Antitrust Law Daily Wrap Up, ADVERTISING—W.D. Tenn.: “Strong likelihood” Tennessee Billboard Act is unconstitutional, (Sep 10, 2015)

By Greg Hammond, J.D.

The owner of a billboard in Tennessee has obtained a preliminary injunction against the Tennessee Department of Transportation (TDOT) Commissioner, prohibiting the Commissioner or any of his employees from removing the billboard owner’s sign and from seeking to execute on any judgment, order, or other monetary judgment resulting from or associated with the billboard sign. In granting a preliminary injunction, the federal district court in Memphis determined that there was a strong likelihood that the Tennessee Billboard Regulation and Control Act of 1972 (Billboard Act) is an unconstitutional restraint on freedom of speech pursuant to the First Amendment and that the owner would be irreparably injured absent preliminary injunction (Thomas v. Schroer, September 8, 2015, McCalla, J.).

William H. Thomas, Jr. is the owner of a billboard and signs displaying noncommercial content in Tennessee. He allegedly received a letter in May 2015 from TDOT, stating that he must remove the sign structure at the Crossroads Ford location by June 26, 2015. Thomas also received a proposed order of judgment granting permanent injunction and removal of the unlawful billboard. Thomas filed suit, seeking a temporary restraining order and preliminary injunction to prevent the removal of the Crossroads Ford sign by TDOT.

Content-based speech. The court concluded that Thomas demonstrated a strong likelihood of success on the merits of his First Amendment right to freedom of speech claim. Specifically, the court found that its earlier rationale in granting an emergency motion for temporary restraining order still applies, that the only way to determine whether a sign is an on-premise sign, under the Billboard Act, is to consider the content of the sign and determine whether that content is sufficiently related to the activities conducted on the property on which they are located. The challenged provisions of the Billboard Act were likely content-based, the court determined.

Strict scrutiny. TDOT argued that driver safety, the public’s investment in highways, the promotion of recreational value of public travel and natural beauty, and the continuation of adequate federal funding are all governmental interests that are narrowly tailored because they are achieved more effectively with the Billboard Act. The court rejected these arguments, however, because: (1) the defendants failed to demonstrate that differentiation of content would have any effect on the first three stated governmental interests, and that the Billboard Act is consequently hopelessly underinclusive; and (2) the fourth governmental interest is not relevant or a compelling interest for purposes of strict scrutiny analysis where the defendants failed to provide adequate explanation on how the government would be able to constitutionally withhold federal highway funds from a state on the basis that the state failed to engage in conduct that violates the U.S. Constitution. There was consequently a strong likelihood that the challenged provisions of the Billboard Act are unconstitutional.

Severability. The court next determined that severing the challenged provisions of the Billboard Act would overstep the line between preserving the legislature’s work and rewriting state law to conform it to constitutional requirements. Thomas therefore demonstrated a strong likelihood that the unconstitutional provisions of the Billboard Act are not severable from the Act as a whole.

Irreparable injury, harm. Because Thomas demonstrated a strong likelihood that removal of the Crossroads Ford sign under the Billboard Act was unconstitutional, the court found that Thomas would suffer irreparable injury absent preliminary injunction. The potential harm to others was deemed “relatively slight,” and the court noted that the threat to safety, aesthetics, and loss of federal funding are the result of the unconstitutionality of the Billboard Act, not the issuance of injunctive relief.

The court also found that it is always in the public interest to prevent violation of a party’s constitutional rights and that the balance of preliminary injunction favors weigh in favor of issuance of preliminary injunction.

The case number is 2:13-cv-02987-JPM-cgc.

Attorneys: William H. Thomas, Jr., pro se. Dawn Jordan, Tennessee Attorney General’s Office.

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