This post is authored by Andrew LW Peters originally appeared on the Rocky Mountain Sign Law Blog and is reposted with permission
The first federal circuit court opinions applying Reagan National Advertising of Austin, Inc. v. The city of Austin is flowing in, and local governments may perhaps breathe a sigh of relief: normalcy has returned. Just last week, the Seventh Circuit upheld Madison, Wisconsin’s regulations on “advertising signs,” the definition of which used the same on/off-premises distinction at issue in City of Austin.
The story there was typical of the genre. Madison has regulated billboards since at least the 1970s. In the late 1980s, it adopted more comprehensive regulation, amending the sign ordinance to completely ban the construction of new billboards. Then, in the new millennium, it amended the ordinance again, to ban digital image displays. And in 2017, the city amended the definition of “advertising sign” to limit it to commercial speech, resulting in the following definition:
A sign containing a commercial message directing attention to a business, commodity, service, or entertainment, not related to the premises at which the sign is located, or directing attention to a business, commodity, service or entertainment held, sold[,] or offered elsewhere than on the premises where the sign is located.
Adams Outdoor Advertising, a billboard company, brought a broad First Amendment challenge to the city’s treatment of billboards. Much of that challenge, though, was precluded by an earlier stipulation with Madison, which had prohibited Adams Outdoors from bringing precisely this sort of challenge again.
Still, preclusion didn’t extend to the city’s later ban on digital displays, so the Seventh Circuit addressed that component on the merits. Applying City of Austin, the panel declared the on/off-premises distinction subject to intermediate scrutiny, observed that prohibiting digital signs advanced the city’s significant interests in aesthetics and traffic safety, and had no trouble upholding the tires.
We anticipate more of the same in future opinions confirming the constitutionality of on/off-premises distinctions to regulate billboards and other advertising signs. The questions that remain are those from Justice Alito’s concurrence in the City of Austin: What about non-commercial speech? Is a sign encouraging drivers to attend a political rally somewhere else an offsite sign? What about a sign directing residents to a church event? We expect a court to confront those questions in due time.
Adams Outdoor Advert. Ltd. P’ship v. City of Madison, Wisconsin, 2023 WL 33962 (7th Cir. Jan. 4, 2023).