Posted by: Patricia Salkin | February 20, 2014

Sixth Circuit Holds Billboard-Spacing Requirement is Constitutional

Hucul Adversiting, LLC (Hucul) sought to construct a billboard on its property in Gaines, Michigan. The ordinance in effect at the time only permitted the construction of billboards on property that was adjacent to the M-6 highway right of way, which Hucul’s property was not and the board denied its application. Hucul submitted a second application for a digital billboard, which the board for the same reason as the first application, and also because the billboard would have been within in 4,000 sq. ft. of another billboard, which was also in violation of the ordinance. Hucul then sued the Township challenged the zoning board’s decision, and alleged that the ordinance violated the First Amendment and Equal Protection Clause because it treated land adjacent to private property differently than land adjacent to public property. Hucul argued the district court erred in holding that the spacing requirement did not violate the First Amendment because the requirement was an “impermissible restriction on commercial speech.”

Hucul also attempted to argue that the district court incorrectly applied the “time, place, and manner” test, but the court did not find it persuasive and applied the “time, place, and manner” test, which states that restrictions on speech are valid if (1) they are justified without reference to the content of the speech, (2) they are narrowly tailored, to (3) serve a governmental interest, (4) and that there are ample alternative channels for communication of the information. As to the first prong, the court found that the ordinance clearly did not seek to regulate the type of speech on a billboard but merely the circumstances of building a billboard. It also aimed to reduce distractions and prevent clutter in the Township. Thus, the ordinance was content-neutral and satisfied the first prong.

Moving on to the second and third prongs of the test, the court stated that it has “long recognized that governmental interests in aesthetics, traffic safety, and the preservation of property values constitute significant governmental interests.” The court noted that the Township did not need to justify the dimensions it chose to regulate the construction of a billboard, and that simply because it could have chosen a smaller measurement does not mean that the one it chose is broader than necessary to achieve its goals. Moreover, the Township did in fact justify its reasoning for treating digital billboards differently than static billboards, and stated that they “can have a greater effect on safety and aesthetics than static ones due to their increased visibility and changing display.” Thus, the court found that it could not conclude such a differentiation in treatment was unreasonable, and that simply because “the government’s restrictions on speech must ‘reasonably fit’ the ends it seeks to achieve, the fit need not be perfect.” Thus, the ordinance was narrowly tailored to a significant governmental interest, and satisfied the second and third prong of the test.

Lastly, the court found that the ordinance allowed for open ample alternative methods for communication because the ordinance does not foreclose any other type of communication, and allowed the digital and static billboards that meet the requirements to be spaced more closely together. Therefore, the ordinance did not violate Hucul’s First Amendment right to free speech.

Hucul Advertising, LLC v. Charter Tp. Of Gaines, 2014 WL 463479 (6th Cir. 2014)

The opinion can be accessed at:

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