Regulating Sign Displays in
the Digital Age (S499)
APA 2008 National Planning Conference
Professor Daniel Mandelker, FAICP
Washington University, St. Louis
Professor Emeritus Charles Floyd, AICP
University of Georgia, Athens
Adjunct Professor John M. Baker
Greene Espel P.L.L.P., Minneapolis and
William Mitchell College of Law, St. Paul
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Overview
 Seven questions to answer about your
sign code
 Variations that challenge sign code
writing and enforcement:
 Electronic digital displays
 Mobile billboards
 The sad fate of the Highway
Beautification Act
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The value of a constitutional,
current sign code
 Some sign companies target cities with
out-dated sign codes, including –
 Codes that haven’t keep up with
evolving First Amendment standards,
or
 Codes that haven’t anticipated and
restricted modern technologies
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The most effective strategy
Fix flaws in your sign code
Update it to respond to
emerging technologies
Expect little help from
federal law or regulators
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Seven questions to ask about
your current sign code
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1. Does the code have an effective
statement of purpose and intent?
 NOT just “to protect the health,
welfare, safety . . . .”
 A statement that
 tracks the objectives courts view as
legitimate,
 shows respect for citizens’ need for selfexpression, AND
 will assist your city to justify all
distinctions between legal and illegal
signs
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2. Does your code inadvertently
favor commercial speech?
 The problem:
 You must be
sure that sign
code regulations
will never give
commercial
speech a kind of
protection
unavailable to
noncommercial
speech
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The solution: add a “Message
Substitution Clause” to your code
 Whenever commercial speech would
be permitted, allow noncommercial
speech to be substituted
 Lakeville, MN Section 9-3-4: “Signs
containing noncommercial speech are
permitted anywhere that advertising
or business signs are permitted,
subject to the same regulations
applicable to such signs.”
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3. Does it properly distinguish
between on-site and off-site signs?
 Off-site and on-site signs can be
treated differently
 Commercial off-site signs can be
prohibited
 Noncommercial off-site signs may
have to be allowed
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3. Does it properly distinguish
between on-site and off-site signs?
 Off-site and on-site signs can be
treated differently (cont’d)
 Noncommercial messages must be
allowed on on-premise signs
 Reasonable height, size and spacing
requirements are permissible for onsite signs
 Signs on residential property require
special treatment
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4. Are its procedural safeguards
sufficient?
 Have you reserved too much discretion?
 Sources of discretion that may raise
concerns:
 Provisions authorizing permit denial even
if the application satisfies all specific
requirements
 Look at aesthetic review provisions
 Provisions that treat signs as conditional
or special uses
 The word “may”
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4. Are its procedural safeguards
sufficient? (cont’d)
 Ordinarily, preserving discretion in
zoning codes is a good thing
 For sign codes, preserving discretion can
create problems
 Because signs are expressive conduct,
courts distrust discretion
 Even if you never exercise discretion, an
ordinance that allows you to exercise it over
sign applications may be unconstitutional
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4. Are its procedural safeguards
sufficient? (cont’d)
 How quickly must you act on an
application or an appeal?
 Are there self-imposed, formal time
limits (in the law itself) on the ability of
staff (or a board or council) to refrain
from acting on the application or on an
appeal?
 These may be needed unless you’re sure
that no judge will consider your
ordinance content-based
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5. Does the code have a broad
severability clause?
 Its role: to tell a judge what must
survive if part of a sign code is
unconstitutional
 Otherwise: a judge, not the council,
may decide that the sign code no
longer works without the invalid
terms, and nullify it all
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5. Does the code have a broad
severability clause? (cont’d)
 Features of a broad clause:
 It preserves as many words as possible:
 “If any part, section, subsection,
paragraph, subparagraph, sentence,
phrase, clause, term, or word are
declared invalid . . .
 It’s unconditional
 “. . . such invalidity shall not affect the
validity or enforceability of the remaining
portions.”
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6. Does it properly address political
(temporary election) signs?
 Political and election signs carry
noncommercial speech and receive
more protection under the Free
Speech clause
 Sign ordinances must be content-neutral
 It is impossible to define a political sign
without violating this rule
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6. Does it properly address political
(temporary election) signs? (cont’d)
 There must be a “compelling interest”
to regulate the content of
noncommercial speech – this is
hardly ever found
 If an ordinance treats political signs
more restrictively it will be struck down
 The temporary sign provision should
allow political and election signs and
drafted in an even-handed way
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7. Does it properly address
message signs?
 Message sign provisions are contentbased and will be struck down
 This is the holding in Metromedia and
many circuits
 Examples: For sale and for rent signs,
directional signs, construction signs,
time-and-temperature signs, grand
opening signs, restrictions on flags
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7. Does it properly address
message signs? (cont’d)
 Wrong: A sign offering property for
sale or rent
 Right: A sign on property that is
offered for sale or rent
 The definition of “flag” must allow all
flags
 The definition of “sign” must not
specify any content
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New Challenges to Sign Code
Drafting and Enforcement
Digital Displays
Mobile Billboards
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The three main challenges
 Writing your definitions and standards
in ways that clearly reach the latest
(and next) technology
 If dynamic displays are allowed,
reducing the risk of distraction
 Avoiding exceptions that undermine
your ability to defend the restriction
in court
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Can a city simply ban them?
 Yes, according to a Jan. 2008 ruling
of the First Circuit Court of Appeals
 Naser Jewelers v. City of Concord, NH
 Concord prohibited all “electronic message
center type signs”
 Company cried: this burdens our right to
free speech
 The Court:
 The ban is content-neutral, and is narrowly
tailored to the safety and aesthetic goals
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Defining “dynamic display”
effectively
 Avoid limiting the restrictions by
reference to particular methods
 Example: reach all sign
characteristics that “appear to have
movement or appear to change,
caused by any method other than
physically removing and replacing the
sign or its components” (Minnetonka,
MN 2007)
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Controlling distraction
 Studies:
dynamic signs
attract more
glances, and
longer
glances
24
Long glances and stares
 If drivers
expect a sign
will soon
change, they
may watch for
it to change
 This is called
the “Zeigarnik
effect”
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A special danger: signs with -
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sequential displays, because -
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when a message or visual -
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story is spread over several -
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frames, it virtually forces the -
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driver to stare, at great length!
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Stare control
 Require a long minimum duration, so
 drivers see fewer changes, and
 drivers stop watching for changes
 Ban motion of all types
 Scrolling
 Animation or full-motion video
 Fancy transitions between images
 Ban sequential displays
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Minimizing the risk of litigation
over your restrictions
 Live by your own standards
 If you ban dynamic displays, do not try to
exempt a dynamic city hall sign
 Consider applying the same standards for
on-site and off-site digital displays
 Both can distract
 Both can be ugly
 However, a city that allows dynamic displays
in exchange for takedowns of more signs can
cause overall improvements in each
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Do LED billboards violate the HBA?
 Under a straightforward reading of its
words, yes.
 Billboards with “flashing, intermittent, or
moving light or lights” violate the HBA
 LED signs are made up of lights
 Webster’s Dictionary defines
“intermittent” as “not continuous”
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The FHWA position before ‘07
 “Off-premise message center type
signs using internal lighting are not
yet approved for general off-premise
application.”
 Source: FHWA website in June 2007
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The FHWA position after ‘07
 “Off-premise message center type
signs using internal lighting are not
yet approved for general off-premise
application without consideration of
duration of message, transition time,
brightness, spacing and other
factors.”
 Source: FHWA website today
 8-second duration is “recommended”
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Mobile billboards
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Mobile billboards
 1949:U.S. Supreme Court upheld New
York City ordinance forbidding the
operation of trucks “used merely or
mainly for advertising”
 Because the decision pre-dated 1st
Amendment protection for commercial
speech, however, it doesn’t answer the
question of whether such limits violate
free speech
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Mobile billboards
 2007: Sixth Circuit
strikes down
Glendale, OH law
forbidding parking of
vehicles on streets
for purposes of
advertising
 Why: city simply
“deemed” such signs
a hazard and a blight
 Better findings
needed
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Mobile billboards: general rules
 Mobile billboards are subject to local
regulation – at least when parked
 Courts have recognized that portable
signs sometimes warrant stricter
regulation, so that they aren’t moved
to illegal areas
 However, build a factual record
regarding increased traffic risk and
visual blight
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Does the Highway
Beautification Act matter?
 “Taxpayers can
only dream that
every law Congress
passes works as
well as the
Highway
Beautification Act”
 Source - Outdoor
Advertising
Association of
America
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The HBA’s original mission
 Non-conforming billboards removed
within five years
 New billboards allowed only in
commercial and industrial areas
 Source: 1965 White House Conference
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How the HBA failed its mission
 No standards in the Act for size and
spacing
 Agreements with states based on
“customary use”
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Evolving federal regulations
 Spacing
 500 feet on
freeways
 300 feet on nonfreeways
 100 feet inside
cities
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Evolving federal regulations
 Size

 1200 square
feet
 No height
limitations
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Phony commercial zoning
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Phony commercial zoning
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The “unzoned areas” loophole
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The HBA as a billboard
company protection program
 Congress requires states to
compensate owners for removal
 But almost immediately, Congress
stopped funding states’ removal
efforts
 This leaves states with a disincentive
to carry out the HBA in a way that
would involve sign removal
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 This presentation is a teaching tool that is
useful only in conjunction with the
accompanying remarks of the presenters.
 It does not constitute legal advice, but and
is no substitute for legal advice.
 It does not fully reflect the views of every
judge, or even of every presenter.
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Professor Daniel Mandelker
Howard A. Stamper Professor of Law
Washington University School of Law
One Brookings Drive
Campus Box 1120
St. Louis, MO 63130
mandelker@wulaw.wustl.edu
(314) 968-7233
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Professor Emeritus Charles Floyd
AICP (retired)
P.O. Box 448
Cleveland, NC 27013
chasfloyd@earthlink.net
(704) 278-3620
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John M. Baker
Greene Espel P.L.L.P.
200 S. Sixth Street, Suite 1200
Minneapolis, MN 55402
JBaker@greeneespel.com
(612) 373-8344
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For future reference
This presentation will be available at
http://law.wustl.edu/landuselaw
(click on “Streaming Video and
PowerPoints”)
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