Antitrust Law Daily Wrap Up, ADVERTISING NEWS: Sign company seeks High Court review of local code, (Jul 9, 2015)

By Greg Hammond, J.D.

A sign company has brought its constitutional challenge of the Pennsylvania City of Hermitage’s sign code to the Supreme Court, in light of the Court’s recent decision in Reed v. Town of Gilbert. The company requests that the Court grant review, vacate judgment, and remand for consideration, arguing that there is no material difference between the instant case and Reed (Mercer Outdoor Advertising, LLC v. City of Hermitage, Pennsylvania, Dkt. 15-19).

In Reed, the Supreme Court ruled unanimously that the Town of Gilbert’s comprehensive code, regulating outdoor signs, contained content-based regulations of speech that failed to survive strict scrutiny under the First Amendment. The town had three relevant categories of exempt signs—ideological signs, political signs, and temporary directional signs relating to a qualifying event—that the town treated differently with regard to favorableness.

Mercer Outdoor Advertising, LLC is a signage company specializing in posting commercial and noncommercial billboard messages, with its primary clientele consisting of charities and small businesses. Mercer sought permits from Hermitage to post billboards containing the following messages: (1) “Support Our Troops”; and (2) a promotional advertisement for Samaritan’s Purse—an international relief organization. The City denied the permits, allegedly finding that billboards with such content are not allowed in commercial zoning districts. The district court found that the city zoning ordinance did not infringe on Mercer’s right to free speech, and the U.S. Court of Appeals in Philadelphia affirmed, finding Mercer lacked Article III standing.

In its petition, Mercer claims that there is no material difference between the instant case and Reed. Specifically, the company asserts that had it proposed to advertise a City-sponsored event on its signs, as opposed to messages supporting the troops or for Samaritan’s Purse, its signs would have qualified for the exemption and been allowed at the exact same locations, heights, and sizes for which Mercer applied. Therefore, the only criterion keeping Mercer’s proposed signs from being allowed, the company claims, was its “communicative content.” Mercer consequently requests that the court grant review, vacate the judgment below, and remand for consideration in light of Reed.

Attorneys: E. Adam Webb (Webb, Klase & Lemond, LLC) for Mercer Outdoor Advertising, LLC.

Companies: Mercer Outdoor Advertising, LLC; City of Hermitage, Pennsylvania

News: Advertising