City gets slapped in billboard battle

I've said before that the city has had a pretty good run in the courts lately. Yesterday, their winning streak came to an end when a judge granted an injunction to prevent enforcement of their billboard ordinance in the extraterritorial jurisdiction.

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.

[U.S. District Judge Melinda] 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.

"Noncommercial billboards are visual blights, traffic dangers and undesirable for property values for the same reason as commercial billboards," the opinion states.

Assuming the city doesn't change its ordinance before then, the trial is set for the spring. A copy of Judge Harmon's ruling is here (PDF).

Posted by Charles Kuffner on September 27, 2007 to Local politics