Posted by: Patricia Salkin | February 9, 2009

State Regulation of Sign with Religious Message May Violate First Amendment

A federal district court issued a preliminary injunction allowing a sign with a religious message to continue to be located on private property along a state highway.  The Plaintiff, Daniel Burritt, operates a bridge building business which he named “Acts I Construction, Inc.: Building Bridges for Jesus.”  He is described as a devout Christian who “believes he has a religious duty to communicate the truth about Jesus Christ through all aspects of his life, including his work.”  His affidavit indicated that he uses his business and the advertising and community presence from his business to engage in extensive evangelization of his Christian beliefs. At issue are signs that Burritt painted on the sides of his business trailer that is located along a state highway.  Specifically, Burritt’s messages read (one on each side of the trailer): “Your Way or God’s Way? Jesus Said ‘I Am the Way of Truth and Life, No Man Comes to the Father Except by Me.’ Will You Spend Eternity with Jesus? www.jsm.org.”; “Sin has Separated You From God.  All Have Sinned and Fall Short of the Glory of God.  The Blood of Jesus Cleanses Us from All Sin.  Are You Washed in the Blood? www.jsm.org.”; and on the third side Burritt painted a cross with the following words: “It Is Finished.”   

 

The NYS Department of Transportation issued a letter to Burritt indicating that he was in violation of State Highway Law sections 86 and 88 and their enforcement regulations 17 NYCRR Part 150. Specifically, the letter indicated that Burritt was in violation of set-back requirement and that since the corridor was a “controlled route” he would need a permit from the State Department of Transportation if he desired to maintain the outdoor advertising on his property. Lastly, the letter informed Burritt that state regulations provide that only one sign that exceeds 325 square feet can be visible from a given direction.  Burritt then moved the trailer out of the state right-away and removed one side of the trailer so that multiple sides were no longer visible from any one direction. In further correspondence between the State and Burritt, the State indicated the Burritt’s signs did not meet the criteria for on-premises signs (since it did not advertise activities conducted on the property on which it is located), and that it was therefore subject to off-premises sign regulations.

 

Burritt challenged the sign laws both facially and as applied, seeking both a declaration that the regulations are unconstitutional and a preliminary injunction preventing enforcement of the laws relative to his trailer sign.  The Court considered only the as applied challenge in deciding to grant Burritt a preliminary injunction.  The Court determined that Burritt had “asserted a sincerely held religious belief mandating that all aspects of his life, including his business, be devoted to evangelizing his beliefs.” The Court also found that “he has further asserted that he has acted upon this belief and uses his business as part of his evangelical mission.” Therefore, the Court said that Burritt “has demonstrated that the content of his trailer sign does relate to the activities conducted on the premises where the signs are located.”  The Court noted that the determination implicated strict scrutiny requiring that the State show that the ‘’regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Citing Clear Channel Outdoor v. Town of Windham, 352 F. Supp. 2d 297 at 304.  The Court acknowledged that the State Legislature’s purpose in enacting the sign laws are to protect aesthetics and traffic safety, but determined that the “State has not demonstrated a compelling interest for the Sign Laws’ restriction on  ‘off-premises’ signs.”  Further, the Court said that even if the State’s concerns were compelling, in this case they are not narrowly tailored to achieve those ends.  The Court further found that, “Plaintiff’s trailer sign is apparently adjudged an ‘illegal sign’ not because of its location on his property or its dimensions, but because of its content.  It seems that a sign containing the same physical characteristics as Plaintiff’s trailer sign but announcing the name of his business…would be allowed under the regulations. The Court cannot see how aesthetics and traffic safety are protected by a sign that displays the name of business, but are jeopardized by a sign of the same size and location that contains a religious message.”

 

Burritt v. New York State Department of Transportation, 2008 WL 5377752 (N.D.N.Y. 12/18/2008).

 

The opinion can be accessed at: http://www.telladf.org/UserDocs/BurrittDecisionOrder.pdf

 

Read about this case on the Religion Clause blog here.

 

Thanks to Professor Daniel Mandelker of Washington University School of Law in St. Louis for bringing this case to my attention.


Responses

  1. What the court failed uphold in its ruling was the right of the individual, in this case being all those driving past his religious signage, to have anothers religious view pressed upon them. Take for example:
    1) A church, there is a reason the public goes inside a church to worphsip, not out in the open view of others who have no choice to pass by it while in worship.
    2) If the court is to rule in favor of such secular signage where does one draw the line? Would there now be allowed muslim signage of that faith, jewish faith, buddist faith, there should be no complaint if the person involved is acting upon his/her faith? Is only christian signs to be allowed?
    3) Private religous signage is reasonable as the individual is not exposed without recourse. As with traveling on a state highway to avoid such signage through no fault of thier own the public must travel out of their way which arbitary and capricous in nature.
    4) The general public should not be exposed to personal religous viewpoints without choice/or say in the matter. Faith advertising is NOT public advertising. It IS a personal viewpoint on a religious choice made by an individual. NOT the general public.


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