The Sixth Circuit Court of Appeals ruled unanimously today that the Tennessee Billboard Act is unconstitutional and said the state may not tear down a sign belonging to William Thomas. The state had ordered the removal of a sign Thomas used to cheer on the 2012 U.S. Summer Olympic Team. Thomas is represented by attorneys from the Institute for Free Speech.
“Today’s ruling is a major victory for free speech. The court completely rejected Tennessee’s arbitrary and subjective excuses for banning our client’s sign. This should serve as a warning to other states and localities that have failed to bring their sign codes into compliance with the First Amendment,” said Institute for Free Speech Legal Director Allen Dickerson.
The Tennessee Billboard Act prohibits any billboard within 660 feet of a public roadway unless expressly permitted by the Tennessee Department of Transportation (TDOT). However, the law provides an exception allowing signs that advertise on-premises activity to be erected without a permit. As a result, the state looks to a sign’s message to determine how it is regulated under the Act.
“The Billboard Act’s on-premises exception scheme is a content-based regulation of (restriction on) free speech. Although we discuss this at length, this is neither a close call nor a difficult question. If not for Tennessee’s proffered disputes, we would label this ‘indisputable,'” wrote Judge Alice M. Batchelder.
TDOT argued that it could still remove the signs because of its interests in “traffic safety” and “aesthetics.” The court noted that the same concerns applied equally to signs advertising on-premises activity, which are not restricted. It held that these interests were insufficient to restrict Thomas’s “patriotic speech.”
The decision explained that the Tennessee Billboard Act disadvantages signs that express ideas and produces disturbing outcomes. The court noted that, under the Act, “a notorious puppy mill” could advertise its services on its premises while a property owner across the street would be prohibited from erecting an identical sign saying, “Puppy Mills are Animal Cruelty!”
The Tennessee Billboard Act was enacted to comply with the Federal Highway Beautification Act, which conditions ten percent of a state’s federal highway funding on maintaining control over billboards within 660 feet of a roadway. Following the Sixth Circuit’s ruling, the state will have to amend its statute to avoid privileging speech that advertises on-premises activity.