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Thomas v. Bright

United States Court of Appeals, Sixth Circuit

September 11, 2019

William Harold Thomas, Jr., Plaintiff-Appellee,
v.
Clay Bright, Commissioner of Tennessee Department of Transportation, Defendant-Appellant.

          Argued: January 30, 2019

          Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 2:13-cv-02987-Jon Phipps McCalla, District Judge.

         ARGUED:

          Sarah Campbell, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellant.

          Owen Yeates, INSTITUTE FOR FREE SPEECH, Alexandria, Virginia, for Appellee.

          Lindsey Powell, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Eugene Volokh, UCLA SCHOOL OF LAW, Los Angeles, California, for Amici Curiae.

         ON BRIEF:

          Sarah Campbell, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellant.

          Owen Yeates, Allen Dickerson, INSTITUTE FOR FREE SPEECH, Alexandria, Virginia, for Appellee.

          Lindsey Powell, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Eugene Volokh, UCLA SCHOOL OF LAW, Los Angeles, California, Kannon K. Shanmugam, A. Joshua Podoll, WILLIAMS & CONNOLLY LLP, Washington, D.C., Ilya Shapiro, CATO INSTITUTE, Washington, D.C., Braden H. Boucek, BEACON CENTER OF TENNESSEE, Nashville, Tennessee, Timothy Sandefur, GOLDWATER INSTITUTE, Phoenix, Arizona, Robert Alt, THE BUCKEYE INSTITUTE, Columbus, Ohio, for Amici Curiae.

          Before: COLE, Chief Judge; BATCHELDER and DONALD, Circuit Judges.

          OPINION

          ALICE M. BATCHELDER, CIRCUIT JUDGE

         Under Tennessee's Billboard Act, anyone intending to post a sign along a Tennessee roadway must apply to the Tennessee Department of Transportation (TDOT) for a permit, unless the sign falls within one of the Act's exceptions. This case presents a constitutional challenge to the Act, based on the "on-premises exception" for signs relating to the use or purpose of the real property (premises) on which the sign is physically located, typically signs advertising the activities, products, or services offered at that location.

         William Thomas owned a billboard on an otherwise vacant lot and posted a sign on it supporting the 2012 U.S. Summer Olympics Team. Tennessee ordered him to remove it because the State had denied him a permit and the sign did not qualify for the exception, given that there were no activities on the lot to which the sign could possibly refer. Thomas sued, claiming that this application of the Billboard Act violated the First Amendment. The district court held the Act unconstitutional because the on-premises exception was content-based and thus subject to strict scrutiny, failed to survive strict scrutiny, and was not severable from the rest of the Act. We affirm, recognizing that Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015), overruled our existing circuit precedent on this issue in Wheeler v. Commissioner of Highways, 822 F.2d 586 (6th Cir. 1987).

         I. BACKGROUND

         A. Tennessee's Billboard Act

         In 1965, Congress enacted the Federal Highway Beautification Act ("HBA"), 23 U.S.C. § 131, which sought to "promote the safety and recreational value of public travel, and to preserve natural beauty." Id. The HBA conditions ten percent of a State's federal highway funds on the State's maintaining "effective control" of signs within 660 feet of an interstate or primary highway, id. at § 131(b), meaning the State must limit signage to (1) "directional and official signs and notices," (2) "advertising [for] the sale or lease of property upon which [the sign is] located," (3) "advertising [for] activities conducted on the property on which [the sign is] located," (4) "landmark[s] . . . or historic or artistic significance," or (5) "advertising [for] the distribution by nonprofit organizations of free coffee." Id. at § 131(c). The State may also, with U.S. Department of Transportation approval, permit signs in areas zoned industrial or commercial. Id. at § 131(d).

         In order to comply with the HBA and ensure full federal funding, Tennessee enacted the Billboard Regulation and Control Act of 1972 ("Billboard Act"), Tenn. Code Ann. (T.C.A.) § 54-21-101, et seq. The Billboard Act parallels the HBA in most relevant respects and prohibits all outdoor signage within 660 feet of a public roadway unless expressly permitted by TDOT permit. Id. § -103. But the Act also provides exceptions under which certain signs may be posted without permit, including an exception for signage "advertising activities conducted on the property on which [the sign is] located." Id. § -103(3). This is referred to as the "on-premises exception" and corresponds to the HBA's third limitation. Under the Act's implementing regulations:

         A sign will be considered to be an on-premise[s] sign if it meets the following requirements:

(a) Premise[s] - The sign must be located on the same premises as the activity or property advertised.
(b) Purpose - The sign must have as its purpose (1) the identification of the activity, or its products or services, or (2) the sale or lease of the property on which the sign is located, rather than the purpose of general advertising.

         Tenn. Comp. R. & Regs. (T.C.R.R.) § 1680-02-03-.06(2). The regulations elaborate further:

The following criteria shall be used for determining whether a sign has as its purpose [] the identification of the activity located on the premises or its products or services, . . . rather than the business of outdoor advertising.
(a) General
1. Any sign which consists solely of the name of the establishment is an on-premises sign.
2. A sign which identifies the establishment's principle [sic] or accessory product or services offered on the premises is an on-premises sign.
3. An example of an accessory product would be a brand of tires offered for sale at a service station.
(b) Business of Outdoor Advertising
1. When an outdoor advertising device (1) brings rental income to the property owner, or (2) consists principally of brand name or trade name advertising, or (3) the product or service advertised is only incidental to the principle [sic] activity, it shall be considered the business of outdoor advertising and not an on-premises sign. An example would be a typical billboard located on the top of a service station building that advertised a brand of cigarettes or chewing gum which is incidentally sold in a vending machine on the property.
2. An outdoor advertising device which advertises activities conducted on the premises, but which also advertises, in a prominent manner, activities not conducted on the premises, is not an on-premises sign. An example would be a sign advertising a motel or restaurant not located on the premises with a notation or attachment stating 'Skeet Range Here,' or 'Dog Kennels Here.' The on-premises activity would only be the skeet range or dog kennels.

         T.C.R.R. § 1680-02-03-.06(4) (emphasis added; alteration of "premise" to "premises" throughout). So, to recap, and to be a bit more specific, the sign must (1) be physically located on the same "premises" (real property) as the activity being advertised on the sign, and must (2) have as its purpose the identification of that activity occurring on the premises, or the products or services provided by that activity on the premises, not the ...


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