Earlier this month, the Sixth Circuit Court of Appeals struck down Tennessee’s outdoor advertising statute, finding it to be content-based in violation of the First Amendment. The court’s ruling affirms an earlier ruling by a federal district court.

A billboard owner challenged the Tennessee Billboard Act after he posted a sign supporting the 2012 U.S. Olympic Team. The sign was located on vacant land, and the owner had failed to secure a permit from the Tennessee Department of Transportation for the billboard, as required by the law. The transportation department’s rationale for denying the permit was that it was not entitled to the law’s exception to permitting for on-premises signs, which the law generally defined as relating to the premises on which the sign was posted. While the TBA was generally intended to apply exclusively to commercial off-premises speech, the state’s denial of a permit to the plaintiff appeared to apply to noncommercial speech, i.e., the owner’s support for the Olympic team.

In 2013, the billboard owner sued the Tennessee transportation department in federal court, seeking to enjoin the enforcement of the TBA. The district court issued a ruling in favor of the billboard owner, but only enjoined the law’s enforcement as to his billboard. Because the law did not contain a severability clause, the effect of the court’s ruling was to invalidate the law against the plaintiff’s sign.

On appeal, the Sixth Circuit affirmed, in a broad way. Considering the on-premises exception, the appeals court concluded that the only way to determine whether a sign is on-premises is to review its content. For that reason, the court determined that the law was content based under Reed v. Town of Gilbert. The court then proceeded to apply strict scrutiny, ultimately finding that the law’s purported interests in aesthetics and traffic safety were not compelling, and in any event, that the law was not narrowly tailored to those interests.

The Sixth Circuit’s decision is remarkable for a number of reasons. The case is the first federal appellate decision invalidating a state highway advertising law in the wake of Reed. The case is also the first federal appellate decision invalidating the on-premises/off-premises distinction, which has been a common feature of sign regulation in the United States for decades. The distinction was affirmed in the Supreme Court’s 1981 case of Metromedia, Inc. v. City of San Diego, and Justice Alito’s concurrence in Reed seemed to suggest it remained valid. Other federal appellate courts, including the Ninth Circuit, have validated the on-premises/off-premises distinction in the aftermath of Reed, and this decision thus sets up a curious circuit split on the issue. Finally, the court’s application of strict scrutiny in its analysis of a law that—even as acknowledged by the court—largely regulates commercial speech indicates a decreasing gap in the judiciary’s treatment of commercial and noncommercial speech. And the court’s approach to strict scrutiny seems to suggest that even traffic safety is not a compelling government interest for purposes of First Amendment analysis.

Thomas v. Bright, ___ F.3d ___, 2019 WL 4282488 (6th Cir. Sept. 11, 2019).