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SCOTUS makes signage news this summer.

We talk so often about the Suissued differing opinions—so that issue preme Court of the United isn’t settled by any stretch. States (SCOTUS) and its Now back to the case at hand: Tenrecent impact on our innessee had asked SCOTUS to grant a dustry in Reed v. the Town of Gilbert. But this petition of certiorari (“cert”) for the past summer, it was an action SCOTUS Thomas decision, meaning a judicial refailed to take that might create big changes view of a lower federal court. The state for the sign and graphics industry. submitted several excellent briefs in fa

On July 9, our nation’s High Court devor of why SCOTUS should hear the clined to hear an appeal from the state of case (which can be found at Scotusblog. Tennessee of the Thomas v. Bright case. com), but its petition was denied withIn that case, the 6th Circuit Court of Apout any explanation. peals upheld a lower court’s ruling that When SCOTUS denies cert, it doesn’t the government cannot distinguish benecessarily mean that it agrees with the tween on-premise and off-premise signs lower court’s decision. All we know for (billboards). That lower court found— sure is that the Thomas ruling stands in and the circuit court agreed—that these the 6th Circuit and impacts communities distinctions were unconstitutional. The and sign and graphics companies in the courts used the 2015 Supreme Court rulcircuit’s jurisdiction (which includes Tening in Reed v. Town of Gilbert as the basis nessee, Kentucky, Michigan, and Ohio). for its decisions. So what does this mean for our indus

But before we get too far into the detry? It means that, in those four states, any tails, it’s important to point out that provisions in a community’s sign code courts in other areas of the country have 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

distinguishing between the two kinds of signs is under legal fire, we’d argue that there are still constitutionally sound ways that local officials and communities can regulate on-premise signs and billboards differently—including by size, by structure, and by whether or not they derive revenue.

This latter point is one that should be of strong interest to our industry. If our end-users can potentially sell advertising via electronic message centers, it could drive sales for our industry. Third-party advertising capabilities, especially via electronic message centers, may now become a real opportunity for thousands of end-users. If that happens, how will local officials react? If you think the reaction is largely to crack down on all EMCs, I would agree.

Obviously many questions remain, and the fallout will continue for months to come. It’s possible that this issue may one day come before SCOTUS once again and be heard. There are other federal decisions which have found the on/off distinction to be content-neutral, and SCOTUS sometimes agrees to hear a case to resolve when two or more federal circuit courts have ruled differently in similar situations.

There’s also another case pending in the 6th Circuit, L.D. Management Company v. Thomas (not the Thomas involved in the Tennessee case) which struck down Kentucky’s Billboard Act for the same on/off content-based reasons but, for the first time, raises the prospect of providing signs with commercial speech (as compared to political, ideological, or religious speech) a higher level of constitutional protection.

Perhaps SCOTUS will be interested in hearing this issue. But any second bite at the SCOTUS apple on the on/ off issue probably won’t happen for a couple of years.

In the meantime, ISA will be offering local and state officials guidance on how they can treat these kinds of signs in a manner that is content-neutral. We have successfully worked with planners and local officials for years now, helping them navigate sign code changes that help them remain compliant—and to share the importance of on-premise signs to their communities and businesses.

Is your community or state considering changing its sign codes to remove the distinction between on- and off-premise

HOW TO CODES BY DAVID HICKEY

signs? Let ISA know at signhelp@signs. org. The earlier we get involved in these types of cases, the better. So please help us stay on top of these issues.

David Hickey is vice president of Government A airs at the International Sign Association.