Posted by: Patricia Salkin | October 14, 2014

1st Circuit Court of Appeals Finds Plaintiffs Have Standing to Challenge Billboard Licensing Procedure

The plaintiffs were related companies engaged in the business of erecting and displaying billboards and other outdoor signs, which brought a facial challenge to a state permitting scheme. The challenged regulatory scheme required most parties wishing to engage in outdoor advertising to obtain a license in advance.  The regulations vested the authority to issue such licenses and permits in the Director of the Commonwealth’s Office of Outdoor Advertising and provided that he may withhold a permit, in his sole discretion, upon a determination that the particular sign “would not be in harmony with or suitable for the surrounding area or would do significant damage to the visual environment,”  In making such determinations, the Director “may” consider an array of enumerated factors, including (but not limited to) the physical characteristics of both the proposed sign and the locality; the effects on scenic beauty; and “the health, safety and general welfare of the public.” Furthermore, when issued, a permit is for a fixed duration, subject to annual renewal based on the same criteria, and is subject to revocation at any time for cause. Plaintiffs brought a claim in district court alleging that this scheme violated their free speech rights under the First and Fourteenth Amendments; however, the court dismissed for lack of standing.

The Circuit Court’s analysis focused on whether the plaintiffs sufficiently alleged an injury in fact. For there to be standing, an injury in fact must be both concrete and particularized and actual or imminent, not conjectural or hypothetical. The First Circuit analogized this case to City of Lakewood, 486 U.S. at 759, in which the Court reasoned that a facial challenge was appropriate because the challenged regulation was narrowly directed at an activity closely associated with expression and required annual relicensing, thereby enabling the decision-maker to consider a speaker’s viewpoint over time. Likewise, in this case, the regulatory permitting scheme that confers unbridled discretion to the Director with respect to granting permits for billboards had a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat of the identified censorship risks.

Accordingly, the court reversed the order dismissing plaintiffs’ First Amendment claim for lack of standing, and remanded the case for further proceedings.

Van Wagner Boston, LLC v. Davey, 2014 WL 5326518 (1st Cir. 2014)

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