December 29, 2003
Appeals Court Protects Oregon Law Granting Preferential Protection To Commercial Billboards
It's unlikely there is anything much to read into this decision, in terms of trying to get a reading on how courts might or might not look at, say, mural issues, but since the issues of commercial versus noncommercial billboards are at the heart of this particular case, it's worth mentioning here.
Earlier today, a 3-judge panel of the U.S. Court of Appeals for the 9th Circuit managed to reject a free speech challenge regarding an Oregon man's attempt to post a noncommercial sign on his property:
The 2-1 decision by a panel of the 9th U.S. Circuit Court of Appeals turned aside arguments by [James Lombardo,] a southern Oregon man who wants to put a large sign with a peace message on property at his home along a state highway.
...
The Oregon billboard law, similar to those in numerous other states, allowed commercial advertising signs to remain if they were in commercial and industrial zones before June 1975. It also allows signs that attract "attention to activities conducted on the premises on which the sign is located."
The law also allows temporary signs not larger than 12 square feet on private property. State authorities told Lombardo he could not put up a 32-square-foot sign saying "For Peace in the Gulf."
In essence, although this is not how its majority would describe it, the panel decided that because in theory the law -- in fact, provisions of the Oregon Motorist Information Act (which can be found within ORS 377) -- allows noncommercial signs, the law is not unconstitutional.
Problem is -- and it's detailed quite nicely in the opinion itself by the lone dissenting judge -- it's inherently more likely that "activities conducted on the premises" applies to commercial messages than it does to noncommercial messages, and therefore results in a discriminatory preference for commercial messages.
Judge B. Fletcher's dissent comprises the bulk of the 25-page opinion, mainly because it appears to more thoroughly examine the both the underlying issues and the applicability of precedent cases than do the two judges in the majority.
According to the Associated Press article, Lombardo's lawyer said he expects an 11-member panel of the U.S. Court of Appeals for the 9th Circuit will be asked to review the panel's ruling.