CINCINNATI, OH (October 17) – Court of Common Pleas Judge Curt C. Hartman today invalidated Cincinnati’s new excise tax on billboards as a burden on speech protected by the First Amendment.
“Government may not single out and direct or target a tax solely at the exercise of First Amendment rights or at the means or instruments utilized in exercising First Amendment rights nor may the government impose a tax that targets a small narrow group to bear the burden of the tax,” said Court of Common Pleas Judge Curt C. Hartman, summarizing decades of established caselaw. “Yet, that is precisely what the City of Cincinnati has done . . .”
In court, the city argued that billboards involve economic conduct, not protected expression. The judge rejected that reasoning.
Billboards are a well-established medium of communication that convey a broad range of messages, Judge Hartman said, quoting the US Supreme Court in its Metromedia case.
On June 27, the Cincinnati City Council voted 6-3 to impose a billboard tax as part of an emergency effort to balance the budget that began July 1. The tax rate is 7 percent or a calculation based on billboard square footage, whichever is greater.
By separate ordinance, the city council also significantly raised billboard fees. On October 10, the city council voted to repeal the fee hike.
In July, Lamar Advertising Company and Norton Outdoor Advertising sued the city on constitutional grounds, challenging the billboard tax and higher fees. Judge Hartman issued a temporary restraining order (TRO) on July 30, blocking the new tax and higher fees.
The judge heard six days of testimony in September from city officials, advertisers, and billboard companies targeted by the tax.
The outdoor advertising companies, seeking an injunction, said billboards communicate a wide range commercial and noncommercial speech while competing with other media in a marketplace sensitive to price.
In issuing a preliminary injunction, Judge Hartman said the plaintiffs demonstrated substantial likelihood of success on the merits on First Amendment grounds.
Norton is represented by Michael Galasso and Esther Norton of Robbins Kelly Patterson & Tucker, Cincinnati. Lamar is represented by Guy Taft, Amy Hunt, and Stephen Schilling of Strauss Troy, Cincinnati. Chief counsel for the city is Marion Haynes III.
Insider’s take: Congrats to Lamar and Norton for a big win. Here’s hoping that this makes other cities think twice before they try to target the out of home industry with a selective tax or pass a law with little public notice combined with a gag order which prohibits out of home companies from talking about increased taxes or fees.
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