Antitrust Law Daily Wrap Up, ADVERTISING—6th Cir.: Town’s digital billboard regulations did not violate First Amendment, (Mar 12, 2014)

By Jody Coultas, J.D.

A 4,000-foot spacing zoning ordinance for digital billboards constituted a valid time, place, and manner restriction on speech, according to the U.S. Court of Appeals in Cincinnati (Hucul Advertising, LLC v. Charter Township of Gaines, March 11, 2014, Boggs, D.). Thus, Hucul Advertising, LLC could not maintain a suit against the Township of Gaines, Michigan for refusing to allow a digital billboard that did not meet the valid zoning ordinance.

Hucul sought permission to construct a billboard on its property in the Charter Township of Gaines, Michigan. The Township denied the application on the ground that the proposed billboard would violate a zoning ordinance that regulated signs. The ordinance only permitted billboards on property that was adjacent to the M-6 highway right-of-way. Hucul’s application for a digital billboard was also denied, as the property was not adjacent to the M-6 and the proposed digital billboard would be located within 4,000 feet of another digital billboard.

After the Zoning Board of Appeals denied Hucul’s appeal, Hucul filed suit, claiming that the zoning ordinance was an impermissible restriction on commercial speech in violation the First Amendment and that the Township violated the Equal Protection Clause by treating land adjacent to public property differently from land adjacent to private property. The Township removed the case to federal court, and the district court granted summary judgment to the Township on all issues. Hucul appealed.

The district court properly evaluated the zoning ordinance under the time, place, and manner test, according to the Sixth Circuit. The time, place, and manner test is used for content-neutral restrictions on speech. Hucul argued that the district court should have used the test generally applied to commercial speech. Under the “commercial speech” test, the restrictions must “directly advance” a “substantial” governmental interest, whereas under the “time, place, and manner” test, they must be “narrowly tailored” to a “significant” governmental interest. Both tests impose similarly demanding levels of intermediate scrutiny. Where an ordinance regulates both commercial and noncommercial speech and does not differentiate between the two, the application of time, place, and manner scrutiny is appropriate.

Because the billboard-spacing requirement did not violate Hucul’s First Amendment right to free speech, the court upheld the district court’s dismissal of the claims. Under the time, place, and manner test, restrictions on speech are valid if they are justified without reference to the content of the regulated speech, narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the information. The requirement that digital billboards be spaced a certain distance apart could not reasonably be considered an attempt to censor a message as it regulated the circumstances one may build a billboard rather than the content. The goal of the ordinance was to promote traffic safety and aesthetics and preserve property values, without reference to content. Governmental interests in aesthetics, traffic safety, and the preservation of property values constitute “significant governmental interests.” The fact that different townships had different spacing requirements did not render the restrictions imposed by any one township not “narrowly tailored” to a township’s goals. Moreover, Hucul offered no evidence suggesting that the spacing requirement provided no incremental benefits over a less restrictive regulation. The regulation allowed digital billboards that satisfied the spacing requirement, and did not foreclose the use of other modes of communication.

The district court did not abuse its discretion when it opted to exercise supplemental jurisdiction over Hucul’s state law zoning appeal, according to the court. In cases where a district court has original jurisdiction, the district court has supplemental jurisdiction over all other claims that are part of the same case or controversy. Hucul’s zoning appeal involved the same factual issues as the federal claims. The zoning appeal did not raise a novel or complex issue of state law or predominate over the federal claims. There were no other compelling circumstances for declining to exercise jurisdiction in this case.

The case is No. 12-2343.

Attorneys: Steven F. Stapleton (Miller Canfield) for Hucul Advertising, LLC. Craig R. Noland (Smith Haughey Rice & Roegge) for Charter Township of Gaines.

Companies: Hucul Advertising, LLC

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