[Peace-discuss] Billboards and Free Speech

[John W.]

At 08:27 PM 9/24/2007, Laurie at advancenet.net wrote:

>I do not have a horse in this horse race so I should not really comment; 
>but I will play devil’s advocate for the sake of clarifying some of the 
>confounding of concerns and issues that appear to be taking place.

> >This is very interesting.  Because of "free speech rights" an 
> advertising company like Adams can print anything it wants on its 
> billboards in Urbana as long as it is not obscene (and of course they get 
> handsomely paid for it) , while at the same time denying AWARE's "free 
> speech rights" by refusing to accept our wording "IMPEACH BUSH/CHENEY" 
> for a billboard in 2006 promoting the ballot advisory referendum.

>I think that you are missing an important point or two. The Constitution 
>protects free speech from censorship and interference by the government, 
>governmental agencies, and governmental officials not by private parties; 
>it also applies to protecting freedom of speech and expression in and on 
>public lands and properties; it does not address speech in or on private 
>property.  The control and regulation of speech and expression in or on 
>private property falls under health and public safety rights and laws and 
>not under the First Amendment; when the two conflict, the health and 
>public safety rights take precedence over First Amendment rights.

Yes, it gets complicated in cases where the place in question has 
characteristics of both public and private property.  There have been 
important Supreme Court cases trying to decide the issue of whether (a) an 
airport and (b) a shopping mall is public or private property for First 
Amendment purposes.  I would argue that billboards also share 
characteristics of both public and private space, but I'm pretty sure the 
Supreme Court has ruled that they're private.


>Adams owns the billboards and probably the property that it is located on 
>which you seek to put your message.  If you bought and owned a billboard 
>and the property that it was located on, you can put whatever message you 
>want on it and that message would and should be protected from 
>governmental censorship and interference just as it is the case for Adams 
>vis-à-vis the government.

Correct...with the caveats listed in a previous e-mail.  For example, in a 
residential area a "time, place, and manner" restriction would probably be 
placed on a gigantic billboard in someone's front yard.  Neighbors would 
argue that it blocked visibility for drivers, was unsightly, lowered 
property values, etc.  And a court would probably agree.


>In addition, Adams has a right to protect its vested interests and take 
>actions should it feel that they are threatened.  If they feel that 
>putting up your message can cause them economic damage in terms of future 
>business or the costs of future potential legal actions, they have a right 
>to refuse your business as long as it is not based on discrimination 
>against protected classes or violate other legitimate laws just as you 
>do.  Adams is not compelled by The Constitution to protect your First 
>Amendment rights or to help you exercise or facilitate the exercising of 
>those rights.

Correct, and very well put in the last sentence.


> >I don't believe the city council is trying to regulate billboard content 
> but attempting to control visual pollution.


>Interesting; but how would you or AWARE react if the City Council used 
>such an ordinance to prevent the display of "IMPEACH BUSH/CHENEY" from 
>being placed on a billboard in Urbana saying it was visual pollution that 
>a majority of the citizens of Urbana view as an unsightly and unwanted 
>statement?  I am not sure that I trust the government and its officials to 
>make such a determination as to what is visual or sound pollution and what 
>is not since in said cases pollution is like obscenity - i.e., hard to 
>define or to even determine what a community standard for implementing a 
>definition would be - or even if they represent the community with respect 
>to the identification of a community standard in any given concrete 
>instance (do they take a public referendum each and every time before 
>making a decision?).  Then there is the issue of what about protection of 
>minority rights should the majority of Urbana citizens object to something 
>that a minority of Urbana citizens want or want something that offends a 
>minority.

Ah, but this is why the definition of "visual pollution" could not be based 
on the CONTENT of the speech.  It would have to be framed in terms of the 
size or location of the billboard or some other content-neutral criterion.


>However, leaving aside issues concerning control of visual pollution, how 
>does one define and determine when a government or governmental official 
>is controlling visual or audio pollution and when they are using visual 
>and audio pollution control as an excuse or way to regulate speech and 
>expression, enforce conformity and reduce individualism, or rationalize 
>policies to the majority of persons that harm weak and poor persons in 
>some minority in favor of the rich and powerful persons in another minority?

That can be a tricky bit o' business.  The court would have to scrutinize 
the law, or its application, to try to determine whether it was being used 
in such a way as to discriminate based on speech CONTENT.

Very recently there was a situation in New York City, I think it was, where 
certain members of the anti-war crowd were arrested for pasting anti-war 
handbills on utility boxes on public streets.  They claimed they were not 
in violation of any law - using biodegradable paste, intending to take the 
handbills down following the event, etc. - and were therefore being 
arrested on the basis of the content of their speech.  I don't know all the 
details, and don't know how the case is going to turn out, but it's one of 
those cases where the government SEEMS to be invoking rather arbitrary 
"time, place, and manner" restrictions in an effort to silence anti-war 
speech.

The same thing happens when the government in Washington D.C. creates 
supposed "free speech zones" that are unduly restrictive and miles from the 
White House and Capitol.  The rules are portrayed as "time, place, and 
manner" restrictions for the good of the community in its entirety, but to 
me they seem unduly restrictive, their real purpose being to discourage 
dissent.

The government has gotten VERY good since the 1960s at controlling 
dissent.  It has served the government's purpose that the Supreme Court has 
been extraordinarily conservative since the late William Rehnquist became 
Chief Justice, such that it tends to uphold these draconian or arbitrary 
"time, place, and manner" restrictions as being reasonable.



>From: peace-discuss-bounces at lists.chambana.net 
>[mailto:peace-discuss-bounces at lists.chambana.net] On Behalf Of Jan & Durl Kruse
>Sent: Monday, September 24, 2007 6:20 PM
>To: John W.
>Cc: peace-discuss at lists.chambana.net
>Subject: Re: [Peace-discuss] Billboards and Free Speech
>
>John,
>
>This is very interesting.  Because of "free speech rights" an advertising 
>company like Adams can print anything it wants on its billboards in Urbana 
>as long as it is not obscene (and of course they get handsomely paid for 
>it) , while at the same time denying AWARE's "free speech rights" by 
>refusing to accept our wording "IMPEACH BUSH/CHENEY" for a billboard in 
>2006 promoting the ballot advisory referendum.
>
>This raises some interesting questions.  Is "advertising" protected free 
>speech and the exercise of free speech as implied in the 
>constitution?  Where does an "individual's free speech right " fit into 
>this picture when the company itself (Adams) refuses to print the wording 
>Impeach Bush/Cheney on a billboard because it is too politically charged 
>and may have a negative business backlash.
>
>Something is afoul here!
>
>I hope the Urbana City Council sticks to its position of regulating 
>billboards through "time, place and manner" by not permitting Adams to 
>place billboards in locations that are unsightly or unwanted by the 
>citizens of Urbana.  I don't believe the city council is trying to 
>regulate billboard content but attempting to control  visual pollution.
>
>
>On Sep 24, 2007, at 5:32 PM, John W. wrote:
>
>
>At 05:10 PM 9/24/2007, Jan & Durl Kruse wrote:
>
>
>Billboards and Free Speech:
><http://www.youtube.com/watch?v=7zpXLKAyESM&mode=related&search=>http://www.youtube.com/watch?v=7zpXLKAyESM&mode=related&search= 
>
>
>Urbana reconsidering last year's ordinance on billboards
>By Mike Monson
>
>Monday September 24, 2007
>
>URBANA - A lawsuit filed against the city of Urbana by Adams Outdoor 
>Advertising is prompting city officials to propose revising an ordinance 
>that is barely a year old.
>
>Adams owns all 32 billboard structures, with 64 billboard faces, in the 
>city of Urbana. The company filed suit in Champaign County Circuit Court 
>this past November, asking for relief from the city's new billboard 
>ordinance, which was approved by the city council in June 2006.
>
>In the suit, Adams objected to the fact that to get a new billboard 
>requires the company to get a special use permit approved by the city 
>council and reviewed by the plan commission. Adams contended that 
>requiring a special use permit was an abridgment on its First Amendment 
>rights to free speech and failed to include basic due process protections.
>
>
>
>If the permission granted or denied is based in any way on the CONTENT of 
>the advertising, other than probably obscenity, Adams is absolutely 
>right.  However, the city can impose what are called "time, place, and 
>manner" restrictions on the billboards.
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