By David L. Hudson Jr.
First Amendment Center research attorney
Billboards represent a unique method of advertising that presents unusual problems for many city planners. These large, eye-catching signs are eyesores to some who contend they harm traffic safety and cause visual blight. Government officials and groups such as Scenic America regularly claim billboards damage both aesthetics and traffic safety. Scenic America refers to its efforts as “fighting billboard blight.”
On the other hand, outdoor advertisers and their supporters insist that billboards are a time-honored mode of communication that imparts useful information to millions. They point out that billboards convey information about a variety of products and services to consumers.
Outdoor-advertising advocates argue that billboards do not reduce traffic safety. “There is no evidence that exists that billboards cause traffic accidents,” says Myron Laible, vice president of regulatory affairs to the Outdoor Advertising Association of America. “After years of studies by experts, no one has pointed to any correlation between outdoor advertising and traffic safety.”
But billboards could cause visual clutter if left unregulated. Laible says that the OAAA supports “reasonable controls, reasonable regulation and the removal of illegal signs.” The question is: What is reasonable regulation?
In 1965, the federal government became involved with regulating billboards by passing the Highway Beautification Act. This law empowers the federal government to regulate billboards along federal highways. It sanctions the regulation of billboards located within 660 feet of a federal highway. Significantly, the law allows billboards in commercial and industrial areas.
Many disputes over the regulation of billboards end up in the courts, which have struggled over the years to balance advertisers’ First Amendment rights against cities’ land-use interests.
Supreme Court on billboards
The U.S. Supreme Court confronted the issue of billboard regulation directly in the case of Metromedia, Inc. v. City of San Diego. In this case, San Diego generally banned “outdoor advertising display signs.” The ordinance provided several exceptions, including on-site signs and signs falling into 12 specified categories. Some of these categories included government signs, signs at public bus stops, religious symbols, signs on public and commercial vehicles and temporary political-campaign signs.
This ordinance meant than an advertiser could have a billboard on its premises advertising its store products, but that it could not advertise at any other location. A group of outdoor-advertising businesses sued, contending that the ordinance violated the First Amendment.
The case eventually reached the Supreme Court, which in 1981 invalidated the ordinance. However, no opinion of the Court garnered a majority of the justices. Justice Byron White wrote the plurality opinion, which was signed by three other justices.
The plurality justices recognized the valuable mode of advertising that billboards provide for advertisers: “Billboards are a well-established medium of communication, used to convey a broad range of different kinds of messages.” But, the Court also recognized that a “billboard creates a unique set of problems for land-use planning and development.”
The plurality reasoned that a city could prohibit what it termed “offsite commercial billboards” that involved pure commercial speech, while allowing on-site commercial billboards.
However, these justices determined that the ordinance violated the First Amendment because it discriminated against non-commercial speech. Their reasoning was that many types of speech would not fit into San Diego's exceptions and so would be banned. “With respect to noncommercial speech, the city may not choose the appropriate subjects for public discourse,” the plurality wrote. “Because the San Diego ordinance reaches too far into the realm of protected speech, we conclude that it is unconstitutional on its face.”
Though the ordinance was struck down, the Court seemed to be saying that a total ban on billboards was constitutional. Even though the decision is now more than 20 years old and featured numerous opinions, “Metromedia remains the central First Amendment billboard authority,” according to legal commentators P. Cameron DeVore and Judge Robert Sack.
Effect of Metromedia on later cases
In 1984, the Supreme Court ruled that Los Angeles could ban all signs, commercial and political, from being placed on city utility poles. A group known as Taxpayers for Vincent, which was campaigning on behalf of city council candidate Roland Vincent, claimed that the city violated its First Amendment rights when city workers removed political signs from utility poles. Relying on the Metromedia case, the high court ruled 6-3 in Members of City Council of City of Los Angeles v. Taxpayers for Vincent that the total ban did not violate the First Amendment.
"Metromedia, Inc. v. San Diego dealt with San Diego’s prohibition of certain forms of outdoor billboards. There the Court considered the city’s interest in avoiding visual clutter, and seven Justices explicitly concluded that this interest was sufficient to justify a prohibition of billboards."
The Court determined that citizens had “ample alternative modes of communication” in the city to advertise and that “nothing in the findings indicates that the posting of political posters on public property is a uniquely valuable or important mode of communication.”
Wayne Canterbury, the attorney who argued the case before the Supreme Court against the removal of the temporary signs, says the Court ignored evidence that the city picked and chose which signs it wanted to remove.
Canterbury also disagrees with the Court’s conclusion that citizens have ample alternative ways to communicate their messages other than the temporary signs. “That argument is often used in free-speech cases,” he says. “Taken to its logical end, it is an absurd argument because it could be used to eliminate all forms of speech except hollering with a bullhorn on the street corner. Each method of communication has its own merits.”
The dispute over billboards often leads in protracted litigation. Outdoor-advertising companies frequently challenge new and existing regulations on advertising on First Amendment and other constitutional grounds.
Some government officials have sought to limit billboards to certain areas, while some have sought to implement complete bans on billboards. Legal commentator Katherine Dunn Parsons writes: “In practical terms, a billboard ordinance is sustainable if it bans billboards in residential or historical districts or restricts billboards to industrial and manufacturing areas of the city.”
Removing billboards from commercial and industrial areas would raise constitutional concerns. “The First Amendment right of businesses to promote legal products is carried out in an orderly fashion through the outdoor advertising medium,” Laible says. “A recent study also shows that only 20% of the public want to ban billboards. They are a valuable source of communication.”
In recent times, electronic billboards have entered the spotlight in everyday life through greater numbers and in the legal arena where some government bodies have responded with regulations. Government officials argue that electronic billboards pose greater traffic hazards because they likely are more distracting to motorists. Billboard proponents contend that this argument often represents another case of the government targeting speech in a new medium. They point out these electronic billboards, or “electronic messaging centers,” actually provide more information to would-be consumers because they allow numerous messages to alternate display on a single billboard.
The 1st U.S. Circuit Court of Appeals upheld a ban on such “electronic messaging centers” in its January 2008 decision in Naser Jewelers v. City of Concord. The appeals court determined that the ban on such billboards was content-neutral because it applied to all messages regardless of subject matter. The appeals court also reasoned that the ban served the city’s interest in traffic safety: “It is a given that a billboard can constitute a traffic hazard. It follows that EMCs, which provide more visual stimuli than traditional signs, logically will be more distracting and more hazardous.”
The issue over electronic billboards, however, is far from over. Their popularity virtually ensures there will be much more litigation.
With strong opinions on both sides of the issue, the battle over all types of billboards is not likely to end soon. The question of “First Amendment right or visual blight?” will continue to be asked.
Updated April 2008