CASE LAW RELATING TO BILLBOARDS
Selected United States Supreme Court Cases
Lehman v. City of Shaker Heights, 418 U.S. 298 (1974): No First Amendment violation where City did not accept paid political advertisements on public transit vehicles, since no public forum created. Where state action involved, implementing policies must not be arbitrary and capricious or invidious.
Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976): Regulation of commercial advertising permissible to greater extent under First Amendment than would be allowed for noncommercial advertising.
Central Hudson Gas & Electric Co. v. Public Service Comm’n, 447 U.S. 557 (1980): Regulation banned promotional advertising by electric company. For restrictions on commercial speech, four-part test applied: government must assert substantial interest to be achieved; restrictions must be in proportion to and directly advance that interest; restrictions must not be more extensive than necessary; speech must be lawful and not misleading.
Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981): City ordinance cited traffic safety and aesthetics as purpose was facially unconstitutional because it banned noncommercial as well as commercial advertising. Exemptions distinguish relative value of types of speech and require reference to content. Onsite/offsite distinction upheld.
Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984): Public interests in traffic safety and aesthetics sufficiently substantial to justify prohibition of temporary signs on public property, where ordinance is content-neutral and impartially administered.
Ward v. Rock Against Racism, 491 U.S. 781 (1989): In public forum, government may impose reasonable time, place, and manner restrictions on protected speech provided they: are justified without reference to the content; are narrowly tailored to serve a significant government interest; and leave open ample alternative channels for communication of the information. City’s sound amplification guideline is valid under this test. Regulation here need not be least restrictive means of achieving ends; need only be a substantial interest that would be achieved less effectively without the regulation.
City of Ladue v. Gilleo, 512 U.S. 43 (1994): Local sign ordinances are vulnerable to challenge if they contain exemptions which discriminate based on content, or if they prohibit too much protected speech. Local government could not prohibit political signs on single-family residential properties.
Hill v. Colorado, 530 U.S. 703 (2000): Statute content-neutral as merely regulation of places where speech may occur, not adopted because of disagreement with message, and stated reasons for adoption unrelated to speech content.
Reed v. Town of Gilbert, 576 U.S. 155 (2015): Regulation concerning temporary non-commercial signs was facially content-based as message must be read in order to enforce; strict scrutiny standard applied and provisions violated free speech clause of First Amendment.
City of Austin v. Reagan Nat’l Adv’g of Austin, LLC, 596 U.S. 61 (2022): Where ordinance prohibited construction of new off-premises signs and digitization of existing off-premises signs, on/off premises distinction was facially content-neutral and not subject to strict scrutiny. Ban on certain digital billboards was upheld. Not all restrictions that require an examination of speech are facially content-based, only those which apply to particular speech due to the topic covered or the message conveyed.
Selected Cases from the United States Court of Appeals for the Eleventh Circuit and United States District Courts in Florida
Supersign of Boca Raton, Inc. v. City of Fort Lauderdale, 766 F.2d 1528 (11th Cir. 1985): Prohibition on off-site billboards (advertising vehicles) upheld as content-neutral and appropriately narrow.
Harnish v. Manatee County, Fla., 783 F.2d 1535 (11th Cir. 1986): Applying Vincent and Clark, found prohibition of portable signs valid under First Amendment.
Don’s Porta Signs, Inc. v. City of Clearwater, 829 F.2d 1051 (11th Cir. 1987): Controlled by Harnish; partial solution to aesthetic issues may still properly advance City’s goals.
Nat’l Advertising Co. v. City of Fort Lauderdale, 934 F.2d 283 (11th Cir. 1991): Amendments to sign code did not render case moot.
Patrick Media Group v. City of Clearwater, 836 F.Supp. 833 (M.D. Fla. 1993): Billboard advertiser’s due process taking claim not ripe until parallel claim adjudicated/exhausted in state court. See Knick v. Township of Scott, Pennsylvania, 139 S.Ct. 2162 (2019), later overruling this requirement prior to federal taking claim under 42 U.S.C. § 1983 previously a prerequisite as set forth in Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). Applicable count dismissed with leave to amend; City’s Motion to Dismiss denied on all other grounds. Appeal from variance denial unnecessary where ordinance did not provide for same.
Dimmitt v. City of Clearwater, 985 F.2d 1565 (11th Cir. 1993): Ordinance improperly granted unbridled discretion to decisionmaker in licensing matters. By limiting the number of flags which could be displayed while exempting government flags, the city unconstitutionally restricted expressive conduct based upon content.
Revolution Outdoor Adver., Inc. v. City of Casselberry, No. 00-10863, 234 F.3d 711 (table), unpublished op. (11th Cir. Sep. 29, 2000), also No. 98-01344, slip op. (M.D. Fla. 2000): Challenge to sign ordinance moot when moratorium placed prior to litigation, new sign code adopted, and City had passed resolution stating it would not readopt any provision in old code that might violate First Amendment.
Florida Outdoor Adv’g, LLC v. City of Boynton Beach, 182 F.Supp.2d 1201 (S.D. Fla. 2001): Sign ordinance found facially unconstitutional.
Fla. Outdoor Adv’g, LLC v. City of Boca Raton, Fla., 266 F.Supp.2d 1376 (S.D. Fla. 2003): Court remarked on trend of billboard advertisers applying for permits knowing denial is inevitable while contemplating litigation regarding ordinances’ validity.
Granite State Outdoor Adv’g, Inc. v. City of St. Petersburg, Florida, 348 F.3d 1278 (11th Cir. 2003), cert. denied, 541 U.S. 1086 (2004): Billboard company’s as-applied challenge fails; some sign code provisions found to be unconstitutional but severable. Lack of time limits for permit denial is acceptable.
Granite State Adv’g v. City of Clearwater, Fla., 213 F.Supp.2d 1312 (M.D. Fla. 2002), aff’d in part and rev’d on other grounds, 351 F.3d 1112 (11th Cir. 2003), cert. denied, 543 U.S. 813 (2004) (“Granite State II”): Billboard advertiser lacked standing to challenge entire development code; injunctive relief denied because provision under which permits denied was not unconstitutional. Challenged substantive section content-neutral and not overbroad.
Granite State Outdoor Adv’g, Inc. v. City of St. Pete Beach, 322 F.Supp. 1335 (M.D. Fla. 2004): Billboard advertiser lacks standing under Granite State II to challenge code sections other than the particular section denied under. Facial challenge moot as ordinance amended and no reason to think policy will change. Rational basis test applied and met regarding challenge to relevant section distinguishing between two types of commercial speech. No entitlement to damages where applications would have been rejected anyway for failing to meet height, area, animated sign provisions.
Coral Springs Street Systems, Inc. v. City of Sunrise, 371 F.3d 1320 (11th Cir. 2004): Challenge to sign code moot as code repealed with no reasonable likelihood of reenactment; severability would apply in any case.
Café Erotica of Fla., Inc. v. St. Johns County, Fla., 360 F.3d 1274 (11th Cir. 2004): Ordinance improperly distinguishes based on content and discriminates against political speech in favor of commercial speech. No compelling reason found for disparate treatment.
Seay Outdoor Advertising, Inc. v. City of Mary Esther, Fla., 397 F.3d 943 (11th Cir. 2005): Case moot where offending provision repealed; no vested right in sign permit; any unconstitutional provision in newly adopted ordinance severable.
Nat’l Adv’g Co. v. City of Miami, 402 F.3d 1329 (11th Cir. 2005), rhg. and rhg. en banc denied, 147 Fed. Appx. 966 (11th Cir. 2005) (Table 03-15516, May 20, 2005), pet’n for cert. filed, 74 U.S.L.W. 3260 (U.S. Oct. 14, 2005): Case moot where ordinance amended and reinstatement not contemplated; also not ripe for adjudication as no binding conclusive administrative determination.
Solantic v. City of Neptune Beach, 410 F.2d 1250 (11th Cir. 2005): Citation for failure to obtain permit and violation of provisions prohibiting variable message signs and certain off-premises signs. Some exemptions and limitations found to be improperly content-based. Strict scrutiny applied; interests in aesthetics and traffic safety not compelling and exemptions not narrowly tailored to further interests. Entire sign code struck down as violative of First Amendment, severability not available.
KH Outdoor, L.L.C. v. Clay County, 482 F.3d 1299 (11th Cir. 2007): Case not moot where new code adopted; however, no standing as billboard advertiser did not satisfy redressability requirement (application failed to meet requirements of other provisions not challenged).
Bealieu v. City of Alabaster, 454 F.3d 1219 (11th Cir. 2006): Citing Solantic, Court finds sign ordinance to be content-based regulation that fails strict scrutiny. Substitution clause fails because sign categories not treated equally. City’s interests in aesthetics and traffic safety not compelling and ordinance not narrowly drawn to support such interests.
Lockridge v. City of Oldsmar, 475 F.Supp.2d 1240 (M.D. Fla. 2007), aff’d, No. 07-11442 (11th Cir. Apr. 7, 2008): Billboard advertiser lacks standing where it did not challenge height and size requirements.
Maverick Media Group, Inc. v. Hillsborough County, Fla., 528 F.3d 817 (11th Cir. 2008): Billboard advertiser lacks standing where it had no redressable injury and did not apply for permit under allowable sign categories.
Complete Angler, LLC v. City of Clearwater, Fla., 607 F.Supp. 1326 (M.D. Fla. 2009): Painted mural and banner cited as illegal sign because they identified onsite product or business; strict scrutiny proper since ordinance as applied was not content-neutral; ordinance did not withstand analysis as City’s interests not truly compelling.
Bee’s Auto, Inc. v. City of Clermont, 8 F.Supp.3d 1369 (M.D. Fla. 2014): Billboard advertiser only had standing to challenge constitutionality of provisions under which City denied permits.
Florida Beach Adver., LLC v. City of Treasure Island, 511 F.Supp.3d 1255 (M.D. Fla. 2021): Concrete injury present where application for exemption to sign ban denied.
NOTES:
- Further discussion of billboard-related cases may be found at the Scenic America website, scenic.org
- For a list of related cases in these and other U.S. jurisdictions, please contact scenicflorida.org