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Monday, October 2, 2017

7th Circuit Upholds Town's Ban on Highway Overpass Signs

The Seventh Circuit Court of Appeals recently considered the validity of a municipality’s ban on signs, flags, and banners on highway overpasses in Luce v.Town of Campbell. In that case, several local activists began placing political signs and banners on highway overpasses and pedestrian bridges, with some of the messages encouraging passing drivers to honk if they supported the activists views. In response, the town enacted a content-neutral ordinance forbidding all signs, flags, and banners on any overpass within the town, and also within 100 feet of the end of any overpass.  In passing this ordinance, the town relied on information presented by the town’s police chief regarding the traffic problems created by these signs and banners.

Upset with the town’s removal of their banners, the activists posted videos online showing the town’s police officers removing individuals who were unfurling a large American flag on an overpass.  In a somewhat bizarre twist, the town’s police chief decided to retaliate against the activists himself by posting allegedly false and defamatory comments online.  When the police chief’s misconduct was discovered, the activists sued both the police chief and the town for violations of the First Amendment, among other claims.

First, the court found that the police chief was not acting under color of state law when he defamed the activists, as these actions were clearly not related to the police chief’s official duties.  As such, the court held that the First Amendment did not apply to the police chief’s actions.  However, the court stated that, due to his misconduct, the police chief’s credibility had been undermined. 

Next, the court then turned to the activists’ claims that the overpass sign ban violated the First Amendment. The court noted that the information the town relied on in passing the ordinance came from the town’s police chief, and that the police chief’s statements could no longer be accepted as truthful. The activists argued that all time, place, and manner restrictions on speech require empirical support. The activists claimed that, with the evidence provided by the police chief discredited, the town’s time, place, and manner regulation prohibiting overpass signs had no empirical support and was therefore invalid.

Nevertheless, the court acknowledged that the Supreme Court has never required empirical evidence for all time, place, and manner restrictions. The court reasoned that, while every time, place, and manner regulation must serve a significant governmental interest, empirical support is not necessary when the governmental interest is obvious. The court found that the town’s ban on signs and banners on overpasses themselves was valid. The court held that the town’s attempt to reduce the incidence of sudden braking on highways due to distracting signs and banners was not irrational or an attempt to suppress speech, even despite the lack empirical data.  The court stated that it “did not take an empirical study” to know that an overhead sign is bound to cause some drivers to slow down to read it, thereby increasing the risk of accidents. So, the 7th Circuit found the town's ban on signs on overpasses constitutional.

However, the court came to a different conclusion on the town’s ban on signs within 100 feet of an overpass. The court cited the fact that this ban prohibited homeowners within 100 feet of an overpass from putting up a small “For Sale” sign or a “Merry Christmas” banner in their front yards. The court did not see any reason why signs that are off the highway and too small to cause drivers to react should be banned.  Because the town had not even attempted to justify this 100 foot rule at all, the court found the 100 foot ban invalid.

This case should serve as a reminder to all municipalities that time, place, and manner restrictions on speech need to be carefully considered before they are enacted, and always in consultation with the municipality’s attorney.

Post Authored by Kurt Asprooth, Ancel Glink


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