Digital Signs and Billboards: g g Crafting and Enforcing Local - PowerPoint PPT Presentation

Presenting a live 90 ‐ minute webinar with interactive Q&A Digital Signs and Billboards: g g Crafting and Enforcing Local Regulations Evaluating Siting Issues, Environmental Concerns and Revenue Sharing Opportunities TUES DAY, JUNE 7, 2011 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific T d Today’s faculty features: ’ f l f Randal R. Morrison, Partner, Sabine & Morrison , S an Diego S usan L. Trevarthen, Member, Weiss Serota Helfman Pastoriza Cole & Boniske , Fort Lauderdale, Fla. Jerry Wachtel, President, The Veridian Group, Inc. , Berkeley, Calif. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .

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Digital Signs and Billboards: Crafting and Enforcing Defensible Crafting and Enforcing Defensible Local Regulations S san L Tre arthen Esq Susan L. Trevarthen, Esq., A.I.C.P. A I C P Weiss Serota Helfman Pastoriza Cole & Boniske, P.L. Ft. Lauderdale, FL * 954-763-4242 STrevarthen@wsh-law.com ST th @ h l Randal R. Morrison, Esq. Sabine & Morrison * PO Box 531518 Sabine & Morrison * PO Box 531518 San Diego CA * 92153-1518 * 619.234.2864 www.signlaw.com * rrmsignlaw@gmail.com Jerry Wachtel, C.P.E. The Veridian Group, Inc. * Berkeley, CA * 510-848-0250 jerwachtel@aol.com

The First Amendment (1791) The First Amendment (1791) Congress shall make no law: [1] respecting an establishment of religion, or [2] prohibiting the free exercise thereof; or 2 f f [3] abridging the freedom of speech , or [4] of the press ; or [4] f th [5] the right of the people peaceably to assemble and assemble , and [6] to petition the Government for a redress of grievances. g 6

First Amendment and Sign Reg First Amendment and Sign Reg  Fourteenth Amendment makes the First applicable to all levels of government pp g  Freedom of Speech clause  Most state constitutions have corresponding p g protections  Some state courts say the protection is y p broader under the state constitution • Most extreme example: Oregon 7

Protected Speech, Lower Level Not Protected Protection Protection Expressive E i Conduct  Flag desecration Fl d i  Commercial C i l  Defamation D f i Speech  Racist/sexist  Obscenity or child comments  Erotic or Adult pornography Entertainment E t t i t  Political  Perjury that does not  Religious  Fighting words meet the legal  Social commentary y  Criminal definition of definition of conspiracies  “God Hates Fags” “obscene”  Threatening life of President or VP  Violent or destructive acts  Deceptive  Deceptive commercial speech 8

Standard of Review Standard of Review Typical Land Use – City Usually Wins See, e.g., Haves v. City of Miami , 52 F.3d 918 (11th Cir. 1995).  De novo review: No need for record or detailed statement of legislative intent. After-the-fact justification g j allowed.  Rational basis: Is it rational to think that this action or regulation will advance any legitimate governmental regulation will advance any legitimate governmental interest?  Fairly debatable standard: If it’s a tie, the government wins (“the tie goes to the runner”). i (“th ti t th ”)  Presumed constitutional: Courts will not assume that local government intended to violate the Constitution. 9

Standard of Review Standard of Review Signs - City May Lose g y y See, e.g., Tipp City v. Dakin, 929 N.E.2d 484 (Ohio App. 2 Dist. 2010)  Enhanced judicial scrutiny  Not presumed constitutional  Generally no greater regulation than  Generally, no greater regulation than necessary to advance a substantial governmental interest  Need clear, detailed statement of intent (and N d l d t il d t t t f i t t ( d record) to establish the governmental interest, and that this regulation advances the interest 10

Di Discretion = Legal Risk ti L l Ri k  In the typical land use case, courts usually defer to local government’s discretion and policy choices policy choices  In First Amendment land uses (signs, billboards, adult uses, newsracks, religious facilities) – discretion is limited, and using discretion creates real legal risk  Courts want “narrow objective rules ” not tied to  Courts want narrow, objective rules, not tied to message, that are consistently enforced 11

Issues In Regulating Signs g g g Content Neutral Regulation is required  Rule is not based on message Rule is not based on message   • Functional View vs Literal View Viewpoint Neutral Regulation is required  Rule applies to all speakers equally and  does not vary by message No governmental review of message content No governmental review of message content   Rule has no relationship to 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 Sign programs rarely litigated, generally   approved 12

Issues in Regulating Signs Issues in Regulating Signs  The governmental purpose is paramount  The governmental purpose is paramount in determining whether the regulation will be upheld. p  Controlling impacts of the sign, presenting important and substantial presenting important and substantial governmental interests? Yes.  Suppressing free speech? No  Suppressing free speech? No. 13

Issues in Regulating Signs Issues in Regulating Signs  No “one-size-fits-all” solution exists  Strategies and desired outcome need to be tailored to the circumstances  Many (most?) codes have legal issues, so borrowing can be i b i b problematic  Governing law is very fact-sensitive, Governing law is very fact sensitive evolving over time, and can be unpredictable unpredictable 14

Medium and Message Medium and Message Billboards, then, like other media of communication, combine communicative and noncommunicative aspects. As with other media, the government has legitimate interests in controlling the noncommunicative aspects of in controlling the noncommunicative aspects of the medium, but the First and Fourteenth Amendments foreclose a similar interest in controlling the communicative aspects controlling the communicative aspects. Metromedia v. San Diego, 453 US 490 (1981) 15

Sign Regulator’s Mantra Sign Regulator s Mantra  The medium is NOT the message.  The medium is NOT the message.  Mantra: we regulate the medium, not the message. g  Time, Place and Manner (TPM) rules  Apply without regard to message  Apply without regard to message  Size, height, setback, illumination, separation, location, display method sepa at o , ocat o , d sp ay et od  If you follow the mantra, most courts approve the sign rules pp g 16