Issues In Regulating Signs Content Neutral Regulation Rule is not based on message – Example: Regulate “temporary signs”, not “political signs” or “campaign signs.” Functional View vs. Literal View (directional signs, time/temperature signs) Viewpoint Neutral Regulation is required Rule applies equally to all speakers within the defined class, does not vary by message – Example: Use “A flag is a noncommercial symbol,” not “A flag is a symbol of a 23 government.”
Issues in Regulating Signs No governmental review or discrimination against message content Rule not based on message content Focus: regulate time, place and manner Graphic design rules (fonts, colors, logos) – can be risky – need careful drafting Sign programs – rarely litigated, generally approved 24
Issues in Regulating Signs The governmental purpose is paramount in determining whether the regulation will be upheld. Controlling impacts of the sign, presenting important and substantial governmental interests? Yes. Suppressing free speech? No. 25
Issues in Regulating Signs No “ one-size-fits-all ” solution exists Strategies and desired outcome need to be tailored to the circumstances, local needs Many (most?) codes have legal issues, so borrowing can be problematic Governing law is very fact-sensitive, evolving over time, and can be unpredictable 26
Choosing the Topic? Special rules for political campaign signs Display time limits – city usually loses GK Ltd. Travel v. Lake Oswego, 436 F.3d 1064 (9th Cir. 2006) Display right based on event (election), not message content – okay Watch out for treating campaign signs more stringently than other similar temporary signs or temporary commercial signs ( i.e. , construction site signs) 27
Residential / Yard Signs Two US Supreme Court decisions Linmark Assocs., Inc. v. Township of Willingboro , 431 U.S. 85 (1977) : City cannot ban Real Estate For Sale signs – onsite residential – some states expand this Ladue v. Gilleo, 512 U.S. 43 (1994) – people must be allowed to express political / religious views at their homes • Size limits are probably okay 28
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Metromedia v. San Diego 453 U.S. 490 (1981) 90+ pages long, 5 opinions Applied Central Hudson Three basic rules: Rule 1: Government can ban billboards Rule 2: Government may not favor commercial speech (lower level) over noncommercial speech (full protection) Rule 3: Government may not pick and choose between noncommercial categories ( Mosley principle) 31
Message Substitution An easy way to avoid accidental violation of Metromedia Rule 2 (no favoring of commercial) Anywhere any legal sign displays any legal message, the message can be changed to any kind of protected noncommercial speech No permitting or approval required Every sign ordinance should include message substitution 32
Banning Signs in Traditional Public Forum Areas Traditional Public Forum – surfaces of streets, parks, sidewalks, area around city hall Complete ban on inanimate (posted, “ left behind ” ) signs on Traditional Public Fora, regardless of message type – many courts approve See Sussli v. San Mateo , 120 Cal.App.3d 1 (1981) Generally, government does not have to allow commercial speech or activities in Traditional Public Fora But, if commercial speech is allowed, then noncommercial must be allowed – the “no favoring of commercial” rule applies If any noncommercial speech is allowed, door is (usually) open to all types of noncommercial 33
Election Signs in Traditional Public Forum Burson v. Freeman, 504 U.S. 191(1992) State law: no signs or politicking within 100 feet of polls on election day Valid – justified by interest in preventing voter fraud and intimidation Narrowly tailored Extremely rare example of content-based rule concerning noncommercial speech which was sufficiently justified Some states have codified this rule 34
Government Speech The government does not need to give itself permission to express its own message on its own property First Amendment does not apply to government speech Pleasant Grove v Summum , 129 S.Ct. 1125 (2009) PETA v Gittens , 414 F.3d 23, 28–29 (D.C. Cir. 2005) (as arts patron, District was free to communicate some viewpoints while disfavoring others; guidelines announced in advance) “ Blurring the line ” problems: government adopting private speech, inviting private participation Only constitutional limit on government speech is the Establishment of Religion clause 35
Gittens Party Animals 36
Banning Mobile Billboards Bans on mobile billboards (sign trucks) on city streets have been approved many times Key issue: using the road for transportation purposes or turning it into an advertising theater? Fifth Ave Coach v. NYC , 211 U.S. 467 (1911) Railway Express Agency v. People of New York , 336 U.S. 106 (1949) Showing Animals Respect and Kindness v. West Hollywood , 166 Cal.App.4th 816 (2008) BUT – beware of possible pre-emption under state law (any licensed and registered vehicle can use the public roads and streets) 37
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What is a Digital Sign? Physical method of image presentation Electronic display uses LCD, LED, plasma, or projected images Much finer detail than traditional freeway info signs or sports stadium scoreboards Full color, digital effects Images easily changed – slide show or full motion, even interactive – giant TV 39
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Digital Signs: the New Frontier in On and Off Premise Signs Fast-moving technological developments leading to sophisticated signs that are economically feasible to deploy Can display full motion video, with sound and special effects like smoke or odors Safety and status under the Highway Beautification Act to be addressed by Bill and Jerry Costs coming down because of economies of scale and competition 41
Regulating Digital Signs Factors in regulation include whether to allow animation or motion, length of delay in change of static advertising messages, standards for illumination Much more expensive to install, but generate much more revenue Much more expensive to remove – road widening, redevelopment, private property rights statutes. Consider cumulative impact on aesthetics and safety 42
Best Practices Okay to ban digitals, but watch out for exceptions that undermine the prohibition. Naser Jewelers v. City of Concord New Hampshire, 513 F.3d 27 (1 st Cir. 2008); Carlsons Chrysler v. Concord (NH Supreme Ct); Metromedia, Inc. v. City of San Diego , 453 U.S. 490 (1981) If not a complete ban, regulate where and when they are allowed 43
Digital Signs and the Highway Beautification Act Controls billboards along freeways and interstates 44
“DIGITAL” BILLBOARDS AND THE HIGHWAY BEAUTIFICATION ACT (HBA): PENDING FEDERAL LITIGATION Most “digital” billboards now operating in the United States are located along federal interstates and federal-aid primary highways, and are subject to the federal HBA (known as the Lady Bird Act). Scenic America, Inc. v. United States Department of Transportation , et al., Case No. 1:13-cv-00093-JEB, in the United States District Court for the District of Columbia. Suit filed on January 23, 2013. Lawsuit challenges a Federal Highway Administration “Guidance Memorandum” dated September 25, 2007. Core issue: whether “digital” billboards that display commercial messages by utilizing LEDs, changing every 4-10 seconds, violate the HBA’s mandatory customary use standards as implemented through Federal State Agreements. The history of the HBA and the implementation of its restrictions on size, lighting, and spacing-to what was then customary use-is critical to an understanding of the legal issue framed in the suit. 45
HIGHWAY BEAUTIFICATION ACT TIMELINE RE: BANNING INTERMITTENT LIGHTING 1965 – October 22, 1965: HBA enacted. Limits size, lighting, and spacing on interstates and federal-aid primary highways in commercial and industrial zoned areas to what was then “Customary Use.” 1966 – March-May. Public hearings in every state. Six committees established. General Counsel’s Report released. Intermittent lighting only to display Public Service Information (time, date, temperature). 1967 – First State-Federal Agreement (Vermont). 1968 – HBA Amendment. Only 12 Agreements in place. Five more years to complete the process. 1973 – Last State-Federal Agreement (South Dakota). 46
HBA TIMELINE (2) 1978 HBA Amendment - House-Senate Conference Committee rejects House proposal to allow Commercial Electronic Variable Message Signs (CEVMS) for off-site signs under the HBA. 1990 - FHWA: CEVMS/Billboards are Illegal. 1996 - FHWA: intermittent lighting signs not allowed. 2007 - FHWA internal controversy over letter and spirit of the HBA. Guidance Memo issued on September 25, 2007. FOIA request by Scenic America led to disclosure of internal fight over agency action. No discussion of 1966 Public Hearings or the 1978 rejection of a change to the HBA to allow CEVMS. 47
HBA TIMELINE (3) 2007 – FHWA Guidance Memo states that every 4 seconds would not be deemed intermittent. This would mean that 21,800 times per day would not be deemed “intermittent.” 2009 – Scenic America consults with Georgetown Law Center’s Institute for Public Representation (IPR). 2010 – Scenic America (through IPR) files petition for rulemaking. FHWA promises to address it ASAP. Rulemaking petition then ignored for three years. Digital billboard proliferation spreads based upon FHWA Guidance Memo. 48
HBA TIMELINE (4) 2012 - Scenic Arizona victory in state appellate court. Digital billboards that change every 8 seconds are intermittent and illegal. Scenic Arizona, Inc. v. City of Phoenix Board of Adjustment, et al. , 228 Ariz. 419, 268 P.3d 370 (Ariz.Ct.App. 2012). 2012 - Rutgers Law Review Article – Digital Billboards Violate Letter and Spirit of HBA. 2013 – Scenic America files lawsuit against USDOT and FHWA. Outdoor Advertising Association of America (OAAA) intervenes. USDOT, FHWA and OAAA file motions to dismiss, which are denied. 49
HBA TIMELINE (5) 2013 (October 23, 2013) – U.S. District Court denies motions to dismiss with a 24-page memorandum opinion. Discussed below. 2014 (January-April) – Briefing schedule for any and all cross motions for summary judgment. Final brief due on April 11, 2014. 50
President Johnson Signs HBA February 8, 1965 • Association with beauty can enlarge man’s imagination and revive his spirit. • Ugliness can demean the people who live among it. • What a citizen sees every day is his America. • If it is attractive, it adds to the quality of his life. • If it is ugly, it can degrade his existence. 51
HBA: The Lady Bird Act Enacted on October 22, 1965 52
The “Customary Use” Provision Added to the HBA (as underscored) During Its Consideration in the House In order to promote the reasonable, orderly and effective display of outdoor advertising while remaining consistent with the purposes of this section, signs, displays, and devices whose size, lighting and spacing, consistent with customary use is to be determined by agreement between the several States and the Secretary, may be erected and maintained… 53
The 1966 Hearings Section 303 of the federal HBA required public hearings in each state. Took place in March-April-May, 1966. 8,000+ attended and 2,000+ testified. For what purpose? … for the purpose of gathering all relevant information on which to base such standards, criteria, and rules and regulations . … report to Congress not later than January 10, 1967 all standards to be applied . 54
1966 Hearings; Six Committees Six committees established to review the relevant information. One committee evaluated the criteria for size, lighting and spacing of signs permitted in commercial or industrial zones; evaluation of customary use for size, lighting and spacing. Report of the Bureau of Public Roads’ General Counsel Lowell Anders was made on July 12, 1966 at the Workshop on Highway Law in Boulder, Colorado. Report attached to Circular Memorandum distributed by Deputy Director of the Bureau of Public Roads on July 19, 1966. 55
General Counsel Ander’s Report --July 12, 1966 Our first lighting requirement would prohibit flashing, intermittent or moving lights except those giving public service information such as time, date, temperature, weather or similar information . 56
General Counsel Ander’s Report -- July 12, 1966 (cont’d) • During the [1966] public hearings testimony from Industry spokesmen made it clear that it is customary in outdoor advertising to provide public service information on signs , by the use of intermittent or moving lights . 57
Typical Federal State Agreement --1968 (California) February 15, 1968 - California Federal State Agreement (7th agreement). Typical agreement identifying “customary” use for “Lighting” as follows: Lighting: Signs . . . shall not include . . . flashing, intermittent or moving lights ( except that part necessary to give public service information such as time, date, temperature, weather or similar information); 58
South Dakota – 1973 -- Last Federal State Agreement LIGHTING Signs may be illuminated, subject to the following restrictions: Signs which contain , include, or are illuminated by any flashing, intermit- tent , or moving light or lights are prohibited, except those giving public service information such as time, date, temperature, weather, or similar information . 59
August 18, 1978 Discussion on Floor of U.S. Senate 124 Cong. Rec. S26,917-18 Mr. JACKSON. . . . Purely and simply, what this amendment will allow is the use of electronic signs on the premises of businesses adjacent to interstate highways. It does not extend beyond this as some have advocated to off- premise commercial and industrially zoned properties. That is an entirely different matter . . . . Mr. STAFFORD. Mr. President, I do, indeed, share the same concern as the distinguished manager of the bill on the majority side, with respect to further electronic signs beyond those which might be under this amendment authorized on premise for activities carried on premise . . . . I have examined the existing law and the amendment of the distinguished Senator from Washington (Mr. Jackson). . . . Mr. President I want to register my concern over any proliferation of these electronic signs off premise. My concern is that these signs, if sanctioned off premise, may be a threat to highway safety . 60
August 18, 1978 Discussion on Floor of U.S. Senate 124 Cong. Rec. S26,917-18 (cont’d) Mr. STAFFORD: . . . As I understand the distinguished Senator’s amendment it removes any Federal barrier only to electronic signs which provide public service information or advertise activities on the property on which they are located . This does not change Federal regulations forbidding these signs in commercial or industrial areas, where the signs are not on premise. Is that correct? Mr. JACKSON. That is correct. 61
The 1978 Amendment to the HBA Surface Transportation Assistance Act of 1978 (November 6, 1978) • The House version would have allowed “commercial” electronic variable message signs (CEVMS) under the HBA. • The House version to change the HBA failed in Conference Committee on Oct. 14, 1978. • The Senate version, advocated by Senator Jackson, was adopted in lieu of House version. This was the topic of the colloquy on the Senate floor on August 18, 1978 (above). 62
FHWA Memo Jan. 19, 1990 Director of Right-of-Way We have received several inquiries concerning the off- premise advertising use of commercial electronic variable message signs (CEVMS) which change their advertising messages by electronic process or remote control. These outdoor advertising signs use various types of evolving technology such as lights, glow cubes, rotating slats, moving reflective disks, etc. FHWA has interpreted the Federal law as implemented under individual state/federal agreements to prohibit off-premise variable message signs, irrespective of the method used to display the changing message. The prohibited CEVMS must be considered to be illegal. 63
FHWA Memo July 17, 1996 Director of Right of Way In nearly all States, these signs may still not contain flashing, intermittent or moving lights. Note: The 1996 FHWA memo does not refer to “commercial” electronic variable message signs, but to “changeable” message signs. The available record does not indicate whether the change in terminology was deliberate or inadvertent. 64
FHWA CHANGES ITS POSITION September 25, 2007 - Guidance Memorandum Signed by Associate Administrator FHWA changed its longstanding interpretation of the HBA on September 25, 2007 re: intermittent lighting. FHWA advised that a range of acceptability was between 4-10 seconds and recommended 8 seconds for the frequency of a changeable message sign utilizing lights. FHWA again omitted the term “commercial” in describing the variable message signs and made no reference to the public service information exceptions set forth in the FSAs. In 2013 U.S. District Judge Boasberg described it this way: “In 2007, the Federal Highway Administration issued a ‘Guidance’ that paved the way for the construction of digital billboards along the nation’s highways. . . . Historically, the FHWA believed that digital billboards violated key language in federal-state agreements related to the Interstate Highway System.’ 65
FHWA Stalls 2009-2012 Federal lawsuit filed 2013 Efforts were undertaken by Scenic America to have FHWA and USDOT reconsider the Guidance Memo. A formal petition for rulemaking was unanswered for three years. In 2012, two significant events occurred. A state appellate court in Arizona ruled that digital billboards did use intermittent lighting. A law review article concluded that FHWA had failed to adhere to the letter or spirit of the HBA. On January 23, 2013, Scenic America filed suit. On October 23, 2013, U.S. District Judge Boasberg denied motions to dismiss filed by USDOT, FHWA, and intervenor OAAA. A briefing schedule will conclude in April 2014. 66
Excerpts from U.S. District Court Opinion Oct 23, 2013 “Historically, the FHWA believed that digital billboards violated key language in federal-state agreements related to the Interstate Highway System.” “But the agency recently shifted gears and gave the green light to its Division Offices by providing a new interpretation of that language that would permit digital billboards in certain circumstances.” Court’s Overview of Scenic America’s claims: 67
US Dist. Ct. Summarizes Scenic America’s Position “First, it is a legislative rule promulgated without the notice-and-comment procedure required by the APA. See 5 U.S.C. § 553.” “Second, it creates new lighting standards for billboards without "agreement between the several States and the Secretary [of Transportation]," as required by the HBA. See 23 U.S.C. § 131(d).” “[Third], it establishes lighting standards for billboards that are inconsistent with "customary use," another violation of the HBA. See id.” 68
Court Opinion re: Scenic America’s Standing and Injury “Prior to the Guidance, most States did not allow digital billboards because they did not believe that the language of their FSAs [Federal State Agreements] or the decision makers at the FHWA would permit such proposals.” “After the Guidance, States may now successfully petition the FHWA to amend their regulations to allow the construction of such billboards because the agency has made clear its position that doing so does not violate their FSAs.” 69
Court Rejects Claim that the Guidance Was Not Final Agency Action “It is clear that the 2007 Guidance reflects the ‘consummation of the [FHWA]’s decision-making process’ on the issue of whether digital billboards violate FSA prohibitions on ‘flashing,’ ‘intermittent,’ or ‘moving’ lights. Id.” “The Guidance states plainly, and in bold, that ‘Proposed laws, regulations, and procedures that would allow permitting CEVMS subject to acceptable criteria (as described below) do not violate a prohibition against “intermittent” or “flashing” or “moving” lights.’ 2007 Guidance at 1-2 (emphasis added).” 70
Court Rejects Claim that the Guidance Was Not Final Agency Action (cont’d) “Nothing else in the document suggests that the FHWA’s conclusion on this point is ‘tentative, open to further consideration, or conditional on future agency action.’ City of Dania Beach, Fla. v. FAA, 485 F.3d 1181, 1188 (D.C. Cir. 2007).” “The 2007 Guidance does not just announce the FHWA’s vision of the law – that digital billboards are not ‘flashing,’ ‘intermittent,’ or ‘moving’ lights; it also commands Division Offices to turn that vision into reality.” 71
More Excerpts from Court Opinion re: FHWA’s Interpretation of the Law “Here, where Scenic America’s challenge is not to the FHWA’s failure to enforce the law but rather to its interpretation of the law, the Court believes it better to stick with the traditional ‘adequate remedy’ inquiry by ‘focus[ing] on whether [the] statute provides an independent cause of action or an alternative review procedure.’ El Rio Santa Cruz, 396 F.3d at 1270.” “As Defendants do not allege that HBA provides either in this case, Scenic America may bring its claim under the APA.” 72
Recap – Scenic Arizona Decision “Because the combination of LEDs used to display each brightly lit image on the billboard changes every eight seconds, the billboard’s lighting necessarily is intermittent under the plain meaning of the statute. Thus, we are not persuaded by American Outdoor’s attempt to exempt its billboard from the bar on intermittent lighting.” “The billboard uses multiple arrangements of lighting to display images that stop and start at regular intervals, which means it uses intermittent lighting.” Scenic Arizona, Inc. v. City of Phoenix Board of Adjustment, et al. , 268 P.3d 370, 378 (Ariz.App. Div. 1 2012). 73
Recap – Rutgers Law Review “A court need not consult a dictionary to know that digital signs violate the letter and spirit of the HBA, and the failure of the FHWA to do its part "to promote the safety and recreational value of public travel, and to preserve natural beauty" has created an imbalance of power that leaves the general public at a loss.” - Quote from Between Beauty and Beer Signs: Why Digital Billboards Violate the Letter and Spirit of the Highway Beautification Act of 1965 , Susan C. Sharpe, Rutgers Law Review, Vol. 64, Issue 2, (Winter 2012), at pp. 325-326 74
Recap – 1966 Post- Hearings Report • Our first lighting requirement would prohibit flashing, intermittent or moving lights except those giving public service information such as time, date, temperature, weather or similar information. • During the [1966] public hearings testimony from Industry spokesmen made it clear that it is customary in outdoor advertising to provide public service information on signs , by the use of intermittent or moving lights 75
Traffic Safety and Digital Signs Accepting the Technology – Reducing the Risks The Veridian Group, Inc. 76
Some Common Distractions While Driving Disciplining children Cell phones Grooming Texting Reading Entertainment systems Eating Navigation systems Viewing scenery Adjusting temperature Reading signs* Talking with passengers *Even reading official traffic signs is a distraction from driving; that’s why there is constant research to ensure that they are as simple and obvious as possible. The Veridian Group, Inc. 77
Billboards are the only roadside objects designed and intended to distract the driver. The driver cannot choose the time or place to accept distraction by the billboard. The Veridian Group, Inc. 78
Digital signs are far more effective than conventional billboards at triggering distraction, and keeping the driver distracted longer. There are two principal reasons and a host of unstudied but growing concerns The Veridian Group, Inc. 79
Digitals Can Change their Message at Will Typical “dwell time” is 6-8 seconds. The more frequent the change, the more the billboard appears to “flash” when approached. This is called apparent motion Think of a theater marquee where the “movement” of light is only the pattern of individual bulbs turning on and off in sequence. The message change draws the eye because of its intermittently changing color and brightness. A simple solution exists – employ a formula that extends message duration to minimize apparent motion to drivers. The Veridian Group, Inc. 80
Digitals are far brighter at night than conventional billboards, and far brighter than needed Conventional billboards use floodlights to illuminate the sign at night. Digitals are “self-illuminated” The LEDs that form the message are also the light source. Digitals, even when dimmed at night, can be the brightest object in the view. Research shows that these bright lights attract our attention, even unconsciously (“moth effect”) But we can easily reduce nighttime brightness to acceptable levels. The Veridian Group, Inc. 81
Digital Billboards - the Brightest Objects in the Field of View This DBB is 6 miles from the camera This photo is exposed normally for the scene. The Veridian Group, Inc. 82
Digital Billboards - the Brightest Objects in the Field of View This DBB is 6 miles from the camera This photo is exposed normally for the scene. The Veridian Group, Inc. 83
Digital Billboards - the Brightest Objects in the Field of View This DBB is 6 miles from the camera This photo is exposed normally for the scene. The Veridian Group, Inc. 84
Digitals have new techniques to capture the driver’s attention and hold it longer. Message Sequencing Personalization Interaction Knowing who you are to better target ads Moving with you in traffic The Veridian Group, Inc. 85
Message Sequencing Advertisers use the Zeigarnik Effect to hold the viewer’s attention longer. They reveal only part of the message at a time. • This maintains suspense; hence interest. 80 years ago, Burma Shave spaced 6 small signs along the road, each containing one line of a poem. • The final sign displayed their logo. They were highly successful, and became an icon. • But speeds were lower then, and traffic lighter. The Veridian Group, Inc. 86
Artist’s Rendering of Burma-Shave Signs The Veridian Group, Inc. 87
Today, digitals reveal parts of a message at a time Either on a single sign The Veridian Group, Inc. 88
Today, digitals reveal parts of a message at a time Either on a single sign The Veridian Group, Inc. 89
…or by starting the message on one sign, and completing it on another The Veridian Group, Inc. 90
…or by starting the message on one sign, and completing it on another Message Message Part 1 Part 2 The Veridian Group, Inc. 91
Digitals send personalized messages to the driver The Veridian Group, Inc. 92
They encourage texting and bar code scanning All from the comfort of the driver’s seat. The Veridian Group, Inc. 93
They encourage texting and bar code scanning All from the comfort of the driver’s seat. The Veridian Group, Inc. 94
Some use cameras capable of driver facial recognition …others use automated license plate readers to know where you are. The Veridian Group, Inc. 95
Some use cameras capable of driver facial recognition …others use automated license plate readers to know where you are. The Veridian Group, Inc. 96
And they can display video (and audio) messages on trucks moving in traffic. The Veridian Group, Inc. 97
But the new threat is from on-premise signs Zoning controls were originally meant to protect mom-and-pop stores. Now we have mega-malls, casinos, arenas. On-premise signs can be: • Larger • Closer to the road • Brighter • And can display full-motion video, sound, even aromas Our focus on safety must adjust. The Veridian Group, Inc. 98
This video sign is 7-stories high, adjacent to an elevated highway. The Veridian Group, Inc. 99
What about the research? Billboard safety research for more than 70 years . 5 basic study types: Critical literature reviews • Show strengths and weaknesses of studies done; explain findings. Theoretical research • Help explain behavioral observations, validate principles and constructs On-road research • Show performance under realistic but constrained settings; small sample sizes High fidelity driving simulators. • Good control of variables – but real world applicability must be shown Statistical analyses of crash info • Crash data is the “gold standard,” but… • Can’t control for real world variables • Limited to post-hoc summary reports • Studies often biased • Few crash report forms even allow for distraction (except phoning/texting) • Drivers rarely volunteer this information - fear points on license/ insurance rate increases • When they do volunteer (in 3 studies) they report actual crashes or near misses The Veridian Group, Inc. 100
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