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Are On-Premises and Off-Premises Distinctions Unconstitutional?

Under a recent federal court ruling, an ordinance distinguishing between on-premises and off-premises billboards is subject to strict scrutiny. While this is not the majority rule yet, this ruling has the potential to impact thousands of ordinances across the country.

Last year, the Supreme Court in Reed v. Town of Gilbert ruled that any sign ordinance that distinguishes on the basis of content should receive “strict scrutiny.” An ordinance that receives strict scrutiny is almost always struck down as unconstitutional. After the ruling, many government officials quickly realized that their sign ordinances were now unconstitutional, and needed to be changed. However, the conventional wisdom was that ordinances distinguishing between on-premises and off-premises signs and billboards were still safe. This came from Justice Alito’s dissent in Reed, where he stated his opinion that those distinctions were not content-based and would survive the new rule. But that opinion has now been rejected by at least one federal court.

In Thomas v. Schroer, the Tennessee Department of Transportation (“DOT”) removed billboards and signs belonging to William Thomas. The DOT argued that the billboards and signs violated the Billboard Regulation and Control Act of 1972 (“the Act”), which was a state law. Part of the Act exempted on-premises billboards and signs from certain permitting requirements. Thomas sued the DOT in the District Court for the Western District of Tennessee claiming, among other things, that the on-premise exemption violated the First Amendment of the US Constitution. After the Supreme Court’s decision in Reed, Thomas moved for a preliminary injunction.

In granting Thomas’s motion for preliminary injunction, the court found that the on-premise exemption was a content-based regulation that violated the First Amendment under the reasoning from Reed. The court reasoned: “whether analyzing the on-premise exemption on its face or as applied in practice, the content or message of the sign must be considered to determine whether a sign is on-premise.” This was because the law required an enforcement officer to evaluate the content of signs to determine whether the content was sufficiently related to the activities on the premises.

The court also addressed Justice Alito’s concurrence from Reed and stated: “Not only is the concurrence not binding precedent, but the concurrence fails to provide any analytical background as to why an on-premise exemption would be content neutral.” The court further stated: “The concurrence’s unsupported conclusions ring hollow in light of the majority opinion’s clear instruction that a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter.” The court then found that the on-premise distinction failed strict scrutiny, and awarded a preliminary injunction in favor of Thomas.

While this ruling is not mandatory authority across the country, it is still persuasive authority, especially in the Sixth Circuit. This means that plaintiffs challenging on-premises and off-premises distinctions in ordinances now have more support for their arguments. Whereas it had been widely assumed that such distinctions were relatively safe, it now becomes a question of risk versus reward for municipalities when deciding whether or not to keep these distinctions in ordinances.

The attorneys at Dalton & Tomich, PLC have extensive experience dealing with municipal ordinances and constitutional violations. We have litigated First Amendment cases in state and federal courts across the country. We have also provided education and advice to municipalities who wish to keep their ordinances compliant. If you feel that your rights are being violated or your ordinances need evaluation, please do not hesitate to contact us. We would be happy to speak with you.

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