This post written by Andrew LW Peters originally appeared on the Rocky Mountain Sign Law Blog and is reposted with permission
First federal circuit court opinion to apply to Reagan National Advertising of Austin, Inc. v. The City of Austin is pouring in, and the local government can perhaps breathe a sigh of relief: normalcy has returned. Just last week, the Seventh Circuit upheld the Madison, Wisconsin ordinance regarding “advertising signs,” whose definition uses the same on/off-premise distinction that was in dispute in the City of Austin.
The story there is typical of the genre. Madison has been managing billboards since at least the 1970s. In the late 1980s, he adopted more comprehensive ordinances, amending sign regulations to completely prohibit the building of new billboards. Then, in the new millennium, the regulations were changed again, to prohibit the display of digital images. And in 2017, the city changed its definition of “advertising sign” to limit it to commercial speech, resulting in the following definition:
Signs contain a commercial message that directs attention to a business, commodity, service or entertainment, unrelated to where the sign is located, or directs attention to the business, commodity, service or entertainment being performed, sold[,] or offered elsewhere than where the sign is located.
Adams Outdoor Advertising, a billboard company, took a broad First Amendment challenge to cities’ treatment of billboards. However, most of those challenges were precluded by a previous stipulation with Madison, which prohibited Adams Outdoor from ever carrying this kind of challenge again.
Still, the ban doesn’t cover the city’s ban on digital displays at a later date, so the Seventh Circuit tackles that component on merit. Applying to the City of Austin, the panel stated the on/off-premise distinction was subject to moderate scrutiny, observed that digital sign bans advance the city’s significant interests in traffic aesthetics and safety, and had no difficulty enforcing the ban.
We anticipate the same in a forthcoming opinion confirming the constitutionality of the on/off-premise distinction to regulate billboards and other advertising signs. The question that remains is of Judge Alito’s approval in the City of Austin: What about non-commercial speech? Is a sign encouraging drivers to attend a political rally elsewhere an off-site sign? What about signs directing citizens to church events? We expect the court to address those questions in due course.
Adams Outdoor Advertising. Ltd. P’ship v. City of Madison, Wisconsin, 2023 WL 33962 (7th Cir. Jan. 4, 2023).