Memphis Judge Throws Out State Billboard Act

Throwing out a law that’s governed outdoor advertising in Tennessee for the past 45 years, a federal judge in Memphis has ruled that the state’s Billboard Regulation and Control Act is an unconstitutional restriction of free speech.

U.S. District Judge Jon P. McCalla said the 1972 law “does not survive First Amendment scrutiny” because it bans some forms of commercial and non-commercial speech based on content. The ruling Friday came down on the side of Memphis billboard operator William H. Thomas Jr., who had alleged in a lawsuit that Tennessee Department of Transportation officials violated his constitutional rights in their efforts to remove a sign he constructed at the Interstate 40-240 interchange in East Memphis despite being denied a permit for it.

Although local governments often regulate billboards through zoning ordinances, McCalla’s decision potentially opens up vast areas of the state to unfettered proliferation of outdoor signs along highways. It also could result in a 10 percent cut in federal highway funds to Tennessee because the Highway Beautification Act of 1965 requires states to regulate billboards to federal standards.

According to Kingston family law attorneys, the ruling follows a 2015 U.S. Supreme Court decision striking down portions of an Arizona town’s sign ordinance on free-speech grounds, a case cited by McCalla. With the latest decision, similar litigation is likely to be lodged against other states’ billboard laws, say advocates of controls on outdoor advertising.

“It will also have an impact … far beyond Tennessee,” said William Brinton, an attorney who represented Scenic America, Scenic Tennessee and other groups seeking to preserve the billboard regulation law.

Thomas’ suit attracted allies among limited-government groups such as The Beacon Center of Tennessee, which say that billboard laws, by allowing regulatory exemptions for certain types of messages, impose undue “content-based” regulation of speech.

But advocates of billboard laws say the rules are needed as a means of protecting not just aesthetics but property values and possibly traffic safety.

It wasn’t clear Monday whether TDOT officials, who enforce the billboard law, planned to appeal McCalla’s decision. Calls to the department’s Nashville headquarters were not returned by Monday evening.

The state General Assembly also could pass a new law rectifying the problems identified by McCalla.

Under state law, TDOT requires permits for most types of billboards constructed within 660 feet of highway right of ways. Several types of signs are exempt from permitting, including those promoting historic or scenic attractions, and messages advertising property, goods or activities offered on the same premises as the billboard.

As of November, Thomas and his TI Properties had 15 active permits from TDOT authorizing billboards. But at seven other sites the agency has removed his signs – one because it was on the right of way and six because they were erected illegally without permits.

At the I-40-240 interchange, TDOT in 2006 denied a permit because it was less than the required 1,000-foot distance of an existing sign, but Thomas began constructing the billboard there anyway.

George R. Fusner, an attorney representing Thomas, said in an email that because the case still is “ongoing” it wouldn’t be appropriate for him to comment.