Tenth Circuit Court of Appeals Holds that Signage Act Provision was Content Neutral and Subject to Intermediate Scrutiny

This post was authored by Matthew Loescher, Esq.

StreetMedia and Turnpike Media was companies that are in the sign business, and were owners of billboards and other advertising signs. In this case, they contended that Colorado’s regulatory scheme (the “Act”) violated the First Amendment because it treated billboards, so-called “advertising devices,” differently depending on whether the message was paid for or not. The district court disagreed and dismissed the case.

On appeal, StreetMedia contended the Act was a content-based restriction on speech. Even assuming that the Act may create a preference for commercial speech over noncommercial speech, the court found that did not make it content based. Here, the regulation only distinguished between for-compensation signs and did not require an official to examine the content of the billboard, and did not “single out any topic or subject matter for differential treatment.” Because the Act and rules were content neutral under Supreme Court precedent, the court reviewed under the intermediate scrutiny standard of review. StreetMedia’s vagueness claim therefore failed because the Act and its rules could be understood by a person of ordinary intelligence and contain adequate constraints against discriminatory or arbitrary application.

Finally, StreetMedia claimed the Act and rules were not rationally related to a legitimate government purpose and thereby violated the Equal Protection Clause. The court noted that Colorado had legitimate interests in highway safety and reducing visual clutter. Additionally, targeting paid billboard advertising, including permanent structures with changing content, from companies that have an economic incentive to construct as many billboards in as many visually prominent locations as possible, was held to be a legitimate government purpose. As StreetMedia failed to state a plausible equal protection claim, the district court’s dismissal of this claim was affirmed.

StreetMediaGroup, LLC v Stockinger, 2023 WL 5355119 (10^th Cir. CA 8/22/2023)