Thomas v. Schroer

248 F.Supp.3d 868

William H. THOMAS, Jr., Plaintiff,

v.John SCHROER, Commissioner of the Tennessee Department of Transportation in his official capacity, Defendant.

No. 13-cv-02987-JPM-cgc.

United States District Court, W.D. Tennessee, Western Division.

Signed March 31, 2017

George R. Fusner, Jr., Law Office of George R. Fusner, Jr., Brentwood, TN, William H. Thomas, Jr., Law Office of William H. Thomas, Jr., Memphis, TN, for Plaintiff.

Dawn Jordan, Tennessee Department of Finance and Adm., Amanda Shanan Jordan, Tennessee Attorney General's Office, Nashville, TN, George G. Boyte, Jr., Attorney General's Office, Jackson, TN, for Defendant.

ORDER & MEMORANDUM FINDING BILLBOARD ACT AN UNCONSTITUTIONAL, CONTENT–BASED REGULATION OF SPEECH

JON P. McCALLA, UNITED STATES DISTRICT COURT JUDGE

This action concerns alleged First Amendment violations that occurred when agents of the State of Tennessee ("the State") sought to remove Plaintiff William H. Thomas's noncommercial billboard pursuant to the Billboard Regulation and Control Act of 1972 ("Billboard Act"), Tennessee Code Annotated §§ 54–21–101, et seq. For the reasons stated below, the Court finds the Billboard Act is an unconstitutional, content-based regulation of speech. United States Supreme Court authority compels this conclusion.

There exists an undeniable trend in Supreme Court cases to guard against regulations that selectively ban speech on the basis of its subject matter—e.g., content-based regulations. Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). Distilling a pragmatic and constitutionally-valid definition for content-based regulations has evolved overtime. In the late 1980s, the Supreme Court looked to the governing body's intent to determine whether a regulation constituted a content-based regulation. Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) ; City of Renton v. Playtime Theatr e s, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). In Reed v. Town of Gilbert, –––U.S. ––––, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015), however, the Supreme Court revisited its previous approach. Writing for the Court in Reed, Justice Thomas explained, "[a] law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of ‘animus' toward the ideas contained in the regulated speech." Id. at 2222.¹ That content-based inquiry has now been further advanced by the Supreme Court's decision in Expressions Hair Design v. Schneiderman, ––– U.S. ––––, 137 S.Ct. 1144, 197 L.Ed.2d 442, 2017 WL 1155913, at *1 (U.S. 2017), in which the Court remanded a case concerning a regulation that banned some forms of commercial speech for further examination to determine whether the regulation survives First Amendment scrutiny.

In the instant case, the regulation at issue—the Tennessee Billboard Regulation and Control Act of 1972, Tennessee Code Annotated §§ 54–21–101, et seq. —regulates both commercial and non-commercial speech by banning some forms of both on the basis of content and therefore does not survive First Amendment scrutiny.

I. BACKGROUND

The Tennessee Department of Transportation ("TDOT") promulgates and enforces billboards and outdoor advertising signs under Tennessee's Billboard Regulation and Control Act of 1972, (the "Billboard Act"). (ECF No. 45 ¶ 13.) The State of Tennessee and TDOT also regulate billboards and outdoor advertising signs under to the Federal Highway Beautification Act of 1965, as amended. (Id.¶ 14.)

The Federal Highway Beautification Act and the Billboard Act are designed to control the erection and maintenance of billboards and signs along the National Highway System. (See Exs. B, C, Bible Aff., ECF No. 166–2; SUF ¶ 33; Resp. to SUF ¶ 33.) Regulated billboards and signs under the Billboard Act are subject to location and/or permit and tag restrictions, e.g., they may not be "within six hundred sixty feet (660') of the nearest edge of the right-of-way and visible from the main traveled way of the interstate or primary highway systems ... without first obtaining from the commissioner a permit and tag." T. C. A. § 54–21–104(a). Some signs, however, may be exempted or qualify as exceptions under the Billboard Act's location and/or permit and tag restrictions. See T.C.A. §§ 54–21–103(1) – (3) and §§ 54–21–107(a)(1)–(2). For example, a billboard or sign is exempted from the six-hundred-sixty feet requirement if it qualifies as one of the following types of signs:

(2) Signs, displays and devices advertising the sale or lease of property on which they are located;

(3) Signs, displays and devices advertising activities conducted on the property on which they are located;

....

T.C.A. §§ 54–21–103(1) – (3). A billboard or sign is exempted from complying with the permit and tag restrictions if it falls into one of the following categories:

(1) Those [signs] advertising activities conducted on the property on which they are located;

(2) Those [signs] advertising the sale or lease of property on which they are located; and....

T.C.A. §§ 54–21–107(a)(1)–(2).

In practice, State agents label signs the Billboard Act regulates as "off-premise" signs and label unregulated signs as "on-premise" signs. (See ECF No. 64 at PageID 917.) The State's agents use the following Rule to make their determinations:

A sign will be considered to be an on-premise sign if it meets the following requirements.

(a) Premise—The sign must be located on the same premises as the activity or property advertised.

(b) Purpose—The sign must have as its purpose (1) the identification of the activity, or its products or services, or (2) the sale or lease of the property on which the sign is located, rather than the purpose of general advertising.

(ECF No. 46–6 at PageIDs 718–19 (quoting Rule 1680–02–03–.06(2); see also ECF No. 121 at 15–16.)) Rule 1680–02–03–.06 further expands on the ‘Purpose Test’

[t]he following criteria shall be used for determining whether a sign has as its purpose (1) the identification of the activity located on the premises or tis products or services, or (2) the sale or lease of the property on which the sign is located rather than the business of outdoor advertising.

(a) General

1. Any sign which consists solely of the name of the establishment is an on-premise sign.

2. A sign which identifies the establishment's principle or accessory product or services offered on the premises is an on-premise sign.

3. An example of an accessory product would be a brand of tires offered for sale at a service station.

(b) Business of Outdoor Advertising

1. When an outdoor advertising device (1) brings rental income to the property owner, or (2) consists principally of brand name or trade name advertising, or (3) the product or service advertised is only incidental to the principle activity, it shall be considered the business of outdoor advertising and not an on-premise sign. An example would be a typical billboard located on the top of a service station building that advertised a brand of cigarettes or chewing gum which is incidentally sold in a vending machine on the property.

2. An outdoor advertising device which advertises activities conducted on the premises, but which also advertises, in a prominent manner, activities not conducted on the premises, is not an on-premise sign. An example would be a sign advertising a motel or restaurant not located on the premises with a notation or attachment stating "Skeet Range Here," or "Dog Kennels Here." The on-premise activity would only be the skeet range or dog kennels.

(c) Sale or Lease Signs

A sale or lease sign which also advertises any product or service not located upon and related to the business of selling or leasing the land on which the sign is located is not an on-premise sign. An example of this would be a typical billboard which states "THIS PROPERTY FOR SALE–SMITHS MOTEL; 500 ROOMS, AIR CONDITIONED, TURN RIGHT 3 BLOCKS AT MA IN STREET."

Rule of Tennessee Department of Transportation Maintenance Division, Control of Outdoor Advertising, 1680–02–03.06(4) (2008). Although the Billboard Act and the State's Rule reference "advertising" in the commercial context, the State contends the Billboard Act's regulations, exceptions, and exemptions apply with equal force to commercial and noncommercial messages. (See ECF No. 64 at PageID 917.)

Plaintiff Thomas's business involves posting outdoor advertising signs. (ECF Nos. 1 ¶ 11; 45 ¶ 11.) Thomas erects these signs on the various tracts of real property he owns throughout Tennessee. (ECF No. 45 ¶ 10.) Thomas's sign at issue in this case is located off Interstate–40 West in Memphis, Tennessee (hereinafter the "Crossroads Ford sign"). (Id.¶ 21.) Thomas has posted various messages on this sign over the years. (Id. ) For example, in 2012, he displayed an image of an American flag with Olympic rings, in support of that year's U.S. Olympic team. (ECF No. 38 ¶ 23.) Later that year, in the "beginning of fall," he "displayed content referencing the upcoming holiday season with a picture of an American Flag." (ECF No. 45 ¶ 24.) Thomas erected his Crossroads Ford sign without a permit. (ECF No. 46–6 at PageID 721 (citing Tennessee v. Thomas, 336 S.W.3d 588, 593 (Tenn. Ct. App. 2010).))

Since approximately 2006, the State has sought to remove Thomas's signs that did not comply with the Billboard Act—including the Crossroads Ford sign—through an ongoing enforcement action in Chancery Court in Shelby County, Tennessee. (ECF Nos. 1 ¶¶ 62, 77; 45 ¶ 27; see ECF Nos. 96–1 at PageID 1399–1404; 46–2–46–5; see also Tennessee v. Thomas, 336 S.W.3d 588, 593 (Tenn. Ct. App. 2010).) In 2006, TDOT denied Thomas's permit and building application for his Crossroads Ford sign because it was less than 1,000 feet from a competitor's billboard. (ECF No. 166–1 at PageID 2595 (citing Thomas v. TDOT, 336 S.W.3d 588, 592 (Tenn. Ct. App. 2010).)) Nonetheless, Thomas began construction on his...