signlaw.com

BILLBOARDS ARE DIFFERENT

Billboards are not just large signs.

An onsite store sign, regardless of size, is used to promote the main business on the same site; thus, a store sign is an "accessory use of land," since it is a tool or instrument of the main business or other establishment. The display space on a store sign is used primarily to promote that main land use, whether it is a car dealer or a clothing store.

But a billboard displays ads for a wide range of advertisers, almost all of whom are not located on the same site. The billboard business is a form of real estate rental, albeit for vertical space rather than floor space. Thus, a billboard is a principal or main land use, not an accessory land use. A billboard is economically separate from other structures on the same land; the billboard sign itself is a separate enterprise. When a sign company rents out display space to a wide range of advertisers, it is engaging in "general advertising for hire," in contrast to the "self-promotion" function of a store sign. It is this economic independence that makes billboards legally different. As early as 1919 the U.S. Supreme Court held, in St. Louis Poster v. City of St. Louis, 249 U.S. 269, that billboards can be put in a separate class and regulated.

In Metromedia v. San Diego, 453 U.S. 490 (1981), seven of the nine justices on the U.S. Supreme Court agreed that a city may ban billboards, and that the restriction on free speech is justified by community interests in safety and community appearance. The plurality of four justices explained:

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In the first place, whether onsite advertising is permitted or not, the prohibition of offsite advertising is directly related to the stated objectives of traffic safety and esthetics. This is not altered by the fact that the ordinance is underinclusive because it permits onsite advertising. Second, the city may believe that offsite advertising, with is periodically changing content, presents a more acute problem than does onsite advertising. . . . Third, San Diego has obviously chosen to value one kind of commercial speech – onsite advertising – more than another kind of commercial speech – offsite advertising. The ordinance reflects a decision by the city that the former interest, but not the latter, is stronger than the city's interests in traffic safety and esthetics. The city has decided that in a limited instance – onsite commercial advertising – its interests should yield. We do not reject that judgment. As we see it, the city could reasonably conclude that a commercial enterprise – as well as the interested public – has a stronger interest in identifying its place of business and advertising the products or services available there than it has in using or leasing its available space for the purpose of advertising commercial enterprises located elsewhere. . . . It does not follow from the fact that the city has concluded that some commercial interests outweigh its municipal interests in this context that it must give similar weight to all other commercial advertising. Thus, offsite commercial billboards may be prohibited while onsite commercial billboards are permitted.

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Because of the huge cash flows that can be generated by a well-positioned billboard, many lawsuits have been filed by billboard companies seeking permits for new billboard signs, or to save existing inventory. In spite of the Metromedia case, holding that cities may ban billboards, outdoor advertising companies often claim that defects in the local sign ordinance render the law unconstitutional and unenforceable, and thus the city has no legal basis for denying a permit. The billboard companies have lost the majority, but not all, of such cases.