July 22, 2019

July 22, 2019

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Michigan Regulation Requiring Spaced-Out Digital Billboards Does Not Violate First Amendment

We've all seen it before: a person says something rude, which elicits a "watch your mouth" response, and the foul-mouth person replies, "Hey, I have a right to free speech!" Touché. A lesser-known use of the First Amendment is that its Free Speech Clause also protects billboards and other visual signs. The Sixth Circuit recently addressed this protection and its interaction with a township's right to regulate billboards.

In Hucul Advertising LLC v. Charter Township of Gaines, the Sixth Circuit, in a published opinion, found that a zoning ordinance's requirement—that digital billboards not be within 4,000 feet of each other—did not violate the First Amendment. In doing so, the court affirmed the court in the Western District of Michigan.

Hucul Advertising wanted to build a billboard on property it owned in the Charter Township of Gaines near the M-6 highway. Hucul applied to the Township for permission, but the Township denied the application. The Township said that the application would violate the provision of its zoning ordinance that did not allow digital billboards to be within 4,000 feet of each other. Hucul sued the Township, alleging that the Township's billboard regulations violated the U.S. Constitution, including the First Amendment. The district court granted summary judgment in favor of the Township and thus dismissed the case.

Hucul's lawsuit alleged that the 4,000-foot spacing requirement was an impermissible restriction on commercial speech. The Sixth Circuit disagreed. First, the Township's ordinance aimed to promote traffic safety, aesthetics, and property values, without referring to the content of the speech on a billboard. Second, these governmental interests are significant. Third, the 4,000-foot spacing requirement is narrowly tailored to serve these interests. Last, the spacing requirement leaves open ample channels for communication, such as static billboards spaced more closely together or other modes of communication.

One other interesting tidbit about the Sixth Circuit's opinion is that it was originally deemed "unpublished," and subsequently designated as published. This could be due to Sixth Circuit judges believing that the opinion clarified a point of law, such as when to use the "time, place, and manner" test.

© 2019 Varnum LLP


About this Author

Kyle Konwinski, Litigation lawyer, Varnum

Kyle’s practice is commercial litigation. He has represented clients in a wide array of litigation, including trials, administrative trials, and on appeal. He has unique experience in environmental/land-use litigation and Employee Retirement Income Security Act litigation. Kyle has recovered millions of dollars for companies throughout the state that were victims of Blue Cross Blue Shield of Michigan's ERISA violations.

As for the environmental and land use area, Kyle has trial and appellate experience with contested case hearings in the Michigan Administrative...