Judge Lawrence Kahn
After Adirondack Advertising was issued a permit for a digital sign, defendant city’s council altered its code to bar such signs from advertising offsite goods or services. In July 2012, a building inspector issued Adirondack a notice of violation because its sign exceeded the city code’s size limits and displayed offsite business information. On Oct. 15 the zoning board of appeals upheld the violation notice and resumed weekly $250 fines. Adirondack’s 42 USC §1983 suit alleging free speech rights breaches asserted that code provisions on digital signs were unconstitutional, facially and as applied. After an inquiry under Central Hudson Gas & Elec. v. Pub. Serv. Comm’n of N.Y. whether its commercial speech was protected by the First Amendment, the court dismissed Adirondack’s as-applied claims. The code’s regulations, as applied to Adirondack, satisfied the fourth Central Hudson inquiry and were constitutionally valid: as a matter of law, bans on offsite commercial advertising are permissible. However National Advertising v. Town of Babylon dictated that Adirondack was correct in its facial challenge that the code favored commercial speech over noncommercial speech by banning all signs and then permitting only specified categories of speech.
