Posted by: Patricia Salkin | May 23, 2011

NY Appellate Court Upholds Constitutionality of NYC Off-Site Sign Regulations

The appellate division held, applying the four-part test in Central Hudson Gas & Elec. Corp. v Public Service Comm’n, 447 U.S. 557, 100 S. Ct. 2343 (1980), that the City of New York’s advertising regulations that restrict outdoor advertising situated within view of arterial highways and public parks and impose substantial penalties for violations do not violate plaintiff’s right to free speech under the New York State Constitution as the subject regulations directly advance the stated governmental interests of promoting traffic safety and preserving aesthetics, and are narrowly tailored to achieve those interests.  Furthermore, the Court held that the regulations do not violate the plaintiff’s right to equal protection under the State constitution, as the City has indicated that they intend to enforce the regulations against both governmental and nongovernmental entities. The court did note that in any event, the plaintiff is not similarly situated to the governmental and quasi-governmental entities for purposes of equal protection analysis. Lastly, with respect to penalties, the Court held that the penalty schedule is not discriminatory because outdoor advertising companies are subject to different fines than other advertising companies, and further that the penalties are based on the type of the entity and not on the content of the speech, for which rational basis review applies and not strict scrutiny. The court also noted that the penalties do not violate the Excessive Fines Clause of the State Constitution (art. I, sec. 5).

OTR Media Group v City of New York, 920 N.Y.S.2d 337 (1 Dept. 4/72011).

The opinion can be accessed here

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