In a decision that could have far-reaching consequences, earlier this year, a federal court in New York found a town law requiring the placement of warning signs on utility posts violated the First Amendment as a content based restriction on noncommercial speech.

In 2014, the Town of North Hempstead, New York adopted a local law requiring warning signs on utility posts in the town. The law came about following local opposition to the erection of a new overheard electricity transmission line through the town. As part of the project, the Long Island Power Authority (LIPA) and PSEG Long Island LLC (PSEG) placed new utility poles along existing right-of-ways. The new poles were, like the prior poles, treated with a chemical called pentachlorophenol (“Penta”), which was used for the purpose of preventing damage to the wood poles. Around April 2014, opponents of the project unsurfaced EPA information suggesting that Penta was harmful to human health. In June 2014, the Town Supervisor announced that the town would consider local bills to require the placement of warning signs on the utility poles advising the public of the dangers of Penta. The town bill was eventually approved in September 2014.

In January 2015, LIPA and PSEG commenced a judicial action in federal court, alleging violations of the federal and New York constitutional provisions pertaining to freedom of speech, alleging that the local law was vague and overbroad, and also arguing that the town’s law was preempted by state statutes giving the New York State Department of Environmental Conservation jurisdiction over Penta and other pesticides.

On summary judgment, the court found that the warning signs in question constituted noncommercial, as opposed to commercial, speech. Generally, the government may require mandatory disclosures with respect to commercial speech, but the government’s power to compel certain speech is far more circumscribed in the area of noncommercial speech. In the court’s words, “the warning signs bear no discernible relationship to the Plaintiffs’ products, services, or other commercial interests, and are therefore outside the purview of the commercial speech doctrine.” The court also found that the speech in question was not government speech, since the government was not speaker on the signs in question and the government appropriated no funds in order to transmit the message.

Moving on to strict scrutiny analysis, the court found that the town had neither a compelling interest in the warning signs nor were the signs narrowly tailored to the government’s interest. In the court’s eyes, the town could have chosen to convey its message through television advertising, public education campaigns, or signs on public property, even though the town argued that placing warning signs on the utility poles was more effective. Per the court, the town failed to establish that there was a serious public safety concern regarding Penta, and further failed to provide evidence supporting the efficacy of its chosen method of addressing public safety concerns.

This case reflects a growing trend in which courts place exceedingly high evidentiary demands on local governments to demonstrate the importance of asserted governmental interests and to justify the means selected to further such interests. Furthermore, this case has uncovered the most significant problem with Justice Thomas’s suggestion in Reed that local governments can satisfy strict scrutiny by demonstrating interests in public safety: the lower courts are generally unwilling to find in favor of the government when strict scrutiny is applied, and there is virtually no clear standard for determining whether a local government’s safety interests are actually compelling. While the court in PSEG v. Town of North Hempstead may have been swayed by the nature of public opposition to the new utility line, it seems that Justice Breyer’s worst nightmares about content neutrality—that necessary government safety warnings might become unconstitutional—may be coming true.

PSEG Long Island LLC v. Town of North Hempstead, 158 F.Supp.3d 149 (E.D.N.Y. 2016).