Court Strikes Down Highway Billboard Restrictions

January 28, 2009 12:00 am

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Ruling in a case brought by the Rhode Island ACLU, a federal court has ruled unconstitutional a state law and regulations that allow billboard signs on buildings near highways only if the sign promotes an activity taking place on the property. The suit was on behalf of Anthony Joseph Vono and his business, Specialty Promotions, which was cited in 2005 by the R.I. Department of Transportation for having a billboard sign that advertised “off premises activity.” In supporting Vono’s First Amendment rights, U.S. District Judge William Smith found that the challenged state policies unconstitutionally gave greater protection to commercial speech than to political speech.

The Providence building in which Vono’s business operates includes a roof sign which is visible on I-95 North near the I-195 split. In 2005, when the sign was advertising the non-profit agency Casey Family Services, Vono was notified by DOT that he had to take it down because it advertised “an activity not occurring on the property where it is located.” Although a billboard sign was allowable, the DOT advised Vono that it could only advertise a business or activity taking place directly on the property.

The ACLU lawsuit , filed by volunteer attorney John W. Dineen, raised a number of legal challenges to the state law and regulations being relied upon by the DOT for its position. Judge Smith’s 37-page ruling focused on one in particular: that the DOT’s distinction between on-premises and off-premises messages contravened Vono’s First Amendment right to be free from content-based regulation of his speech.

Judge Smith explained the constitutional infirmity with the law and regulations by giving a concrete example of their effect:

“The owner of a music store, to take one example, could not replace her ‘Drums for Sale’ sign with a ‘Cut Property Taxes Now!’ message unless she conducted some tax-related activity in the music store. . . Rhode Island thus has decided that, at least in most cases, the communication of commercial information is of greater value than the communication of noncommercial messages. These prohibited noncommercial messages include political speech, the most highly prized category of speech. Because this prohibition inverts the First Amendment’s hierarchy … it is unconstitutional…”

RI ACLU attorney Dineen said today: “The court’s decision reaffirms one of the most important principles of the First Amendment, that the government must not be in the business of allowing or prohibiting speech based in any way on the content of that expression. We tend to quickly spot this problem when it happens in other countries but then overlook the same danger when it’s right in front of us.”

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