The Seventh Circuit Court of
Appeals recently issued an opinion upholding municipal sign regulations
against a First Amendment challenge brought by a billboard company. GEFT
Outdoor, LLC v. City of Evansville, Indiana.
A City in Indiana had enacted sign regulations that distinguish between on-premises signs and
off-premises signs. In a lawsuit that spanned several years and included
various arguments under the First Amendment, these regulations were challenged
by a billboard company on various grounds, including that: (1) the distinction between on- and
off-premises signs in the City’s sign code was an unconstitutional content-based classification; (2)
the City’s criteria for reviewing variance requests were likely to take content
into consideration in violation of the First Amendment; and (3) the sign code impermissibly exempts certain categories of non-commercial messages for
preferential treatment.
The first challenge, based on the
distinction between on- and off-premises signs, was successful in the district
court. However, the Seventh Circuit ultimately vacated that decision after the
Supreme Court issued its opinion in City
of Austin v. Reagan, determining that distinctions between on- and
off-premises signs are not unconstitutional content-based discrimination.
The second challenge to the
City’s variance procedures was rejected by the district court, which found that
the sign code’s criteria for variances did not include a review of the proposed
sign’s content. Additionally, the District Court determined that the City’s
sign code was sufficiently specific to avoid a First Amendment violation. The Seventh Circuit noted that its recent decision in GEFT
Outdoor, LLC v. Monroe County all but foreclosed the billboard company’s
arguments, since near-identical variance criteria were upheld against a similar
challenge in that case.
In its third challenge, the
billboard company attempted to argue that the City was clearly considering
content in its sign ordinance, since certain regulations did not apply to
political signs and signs with other non-commercial messages. The Seventh
Circuit noted that, in order to succeed on this claim, the billboard company
had to show that the regulations were unconstitutional on their face,
meaning that the ordinance (or at least a substantial portion of the ordinance)
was unconstitutional in any case, regardless of its application or enforcement.
The Seventh Circuit again ruled against the billboard company, finding that it failed
to argue that a substantial portion of the ordinance was unconstitutional.
Instead, it had focused its claim on the specific application of the variance
criteria to its request, effectively conceding that the bulk of the sign
regulations were valid.
Ultimately, the Seventh Circuit
ruled that the billboard company had failed to show that the City unlawfully
considered the content of its proposed off-premise sign in rejecting its
request for a variance.
Post Authored by Erin Monforti & Julie Tappendorf, Ancel
Glink