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FALL 2008ISSUE 2 VOL. 2

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Digital Sign TechnologyPoses New Legal and Policy Challenges

Kathyrn Mehaffey, Esq.

As sign technology changes, so do the challenges local governments face in preserving the safety and character of their communities. Does regulating new d ig i t a l t echno logy ra i se constitutional concerns? The answer, as with any sign regulation, is yes.

These new digital or electronic, internally lit ad, billboard or message boards (referred to herein as “digital signs”) range from relatively simple LED light boards to h i g h - r e s o l u t i o n , mul t icolor d igi ta l screens of almost any size or shape. They c a n b e r e m o t e l y programmed to change at any time, and allow the display of text and images in motion or alternating static displays which can change every few seconds. In short, digital signs are more like a flat screen TV than an old-fashioned billboard painted with a single message.

These signs allow for dramatic variations in light intensity. News reports have emerged around the country of residents complaining of their inability to sleep, due to the permanent daylight enveloping their homes when one of these signs is constructed nearby.

Are digital signs safe? As suggested above, these signs can

be mesmerizing and distracting to drivers. To date, there has not been a large-scale, independent study of the impacts of digital signs. While several studies have found a correlation between digital billboards and increased traffic accidents, there are

also studies which have concluded there 1

is no correlation. The Federal H i g h w a y A d m i n i s t r a t i o n h a s commissioned an independent study to determine if digital billboards will cause traffic disruptions. Results of the study are expected by the end of 2009, and will be presented to Congress.

What is the impact of digital signs on municipalities?

In addition to traffic safety concerns, impacts on a e s t h e t i c s a n d pedestrian safety create significant issues for local governments. The courts have found that these concerns provide legit imate

interests to support the regulation of 2signage generally, as well as of digital

3signage. Condemnation of digital signs can

be much more expensive than of conventional signs. If a road must be widened and a digital sign removed, the cost of condemnation is likely to be much higher because the sign structure itself is more costly and because digital signs are more profitable. In the event a local government chooses to impose an amortization schedule on non-

4conforming onsite signs, the analysis of the amortization period should factor in the increased cost. The income-generating potential of a digital billboard is estimated to be three to ten times that of a standard, single-face billboard sign.

How can local governments effectively regulate digital signs?

Continued on page 3

Digital Sign TechnologyPoses New Legal andPolicy Challenges

Political Signs: BalancingCommunity Appearanceand the First Amendment

A Decision that “Affects”The Right to Vote onLand Use

IN THISISSUE

In short, digital signs are more

like a flat screen TV than an old-

fashioned billboard painted

with a single message.

In the aftermath of the recent presidential election, local governments may be thinking about how to deal with the clutter of abandoned or forgotten campaign signs and preventing the affront to community aesthetics in future election seasons. While ensuring that a community's character remains aesthetically pleasing and consistent are usually valid reasons to exercise police power, hastily drawn political sign regulations run the risk of trampling First Amendment rights.

Political signs include signs espousing a political point of view (“Save the Planners”), as well as election and campaign signs, and may be temporary or permanent. These ideological messages are precisely the types of expression the framers of the Constitution sought to protect. The government cannot pick and choose which issues and ideas can be presented. A knee-jerk reaction may be to ban political signs altogether on the basis that a ban is viewpoint neutral; however, such a ban is unconstitutional because the right to free expression outweighs the otherwise legitimate police power purposes to alleviate clutter and maintain community aesthetics.

Another seemingly easy fix is to limit the time during which political signs can be posted before an election. However, many of these duration-limiting ordinances have not withstood judicial scrutiny. They have been deemed unconstitutional where they favor other non-political temporary signs and commercial messages by not similarly restricting their duration. Likewise, attempts to require a special permit, registration fee or removal bond on political signs will be invalidated, unless the requirement applies equally to all temporary signs and is applied in such a manner that it does not amount to a prior restraint on free speech.

Courts have held that sign regulations that single out and impose greater restrictions on political speech than on other types of noncommercial or commercial speech are subject to strict scrutiny, which is essentially a death knell for the regulation under review. However, this does not mean that governments are powerless to regulate signs in their communities.

So, what can a municipality do to address the issue? To begin with, campaign signs should be regulated generally as noncommercial speech under the umbrella of temporary signs. Second, the regulation should recognize that not all political signs are temporary in nature. For example, a “Stop the War in Iraq” sign could have been posted for several years now and still remains relevant. Third, the location of the political sign needs to be considered.

In a traditional public forum (e.g., public parks, public sidewalks, and sidewalks surrounding major governmental

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bui ld ings) , the Fi rs t Amendment pro tec ts noncommercial speech. However, an ordinance can prohibit posting or leaving behind signs in traditional public forums and require that signs must be hand-held or personally attended. On government properties that are not traditional public forums (e.g., interiors of airports and advertisements on buses and trains), a municipality can ban all noncommercial signage while permitting commercial advertising. A key point to note is that if any noncommercial message is allowed, then political speech must be given an equal opportunity to be heard in those forums also.

The requirement that government cannot impose greater restrictions on noncommercial speech than on commercial speech also applies to private property. If

the municipal code permits commercial speech, it must provide noncommercial speech with equal opportunities to display its message. A municipality may limit the display area or size of the political sign as a proper time, place and manner regulation. A regulation is a permissible time, place and manner regulation if it is content-neutral, reasonable, and leaves open

alternative avenues of communication.The tightest sign controls on private property are

often in single-family residential zones. Political expression is still constitutionally protected and is in fact mandated. Commercial speech must also be allowed in single-family residential zones; real estate signs may not be banned because their message cannot be as effectively conveyed in any other setting. Thus, ordinances which equally apply to all similar signs and place a limit on the size, height, and cumulative display area will likely be upheld. This can include a rule that allows multiple messages on one sign, so long as it meets the size, height, and display area requirements of the regulation or multiple signs that meet the size and height requirements and do not exceed a cumulative display area. However, restricting the number of temporary signs per political issue or per property may not pass constitutional muster.

It is easy to inadvertently favor commercial speech over noncommercial speech. One measure to protect a municipal code from this commercial flaw is to insert a substitution clause in the enacting ordinance. A substitution clause works somewhat like an insurance policy by automatically allowing noncommercial speech where it may have been limited, as shown in the following example:

“Notwithstanding any provision of this chapter to the contrary, to the extent that this chapter allows a sign

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POLITICAL SIGNS: BALANCING COMMUNITY APPEARANCEAND THE FIRST AMENDMENT

Michelle Vos, Esq.

W h i l e e n s u r i n g t h a t a community's character remains aes the t i ca l l y p leas ing and consistent are usually valid reasons to exercise police power, hastily drawn political sign regulations run the risk of trampling First Amendment rights.

Continued on page 4

Digital Sign Technologycontinued from page 1

Local governments should first analyze their existing regulations to determine if they already prohibit such signs. Many older sign codes have prohibited sign lists that include animated signs; rotating signs; changeable copy signs; signs that flash, rotate, scintillate, blink, flicker or vary in intensity or color; or signs that create hazards. Depending on how these terms are defined, they may apply to a digital sign. Even if your community already prohibits new billboard signs, the regulations must also be analyzed to address the potential for conversion of legally nonconforming billboards to the new digital technology.

Some local governments choose to expressly prohibit digital signs because of the negative safety and aesthetic impacts on the community. In prohibiting electronic signs, local governments must be careful not to tie the regulation so closely to the current generation of technology that it may no longer be effective when future technologies emerge. And, as with all sign regulation, local governments must be careful not to favor commercial speech over noncommercial speech, or otherwise run afoul of the First Amendment.

Are digital sign bans legally defensible?At least one federal appeals court has upheld a

municipal ban on digital signs. In Naser Jewelers, Inc. v. City of Concord, New Hampshire, Concord's prohibition on Electronic Messaging Centers (“EMCs”) was upheld against a First Amendment challenge.

Importantly, the First Circuit held that the challenged EMC prohibition was content neutral, because the regulation prohibited all EMCs regardless of the text or

5purpose of the EMC. Because the ban was content neutral, it was not subject to strict scrutiny and instead Concord merely had to show that it served substantial governmental interests, was narrowly tailored, and left o p e n r e a s o n a b l e a l t e r n a t i v e c h a n n e l s o f

6communication.

Concord enacted its sign ordinance “to maintain and enhance the appearance and aesthetic environment of the City” and to “improve pedestrian and traffic safety,'” which the Court found qualified as significant

7governmental interests. Of note was the Court's response to Naser's argument that the City must perform studies to prove that the ban on EMCs actually supported its stated aesthetic and safety interests. The Court found that the City was not obligated to conduct such studies or to put them on the record, noting that while Justice Brennan had suggested such a requirement in

8Metromedia, his position was rejected by seven justices.

In addition, to support Concord's “significant governmental interest,” eight members of the City Council submitted affidavits in support of the motion for summary judgment, stating that they believed the ban on EMC signs would “promote the community welfare by

9fostering aesthetics and pedestrian and traffic safety.”

The Court also found that Concord's ban was narrowly tailored and did not burden substantially more speech than necessary. While alternatives to a complete ban had been considered, and Naser argued they would have been less restrictive, the Court pointed out that a “government is not required to choose the least restrictive

10approach in content-neutral regulation.” In addition, “[w]hen the medium itself is the 'evil the city [seeks] to address,' then a ban of that entire medium is narrowly

11tailored.” In fact, less restrictive alternatives to a total ban would necessarily involve creating exceptions and other distinctions that, if based on content, open an entirely new and often disastrous avenue of constitutional attack.

Has any municipality in Florida banned digital signs?

The City of Gainesville recently adopted an ordinance completely prohibiting all digital signs. The ordinance was adopted following a year-long moratorium on all digital signs and extensive public participation which included the major stakeholders. The ordinance is scheduled to be revisited in three years. To date, there have been no legal challenges.

In conclusion, digital signs will proliferate as this new technology becomes more available, reliable and profitable for sign companies. Local governments can undertake proactive efforts to regulate such signs to address the needs and interests of the community. However, careful consideration must be given to the community's goals and legislative purpose and intent in enacting such regulations. A well-crafted ordinance which advances the legitimate aesthetic and safety concerns of the community can effectively and constitutionally regulate digital signs.

Kathryn Mehaffey, Esq. is an associate with the Municipal Land Use and Zoning Law Group.

1. See Research Review Of Potential Safety Effects Of Electronic Billboards On Driver Attention And Distraction, http://www.fhwa.dot.gov/REALESTATE/elecbbrd/elecbbrd.pdf, September 11, 2001, U.S. Department of Transportation, Federal Highway Administration. 2. Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981); Naser Jewelers, Inc. v. City of Concord, New Hampshire, 513 F.3d 27, 35 (1st Cir. 2008).3. See Naser, supra, and Naser Jewelers, Inc. v. City of Concord, New Hampshire, 538 F.3d 17 (1st Cir. 2008).4. Offsite or offpremise signs are no longer allowed to be amortized without payment of full compensation. See Section 70.20, F.S.5. Naser, 513 F.3d at 32.6. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994).7. See Naser, 513 F.3d at 34, citing Metromedia, 453 U.S. 490.8. See Naser, 513 F.3d at 35, citing Metromedia, 453 U.S. at 521, 528.9. See Naser, 538 F.3d at 19.10. See Naser, 513 F.3d at 36.11. Id. (Internal citations omitted)

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A DECISION THAT “AFFECTS” THE RIGHT TO VOTE ON LAND USE

During the mid 1990s, the Florida Legislature adopted several laws to further protect the rights of private property owners. These laws included the adoption of Section 163.3167(12), F.S., which provides that “an initiative or referendum process in regard to any development order or in regard to any local comprehensive plan amendment or map amendment that affects five or fewer parcels of land is prohibited.” Although this law sat dormant for years, it has recently been the subject of several lawsuits. One lawsuit of particular interest related to the interpretation of the statutory term “affects.”

In Save Our Neighborhood, Inc. v. City of Lake Worth, Case No. 2006-CA 917 AH (15th Judicial Circuit 2006), a political action committee and resident sought to invoke the referendum process to challenge the Ci ty ' s ordinances , which approved a Comprehensive Plan amendment and rezoning for a parcel of land consisting of 4.02 acres. In an interesting

trial court decision, which led to proposed state legislation that failed last session, the trial court held that the term “affects” as used in Section 163.3167(12), F.S., should be given a “broad” plain meaning and should include not only the parcels subject to the amendment, but also other parcels that may be impacted by the amendment such as neighbors. On appeal, the District Court of Appeal for the Fourth District reversed the trial court's decision and held that the term “affects” as used in Section 163.3167(12), F.S., should be interpreted to mean the actual parcel that is the subject of the amendment, regardless of whether the amendment would impact nearby parcels of land. See, City of Lake Worth v. Save Our Neighborhood, Inc., 2008 WL 4643800 (Fla. 4th DCA 2008). Although the 4th DCA decision may be appealed, in light of the legislative intent of Section 163.3167(12), F.S., it is likely to be upheld.Chad S. Friedman, Esq. is an associate with the Municipal Land Use and Zoning Law Group.

containing commercial copy, it shall allow a noncommercial sign to the same extent.”

These are just a few of the First Amendment issues confronting local governments seeking to regulate political signs. Additional points to note when drafting any sign ordinance are:• Use clear, unambiguous language and limit discretion in review processes;• Be alert to the potential for inadvertent discrimination;• Focus on the land use impact or other neutral justification for regulation, not the content of the speech; and• Remember that what works today may be invalid next

year – check for the latest developments in the law and seek expert assistance if needed.

Michelle Vos, Esq. is an associate with the Municipal Use and Zoning Law Group.Land

1. See, e.g., Runyon v. Fasi, 762 F.Supp. 280, 284 (D. Haw. 1991); Peltz v. City of South Euclid, 228 N.E.2d 320, 324 (Ohio 1967).2. See, e.g., Verrilli v. City of Concord, 548 F.2d 262, (9th Cir. 1977); Baldwin v. Redwood City, 540 F.2d 1360 (9th Cir. 1976).3. See, e.g., Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 516 (1981) (plurality); Desert Outdoor Adver., Inc. v. City of Oakland, 506 F.3d 798, 802 (9th Cir. 2007).4. See Lehman v. City of Shaker Heights, 418 U.S. 298, 302-04 (1974).5. See City of Ladue v. Gilleo, 512 U.S. 43 (1994).6. See Linmark Assocs., Inc. v. Willingboro Twp., 431 U.S. 85, 93-94 (1977).7. See Arlington County Republican Comm. v. Arlington County, 983 F.2d 587, 593-94 (4th Cir. 1993) (striking down restriction of two political signs per property).

Political Signscontinued from page 2