I’d like to call your attention to a recent Sixth Circuit court opinion impacting out of home.  In Norton v St Bernard we  argued that a local sign code was different from Austin in that this code layered content based exceptions on top of the content-neutral on/off-premise classification.  This means it should get strict scrutiny instead of intermediate or, if it only gets intermediate scrutiny, then the court has to apply the entire test and not just determine that the code satisfies intermediate scrutiny by stating the standard interests of traffic safety and aesthetics.

The court of appeals reversed holding that strict scrutiny applies.  Because the trial case was decided on summary judgment the case is remanded back to the trial court to determine whether certain provisions of the code should be “severed”.  The court did not reach the issue of whether the trial court’s application of intermediate scrutiny was complete because it determined strict scrutiny applied.  The takeaway is that code should be examined to determine whether they are purely just on/off-premise regulations that receive intermediate scrutiny under Austin or whether they have definitions and exceptions layered on top that invoke strict scrutiny.

To receive a free morning newsletter with each day’s Billboard insider articles email info@billboardinsider.com with the word “Subscribe” in the title.  Our newsletter is free and we don’t sell our subscriber list.

Paid Advertisement