ORDER & MEMORANDUM FINDING BILLBOARD ACT AN UNCONSTITUTIONAL, CONTENT-BASED REGULATION OF SPEECH
This аction concerns alleged First Amendment violations that occurred when agents of the State of Tennessee (“the State”) sought to remove Plaintiff William H. Thomas’s noncommercial billboard pursuant to the Billboard Regulation and Control Act of 1972 (“Billboard Act”), Tennessee Code Annotated §§ 54-21-101, et seq. For the reasons stated below, the Court finds the Billboard Act is an unconstitutional, content-based regulation of speech. United States Supreme Court authority compels this conclusion.
There exists an undeniable trend in Supreme Court cases to guard against regulations that selectively ban speech on the basis of its subject matter—e.g„ content-based regulations. Police Department of Chicago v. Mosley,
In the instant ease, the regulation at issue—the Tennessee Billboard Regulation and Control Act of 1972, Tennessee Code Annotated §§ 54-21-101, et seq.—regulates both commercial and non-commercial speech by banning some forms of both on the basis of content and therefore does not survive First Amendment scrutiny.
I. BACKGROUND
The Tennessee Department of Transportation (“TDOT”) promulgates and enforces billboards and outdoor advertising signs under Tennessee’s Billboard Regulation and Control Act of 1972, (the “Billboard Act”). (ECF No. 45 ¶ 13.) The State of Tennessee and TDOT also regulate billboards and outdoor advertising signs under to the Federal Highway Beautification Act of 1965, as amended. (Id. ¶ 14.)
The Federal Highway Beautification Act and the Billboard Act are designed to control the erection and maintenance of billboards and signs along the National Highway System. (See Exs. B, C, Bible Aff., ECF No. 166-2; SUF^33; Resp. to SUF ¶33.) Regulated billboards and signs under the Billboard Act are subject to location and/or permit and tag restrictions, e.g., they may not be “within six hundred sixty feet (660’) of the nearest edge of the right-of-way and visible from the main traveled way of the interstate or primary highway systems ... without first obtaining from the commissioner a permit and tag.” T. C. A. § 54-21-104(a). Some signs, however, may be exempted or qualify as exceptions under the Billboard Act’s location and/or permit and tag restrictions. See T.C.A. §§ 54-21-103(l)-(3) and §§ 54-21-107(a)(l)-(2). For example, a billboard or sign is exempted from the six-hundred-sixty feet requirement if it qualifies as one of the following types of signs:
(2) Signs, displays and devices advertising thе sale or lease of property on which they are located;
(3) Signs, displays and devices advertising activities conducted on the property on which they are located;
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T.C.A. §§ 54—21—103(1)—(3). A billboard or sign is exempted from complying with the permit and tag restrictions if it falls into one of the following categories:
(1) Those [signs] advertising activities conducted on the property on which they are located;
(2) Those [signs] advertising the sale or lease of property on which they are located; and
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T.C.A. §§ 54-21-107(a)(l)-(2).
In practice, State agents label signs the Billboard Act regulates as “off-premise” signs and label unregulated signs as “on-premise” signs. (See EOF No. 64 at Pa-gelD 917.) The State’s agents use the following Rule to make their determinations:
A sign will be considered to be an on-premise sign if it meets the following requirements.
(a) Premise—The sign must be located on the same premises as the activity or property advertised.
(b) Purpose—The sign must have as its purpose (1) the identification of the activity, or its products or services, or (2) the sale or lease of the property on which the sign is located, rather than the purpose of general advertising.
(EOF No. 46-6 at PagelDs 718-19 (quoting Rule 1680-02-03-.06(2); see also EOF No. 121 at 16-16.)) Rule 1680-02-03-.06 further expands on the ‘Purpose Test’
[t]he following criteria shall be used for determining whether a sign has as its purpose (1) the identification of the activity located on the premises or tis products or services, or (2) the sale or lease of the property on which the sign is located rather than the business of outdoor advertising.
(a) General
1. Any sign which consists solely of the name of thе establishment is an on-premise sign.
2. A sign which identifies the establishment’s principle or accessory product or services offered on the premises is an on-premise sign.
3. An example of an accessory product would be a brand of tires offered for sale at a service station.
(b) Business of Outdoor Advertising
1. When an outdoor advertising device (1) brings rental income to the property owner, or (2) consists principally of brand name or trade name advertising, or (3) the product or service advertised is only incidental to the principle activity, it shall be considered the business of outdoor advertising and not an on-premise sign. An example would be a typical billboard located on the top of a service station building that advertised a brand of cigarettes or chewing gum which is incidentally sold in a vending machine on the property.
2. An outdoor advertising device which advertises activities conducted on the premises, but which also advertises, in a prominent manner, activities not conducted on the premises, is not an on-premise sign. An example would be a sign advertising a motel or restaurant not located on the premises with a notation or attachment stating “Skeet Range Here,” or “Dog Kennels Here.” The on-premise activity would only be the skeet range or dog kennels.
(c) Sale or Lease Signs
A sale or lease sign which also advertises any product or service not located upon and related to the business of selling or leasing the land on which the sign is located is not an on-premise sign. An example of this would be a typical billboard which states “THIS PROPERTY FOR SALE-SMITHS MOTEL; 500 ROOMS, AIR CONDITIONED, TURN RIGHT 3 BLOCKS AT MA IN STREET.”
Plaintiff Thomas’s business involves posting outdoor advertising signs. (ECF Nos. 1 ¶ 11; 46 ¶ 11.) Thomas erects these signs on the various tracts of real property he owns throughout Tennessee. (ECF No. 46 ¶ 10.) Thomas’s sign at issue in this case is located off Interstate^ West in Memphis, Tennessee (hereinafter the “Crossroads Ford sign”). (Id, ¶ 21.) Thomas has posted various messages on this sign over the years. (Id.) For example, in 2012, he displayed an image of an American flag with Olympic rings, in support of that year’s U.S. Olympic team. (ECF No. 38 ¶ 23.) Later that year, in the “beginning of fall,” he “displayed content referencing the upcoming holiday season with a picture of an American Flag.” (ECF No. 46 ¶24.) Thomas erected his Crossroads Ford sign without a permit. (ECF No. 46-6 at PageID 721 (citing Tennessee v. Thomas,
Since approximately 2006, the State has sought to remove Thomas’s signs that did not comply with the Billboard Act—including the Crossroads Ford sign—through an ongoing enforcement action in Chancery Court in Shelby County, Tennessee. (ECF Nos. 1 ¶¶ 62, 77; 45 ¶27; see ECF Nos. 96-1 at PageID 1399-1404; 46-2-46-5; see also Tennessee v. Thomas,
On March 25, 20Í3, Thomas filed an initial Complaint and Request for Declaratory Judgment. (Thomas v. Tennessee Department of Transportation, No. 2:13-cv-2185-JPM-cgc,
On December 17, 2013, while this first action was on appeal, Thomas filed his
Thomas’ initial fillings also included additional claims against the State: First Amendment, Retaliation, Equal Protection and Declaratory Judgment. (ECF Nos. 1, 45.) Following the Court’s Order on the State’s motion to dismiss, (ECF No. 170), and summary judgment (ECF No. 233), Thomas’s only remaining claim is whether the removal of his billboards under the Billboard Act violated his First Amendment rights. This Order concerns only this issue.
In October 2014, the State removed another of Thomas’s outdoor signs (the “Perkins Road sign”), even though, according to Thomas, “[the] billboard was displaying exclusively on-premise, noncommercial content and therefore exempt from the permitting requirements of T.C.A. § 54-21-107(a)(l).” (ECF No. 45 ¶40; ECF No. 79 ¶ 40.)
On May 26, 2015, TDOT sent Thomas a letter stating that Thomas must remove the Crossroads Ford sign by June 26, 2015. (ECF No. 96-1 at PagelD 1399.) Thomas also received a proposed order of judgment “declaring an unlawful billboard to be [a] public nuisance and granting permanent injunction for removal of the unlawful billboard,” to be subsequently submitted in Chancery, Court in Shelby County, Tennessee. (Id. at PagelD 1401-OS.)
On June 10, 2015, Plaintiff filed an Emergency Motion for Temporary Restraining Order (“TRO”) to prevent Defendants from removing his Crossroads Ford sign. (ECF No. 96.) He also sought .to enjoin Defendants from executing any judgments “resulting [from] or associated with the Crossroads Ford billboard sign until suсh time as a hearing can be held on the, issues....” (Id. at 1.) On June 11, 2015, Defendant opposed the TRO. (ECF No. 99.) On June 18,2015, the Court held a Motion Hearing on TRO motion. (ECF No. 104.)
On June 24, 2015, the Court granted Thomas’s TRO motion and ordered the State to “refrain from seeking to execute on any judgments, orders, or other monetary judgments resulting from or associated with the Crossroads Ford billboard sign until such time as the Court deems it appropriate to lift the TRO.” (ECF No. 110 at PagelD 1464.) The Court found “a strong likelihood that multiple sections of the Billboard Act are facially content-based and subject to strict scrutiny under” Reed v. Town of Gilbert, — U.S. —,
The Court entered an Amended Scheduling Order on May 31, 2016 (ECF Nos. 170, 233) to reflect the narrowing of issues, and set a jury trial for September 12, 2016, (ECF No. 237.) The parties filed timely pretrial motions. (See ECF Nos. 280-86.)
On September 9, 2016, Thomas filed a Written Objection to Allowing the Jury to Decide the Issues of “Compelling State Interest” and “Narrow Tailoring.” (ECF Nо. 307.) On September 16, 2016, the Court entered an Order Concerning Plaintiffs Objection to the Jury Determining “Compelling Interest” and “Narrow Tailoring.” (ECF No. 314.) The Court clarified the jury would serve as an advisory jury on the issues before them. (Id. at PagelDs 6140, 6146.)
A four-day, advisory-jury trial began on September 19, 2016. (Min. Entries, ECF Nos. 320-21, 322, 328.) Seven witnesses testified on behalf of the State: Paul Degges, Chief Engineer for TDOT; John Schroer, Commissioner of TDOT; Robert Shelby, retiree from the Highway Beautification Department at TDOT; John Carr, Assistant Commissioner of Administration at TDOT; Colonel Tracy Trott, highway patrol law enforcement officer; Jason Moody, Assistant Regional Traffic Engineer at TDOT; and Shawn Bible, Beautification Coordinator at TDOT. (See ECF No. 331.) On September 22, 2016, a jury found the State had a compelling interest, and that the Billboard Act was narrowly tailored to that interest. (ECF No. 329.) On the same day, Thomas filed a Rule 52 Motion for Verdict as a Matter of Law. (ECF No. 325.) The State responded in opposition on October 7, 2016. (ECF No. 336.) Thomas replied on October 21, 2016. (ECF No. 340.)
On October 26, 2016, the Court entered an Order Concerning Least Restrictive Means, ordering the parties to file supplemental briefing on the issue of least restrictive means. (ECF No. 342.) Both parties timely briefed the issue. (ECF Nos. 343-44.)
On November 23, 2016, Amici Curiae National League of Cities, International Municipal Lawyers Association, Tennessee Municipal Attorneys Association, International City/County Management Association, Scenic America, Inc., Scenic Tennessee, Inc., Tennessee Conservation Voters, League of Women Voters of Knoxville/Knox County, Trees Knoxville, Keep Knoxville Beautiful, City оf Knoxville, Tennessee Chapter of the American Planning Association, and Tennessee Federation of Garden Clubs, Inc. (collectively, “Mov-ants”)’s filed a Motion for Leave to File the Brief of Amici Curiae. (ECF No. 346.) On November 30, 2016, Thomas opposed. (ECF No. 347.) Because the amicus brief sought to address standing and the differentiation between on- and off-premises signs, both of which the parties did not adequately brief, the Court granted the Motion for Leave to File the Brief of Amici Curiae (ECF No. 346) on December 7, 2016. (ECF No. 348.) The Court granted in part Thomas’s request to respond to the standing issue, which Thomas timely briefed. (ECF Nos. 352, 354.)
A. Federal Rule of Civil Procedure 52
Federal Rule of Civil Procedure 52 provides,
[i]n an action tried ... with an advisory-jury, the court must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court.
Fed.R.Civ.P. 52(a)(1). In the instant case, the Court makes its findings of fact and conclusions of law following the advisory jury’s verdict below.
B. First Amendment Protection: Commercial Versus Non-Commercial Speech
The First Amendment mandates that “Congress shall make no law ... abridging the freedom of speech.” U.S. Const, amend. I. This language generally prohibits any laws that regulate or restrict expression based on content: “[Ajbove all else, the First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dep’t v. Mosley,
Not all speech is equally protected. “[T]he degree of protection afforded by the First Amendment depends on whether the activity sought to be regulated constitutes commercial or non-commercial speech.” Bolger v. Youngs Drug Prod. Corp.,
C.Content-Based Restrictions
In 2015, the Supreme Court held that “[e]ontent-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Reed v. Town of Gilbert, Ariz., — U.S. —,
The ordinance invalidated in Reed distinguished “temporary directional signs, political signs, and ideological signs.” Id. Courts have thus narrowed Reed’s applicability to noncommercial rather than commercial speech regulations.
When a content-based regulation affects both commercial and non-commercial speech, the speech’s nature determines the appropriate level of scrutiny. PHN Motors,
Since Reed, some local governments have begun redrafting content-based, sign-related ordinances to apply solely to commercial speech. Courts find these amended ordinances comply with Reed. See, e.g., Geft Outdoor LLC v. Consolidated City of Indianapolis,
For' the reasons stated below, the Court finds it must apply strict scrutiny to the Billboard Acts because it is a content-based regulation that implicates Thomas’s noncommercial speech. The Court then finds that the Billboard Act does not survive strict scrutiny; and thus, the Billboard Act is unconstitutional.
III. ANALYSIS
A. The Billboard Act Is Subject to Strict Scrutiny Because It Is a Content-Based Regulation that Implicates Thomas’s Non-Commercial Speech
In this action, the Billboard Act is subject to strict scrutiny because it is a content-based regulation that implicates the non-commercial speech Thomas displayed on his Crossroad Fords sign.
In his concurring opinion in Reed, Justice Alito described the off-premises/on-premises distinction as content neutral. Reed v. Town of Gilbert, — U.S. —,
The State previously argued the Billboard Act is content neutral because “it is entirely based on location or placement of the signs. An on-premises sign is one that is on the premises of an establishment, whereas an off-premises sign does not have a premises as such. It is logical to distinguish between the two by reference to place.” (ECF No, 118 at 6.) But as the Court determined in its June 24, 2015 Order, “[t]he only way to determine whether a sign is an on-premise sign, is to consider the content of the sign and determine whether that content is sufficiently related to the ‘activities conducted on the property on which they are located.’ ” (ECF No. 110 at 8 (quoting § 107(a)(1)).) Shawn Bible, Beautification Coordinator at TDOT, confirmed the State’s use of “a premises test and a purpose test. Is it on the premises it is supposed to be on? And is its purpose advertising what’s happening there or that business is informing.” (ECF No. 334 at PagelDs 6634:24-25-6635:1-2.) Bible also conceded that a sign “has to have some words on it to connect it to the premises.... So [the State is] loоking at the content of [the] sign to make [a] determination whether it’s on premises or off premises....” (Id. at PagelD 6663:12-21.)
The statutes’ language, the State’s rules, •and the State’s actions as to Thomas’s noncommercial messages on his Crossroads Ford sign further compel a finding that the Billboard Act is content based. The Billboard Act imposes location, permit, and tag requirements on signs, unless they qualify as an exception or exemption. The language of the Billboard Act requires one to assess the' sign’s content, to determine if it is exempt. Signs that advertise activities conducted or the sale/lease of the property on which they are located are exempted from the location, permit, and tag requirements, T.C.A. §§ 54-21-103(1)-(3), 54-21-107(a)(l)-(2). In practice, the State also uses a two-step inquiry knowns as the “premise and purpose test,” which requires that the sign’s content identify an activity/sale/lease on the property where the sign is located, before it qualifies for exemption. (ECF No. 46-6 at PagelDs 718-19 (quoting Rule 1680-02-03-.06(2))). In other words, first, the sign “has to be on that property where the activity is taking place....” (ECF No. 121 at PagelD 1523 (testimony of Shawn Bible, Beautification Coordinator, TDOT).) Second, the sign “has to be advertising or speaking up for the things going on there at that prem-
After Reed, if a sign’s application hinges on the content of j;he message, it is content based. For example, in Cent. Radio Co. Inc. v. City of Norfolk, Va., the Fourth Circuit Court of Appeals held a city regulation that
exempted governmental or religious flags and emblems, but applied to private and secular flags and emblems ... [and] exempted “works of art’ that ‘in no way identified] or specifically relate[d] to a product or service,’ but [ ] applied to art that referenced a product or service ... was content-based because it applied or did not apply as a result of content, that is, ‘the topic discussed or the idea or message expressed.’
Even “though [the on-premises/off-premises distinction appears] facially content neutral, [it ultimately] cannot be ‘justified without reference to the content of the regulated speech,’ ” and thus is a content-based regulation. Reed,
In the instant case, the Billboard Act is subject to strict scrutiny because, while it regulates both commercial and non-commercial speech, the language at issue is the noncommercial message(s) in Thomas’s Crossroads Ford sign. The State concedes that the Billboard Act’s on-premises/off-premises provisions apply to both commercial and noncommercial speech and that “[a] message can [ ] be commercial or noncommercial as long as there is some connection.” (ECF Nos. 64 at PageID 917, 344 at 10.) There is no question that Thomas’s Crossford Sign displaying an American flag and Olympic rings is non-commercial speech. (See ECF No. 45 at PageID 563.) Because the Billboard Act is a content-based regulation that applies to both commercial and non-commercial speech, and because the nature of the speech at issue is non-commercial, the Billboard Act must survive strict scrutiny to be found constitutional. See PHN Motors,
B. The Billboard Act Does Not Survive Strict Scrutiny
Strict scrutiny “requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Reed,
For the reasons stated below, the Billboard Act fails under strict scrutiny. The Court first finds that the State’s interests are not compelling, but even if they were, the Court finds the Billboard Act is not narrowly tailored to the those interests.
1. The State’s Interest Are Not Compelling
The State sets out “six compelling State interests: Driver Safety, Promote Recreational Value of Public Travel, Promote Tourism, Promote Economic Development, Protect Investments in Public Highways and Preserve Scenic Beauty.” (ECF No. 336 at PagelD 6720.) First, the State contends that “if there were no Billboard Act, and billboards were allowed to proliferate, that would lead to further distraction and could cause more accidents.” (Id at Pa-gelD 6721.)
Second, the State argues that “[t]he Billboard Act engenders [ ] recreational travel by helping keep the roads more driver friendly and scenic.” (Id. at PagelD 6725.) The State does not offer proof, however, that the Billboard Act actually influences recreational travel.
Third, the State asserts “that billboards and other signs detract from the natural beauty that visitors say that they travel to and within Tennessee to see.” (Id. at Pa-gelDs 6726-27.) Yet the State admits it has no statistical evidence that the Billboard Act influences tourism. (Id.)
Fourth, the State argues that “how the roadways in Tennessee look plays an important part in attracting new businesses to the State.” (Id. at PagelD 6727 (emphasis added).) The State’s bases this argument entirely on testimony from “Commissioner Schroer, a businessman and entrepreneur himself, who is familiar with the business industry and the needs of businesses in Tennessee” and believes “attractive roads [are] critical to economic development.” (Id. at PagelD 6737.) Commissioner Sehroer’s testimony offers little in terms of statistical or differential analysis documenting an actual link between “attractive roads” verses, for example, “good roads” and economic development.
Fifth, the State discusses the public investment in the building and maintenance of the roads. (ECF No. 336 at PageIDs 6727-28.) Yet the State does not establish that the Billboard Act directly impacts this public investment, and merely repeats that “[o]f course the major concern is safety of the motoring public.... In fact, safety is the key asset in a roadway.... The State takes care to have signs that are appropriately spaced'and not clutters [sic] because sign clutter can lead to distracted driving.” (Id. at PageID 6728.)
Sixth, the State argues that “[protecting and preserving the natural scenic beauty is [] a compelling interest ior the State of Tennessee.” (Id. at PagelD 6729.)
Despite presenting six seemingly separate arguments, the1 State’s position can be distilled into two concepts. First, the State’s tourism, recreation, economic development, and scenic beauty arguments all hinge on roadway aesthetics. Second, the State’s driver safety and public investment arguments all hinge on traffic safety. In short, the State contends that the Billboard Act prevents the proliferation of billboards, which, in turn, improves (1) aesthetics and (2) traffic safety. Neither of these arguments, however, constitutes a compelling interest.
Although the Sixth Circuit has held that aesthetics and highway safety, are substantial or significant governmental interests, Wheeler v. Comm’r of Highways, Com. of Ky.,
In previous rulings, the Supreme Court has made it clear that
content-based restrictions on speech have been permitted, as a general matter, only when confined to the few historic and traditional categories [of expression] long familiar to the bar, including advocacy intended, and likely, to incite imminent lawless' action ... obscenity ,., defamation ... speech integral to criminal conduct ... so-called ‘fighting words,’ .,. child pornography ... fraud ... true threats ... and speech presenting some grave and imminent threat the government has the power to prevent.
United States v. Alvarez,
The Supreme Court also mandates that the government’s compelling interest must be related to the speech-based distinctions the regulation makes. Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd.,
In the instant case, the Court finds the State’s interests in aesthetics and traffic safety .are not compelling interests. Not only are such general and abstract interests generally not considered so compelling as to justify content-based sign restrictions, but also, they are unrelated to the distinction between .signs with on-premises-related content versus other messages. Also, in practice this distinction undermines the-State’s interests. As dis
The State has also failed to establish that its interests are related to the Billboard Act’s content-based restriction. The provisions at issue here concern the distinction between signs with content concerning on-premises-related activity versus other messages. The State fails to establish how this specific distinction relates to traffic safety and aesthetics. For example, the State’s expert witness on traffic safety, Colonel Tracy Trott, testified that “the number of crashes related to distraction and the number of injury crashes related to distraction are definitely on an upward trend.” (Trial Tr., ECF No. 333 at PagelD 6483:10-11.) This “upward trend,” however, occurred while the Billboard Act was in full force. Also, the statistics Colonel Trott relied on do not reference billboards or signs as causes for distracted driving or distracted driving accidents. Colonel Trott also opined that a proliferation of billboards would likely aggravate distracted driving issues. (Id. at PagelD 6488:7-17.) Notably, Colonel Trott does not suggest that signs whose content concerns on-premises-related activity pose a greater or less driving distraction than other signs; rather, he suggests that signs with more content and signs outside the driver’s field of vision may create greater distractions. He specifically states that signs are “less distracting [when] they’re usually in your field of vision that you’re using to drive with” and signs that need “to be read or deciphered or retained” would be potentially more distracting than signs that evoke instant recognition, i.e. “I would know the golden arches for McDonald’s or BP for gasoline, I know that that facility sits at the bottom of that sign; and it’s a very quick glance and back to the road.” (Id. at PagelDs 6488:22-24, 6503:20-26.)
The State’s сivil engineering and human factors engineering expert, TDOT Transportation Specialist Jason Moody, also failed to establish how the on-premises/off-premises distinction relates to the State’s traffic safety interest. (See ECF Nos. 270 ¶ 6.) Moody merely opined that the placement of signs “directly adjacent to a roadway” may “draw attention. If you can’t view them for enough to read the message properly, that could cause you to turn your head to read the full message.” (Id. at PagelD 6546:20-23.) Moody also testified that billboards are generally
spaced parallel with the road, turned perpendicular to the road so that drivers can see them. They’re at the back of the right-of-way, but they’re at the edge of the cone of vision. So, that’s why you see them using such—they’re not in the primary cone or the cone right in front where we place our signs. So, the text has to be much larger to be read. They’re usually behind our right-of-way.
Q: Based on your learning and experience, tell us whether billboards are a factor in the area of distracted driving.
A: Yes.
(Id. at PagelDs 6545:17-23, 6546:1.) Moody, like Colonel Trott, does not opine on whether signs with on-premises-related activity content are more or less distracting than other messages. Although Moody’s and Colonel Trott’s testimony establishes that billboards generally distract drivers, and that the State may have a compelling interest in curtailing all billboards, their testimony fails to establish how the Billboard Act’s on-premises/off-premises distinction is related to the State’s interest in traffic safety.
The State also provides no further evidence that the distinction at issue relates to its aesthetic interest. The State merely states “the Billboard Act engenders [ ] recreational travel by helping keep the roads more driver friendly and scenic.” (ECF No. 336 at PagelD 6725.) While the Billboard Act as a whole may result in more scenic roads, no evidence establishes that the Billboard Act’s on-premises/off-premises distinction relates to the State’s aesthetic interest.
In practice, the Billboard Act’s on-premises/off-premises distinction may undermine the State’s interests. For example, a small sign with muted colors that says “Knowledge is Power” off of 1-40 would require a permit and tag, and compliance with the six-hundred-sixty (660)-foot restriction. Conversely, a large sign with loud colors that states “This property is for sale. Right here. This one. The one this sign is оn. Look at this sign. Look at this property,” would require no permit or tag, and could be placed closer to another sign and the roadway. The exempted “for sale” sign that is bigger, brighter, contains more words, and closer to another sign and road would certainly be a distraction and eyesore under the State’s evidence. The regulated “Knowledge is Power” sign, on the other hand, would be less of either. Thus, the Billboard Act’s on-premises/off-premises distinction undermines the State’s articulated interests.
In sum, the State’s aesthetic and traffic safety interests are not so compelling as to justify content-based sign restrictions, because they are unrelated to the Billboard Act’s bn-premises/off-premises distinction, and because, in practice, the Billboard Act’s on-premises/off-premises distinction undermines the State’s interests.
Despite finding that the State’s interests are not compelling, the Court will assume the State’s interests are compelling and turn to whether the Billboard Act is narrowly tailored to the State’s compelling interests.
2. The Billboard Act Is Not Narrowly Tailored to the State’s Compelling Interests
A law regulating speech is not narrowly tailored if it fails to advance the government’s interests; the law is also not narrowly tailored if it is either under- or overinclusive, and is not the least restrictive means among available, effective alternatives. See Reed,
For the reasons stated below, the Court finds that even if the State’s interests were compelling, the Billboard Act is not narrowly tailored to achievе those interests.
The State argues that the Billboard Act advances all of its compelling interests. (EOF No. 336 at PagelD 6732.) The State contends that the Billboard Act’s restrictions are fourfold: “location (zoning), spacing, size and lighting.” (Id.) The State argues that these four restrictions render the Billboard Act narrowly-tailored because
a proliferation of billboard would be detrimental to driver safety[;] ... would be a blight on the landscape, and mar the ... scenic beauty, promoting recreational travel and promoting tourism[;] ... cause more distraction ... [that] lead to more crashes, and then road conges-tioné] ... negatively impact economic development and quality of life ... [and] negatively impact the investment in safety. ...
(Id. at PageIDs 6733-37.)
The State confuses the issues. The present issue is whether the Billboard Act’s exemption and exception provisions are narrowly tailored to the State’s compelling interests. The State’s argument, however, refers to the Billboard Act generally and relies on a hypothetical, unproven negative. Without proof, the State contends that without the Billboard Act there would be a proliferation of billboards. Assuming a proliferation of signs would occur without the Billboard Act, the State has failed to establish how the provisions at issue— T.C.A. §§ 54—21—103(1)—(3), 54-21-107(a)(l)-(2)—advance the State’s compelling interests. Specifically, the State has not shown how a distinction between on-premises and off-premises signs advances aesthetics and traffic safety.
The State attempts to justify the on-premises/off-premises distinction in four ways: First, the State аrgues that “[o]n-premise signs enhance safety by helping drivers locate relevant businesses and activities.” (Id. at PagelD 6740.) Second, the State contends “[t]he impact on aesthetics [by on-premises signs] is minimal because the signs are already integrated with the current land use.” (Id.) Third, the State asserts that “[o]n-premise signs are inherently self-regulating ... [because] [o]wn-ers of businesses do not want to spend valuable real estate putting up a number of signs—that space is better utilized for the business itself.” (Id. at PageID 6741.) Fourth, off-premises signs are “designed to draw your attention away from the road to read the message displayed on the billboard or sign ... they use colorful pictures and other distractions to draw your attention ... [and thus] [t]hey serve to distract, not protect.” (Id. at PageID 6742.)
First, the traffic-safety evidence the State proffers relates to distracted driving, and the State has not established that on-premises signs are less distracting than off-premises signs. The opposite may be true. On-premises signs are not subject to permit, tag, and location restrictions, they' may be more distracting than an off-premises sign. Second, there is no evidentiary support for the State’s proposition that on-premises signs have less of an impact on aesthetics than off-premises signs. If the sign’s content concerns activity on the premises, the premise owner may make as many signs as he chooses and he may make them as ostentatious as he chooses. Third, the State’s conclusory assertion that business owners do not want to put up
The Court, therefore, finds the provisions of the Billboard Act at issue do not advance the State’s compelling interests. The Court need not inquire further. If the Billboard Act does not advance the State’s compelling interests, it is not narrowly tailored and thus is unconstitutional. For completeness, however, the Court will also consider whether the Billboard Act is over-inclusive or underinclusive, and the least restrictive means.
ii. Overinclusive
A law regulating speech is overin-clusive if it implicates more speech than necessary to advance the government’s interest(s). Simon & Schuster,
Should a prominent figure write his autobiography at the end of his career, and include in an early chapter a brief recollection of having stolen ... a nearly worthless item as a youthful prank, the [government entity] would control his entire income from the book for five years, and would make that income available to all of the author’s creditors ....
Id. at 123,
The State argues the Billboard Act is not overinclusive because it “does not reg
iii. Underinclusive
An underinclusive law regulates less speech than necessary to advance the government’s interest(s). Florida Star v. B.J.F., 491 U.S. 524, 540, 109 S.Ct. 2603,
The State argues that the Billboard Act is not underinclusive because on-premises/off-premises distinctions are content-neutral regulations under Supreme Court precedent and do not favor one message over another under Sixth Circuit precedent. (ECF No. 336 at PageIDs 6739-40 (citing Suffolk Outdoor Advertising Co. v. Hulse,
The State’s content-neutral argument is baseless; although it is possible for an on-premises/off-premises regulation to be content neutral, the Court finds the Billboard Act’s on-premises/off-premises distinction is content based because the distinction under the Billboard Act’s provisions hinges on the sign’s content. The State’s remaining arguments fail to sufficiently disprove that the Billboard Act is underinclusive by regulating less speech than necessary to advance the State’s interests.
The Court’s reasoning in the instant case mirrors the Sixth Circuit’s reasoning in Wagner v. City of Garfield Heights,
This finding is supported by the Sixth Circuit Court of Appeal’s holding in Wagner. In that post-Reed case, the Circuit Court of Appeals held that the city “ ‘similarly has not shown that limiting temporary [political] signs is nеcessary to eliminate threats to traffic safety, but that limiting other types of signs is not.’ ” Id. (quoting Reed,
For the reasons stated above, the Court finds the Billboard Act is underinclusive, as it regulates less speech than necessary to advance the State’s allegedly compelling interests.
iv. Least Restrictive Means
The .Court finds that the provisions at issue are not narrowly tailored because, they are not the least restrictive, means by which the State may further its intеrests. “If a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative.. ... To do otherwise would be to restrict speech without an adequate justification, a course the First Amendment does not permit.” United States v. Playboy Entm’t Grp., Inc.,
The Court ordered the parties to brief the issue of least restrictive means. (ECF No. 342.) Thomas posits eight alternative means that he argues would advance the State’s allegedly ’compelling interests. (ECF No. 343.) First, Thomas suggests that the Billboard Act regulate only commercial speech. (Id. at PageID 6787.) Second, Thomas proposes a regulation limiting sign size, regardless of content. (Id. at PageID 6788.) Third, Thomas suggests a spacing restriction for all signs, regardless of content. (Id. at PageID 6789.) Fourth, Thomas proposes a regulation that would allow property owners to display any sign on their property, regardless of content. (Id. at PageID 6790.) Fifth, Thomas proposes distinguishing between signs based on whether they are placed on public rights-of-way or on private property. (Id. at PagelD 6790.) Sixth, Thomas posits creating a provision that allows “non-commercial speech [to] be displayed anywhere commercial speech is permitted.” (Id. at PageID 6791.) Seventh, Thomas suggests requiring all signs, regardless of content, to be placed a minimum distance apart from one another. (Id.) Eighth, Thomas proposes restricting all signs to specific presentation characteristics, e.g., size, lights, colors, font size, electronic messages, or moving parts. (Id. at PageID 6791.)
In its response, the State contends that none of the alternatives proffered by Thomas would achieve the State’s interests. (ECF No. 344 at PagelD 6795.) The Court addresses, in turn, each of the alternatives in conjunction with the State’s responses. '
1. Non-Commercial/Commercial Distinction
First, the State contends that limiting the Billboard Act to only commercial speech “would be inherently content-based because it would require a review of the
The Court is unpersuaded by the State’s argument that limiting the Billboard Act to only-commercial speech would render the Billboard Act content based. Although this is an issue litigated in our sister courts,
2. Sign Size
Second, the State argues that Thomas “lacks standing to assert an alternative that would require all signs to conform to the same size restrictions.... [Moreover, regulating size for all signs] would not help Plaintiff because the regulations рreclude his sign no matter what size it is.” (Id. at PagelD 6799.) Both claims are groundless. The State’s first claim that Thomas lacks standing to propose an alternative is without merit. Proposing an alternative to a challenged provision does not require standing. Thomas need only establish standing to challenge the Billboard Act’s exemption and exception provisions, which he has. The Court is also unpersuaded by the State’s second assertion that regulating all signs by size would be unbeneficial to Thomas. If the Billboard Act’s on-premises/off-premises distinction was replaced with a size restriction, it is possible Thomas’s Crossroad Ford sign would be exempt
The Court finds that a size regulation, rather than an on-premises/off-premises distinction, would also further the State’s compelling interests. A size regulation would apply to both commercial and noncommercial speech. A size regulation would also allow the State to further its traffic safety interest. For example, the State could require all signs greater than four square feet to abide by the Billboard Act’s permit, tag, and location requirements. Although signs smaller than four square feet could “proliferate,” their size could be less distracting to drivers than bigger signs. Similarly, a size regulation would further the State’s aesthetic interests because the smaller unregulated signs would make far less of a negative aesthetic impact than their larger counterparts. Furthermore, the Court does not find that a size regulation would be less effective than the current on-premises/off-premises distinction. Just as on-premises signs may proliferate, so long as their content relates to on-premises activity, so may signs that meet the size restriction. Thus, the Court finds that a size regulation constitutes a less restrictive means of advancing the State’s interests.
3. Spacing
Third, the State argues that Thomas’s proposal that all signs be spaced five hundred (500) feet apart would be too restrictive. (See ECF No. 344 at PagelD 6799.) The State asserts that the current “spacing requirements [under the Billboard Act are as follows]: 1,000 feet on interstates, 500 feet on primary state routes not on the interstate system, and 100 feet on primary State routes within cities.” (Id.) A blanket 500-foot restriction, the State argues, would prevent business owners from adequately indicating their business’s whereabouts to drivers and deprive some, but not all, property owners of their right to erect a sign. (Id. at PagelDs 6800-01.) The Court does not agree with the State’s reasoning, but finds that Thomas’s specific 500-foot restriction is not an effective, less restrictive alternative.
A more nuanced spacing restriction, however, may constitute an effective, less restrictive alternative. For example, the Billboard Act could be amended to have a spacing scheme that required 2,000 feet on interstates, 1000 feet on primary state routes not on the interstate system, and 200 feet on primary state routes within cities, along with a provision that allowed business or premises owners to erect additional signs if those signs were within 75 feet of an on-premises building. This amendment would limit the number of signs that could distrаct drivers or negatively impact aesthetics, while allowing business and organizations to display signs on their own property. The Court, therefore, finds that a spacing restriction constitutes as an effective, less restrictive alternative to the on-premises/off-premises distinction under the Billboard Act.
4. Exemption for Property Owners Erecting Signs
Fourth, the State contends that Thomas’s “suggestion to allow property owners to put up signs on their own property without regard to zoning is the same as no regulation ... [and] would do absolutely nothing to prevent proliferation....” (Id. at PagelD 6801.) The Court similarly finds that Thomas’s suggestion would fall short of advancing the State’s interests. Property owners would be allowed to place signs of any size, at any distance, and of any number without regulation, which would undermine the State’s compelling interests. Thus, the Court finds an exemption for property owners is not an effective, less restrictive alternative.
Fifth, the State contends that Thomas’s proposal to “treat” all public and private property signs the “same” is confusing, unless Thomas seeks to subject all signs to the Manual on Uniform Traffic Control Devices (“MUTCD”), T.C.A. § 54-5-108(b). (Id. at PagelDs 6801-02.) The State argues, however, that these restrictions would be overinclusive. (Id. at Pa-gelD 6802.) The Court agrees. The MUTCD provisions would regulate more speech than necessary to advance the State’s interests; thus, treating all public and private signs the same would not serve as a less restrictive alternative. The Court notes, however, that an ordinance that exempted only signs . that complied with MUTCD, while requiring that all other signs abide by the Billboard Act’s permit, tag, and location requirements may be constitutional. See Ackerley Commc’ns of Massachusetts, Inc. v. City of Cambridge,
6. Permitting Non-Commercial Signs Wherever Commercial Signs are Permitted
Sixth, the State opposes Thomas’s proposal that the Billboard Act permit noncommercial signs wherever commercial signs are permitted, because the State contends the Billboard Act already permits the erection of non-commercial signs wherever commercial signs may be erected. (Id. at PageID 6803.) Sixth Circuit precedent supports the State’s argument. Wheeler v. Comm’r of Highways, Com. of Ky.,
“This line has the effect of disadvantaging the category of noncommercial speech that is probably the most highly protected: the expression of ideas.” Ackerley Commc’ns of Massachusetts, Inc. v. City of Cambridge,
I don’t know the answer. I would have to think about that. I’m not sure. You really need it to connect to the business to be an advertising. Valero wants people to think of them as good Americans and support veterans and they think that builds business. I wouldn’t think this would be a message that you could legitimately say would build business.
(Trial Tr., EOF No. 334 at PagelD 6675:16-24 (referring to Exhibit 4).) Although Valero Energy Company’s business is energy, and not veteran services or political activism, the State’s agents use a sign’s non-commercial content to deter
7. Minimum Distance Requirements
Seventh, the State argues that Thomas’s minimum distance requirements for all signs fails for the same reasons his 500-foot distance - requirement failed. (Id. at PagelD 6804.) For the same reasons discussed above, the Court finds that a distance/spaeing requirement does constitute a less restrictive alternative to the on-premises/off-premises distinction.
8. Restricting Presentation Characteristics
Eighth, the State contends that Thomas “lacks standing to challenge” regulations pertaining to the size or other presentation characteristics. (Id. at PagelD 6804.) As discussed previously, Thomas has standing to challenge the Billboard Act’s on-premises/off-premises distinction. It is unnecessary for Thomas to establish standing for his proposals of less restrictive means to the on-premises/off-premises' distinction. The State then argues that, “even if this Court were to find that the different size and presentation regulations were in fact improper, that would not help Plaintiff because the regulations preclude his sign no matter what size it is or what it looks like.” (Id. at PagelD 6805.) The State, once again, is confused. Thomas is not challenging size- or presentation-related regulations. He aims to propose а less restrictive alternative to the challenged on-premises/off-premises distinction, that. will also advance the State’s interests. For example, an alternative regulation may require all signs, regardless of content, to be a particular size, use a particular font (or a set of fonts), be limited to a particular colors, face a particular direction, or. stand at a particular height, etc. The Court finds that there are various content-neutral, presentation-related regulations that would be less restrictive than the Billboard Act’s on-premises/off-premises distinction. These presentation-related regulations would also advance the State’s interests. Signs could be required to be within the driver’s zone of vision, thus reducing distracted driving. A regulation could also require that signs be placed and sized in such a manner as to have less of an impact on aesthetics. The Court, therefore, finds that presentation-related regulations could constitute an effective, less restrictive alternative.
Having found multiple effective, less restrictive means that would further the State’s compelling interests, the Court finds the Billboard Act is not the least restrictive means to further the State’s allegedly compelling interests.
In sum, the Court finds that even if the State’s interests were compelling, the Billboard Act’s exemption and exception provisions are not narrowly tailored to achieve their purpose because they are underinclu-sive and do not constitute the least restrictive means available.
IY. CONCLUSION
For the reasons statеd above, the Court finds the Billboard Act is an unconstitu
IT IS SO ORDERED, this 31st day of March, 2017.
Notes
. Since Reed, which invalidated a municipal code that imposed different restrictions on outdoor signs' based on the signs’ message, courts have found regulations to be content based if the regulation targets or limits anyone seeking to engage in a specific type of speech. See, e.g., Champion v. Commonwealth,
. The Amicus Brief challenges Thomas’s standing by claiming his First Amendment claim is time-barred. Even if Thomas’s First Amendment claim is time-barred, it would be "grossly unfair to allow [Thomas] to go to the
. See, e.g., CTIA-The Wireless Ass'n v.City of Berkeley,
. When asked if he conducted an independent study as to how roadways impact business recruitment to Tennessee, Commissioner Schroer states,
You know, the best way I can answer that is, having talked to executives of companies that come to the State of Tennessee, they’re very clear that what we did helped them make a decision to come to Tennessee. So, you know, that’s as independent as I think I need is from the company themselves, telling me how important our capital investment was when they’re making a decision to come to Tennessee.
(Trial Tr„ ECF No. 333 at PagelD 6392:11-19.)
. Commissioner Schroer testified,
I can say as an example, in 2015 about 167 businesses relocated to the State of Tennessee with about a $5.5 billion investment.... [Tjransportation has a huge part of that and that almost all of those deals, those businesses that come in the State of Tennessee have some need of transportation. And often times it’s just the interstate system itself, they want to get their goods and products to wherever they are going. But many times they also need a road to their business to their factory or whatever it is, and we provide those as part of our process.... Volkswagen as an example has a huge plant in Chattanooga, and we spent over $30 million to open an interchange.... Academy Sports located a $1.7 million or million square feet facility in Cookeville, Tennesseethat we are providing both an interchange and an access road from the interchange into their facility.
(Trial Tr„ ECF No. 332 at PageIDs 6344:2-25-6345:1-4.)
. Although not listed as a compelling interest, the State, also mentions federal funding, and argues that although "the need to continue Federal funding may not be a ‘compelling’ State interest, it is at the least a legitimate interest that, along with the compelling interests that the State proved, shows the [sic] Tennessee has a compelling State interest (or interests) in the Billboard Act,” (Id. at PageID 6731.) This Court previously found that federal funding is irrelevant to the strict scrutiny analysis, (ECF No. 315 at PageID 6154.) Other courts agree with this finding: "[T]he desire to secure a [State's] funding is, of course, not a compelling interest that would justify the suppression of ... First Amendment speech....” Villejo v. City of San Antonio,
. The State presented these four arguments to support the proposition that the Billboard Act is not underinclusive. The Court finds, however, that these arguments also speak to whether the Billboard Act’s exemption and exception provisions advance the State's compelling interests.
. It is common knowledge in the court's jurisdiction that firework vendors signs are often numerous and flashy. See Fed. R. Evid. 201(b)(1) (“[T]he court may judicially noticb a fact that is not subject to reasonable dispute because it ... is generally known within the trial court's territorial jurisdiction.”); see also ECF No. 150 at PageID 2134-35 (“COURT: You have seen those big signs when you’re coming out of Chattanooga where you have got thе signs about fireworks—is it in Alabama? MS, JORDAN: Yes, yes. I have seen— definitely seen those, yes. COURT: Isn’t that Sign in Tennessee? MS. JORDAN: I believe that it is, I honestly don’t know. I know what you’re talking about, I know what you're referring to, I don’t know whether that’s in Tennessee or not, but it’s definitely on 1-24 and is—yeah, there’s several of those, There’s one in particular that I can—”)
. Shawn Bible, Beautification Coordinator at TDOT, when asked “would you agree that the purpose of a billboard sign is to express meaning or content to someone?” testified, “yes.” (ECF No. 334 at PagelD 6657:14-17.)
. Pursuant to Federal Rule of Evidence 702(b)(2), the Court takes judicial notice of Los Angeles Historic-Cultural Monument No. Ill "Hollywood Sign & land underneath.” Historic-Cultural Monument List: City De-dared Monuments by Planning Community (Feb, 2017), http://preservation.lacity.org/ commission/designated-historic-cultural-monuments.
. See, e.g., RCP Publications Inc. v. City of Chicago,
. The Court notes that if it were clear from the face of the statute that the Tennessee legislature would have enacted the Billboard Act with the unconstitutional on-premises/off-premises distinction omitted, the Court could sever the unconstitutional provisions while the Billboard Act’s constitutional provisions stay in effect. See Thomas v. Schroer,