Thomas v. Schroer
248 F. Supp. 3d 868
W.D. Tenn.2017Background
- Plaintiff William H. Thomas owns land in Tennessee and erected a noncommercial billboard (the “Crossroads Ford” sign) without a TDOT permit; TDOT sought removal under the Tennessee Billboard Regulation and Control Act of 1972 ("Billboard Act").
- The Billboard Act regulates sign placement, spacing, permits, and tags but exempts signs that advertise activities on the property or the sale/lease of the property (the on‑premises/off‑premises distinction); TDOT applies a "premise and purpose" test that requires examining sign content to determine exemption.
- Thomas sued state officials under 42 U.S.C. § 1983 alleging First Amendment violations for removal of his noncommercial messages; the court granted a TRO and preliminary injunction pending trial over whether the Act is content‑based and, if so, whether it survives strict scrutiny.
- An advisory jury found the State had a compelling interest and that the Act was narrowly tailored, but the Court (after trial and briefing) made independent findings of law under Rule 52 and addressed strict scrutiny itself.
- The Court concluded the Act is a content‑based regulation because applicability of exemptions depends on message content (whether the sign concerns on‑premises activity), and because Thomas’s sign displayed noncommercial speech, strict scrutiny applies.
- The Court held the Billboard Act fails strict scrutiny: the State’s asserted interests (traffic safety, aesthetics/tourism/economic development, protecting roadway investment) are not shown to be compelling in this context and, even assuming they are, the on‑premises/off‑premises scheme is neither narrowly tailored nor the least restrictive means (it is underinclusive and can be both overinclusive and counterproductive in practice).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Billboard Act is content‑based | Thomas: the Act’s exemptions turn on the sign’s message (on‑premises content), so it regulates based on content | State: Act is content‑neutral because it rests on location (on‑ vs off‑premises) not message | Held: Content‑based — exemptions require examining message; Reed controls; strict scrutiny applies |
| Proper level of scrutiny for noncommercial speech regulated by the Act | Thomas: sign displays noncommercial (ideological) speech, so strict scrutiny is required | State: Act applies to commercial and noncommercial speech and is content‑neutral; intermediate scrutiny or none appropriate | Held: Because the speech at issue is noncommercial and the law is content‑based, strict scrutiny governs |
| Whether the State’s interests justify the content‑based distinction | Thomas: State interests (safety, aesthetics, tourism, economic development, protecting investments) are not compelling and are not meaningfully tied to the on‑premises/off‑premises distinction | State: Interests are compelling (safety and aesthetics) and the Act’s location/spacing/size/lighting rules advance them | Held: The State failed to show compelling interests related to the specific content‑based distinction; interests insufficiently linked to exemptions |
| Whether the Act is narrowly tailored / least restrictive means | Thomas: the exemption scheme is underinclusive and overinclusive; less restrictive, content‑neutral alternatives exist (size limits, spacing, presentation rules, regulate commercial speech only, etc.) | State: Alternatives would be ineffective or unworkable; limiting to commercial speech would itself be burdensome | Held: Act is not narrowly tailored and is not the least restrictive means; multiple workable content‑neutral alternatives exist; Act unconstitutional |
Key Cases Cited
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (laws that differentiate regulation based on message are content‑based and subject to strict scrutiny)
- Police Dep’t of Chicago v. Mosley, 408 U.S. 92 (1972) (government may not restrict speech by reference to its content)
- Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983) (tests for distinguishing commercial from noncommercial speech)
- Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) (history of sign regulation and differing treatment of commercial vs. noncommercial signs)
- Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557 (1980) (intermediate scrutiny test for commercial speech regulations)
- Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105 (1991) (content‑based distinctions must be related to the asserted compelling interest)
- United States v. Playboy Entm’t Group, Inc., 529 U.S. 803 (2000) (government must use least restrictive means when restricting speech)
- McCullen v. Coakley, 134 S. Ct. 2518 (2014) (narrow tailoring and least‑restrictive‑means analysis in public‑forum contexts)
- Burson v. Freeman, 504 U.S. 191 (1992) (permitting some content‑based restrictions when closely tied to historic, compelling interests)