United States District Court, W.D. Tennessee, Western Division
WILLIAM H. THOMAS, JR. Plaintiff,
JOHN SCHROER, Commissioner of the Tennessee Department of Transportation in his official capacity, Defendant.
ORDER & MEMORANDUM FINDING BILLBOARD ACT AN
UNCONSTITUTIONAL, CONTENT-BASED REGULATION OF SPEECH
McCALLA UNITED STATES DISTRICT COURT JUDGE.
action concerns alleged First Amendment violations that
occurred when agents of the State of Tennessee (“the
State”) sought to remove Plaintiff William H.
Thomas's noncommercial billboard pursuant to the
Billboard Regulation and Control Act of 1972
(“Billboard Act”), Tennessee Code Annotated
§§ 54-21-101, et seq. For the reasons
stated below, the Court finds the Billboard Act is an
unconstitutional, content-based regulation of speech. United
States Supreme Court authority compels this conclusion.
exists an undeniable trend in Supreme Court cases to guard
against regulations that selectively ban speech on the basis
of its subject matter-e.g., content-based regulations.
Police Department of Chicago v. Mosley, 408 U.S. 93
(1972). Distilling a pragmatic and constitutionally-valid
definition for content-based regulations has evolved
overtime. In the late 1980s, the Supreme Court looked to the
governing body's intent to determine whether a regulation
constituted a content-based regulation. Ward v. Rock
Against Racism, 491 U.S. 781 (1989); City of Renton
v. Playtime Theaters, Inc., 475 U.S. 41 (1986). In
Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015),
however, the Supreme Court revisited its previous approach.
Writing for the Court in Reed, Justice Thomas
explained, “[a] law that is content based on its face
is subject to strict scrutiny regardless of the
government's benign motive, content-neutral
justification, or lack of ‘animus' toward the ideas
contained in the regulated speech.” Id. at
2222. That content-based inquiry has now been
further advanced by the Supreme Court's decision in
Expressions Hair Design v. Schneiderman, No.
15-1391, 2017 WL 1155913, at *1 (U.S. Mar. 29, 2017), in
which the Court remanded a case concerning a regulation that
banned some forms of commercial speech for further
examination to determine whether the regulation survives
First Amendment scrutiny.
instant case, the regulation at issue - the Tennessee
Billboard Regulation and Control Act of 1972, Tennessee Code
Annotated §§ 54-21-101, et seq. -
regulates both commercial and non-commercial speech by
banning some forms of both on the basis of content and
therefore does not survive First Amendment scrutiny.
Tennessee Department of Transportation (“TDOT”)
promulgates and enforces billboards and outdoor advertising
signs under Tennessee's Billboard Regulation and Control
Act of 1972, (the “Billboard Act”). (ECF No. 45
¶ 13.) The State of Tennessee and TDOT also regulate
billboards and outdoor advertising signs under to the Federal
Highway Beautification Act of 1965, as amended. (Id.
Federal Highway Beautification Act and the Billboard Act are
designed to control the erection and maintenance of
billboards and signs along the National Highway System.
(See Exs. B, C, Bible Aff, ECF No. 166-2; SUF ¶
33; Resp. to SUF ¶ 33.)) Regulated billboards and signs
under the Billboard Act are subject to location and/or permit
and tag restrictions, e.g., they may not be “within six
hundred sixty feet (660′) of the nearest edge of the
right-of-way and visible from the main traveled way of the
interstate or primary highway systems . . . without first
obtaining from the commissioner a permit and tag.” T.
C. A. § 54-21-104(a). Some signs, however, may be
exempted or qualify as exceptions under the Billboard
Act's location and/or permit and tag restrictions.
See T.C.A. §§ 54-21-103(1)-(3) and
§§ 54-21-107(a)(1)-(2). For example, a billboard or
sign is exempted from the six-hundred-sixty feet requirement
if it qualifies as one of the following types of signs:
(2) Signs, displays and devices advertising the sale or lease
of property on which they are located;
(3) Signs, displays and devices advertising activities
conducted on the property on which they are located;
§§ 54-21-103(1)-(3). A billboard or sign is
exempted from complying with the permit and tag restrictions
if it falls into one of the following categories:
(1) Those [signs] advertising activities conducted on the
property on which they are located;
(2) Those [signs] advertising the sale or lease of property
on which they are located; and
practice, State agents label signs the Billboard Act
regulates as “off-premise” signs and label
unregulated signs as “on-premise” signs.
(See ECF No. 64 at PageID 917.) The State's
agents use the following Rule to make their determinations:
A sign will be considered to be an on-premise sign if it
meets the following requirements.
(a) Premise - The sign must be located on the same premises
as the activity or property advertised.
(b) Purpose - The sign must have as its purpose (1) the
identification of the activity, or its products or services,
or (2) the sale or lease of the property on which the sign is
located, rather than the purpose of general advertising.
No. 46-6 at PageIDs 718-19 (quoting Rule 1680-02-03-.06(2);
see also ECF No. 121 at 15-16.) Rule 1680-02-03-.06
further expands on the ‘Purpose Test'
[t]he following criteria shall be used for determining
whether a sign has as its purpose (1) the identification of
the activity located on the premises or tis products or
services, or (2) the sale or lease of the property on which
the sign is located rather than the business of outdoor
1. Any sign which consists solely of the name of the
establishment is an on-premise sign.
2. A sign which identifies the establishment's principle
or accessory product or services offered on the premises is
an on-premise sign.
3. An example of an accessory product would be a brand of
tires offered for sale at a service station.
(b) Business of Outdoor Advertising
1. When an outdoor advertising device (1) brings rental
income to the property owner, or (2) consists principally of
brand name or trade name advertising, or (3) the product or
service advertised is only incidental to the principle
activity, it shall be considered the business of outdoor
advertising and not an on-premise sign. An example would be a
typical billboard located on the top of a service station
building that advertised a brand of cigarettes or chewing gum
which is incidentally sold in a vending machine on the
2. An outdoor advertising device which advertises activities
conducted on the premises, but which also advertises, in a
prominent manner, activities not conducted on the premises,
is not an on-premise sign. An example would be a sign
advertising a motel or restaurant not located on the premises
with a notation or attachment stating “Skeet Range
Here, ” or “Dog Kennels Here.” The
on-premise activity would only be the skeet range or dog
(c) Sale or Lease Signs
A sale or lease sign which also advertises any product or
service not located upon and related to the business of
selling or leasing the land on which the sign is located is
not an on-premise sign. An example of this would be a typical
billboard which states "THIS PROPERTY FOR SALE- SMITHS
MOTEL; 500 ROOMS, AIR CONDITIONED, TURN RIGHT 3 BLOCKS AT MA
Tennessee Department of Transportation Maintenance Division,
Control of Outdoor Advertising, 1680-02-03.06(4) (2008).
Although the Billboard Act and the State's Rule reference
“advertising” in the commercial context, the
State contends the Billboard Act's regulations,
exceptions, and exemptions apply with equal force to
commercial and noncommercial messages. (See ECF No.
64 at PageID 917.)
Thomas's business involves posting outdoor advertising
signs. (ECF Nos. 1 ¶ 11; 45 ¶ 11.) Thomas erects
these signs on the various tracts of real property he owns
throughout Tennessee. (ECF No. 45 ¶ 10.) Thomas's
sign at issue in this case is located off Interstate-40 West
in Memphis, Tennessee (hereinafter the “Crossroads Ford
sign”). (Id. ¶ 21.) Thomas has posted
various messages on this sign over the years. (Id.)
For example, in 2012, he displayed an image of an American
flag with Olympic rings, in support of that year's U.S.
Olympic team. (ECF No. 38 ¶ 23.) Later that year, in the
“beginning of fall, ” he “displayed content
referencing the upcoming holiday season with a picture of an
American Flag.” (ECF No. 45 ¶ 24.) Thomas erected
his Crossroads Ford sign without a permit. (ECF No. 46-6 at
PageID 721 (citing Tennessee v. Thomas, 336 S.W.3d
588, 593 (Tenn. Ct. App. 2010).)
approximately 2006, the State has sought to remove
Thomas's signs that did not comply with the Billboard
Act-including the Crossroads Ford sign-through an ongoing
enforcement action in Chancery Court in Shelby County,
Tennessee. (ECF Nos. 1 ¶¶ 62, 77; 45 ¶ 27;
see ECF Nos. 96-1 at PageID 1399-1404; 46-2 - 46-5;
see also Tennessee v. Thomas, 336 S.W.3d 588, 593
(Tenn. Ct. App. 2010).) In 2006, TDOT denied Thomas's
permit and building application for his Crossroads Ford sign
because it was less than 1, 000 feet from a competitor's
billboard. (ECF No. 166-1 at PageID 2595 (citing Thomas
v. TDOT, 336 S.W.3d 588, 592 (Tenn. Ct. App. 2010).)
Nonetheless, Thomas began construction on his Crossroads Ford
sign in 2007, and TDOT then brought an enforcement action in
March 2007. (Id.) In April and October of 2011, the
State removed two of Thomas's outdoor advertising signs
(the “Kate Bond” signs). (ECF No. 45 ¶¶
33, 37; ECF No. 79 ¶¶ 33, 37.) Throughout 2012 and
2013, Thomas defended his signs in administrative proceedings
before the Commissioner of TDOT. (See ECF Nos.
March 25, 2013, Thomas filed an initial Complaint and Request
for Declaratory Judgment. (Thomas v. Tennessee Department
of Transportation, No. 2:13-cv-2185-JPM-cgc (W.D. Tenn.
2013), ECF No. 1.) Thomas sought relief under 28 U.S.C.
§ 1983 for violations of his First and Fourteenth
Amendment rights under the United States Constitution.
(Id. ¶ 3.) The Complaint also alleged
Thomas's Crossroads Ford sign was entitled to First
Amendment protection as a display of non-commercial speech.
(Id. ¶ 39.) On July 24, 2013, TDOT filed a
Motion to Dismiss the Complaint, alleging TDOT is immune from
suit and that Thomas's claims fail to state a claim. (ECF
No. 18.) Thomas sought to avoid TDOT's Rule 12(b)(1) and
12(b)(6) defenses by requesting leave to file an Amended
Complaint adding individual defendants. (See ECF No.
26.) On October 28, 2013, the Court dismissed Thomas's
claims, based on TDOT's Eleventh Amendment immunity. (ECF
No. 31 at PageID 180.) Thomas appealed (ECF No. 33), and on
August 6, 2014, the Sixth Circuit Court of Appeals affirmed,
holding that had Thomas named a state official in his or her
official capacity, his claims would have survived dismissal
(ECF No. 35 at PageID 204).
December 17, 2013, while this first action was on appeal,
Thomas filed his Complaint in this action, which named
multiple Tennessee state officials in their official
capacities. (Thomas v. Schorer et al, No. 13-2987
(W.D. Tenn.), ECF No. 1.) The Complaint alleged Thomas's
Crossroads Ford sign was entitled to First Amendment
protection as a display of non-commercial speech.
(Id. ¶ 52.) Thomas filed an Amended Complaint
on October 27, 2014. (See ECF Nos. 22, 34, 38, 45.)
Thomas's Amended Complaint also argued that “in
March of 2014, TDOT, through Commissioner Schroer, filed an
action against Mr. Thomas in the Twentieth Judicial District
Chancery Court for the State of Tennessee in retaliation for
Mr. Thomas exercising his rights to petition this Court for
redress of his grievances against Defendants.” (ECF No.
45 ¶ 65.)
initial fillings also included additional claims against the
State: First Amendment, Retaliation, Equal Protection and
Declaratory Judgment. (ECF Nos. 1, 45.) Following the
Court's Order on the State's motion to dismiss, (ECF
No. 170), and summary judgment (ECF No. 233), Thomas's
only remaining claim is whether the removal of his billboards
under the Billboard Act violated his First Amendment rights.
This Order concerns only this issue.
October 2014, the State removed another of Thomas's
outdoor signs (the “Perkins Road sign”), even
though, according to Thomas, “[the] billboard was
displaying exclusively on-premise, noncommercial content and
therefore exempt from the permitting requirements of T.C.A.
§ 54-21-107(a)(1).” (ECF No. 45 ¶ 40; ECF No.
79 ¶ 40.)
26, 2015, TDOT sent Thomas a letter stating that Thomas must
remove the Crossroads Ford sign by June 26, 2015. (ECF No.
96-1 at PageID 1399.) Thomas also received a proposed order
of judgment “declaring an unlawful billboard to be [a]
public nuisance and granting permanent injunction for removal
of the unlawful billboard, ” to be subsequently
submitted in Chancery Court in Shelby County, Tennessee.
(Id. at PageID 1401-03.)
10, 2015, Plaintiff filed an Emergency Motion for Temporary
Restraining Order (“TRO”) to prevent Defendants
from removing his Crossroads Ford sign. (ECF No. 96.) He also
sought to enjoin Defendants from executing any judgments
“resulting [from] or associated with the Crossroads
Ford billboard sign until such time as a hearing can be held
on the issues . . . .” (Id. at 1.) On June 11,
2015, Defendant opposed the TRO. (ECF No. 99.) On June 18,
2015, the Court held a Motion Hearing on TRO motion. (ECF No.
24, 2015, the Court granted Thomas's TRO motion and
ordered the State to “refrain from seeking to execute
on any judgments, orders, or other monetary judgments
resulting from or associated with the Crossroads Ford
billboard sign until such time as the Court deems it
appropriate to lift the TRO.” (ECF No. 110 at PageID
1464.) The Court found “a strong likelihood that
multiple sections of the Billboard Act are facially
content-based and subject to strict scrutiny under”
Reed v. Town of Gilbert, 135 S.Ct. 2218, 2227
(2015). (Id. at PageID 1455.) The Court also found
“a strong likelihood that at least §§
54-21-103(1)-(3) and §§ 54-21-107(a)(1)-(2) of the
Billboard Act are unconstitutional.” (Id. at
PageID 1456.) On September 8, 2015, the Court granted a
preliminary injunction. (ECF No. 163.)
Court entered an Amended Scheduling Order on May 31, 2016
(ECF Nos. 170, 233) to reflect the narrowing of issues, and
set a jury trial for September 12, 2016. (ECF No. 237.) The
parties filed timely pretrial motions. (See ECF Nos.
September 6, 2016, the Court entered an Order Regarding
Defendants' Motion in Limine as to Money Damages (ECF No.
280). (ECF No. 301.) The Court stated that the jury would
decide two issues: “(1) whether the State has a
compelling interest that is furthered by the Billboard
Regulation and Control Act of 1972 (“Billboard
Act”), as set forth at Tennessee Code Annotated
§§ 54-21-101 to -123 (2008); and (2) whether the
Billboard Act is narrowly tailored to the State's
interest.” (Id. at PageID 5964.) The jury
would not decide the ultimate constitutionality question.
(Id.) The jury trial was then rescheduled to
September 19, 2016. (Min. Entry, ECF No. 305.)
September 9, 2016, Thomas filed a Written Objection to
Allowing the Jury to Decide the Issues of “Compelling
State Interest” and “Narrow Tailoring.”
(ECF No. 307.) On September 16, 2016, the Court entered an
Order Concerning Plaintiff's Objection to the Jury
Determining “Compelling Interest” and
“Narrow Tailoring.” (ECF No. 314.) The Court
clarified the jury would serve as an advisory jury on the
issues before them. (Id. at PageIDs 6140, 6146.)
four-day, advisory-jury trial began on September 19, 2016.
(Min. Entries, ECF Nos. 320-21, 322, 328.) Seven witnesses
testified on behalf of the State: Paul Degges, Chief Engineer
for TDOT; John Schroer, Commissioner of TDOT; Robert Shelby,
retiree from the Highway Beautification Department at TDOT;
John Carr, Assistant Commissioner of Administration at TDOT;
Colonel Tracy Trott, highway patrol law enforcement officer;
Jason Moody, Assistant Regional Traffic Engineer at TDOT; and
Shawn Bible, Beautification Coordinator at TDOT.
(See ECF No. 331.) On September 22, 2016, a jury
found the State had a compelling interest, and that the
Billboard Act was narrowly tailored to that interest. (ECF
No. 329.) On the same day, Thomas filed a Rule 52 Motion for
Verdict as a Matter of Law. (ECF No. 325.) The State
responded in opposition on October 7, 2016. (ECF No. 336.)
Thomas replied on October 21, 2016. (ECF No. 340.)
October 26, 2016, the Court entered an Order Concerning Least
Restrictive Means, ordering the parties to file supplemental
briefing on the issue of least restrictive means. (ECF No.
342.) Both parties timely briefed the issue. (ECF Nos.
November 23, 2016, Amici Curiae National League of Cities,
International Municipal Lawyers Association, Tennessee
Municipal Attorneys Association, International City/County
Management Association, Scenic America, Inc., Scenic
Tennessee, Inc., Tennessee Conservation Voters, League of
Women Voters of Knoxville/Knox County, Trees Knoxville, Keep
Knoxville Beautiful, City of Knoxville, Tennessee Chapter of
the American Planning Association, and Tennessee Federation
of Garden Clubs, Inc. (collectively,
“Movants”)'s filed a Motion for Leave to File
the Brief of Amici Curiae. (ECF No. 346.) On November 30,
2016, Thomas opposed. (ECF No. 347.) Because the amicus brief
sought to address standing and the differentiation between
on- and off-premises signs, both of which the parties did not
adequately brief, the Court granted the Motion for Leave to
File the Brief of Amici Curiae (ECF No. 346) on December 7,
2016. (ECF No. 348.) The Court granted in part Thomas's
request to respond to the standing issue, which Thomas timely
briefed. (ECF Nos. 352, 354.)
Federal Rule of Civil Procedure 52
Rule of Civil Procedure 52 provides,
[i]n an action tried . . . with an advisory jury, the court
must find the facts specially and state its conclusions of
law separately. The findings and conclusions may be stated on
the record after the close of the evidence or may appear in
an opinion or a memorandum of decision filed by the court.
52(a)(1). In the instant case, the Court makes its findings
of fact and conclusions of law following the advisory
jury's verdict below.
First Amendment Protection: Commercial Versus ...