The Institute for Free Speech, a non-profit advocacy group, will represent the plaintiff challenging Tennessee’s billboard law on constitutional grounds.

Here’s what you need to know:

• Sign owner William H. Thomas sued Tennessee’s billboard-control act, prompting a federal judge in Memphis to invalidate the state’s billboard law on First Amendment grounds.  The case is Thomas v. Schroer.  Defendant John Schroer is commissioner of Tennessee’s Department of Transportation and also president of AASHTO (American Association of State Highway and Transportation Officials).
• In October, the State of Tennessee appealed to the US Sixth Circuit Court of Appeals; its brief will be filed soon. The State argues that its regulation of billboards does not violate free speech.
• The Outdoor Advertising Association of America (OAAA) and state outdoor advertising associations in Kentucky, Michigan, Ohio, and Tennessee plan to file an amicus brief supporting the State’s position. Those states comprise the US Sixth Circuit Court of Appeals.
• On January 26, the Institute for Free Speech issued a press release saying it is representing plaintiff Thomas on appeal. The Institute was not involved in the case previously.

“A law that permits a sign that says ‘Fireworks for sale here,’ but prohibits an identical sign that reads ‘Support our troops,’ imposes a content-based restriction on speech,” said Institute Director Allen Dickerson.

The Institute for Free Speech, based in Alexandria, VA, was founded by Bradley Smith, former Commissioner of the Federal Election Commission who resigned in 2005.  The Institute’s president is David Keating, who was executive director of Club for Growth (2000-2012).

On appeal, the State will be represented by the office of Tennessee’s Solicitor General.  Counsel of record is Sarah Campbell, who earned her law degree at Duke, clerked for Supreme Court Justice Samuel Alito, and worked at the litigation firm of Williams & Connolly in Washington, DC.

Insider’s take:  The case is worrisome.  Thomas has found a deep-pocketed parter to litigate.  There’s an Irish proverb which goes “Better the devil you know than the devil you don’t know.”  If Thomas prevails Tennessee’s sign code (including just compensation) will be thrown out.  This may open the door for the State to come up with a worse regulatory scheme.

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