X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
When a 35,000-pound billboard collapsed Aug. 1 and crushed three workmen inSnellville, Ga., the city’s angry mayor lashed out at a federal judge. If U.S. District Judge Clarence Cooper had not thrown out the city’s 9-year-oldsign ordinance in response to a suit by two billboard companies, the billboardthat toppled never would have been erected, Snellville Mayor Brett A. Harrellsaid. “I don’t hold anybody responsible for the deaths,” Harrell said last week. “ButI believe the court went farther than it should have when it struck down theentire ordinance.” Snellville isn’t the only city in Georgia that has found a nemesis in the billboardindustry. Billboard firms are waging an aggressive statewide campaign bychallenging local sign ordinances, said Frank E. Jenkins III, a partner withJenkins & Olson in Cartersville. Jenkins and his partner have defended theordinances from suits brought by the billboard companies. The billboard firms’ legal strategy? Challenge city ordinances restrictingsignage on grounds that they violate free speech rights guaranteed by the FirstAmendment, even if commercial speech is not specifically affected, plaintiffs’and defense attorneys say. Then, once those ordinances are overturned, use thetime before new sign restrictions can be enacted to erect billboards virtuallyanywhere, Jenkins said. That strategy is working, according to billboard lawyers. But because thebillboard companies often have targeted different sections of local ordinancesas unconstitutional, the result has been a veritable hodgepodge of federal andstate rulings. So far, most have ended with the abolition of challengedordinances, but often for widely different reasons, attorneys said. Where sign ordinances have not been overturned, local governments unwilling toinvest tens of thousands of tax dollars battling the billboard companies have,in many cases, reluctantly agreed to settle the cases, according to courtrecords. The billboard companies also have found an unlikely ally: the American CivilLiberties Union of Georgia, which is waging its own First Amendment battle onbehalf of citizens who want to post signs, often with political messages, ontheir property. ‘FREEDOM OF SIGHT’ Rachel Fowler, legislative chairwoman of the Garden Club of Georgia in Athens,worries that freedom of speech is usurping “freedom of sight.” Fowler, who hasbattled to keep billboard companies from hacking down the trees in front ofbillboards along state highways, said if the First Amendment prohibits localgovernments from regulating the proliferation and location of billboards, “Ithink freedom of speech has gone too far. … I think they are just lettinganybody say anything. When they put all those billboards out there, they blockmy freedom of sight.” The foundation of the billboard companies’ litigation rests on the U.S.Constitution’s First Amendment. Billboard companies have challenged signordinances as an unconstitutional violation of their right to free speech inBerkeley Lake, Canton, Chamblee, College Park, Doraville, Douglasville, ForsythCounty, Henry County, Lawrenceville, Lilburn, Newton County, Oconee County,Roswell, Snellville, Statham, Sugar Hill, Suwanee and Woodstock. In DeKalb County and Avondale Estates, the ACLU of Georgia is challenging localsign ordinances on behalf of private citizens who claim their free speech rightshave been restricted by ordinances that regulate the size, number and setback,or the distance between a sign and a public right of way, of residential yardsigns. “If they can get the ordinance struck down on constitutional grounds, then theycan immediately go in and request a permit for a sign … so they have a vestedright to put a sign up before the local government can adopt a local ordinancethat is constitutional,” Jenkins said. “When an ordinance is struck down, there are no regulations,” he said. STRUGGLING COURTS According to Jenkins, some judges have struck down only unconstitutionalportions of sign ordinances, allowing the rest to stand. Others have declaredentire ordinances invalid, he said. Some judges have given the billboardcompanies the requested relief; others have declared a local sign ordinanceunconstitutional but refused to give the billboard companies what they wantedbecause a corrective ordinance was enacted during litigation. In Snellville’s case, the district judge declared the city sign ordinanceinvalid, calling its ban on any billboards not located on the site of theadvertised business “overly broad” and an impediment to the free flow ofinformation. Cooper also found fault with the city’s mechanism for approving ordenying permits to billboard companies, saying that it “creates the risk thatprotected expression will be restrained for an indefinite time period.” TrinityOutdoor v. City of Snellville, No. 1:00-cv-2118 (N.D. Ga. Nov. 20, 2001). “There is considerable uncertainty in this area of the law,” said David H.Flint, a lawyer for several national billboard companies. “I think the courtsare struggling with the issues.” As a result, Flint said, “You have cases that really come out all across theboard.” Snellville’s mayor said that within hours of the Aug. 1 accident, the companythat erected the billboard immediately sought “assurances” that it could bereplaced. Instead, the Snellville city council gave the billboard companies thatadvertised in the city three days to take down every similarly constructedbillboard, the mayor said. By Monday, Aug. 5, attorneys for the billboard companies had sought a temporaryrestraining order against the city in Gwinnett County Superior Court. SaidHarrell of the sign companies: “They have a very aggressive litigationtechnique.” At the suggestion of a Gwinnett County judge, the parties settledthe day the TRO request was filed. Snellville city officials agreed that if thebillboard companies took down and inspected for safety flaws four other signsidentical in construction to the billboard that had collapsed, they couldre-erect all five. The billboard company associated with the collapse alsoagreed to pay the city $50,000 for expenses. GOVERNMENTS ‘ON THIN ICE’ Sole practitioner E. Adam Webb, a former Dow, Lohnes & Albertson associate,devotes most of his practice to litigating against local governments on behalfof the billboard companies. Webb already represented Trinity Outdoor andAdvantage Advertising in challenging Snellville’s sign ordinance prior to thebillboard collapse. Webb said he has successfully challenged sign ordinances there and in otherjurisdictions because local governments have disregarded the First Amendment inattempting to restrict the proliferation of commercial and noncommercial signs.”The governments have tried to regulate content,” Webb said. “When you get intowhat message can be posted on any given sign, they are on very thin ice. If yougo out and pull a couple of sign ordinances, they make many, many differentdistinctions based on content.” For example, Webb said, some sign ordinances will limit the content of signs inresidential districts to real estate, campaigns or garage sales. But post a signto “Save the Whales,” he said, and a resident will be in violation of theordinance. Other sign ordinances actually prefer commercial speech over noncommercialspeech when it comes to regulation, Webb continued. “You can put up a100-square-foot sign that says, ‘Buy gas here,’ ” he said. “ You can’t put up thesame sign that says, ‘Vote for Bill Clinton.’ “You can’t ever have a distinction between commercial speech and non-commercialspeech.” Protecting an individual’s First Amendment rights has a resonance with thejudges who are reluctant to allow jurisdictions to impose restrictions thatcould be seen as limiting free speech, Webb said. “You’ve got to let people get their word out by this fundamental method ofspeech, the oldest and cheapest way of getting your ideas out.” Webb said that sign ordinances are not only a First Amendment issue. “To me, itsvery much a property rights issue, particularly for landowners in commercial and industrial areas. … My clientsdon’t want signs in residential areas and agricultural pastures. They want signswhere people drive and where stores want to advertise. We don’t want signs wherethe neighborhoods are.” Over the past two decades, the U.S. Supreme Court has expanded the protectionsextended to commercial speech under the First Amendment. Traditionally,according to Flint, “When you talked about free speech, you were not talkingabout selling Coca-Colas. Now the modern view is, if you’re talking about freespeech, you’re talking about any kind of speech, including selling Coca-Colas.” CHANGES OVER THE YEARS William M. Coolidge III of Carothers & Mitchell in Buford, Ga., has defended signordinances in Snellville and other cities. He said many of the ordinances arestruck down because when they first were drafted 20 years ago, city officialsdidn’t see sign regulation as a First Amendment issue. Then again, he insisted, “There was never any attempt to squelch anyone’sspeech.” Instead, sign ordinances were seen as a zoning or land use regulation.As a result, a number of city sign ordinances ultimately ran afoul of the FirstAmendment. Mitchell said the billboard companies have taken their fights to the smallertowns and rural counties that have not been seen as profitable for billboardcompanies in the past. Now, he said, the companies “see virgin territory.” With little money to fight a protracted court battle, Mitchell said, many localgovernments have settled. In a typical settlement, he said, a billboard companymay agree to erect fewer signs than it had sought originally and may agree tosize, spacing or setback restrictions it might not have had to meet if it hadwon its case. Attorneys for the billboard companies concede that the sizes and locations ofsigns can be regulated to address concerns about safety. “The courts have saidpeople have to get their message out. They haven’t said that people get to putup large billboards in their yards,” Webb said. But Gerald R. Weber Jr., legal director of the ACLU of Georgia is wary of anyregulations on signs. The organization is challenging size and setbackrestrictions on residential signs in DeKalb County and in Avondale Estates aswell as limitations on the number of signs a resident may post on privateproperty. “When a local government says, for example, you can only put up one politicalsign that is 2 feet by 2 feet, that’s not going to survive First Amendmentscrutiny. If a city says you can put up 147 signs, and they can be up to 20 feetin dimension, that’s clearly going to survive. Where the dividing line betweenthose two extremes is, is admittedly hard to define. … It’s hard to find thedividing line between constitutionality and unconstitutionality.” Weber also suggested that restricting the size and placement of billboards andsigns simply for aesthetic reasons “is not going to be upheld as a governmentalinterest” — one of the criteria for determining whether a sign ordinance can trumpthe First Amendment. “Anytime the government is trying to limit the size, thenumber, the height [of a sign], they have to have a reason for doing that thatwill outweigh the First Amendment,” Weber said. The ACLU attorney did, however, distinguish between his clients’ court fightsand Snellville’s litigation. “Obviously, in Snellville we’re talking about enormous, enormous signs thatpresented a serious safety problem,” he said. “That’s an entirely differentissue in my mind from the sign ordinance cases we’re talking about. … My clientswanted to put up a handful of tiny little signs in their yards made out ofpaper. That’s a different kind of case than a giant billboard that has to beerected by a crane.” However, he added, “I’d hate to see the First Amendment become the scapegoat inthat case when, maybe, the accident could have been avoided by some safetyregulations or by safe practices in erecting the sign.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.