[Peace-discuss] Billboards and Free Speech

[Laurie at advancenet.net]

>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.

 

I have no major disagreement with you about some places having the character
of both public and private property for First Amendment purposes; but I
would suggest that most attempts to regulate free speech in such places are
typically not based on the right to control or censor speech and expression
in a public place but usually are based on health and public safety grounds
which allow the private owners of the public places to restrict the size,
location, etc. of the people exercising their right to free speech in ways
that may in effect censor it.  The claims often are that the exercise of
free speech and expression unless regulated and controlled will obstruct the
normal flow of business or traffic, create a public safety hazard, cause
damage to the location, create an additional non-normal expense for the
private owners so as to furnish the rational for charging fees and insisting
on insurance policies before allowing the posting or distribution of
literature, groups engaging in demonstrations, persons carrying out street
theater or performance art, etc.  

 

> 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.

 

These are what I generally refer to as health and public safety laws and
grounds.  I do not think that lowering property values per se would be
viewed as legally permissible grounds for preventing the placement of a
billboard in ones front yard as long as it was located within the property
lines and with several feet between the property lines separating the
private from the public spaces.  You can paint the outside of your house any
color you wish and light it any way you want, put any signs you want in your
yard or on the side of your house despite the complaints of neighbors.  The
City might harass and threaten you with actions; but if you get a lawyer and
challenge them, they will usually back down.  The recognize that there are
limits to what the courts will let them get away with once they have gone
beyond reasonable and empirical grounds that there is a real actual or
probably health concern or public safety basis like fire, blocked visibility
for drivers, etc.

>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.

 

Yes, but the whole notion of “in locations that are unsightly or unwanted by
the citizens of Urbana” is open to being applied to CONTENT and is not
content-neutral.  For example, I do not object to the words on the billboard
but I find the font used and the color of the sign and its type to be
unsightly and the images and illustrations are not ones that I like and want
so t hey are unwanted.  In such an instance, how is this content neutral?
Isn’t the style and color of the font content and part of the expression?
Should the tastes and preferences of the community or the community majority
matter is deciding what is wanted or not wanted for purposes of permitting
or not permitting the billboard?   My point is that typically communities
play the odds and use content-neutral language and content to mask to
control content to achieve conformity with majority standards and prejudices
knowing that most people will not challenge them and will comply under
pressure.

 

From: John W. [mailto:jbw292002 at gmail.com] 
Sent: Monday, September 24, 2007 10:40 PM
To: Laurie at advancenet.net; peace-discuss at lists.chambana.net
Subject: RE: [Peace-discuss] Billboards and Free Speech 

 

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>
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
<http://www.youtube.com/watch?v=7zpXLKAyESM&mode=related&search=>
&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.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.chambana.net/cgi-bin/private/peace-discuss/attachments/20070925/25b1c063/attachment-0001.html