Billboard companies face an uphill battle in challenging sign laws

The other day I was driving to work along Route 17 in Orange County and passed by a billboard that had collapsed in the winter flood. "Good," I thought to myself. "I hate billboards."

Love them or hate them, billboards have rights. Limited rights. The case is Clear Channel Outdoor, Inc. v. City of New York, decided on February 3. Clear Channel has billboards in New York City. It challenged the City's rule against billboards within 200 feet of certain highways. Another plaintiff is Metro Fuel, LLC, which puts up smaller signs. Both argue that the City's enforcement regime has loopholes and inconsistencies that undermine the municipality's interest in regulating these signs. The Second Circuit (Wesley, Pooler and Keenan, D.J.) rejects these constitutional challenges.

Since commercial speech enjoys fewer rights than political speech, the City only has to advance a substantial (and not compelling) interest in regulating billboards. Aesthetics and traffic safety meet that test. Not only does the City have to advance merely a substantial interest, but it has great flexibility in satisfying that interest. "It must not be more extensive than is necessary to serve that interest," the Supreme Court has held. The City is not required to adopt the least restrictive means in regulating billboards.

This is a very difficult legal standard for commercial speakers to satisfy. While Metro Fuel argues that the City violates the First Amendment because the regulatory scheme is premised on a "radical urban design theory, "it is not this Court's role to role to second guess the City's urban planning decisions." Clear Channel's similar objection is also rejected for this reason.

Plaintiffs' next argument is that the City violates the First Amendment because "it distinguishes between their signs or billboards and those located on government property." This argument won't fly, either. The Second Circuit holds, "the Supreme Court has already rejected 'the argument that a prohibition against the use of unattractive signs cannot be justified on aesthetic grounds if it fails to apply to all equally unattractive signs wherever they might be located." While the City is not fully accomplishing its articulated objectives, the loose standard governing commercial speech restrictions means that the imperfect regulatory regime is not unconstitutional.

And so, the next argument advanced by these companies also falls. Behind plaintiffs' back, the City went out and contracted with another company, Cemusa, to place and maintain bus shelters, public toilets and newstands. While plaintiffs argue that "the City's contract to permit coordinated advertising on street furniture makes the Zoning Regulation unconstitutionally underinclusive," a comparable Ninth Circuit ruling puts this argument to rest. "We ... accept the City's argument that the controlled advertising regime established by its contract with Cemusa is sufficiently distinct from Plaintiffs' advertising that is subject to the zoning restrictions."

See how hard it is to challenge commercial sign regulations? The City can employ a particularly inartful scheme, and well-settled case law permits the City to do so. The Court of Appeals reminds us that "signs 'post distinctive problems that are subject to municipalities' police powers.' This is so because 'signs take up space and may obstruct views, district motorists, displace alternative uses for land, and post other problems that legitimately call for regulation.'"