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Third Circuit Affirms Dismissal of Billboard Challenge

Interstate Outdoor Advertising, L.P. v. Zoning Board of the Township of Mt. Laurel, No. 11-3837 (3rd Cir., Feb. 11, 2013) involved passage of challenged amendments to the Township’s sign ordinance after plaintiff filed billboard permit applications. The amendments allowed commercial signs to include noncommercial displays and required sign regulations otherwise to be administered in a content-neutral manner. While hearings on the permits were ongoing, plaintiff filed suit challenging the entire ordinance on First Amendment grounds. The trial court granted summary judgment and dismissed the case. Plaintiff appealed.

The court analyzed the dismissal separating commercial from noncommercial speech. As to the commercial speech, there was no allegation that the billboards were misleading or advanced illegal activity, so the ordinance was tested to determine whether it served a substantial governmental interest and swept no further than necessary to advance that interest. All parties agreed that defendant has a substantial interest in aesthetics and traffic safety, so the court examined the “fit” between these legislative goals and the means chosen to advance them. The trial court had deposition testimony on summary judgment as to both issues and the Third Circuit heard challenges to the reliability of defendant’s studies and experts by way of plaintiff’s briefs and argument, in which it asserted an issue of material fact.

The Third Circuit cited Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) in which the Supreme Court found that similar cases were governed by the “law of billboards” which could uphold a complete billboard ban if the governmental body had a sufficient basis to believe that billboards were unattractive or presented traffic safety hazards. The fact that the billboards were proposed in an unattractive industrial area was of no import and defendant’s citation of evidence to support the ordinance was not a sign of its bad faith. The Court said that even if there were a factual challenge to the traffic safety aspects of the ordinance, the Court would uphold the same because it advanced aesthetic interests of the community. There was no apparent ulterior motive to show that defendant attempted to suppress speech and local governments are not required to provide studies to advance each specific regulation but rather can rely on previous studies done by others and relating to billboards. The studies relied upon in this case to support the ordinance were not factually unreasonable, nor palpably false. As in Metromedia, the ordinance can be written to prohibit all billboards and need not be selective in that prohibition.

As to noncommercial speech, these regulations may be upheld if justified without reference to their content, serve a significant governmental interest, and leave open ample alternative channels of communication. The challenged ordinance is content-neutral and, as discussed with regard to commercial speech, serves a substantial governmental interest. Alternative channels of communication are open by way of on-premise signs, internet advertising, direct mail, radio, television, circulars and flyers, motor vehicle signs and public transport advertisements. The fact that billboards are not available or that one target audience cannot be reached completely is of no import, as maximizing profits is not a constitutional goal and does not mean that no reasonable alternative channels of communication are available. Moreover, Metromedia standards for the proposition that a complete ban on billboards is an appropriate way to deal with traffic safety and aesthetic concerns. The grant of summary judgment was thus upheld.

This case makes sense as an extension of the plurality opinion in Metromedia and likely reflects federal jurisprudence on the “law of billboards” under the First Amendment.

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