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Judge Shoots Down City Law That Curbs Billboards

Date: September 27, 2007

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Judge shoots down city law that curbs billboards
Houston Chronicle
By Matt Stiles
September 27, 2007

A federal judge on Wednesday blocked the city from enforcing its 27-year-old sign code,
ruling the regulations could violate free speech protections in the First Amendment.

The ruling results from a recent challenge to the city's aggressive plan to crack down on
non-permitted billboards bordering Houston, but the scope of U.S. District Judge Melinda
Harmon's opinion surprised city officials.

Fearing they will lose the ability to regulate all signs citywide, not just billboards they
have targeted in a five-mile ring around Houston, officials said they are considering an
appeal.

"I'm disappointed," Mayor Bill White said. "I hope the court did not intend to even prevent
enforcement of the sign code within the city limits."

The city could ask Harmon to reconsider her ruling, or ask the 5th U.S. Circuit Court of
Appeals in New Orleans to narrow the injunction so it only applies to the targeted
billboards in the city's extraterritorial jurisdiction, or ETJ, a five-mile ring around the city's
borders.

Houston-based billboard company RTM Media sued the city after officials threatened to
issue citations under the sign code to dozens of advertisers using the company's
billboards in the targeted area.

The city has cited an RTM executive more than 2,000 times, even winning an appeal of
a Municipal Court conviction. The city also has a pending lawsuit against RTM in state
court that seeks to prevent the company from operating billboards without permits.

But the billboards remain. So, the city decided recently to target the company's
advertisers, hoping to shrink its customer base.
Harmon said that strategy infringed on the advertisers' free speech rights.

"The city's justification that such pressure tactics against advertisers are acceptable
because they 'work' does not cure the constitutional problem here," Harmon's opinion
states.

The judge's opinion addresses only the request for a temporary injunction, but taking
that step requires her to find that RTM Media had a "substantial likelihood of success"
should its challenge proceed.

The White administration contends that the signs in the city's ETJ are illegal under state
and municipal laws, which grant Houston the right to regulate billboards.

In court filings and a two-hour hearing last week, however, the company argued that the
city does not have the authority to cite its customers. More broadly, it argued that the
sign code violates the First Amendment because it distinguishes between commercial
and non-commercial speech.

The city code, which covers most signs, prohibits new billboards in Houston or the outer
ring. But it allows those with political, religious or other noncommercial messages.
The court took issue with that distinction, citing a 14-year-old Ohio case involving the
regulation of news racks, stating that the city cannot treat billboards differently based on
their content.

The judge set the case for trial next spring. The city could amend its ordinance to comply
with her concerns before then.

 

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