William Thomas v. Clay Bright
937 F.3d 721
6th Cir.2019Background
- Tennessee’s Billboard Regulation and Control Act (modeled on the Federal Highway Beautification Act) prohibits outdoor signs within 660 feet of public highways unless TDOT permits them or the sign fits an exception, including an "on-premises" exception for signs advertising activities/products/services conducted on the property.
- William Thomas owned a billboard on a vacant lot and displayed a noncommercial message (an American flag with "Go USA!") without a TDOT permit; Tennessee ordered removal because the sign could not qualify under the on-premises exception given the lot’s vacancy.
- Thomas sued in federal court claiming a First Amendment violation; the district court held the Act (as applied via the on-premises exception) was a facially content-based restriction on noncommercial speech under Reed v. Town of Gilbert and thus failed strict scrutiny, and it declared the Act non-severable.
- Tennessee appealed; the Sixth Circuit affirmed, concluding the on-premises exception requires officials to inspect message content and purpose, making the scheme content-based and subject to strict scrutiny, which the Act does not satisfy.
- The panel recognized Reed overruled earlier Sixth Circuit precedent (Wheeler) and left any legislative corrections to the Tennessee legislature.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Billboard Act’s on-premises exception is content-based | Thomas: exception requires reading sign content/purpose, so it is content-based and triggers strict scrutiny | Tennessee: distinction is location-based (on- vs off-premises), not message-based; state justifications are content-neutral | Held content-based: officials must examine message meaning/purpose, so Reed controls; strict scrutiny applies |
| Whether the Act survives strict scrutiny for noncommercial speech | Thomas: state interests (aesthetics/traffic/property rights) are not compelling here and Act is not narrowly tailored; exemptions make it underinclusive | Tennessee: aesthetics, traffic safety, and protecting property owners’ rights are compelling; exceptions needed to protect on-premises speech | Held fails strict scrutiny: interests are not established as compelling and the on-premises exception is hopelessly underinclusive/not narrowly tailored |
| Whether the on-premises exception’s exemptions render the Act underinclusive/permit content discrimination | Thomas: exemptions favor on-premises commercial/noncommercial content and disfavor other ideational speech, disadvantaging highly protected speech | Tennessee: exceptions are permissible and tailored to legitimate interests (e.g., property-owner speech) | Held underinclusive: exemptions discriminate among noncommercial messages and allow commercial speech while suppressing noncommercial protest/ideological messages |
| Severability of the unconstitutional portion | Thomas: district court held Act non-severable and declined to sever the on-premises exception | Tennessee: argued the non-commercial on-premises application could be severed to preserve commercial/off-premises rules | Held: district court’s non-severability ruling not challenged on appeal; Sixth Circuit did not disturb that ruling and left legislative correction to Tennessee |
Key Cases Cited
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (facial-content test: laws that draw distinctions based on message are content-based and trigger strict scrutiny)
- Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) (plurality and concurrence analyzing over- and underinclusiveness in sign regulations)
- City of Ladue v. Gilleo, 512 U.S. 43 (1994) (struck down restrictive sign ordinance; exceptions can undercut asserted justifications)
- Police Dep’t of City of Chicago v. Mosley, 408 U.S. 92 (1972) (selective exclusions from speech restrictions cannot be content-based)
- McCullen v. Coakley, 573 U.S. 464 (2014) (application-based content inquiry occurs when enforcement requires examining message content)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (laws that favor certain content are discriminatory under the First Amendment)
- Turner Broad. Sys. v. FCC, 512 U.S. 622 (1994) (framework for determining content- vs. speaker-based restrictions)
- Citizens United v. Federal Election Comm’n, 558 U.S. 310 (2010) (speaker- and content-based distinctions demand heightened scrutiny)
- Boos v. Barry, 485 U.S. 312 (1988) (law depending entirely on whether signs criticize a foreign government was content-based)
- First Nat. Bank v. Bellotti, 435 U.S. 765 (1978) (government cannot favor one side of a public issue via content-based speech restrictions)