Restrictions on Digital Billboards Are Valid Under the First Amendment

Varnum LLP

A municipal zoning ordinance that restricts the placement of digital billboards does not violate an advertiser’s right to free speech, according to a recent decision  by the U.S. District Court for the Western District of Michigan in Hucul Advertising, LLC v. Charter Township of Gaines, No. 1:11-cv-682 (Bell, J.).  The lawsuit follows an earlier, unsuccessful lawsuit by Hucul against the Township that was the subject of an earlier blog post.

The case involves the outdoor advertising company’s challenge of a Township ordinance under the First Amendment to the U.S. Constitution.  The ordinance requires that billboards be placed next to a local highway and that digital billboards be placed more than 4,000 feet apart from one another.  Hucul filed the lawsuit after the Township denied the company’s application to erect digital billboards that did not conform with the ordinance.

In granting summary judgment for the Township, the Court explained that a municipality may place valid limits on the “time, place, and manner” of speech provided:

(1) that they are justified without reference to the content of the regulated speech, (2) that they are narrowly tailored, (3) to serve a significant governmental interest, and (4) that they leave open ample alternative channels for communication of the information.

Applying this test, the Court found that the restrictions in the ordinance were valid.  The ordinance: (1) did not distinguish between commercial and non-commercial speech; (2) was “content neutral”—i.e. they didn’t depend on the message being displayed on the billboard; (3) furthered the Township’s interest in traffic safety and community aesthetics; and (4) was a reasonable fit with the Township’s goals.  Further, the Court emphasized the fact that the ordinance did not restrict Hucul from communicating its speech through alternate channels.

© 2012 Varnum LLP

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