Thomas v. Bright, 17-6238

• Decision Date: 11 September 2019
• Docket Number: No. 17-6238,17-6238
• Citation: 937 F.3d 721
• Parties: William Harold THOMAS, Jr., Plaintiff-Appellee, v. Clay BRIGHT, Commissioner of Tennessee Department of Transportation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

937 F.3d 721

William Harold THOMAS, Jr., Plaintiff-Appellee,

v.Clay BRIGHT, Commissioner of Tennessee Department of Transportation, Defendant-Appellant.

No. 17-6238

United States Court of Appeals, Sixth Circuit.

Argued: January 30, 2019

Decided and Filed: September 11, 2019

Rehearing En Banc Denied November 6, 2019

ARGUED: Sarah Campbell, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellant. Owen Yeates, INSTITUTE FOR FREE SPEECH, Alexandria, Virginia, for Appellee. Lindsey Powell, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Eugene Volokh, UCLA SCHOOL OF LAW, Los Angeles, California, for Amici Curiae. ON BRIEF: Sarah Campbell, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellant. Owen Yeates, Allen Dickerson, INSTITUTE FOR FREE SPEECH, Alexandria, Virginia, for Appellee. Lindsey Powell, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Eugene Volokh, UCLA SCHOOL OF LAW, Los Angeles, California, Kannon K. Shanmugam, A. Joshua Podoll, WILLIAMS & CONNOLLY LLP, Washington, D.C., Ilya Shapiro, CATO INSTITUTE, Washington, D.C., Braden H. Boucek, BEACON CENTER OF TENNESSEE, Nashville, Tennessee, Timothy Sandefur, GOLDWATER INSTITUTE, Phoenix, Arizona, Robert Alt, THE BUCKEYE INSTITUTE, Columbus, Ohio, for Amici Curiae.

Before: COLE, Chief Judge; BATCHELDER and DONALD, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge.

Under Tennessee’s Billboard Act, anyone intending to post a sign along a Tennessee roadway must apply to the Tennessee Department of Transportation (TDOT) for a permit, unless the sign falls within one of the Act’s exceptions. This case presents a constitutional challenge to the Act, based on the "on-premises exception" for signs relating to the use or purpose of the real property (premises) on which the sign is physically located, typically signs advertising the activities, products, or services offered at that location.

William Thomas owned a billboard on an otherwise vacant lot and posted a sign on it supporting the 2012 U.S. Summer Olympics Team. Tennessee ordered him to remove it because the State had denied him a permit and the sign did not qualify for the exception, given that there were no activities on the lot to which the sign could possibly refer. Thomas sued, claiming that this application of the Billboard Act violated the First Amendment. The district court held the Act unconstitutional because the on-premises exception was content-based and thus subject to strict scrutiny, failed to survive strict scrutiny, and was not severable from the rest of the Act. We affirm, recognizing that Reed v. Town of Gilbert , ––– U.S. ––––, 135 S. Ct. 2218, 192 L.Ed.2d 236 (2015), overruled our existing circuit precedent on this issue in Wheeler v. Commissioner of Highways , 822 F.2d 586 (6th Cir. 1987).

I. BACKGROUND

A. Tennessee’s Billboard Act

In 1965, Congress enacted the Federal Highway Beautification Act ("HBA"), 23 U.S.C. § 131, which sought to "promote the safety and recreational value of public travel, and to preserve natural beauty." Id . The HBA conditions ten percent of a State’s federal highway funds on the State’s maintaining "effective control" of signs within 660 feet of an interstate or primary highway, id . at § 131(b), meaning the State must limit signage to (1) "directional and official signs and notices," (2) "advertising [for] the sale or lease of property upon which [the sign is] located," (3) "advertising [for] activities conducted on the property on which [the sign is] located," (4) "landmark[s] ... or historic or artistic significance," or (5) "advertising [for] the distribution by nonprofit organizations of free coffee." Id . at § 131(c). The State may also, with U.S. Department of Transportation approval, permit signs in areas zoned industrial or commercial. Id . at § 131(d).

In order to comply with the HBA and ensure full federal funding, Tennessee enacted the Billboard Regulation and Control Act of 1972 ("Billboard Act"), Tenn. Code Ann. (T.C.A.) § 54-21-101, et seq . The Billboard Act parallels the HBA in most relevant respects and prohibits all outdoor signage within 660 feet of a public roadway unless expressly permitted by TDOT permit. Id . § -103. But the Act also provides exceptions under which certain signs may be posted without permit, including an exception for signage "advertising activities conducted on the property on which [the sign is] located." Id . § -103(3). This is referred to as the "on-premises exception" and corresponds to the HBA’s third limitation. Under the Act’s implementing regulations:

A sign will be considered to be an on-premise[s] sign if it meets the following requirements:

(a) Premise[s] - 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.

Tenn. Comp. R. & Regs. (T.C.R.R.) § 1680-02-03-.06(2). The regulations elaborate further:

The following criteria shall be used for determining whether a sign has as its purpose [ ] the identification of the activity located on the premises or its products or services, ... rather than the business of outdoor advertising.

(a) General

1. Any sign which consists solely of the name of the establishment is an on-premises sign.

2. A sign which identifies the establishment’s principle [sic] or accessory product or services offered on the premises is an on-premises 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 [sic] activity, it shall be considered the business of outdoor advertising and not an on-premises 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 property.

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-premises 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-premises activity would only be the skeet range or dog kennels.

T.C.R.R. § 1680-02-03-.06(4) (emphasis added; alteration of "premise" to "premises" throughout). So, to recap, and to be a bit more specific, the sign must (1) be physically located on the same "premises" (real property) as the activity being advertised on the sign, and must (2) have as its purpose the identification of that activity occurring on the premises, or the products or services provided by that activity on the premises, not the purpose of advertising generally or advertising an activity, product, or service occurring elsewhere.

Finally, we would be remiss if we did not acknowledge that, by all indications, the Act was intended to, and routinely does, apply to only commercial speech, namely, advertising. But in this case, Tennessee applied the Act to restrict speech conveying an idea: "non-commercial speech" that was not advertising nor commercial in any way, but might be labeled "patriotic speech."

B. State Court Litigation

In 2006, Thomas—the owner of over 30 billboards in Tennessee—applied to the TDOT for a permit to erect a billboard on a vacant lot, hereinafter referred to as the "Crossroads Ford billboard," on which he would display a commercial advertisement. TDOT denied the application but Thomas constructed the Crossroads Ford billboard and posted his sign anyway. TDOT sued in the Tennessee state court, claiming that Thomas was in violation of the Billboard Act and also arguing that the Crossroads Ford billboard could not satisfy the on-premises exception because it was located on a vacant lot with no on-premises activity whatsoever.

The state trial court found "substantial evidence of selective and vindictive enforcement against [Thomas]," including emails from TDOT employees working in concert with a competitor of Thomas’s to "defeat" him, and unsolicited emails sent from TDOT employees to advertisers on Thomas’s other billboards suggesting that his billboards were illegal and that associating with Thomas would reflect "negatively" on them. The court granted a temporary restraining order forbidding TDOT from enforcing the Billboard Act against Thomas’s Crossroads Ford billboard until further notice. Thomas subsequently obtained a billboard permit from the Memphis and Shelby County (Tenn.) Office of Construction Code Enforcement but did not obtain a state permit from TDOT. He used the Crossroads Ford billboard for commercial advertising until 2012. Meanwhile, TDOT had appealed the decision and the Tennessee Court of Appeals vacated the judgment and remanded the case, instructing the trial court to hear Tennessee’s requests for relief. State ex rel. Dep’t of Transp. v. Thomas , 336 S.W.3d 588, 608 (Tenn. Ct. App. 2010).

By 2012, Thomas had stopped posting commercial advertising on the Crossroads Ford billboard and instead had posted a message about free speech, which he later changed to "Go USA!," imposed on a large American flag, in support of the USA Olympic Team in the 2012 Summer Games. On remand, the state trial court found that this, the conveyance of an idea, was not commercial advertising, and was excepted from TDOT’s authority to enforce the Billboard Act. TDOT again appealed and the Tennessee Court of Appeals again reversed, reiterating that, "[u]nless [the sign] fits within one of the exceptions named in ...