Yesterday Insider reported that a Tennessee Appeals Court upheld a challenge to Tennessee’s out of home advertising rules.  Insider talked with out of home attorney Richard Rothfelder about the opinion.

Could the Supreme Court take up the case?

This Supreme Court has been conservative and protective of First Amendment rights, and as such, it might take the case and affirm the lower courts’ rulings on the unconstitutionality of the Tennessee HBA. However, it would be the State of Tennessee, and not the outdoor advertising industry or the OAAA, that would be seeking review by the Supreme Court. Remember, the OAAA just filed a friend of the court, or amicus brief, and it is not a party to the case and would not be eligible to appeal in its own right.

How about chances of a legislative fix?

Tennessee might follow the example of Texas, which amended the Texas HBA to eliminate the content based distinctions between on-premise and off-premise signs. You’ll also remember that the Texas Supreme Court then dismissed the State’s appeal as moot, and vacated the Court of Appeals decision in the Auspro case. Thus, I predict that Tennessee, with the urging of OAAA, is more likely to amend the Tennessee HBA and “cure” the constitutional problems, rather than risk an unfavorable decision in the Supreme Court.

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