First Circuit Permits Challenge to Massachusetts Prior Restraint on Billboards

billboardIn recognition of Free Speech Week, the WLF Legal Pulse celebrates what may be the First Amendment’s greatest virtue: it protects speech that may be unpopular due to the nature of the speaker or the medium within which it is spoken. We do so by applauding an October 20 U.S. Court of Appeals for the First Circuit ruling that addressed a prior restraint on a method of communication that some disfavor—billboards—and that predominantly carries messages some consider unworthy of full constitutional protection—advertisements.

Unbridled regulatory authority. Section 302 of the Massachusetts Code of Regulations requires all outdoor advertisers to obtain both an operating license and a permit for each specific sign. The regulation vests the Director of the Office of Outdoor Advertising (“Director”) with broad discretion to grant, withhold, or revoke licenses and permits for billboards. Section 302 enumerates several factors that the Director “may” consider, including “health, safety, and general welfare” and “not [being] in harmony with the surrounding area.” The regulation, however, states the listed factors are non-exclusive and that the Director’s authority is “[w]ithout limitation.”

Van Wagner Communications, which lobbied against the 2012 amendments to Section 302, filed a facial challenge to the regulation in federal court, arguing that it imposed an unconstitutional prior restraint on the company’s speech. The U.S. District Court for the District of Massachusetts held that because the Director had approved Van Wagner’s license and all 70 of its permit requests over two years, the company suffered no injury and thus lacked standing to sue.

Appeals Court Ruling. The First Circuit’s unanimous opinion in Van Wagner Boston v. Davey, authored by Judge Bruce Selya, relied heavily on a 1988 U.S. Supreme Court decision, City of Lakewood v. Plain Dealer Publishing. City of Lakewood struck down a broad municipal ordinance on the placement of newspaper distribution boxes. In response to the Commonwealth’s that argument merely being subjected to regulation does not constitute an “injury,” Judge Selya proclaimed that “such an argument flies in the teeth of City of Lakewood.” He found that just as with the ordinance at issue in City of Lakewood, Section 302 vests “unbridled discretion” in a government official, and that such authority can “prompt regulated parties to self-censor their speech.” The court also noted that Section 302’s annual relicensing requirement “enabl[ed] the decisionmaker to consider a speaker’s viewpoint over time.” Simply being subject to such a regulation, the court concluded, was sufficient injury to support a facial constitutional challenge. The First Circuit “express[ed] no opinion on the merits of Van Wagner’s First Amendment claims” and remanded the case to the federal district court.

Observations. Federal courts, as Judge Selya explained in Davey, have long taken a strong stance against prior restraints of speech. Van Wagner’s challenge is particularly interesting because billboards are widely utilized as a medium of commercial speech, and the prevailing precedents on prior restraint have addressed limits on non-commercial speech. The Commonwealth emphasized this point in its argument, one which Judge Selya found had “an ephemeral quality.” Instead of explaining that City of Lakewood‘s doctrine embraced laws targeted at expression generally, and not specifically at “pure” speech, Judge Selya related Van Wagner’s “well-pled fact” that its billboards could be used for both commercial and non-commercial messages.

We find it regrettable, though not surprising, that Judge Selya punted on this critical point. The Supreme Court’s First Amendment jurisprudence clearly reflects that “commercial” speech is as much of a bulwark of liberty as political or other forms of “pure” speech. The First Circuit should have embraced this view of commercial speech and held that the Commonwealth’s prior restraint on billboards used for advertising violates the First Amendment.

On a lighter note, we must also acknowledge Davey as a shining monument to Judge Selya’s noted linguistic talents and affection for fancy words. In this 22-page opinion, we read words like exigible, pellucid, struthious, and supererogatory. We enjoyed the simile and alliteration in:

This argument has a patina of plausibility, but upon closer examination that patina melts away like late-fallen snow on a balmy day in May.

Clearly, Judge Selya enjoys exercising his freedom to speak through obscure synonyms and fantastic phrasing.

Also published by Forbes.com on WLF’s contributor site

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