Since I still haven’t taken down my Christmas tree or lights, despite my wife’s justifiable and persistent encouragement to do so, I suppose its not too late to offer my annual legal predictions for the outdoor advertising industry for 2020. I recently re-read my 3 Legal Predictions for 2019 published by Insider and not only have those predictions come to fruition, but I also believe they will continue throughout 2020.
Last year, I made the following three predictions for the industry from a legal perspective. First, it didn’t require a crystal ball to predict that State Highway Beautification Acts and municipal ordinances would be challenged as content based violations of the Free Speech Clause of the First Amendment, and indeed, the Sixth Circuit Court of Appeals so held in Thomas vs Bright in September 2019. This type of litigation led to the passage of several examples of content neutral sign legislation last year, and it’s predicted that the State of Tennessee will likewise consider such a legislative “cure” to the Tennessee HBA after the Thomas vs Bright case in 2020.
My second prediction was that state laws will relax restrictions on medical and recreational marijuana use and possession, and in doing so, billboard advertising of this product will increase as well. My home state of Texas even passed legislation last year decriminalizing certain hemp and CBD products, and the shops to sell them and billboards to advertise them seem to be popping up everywhere. For 2020, look for the complaints about the advertising of this legal but controversial product to increase, inevitably leading to the passage of new laws on such advertising, and First Amendment litigation challenging such laws.
Third, I also accurately predicted last year that advances in technology will continue to demonstrate the advantages of LED digital billboards, including the environmental, safety, and aesthetic benefits to cities. As such, many more cities amended their sign codes to permit such signage, often through cap and replacement and similar exchange agreements. This trend will continue though 2020, for the mutual benefit of the industry and municipalities.
A final prediction for this upcoming presidential election year is that more citizens will spend more money exercising their rights to freedom of speech, including by promoting their candidates through billboard and other out of home advertising. The Supreme Court’s relaxation of limitations on political speech, advertisement, and contributions in its Citizens United case, coupled with the Nation’s passion in this particular presidential campaign, guarantees record spending on political out of home ads this year. And, given the high stakes in this year’s election, there are likely to be efforts to short cut the remaining election laws, leading to highly partisan litigation. Let’s just hope we don’t end up with another “hanging chad” dispute and another Bush vs Gore type case.
Happy New Year, Everybody!
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