HOW TO
CODES CODES
BY BY DAVID DAVID HICKEY HICKEY
No Arguments
W
e talk so often about the Supreme Court of the United States (SCOTUS) and its recent impact on our industry in Reed v. the Town of Gilbert. But this past summer, it was an action SCOTUS failed to take that might create big changes for the sign and graphics industry. On July 9, our nation’s High Court declined to hear an appeal from the state of Tennessee of the Thomas v. Bright case. In that case, the 6th Circuit Court of Appeals upheld a lower court’s ruling that the government cannot distinguish between on-premise and off-premise signs (billboards). That lower court found— and the circuit court agreed—that these distinctions were unconstitutional. The courts used the 2015 Supreme Court ruling in Reed v. Town of Gilbert as the basis for its decisions. But before we get too far into the details, it’s important to point out that courts in other areas of the country have
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Sign Builder Illustrated
October 2020
issued differing opinions—so that issue isn’t settled by any stretch. Now back to the case at hand: Tennessee had asked SCOTUS to grant a petition of certiorari (“cert”) for the Thomas decision, meaning a judicial review of a lower federal court. The state submitted several excellent briefs in favor of why SCOTUS should hear the case (which can be found at Scotusblog. com), but its petition was denied without any explanation. When SCOTUS denies cert, it doesn’t necessarily mean that it agrees with the lower court’s decision. All we know for sure is that the Thomas ruling stands in the 6th Circuit and impacts communities and sign and graphics companies in the circuit’s jurisdiction (which includes Tennessee, Kentucky, Michigan, and Ohio). So what does this mean for our industry? It means that, in those four states, any provisions in a community’s sign code that exempts or even specifically mentions
“on-premise” or “off-premise” signs may be subject to legal challenge under Reed and Thomas. The local jurisdictions and state departments of transportation that have used such language to regulate signs will likely have to revise their regulations. The result may not always be beneficial to the on-premise sign industry. But it’s naïve to think that only jurisdictions in those states will be affected. First, billboard operators will be emboldened to attempt to strike down similar statutes across the country, with a significant circuit court case on their side. Second, it’s likely that planners and other local officials in other states will see the writing on the wall and start revising their sign codes to avoid litigation and remove any possible content-based distinctions between on-premise signs and billboards. The International Sign Association has long supported the on/off distinction, contending that it isn’t content-based but locational. But as this particular way of signshop.com
Photo: Shutterstock.com/Vitalii Vodolazskyi.
SCOTUS makes signage news this summer.
