [it ultimately] [could] not be `justified without reference to the content of the regulated speech,' " and thus [was] a content -based regulation," found the court. Thus, concluded the court, because the Billboard Act was a content- 4 © 2017 Thomson Reuters