Agenda - Planning Commission - 06/01/2017

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Zoning Bulletin May 10, 2017 I Volume 11 I Issue 9 based regulation that applied to both commercial and non-commercial speech, and because the nature of the speech at issue (i.e., Thomas's sign) was non-commercial, the Billboard Act had to survive strict scrutiny to be found constitutional. The Court went on to find that the Billboard Act did not survive strict scrutiny; and thus, the Billboard Act was unconstitutional. The court explained that strict scrutiny "requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest." Here, the court found that the State's interests were not compelling, but even if they were, the Court found the Billboard Act was not narrowly tailored to those interests. The court found that the interests that that the State sought to protect under the Billboard Act were aesthetics and traffic safety. Those interests were not "compelling interests," said the court. While the Sixth Circuit (the appellate court with jurisdiction here) had held that aesthet- ics and highway safety were "substantial or significant" governmental interests, neither the Sixth Circuit nor the United States Supreme Court had ever held that those interests were "compelling" under strict scrutiny, noted the court. Moreover, the court noted that the govern- ment's compelling interest must be related to the speech -based distinc- tions the regulation makes in order. to withstand strict scrutiny. Here, the court found that aesthetics and traffic safety were non only "general and abstract interests generally not considered so compelling as to justify content -based sign restrictions, but also, they [were] unrelated to the distinction between signs with on -premises -related content versus other messages." In fact, in practice, the court found that distinction under- mined the State's interests. For example, said the court, a small non- commercial, off -premises sign with muted colors and few words would require a permit and a tag and be restricted to a certain distance from the roadway, while an on -premises, bigger, brighter sign with more words would require no permit or tag and could be placed closer to the roadway. Despite concluding that the State's interests were not compelling, the court's analysis continued, with the court finding that, even assuming the State's interests were compelling, the Billboard Act was not nar- rowly tailored to those interests. Arguably, the Billboard Act was "overinclusive," said the court, because in practice, while it could regulate off -premises signs that were highly distracting, it also regulated off -premises signs that were not highly distracting. In any case, the court found the Billboard Act was "underinclusive"—regulating less speech than necessary to advance the State's interests. The State failed to show how instituting permit, tag, and location requirements for signs displaying non -premises -related content was necessary to eliminate threats to traffic safety and aesthetics, "but that [having the same requirements] for other types of signs [was] not,' " found the court. © 2017 Thomson Reuters 5