Naked City

Free Speech on the Highway

On July 3 the Texas Supreme Court issued a 6-3 ruling that the Texas Highway Beautification Act is "content neutral" and places valid "time, place and manner" restrictions that do not violate First Amendment free-speech rights. The decision sided with the Texas Dept. of Transportation's challenge of a 3rd Court of Appeals ruling that the THBA was unconstitutional because it unfairly restricted the construction of highway billboards based on the content of the displayed message.

The initial suit challenging THBA was brought against TxDOT by West Texas lawyer Pat Barber, who -- in response to a spate of unconstitutional searches of drivers on I-20 by local law enforcement -- erected a billboard on a piece of unused, rural property that he owns bordering the highway. The sign, which read "Just Say NO to Searches" also carried a telephone number that drivers could call for information on illegal searches and constitutional rights. After a story about the billboard appeared in the Abilene paper, a local sheriff contacted TxDOT, claiming the sign violated the THBA, and TxDOT told Barber he had to take the sign down. Barber sued, claiming the THBA restrictions violated his right to free speech, and successfully appealed the district court's decision favorable to TxDOT.

After hearing arguments last November, the court ruled last week that the THBA does not unconstitutionally restrict free speech. "[T]he Texas Act is content-neutral," Justice Craig Enoch wrote for the majority. "The Act is primarily concerned with promoting aesthetics and travel safety by regulating the placement of billboards and signs. ... [A]esthetics and public safety on the highway are recognized as substantial governmental goals," he wrote. "[T]he ... Act does not completely prohibit either commercial or noncommercial speech. Rather, both types of speech are allowed without restriction in commercial and industrial areas." Further, the majority opinion notes, both types of speech are also allowed in noncommercial and nonindustrial areas (like Barber's property) as long as "the speech relates to an activity on the premises."

That last caveat, of course, is what Barber challenged in the first place -- and three judges agreed with him, in a dissenting opinion authored by Justice Priscilla Owen, who must be getting in touch with her inner liberal. "In the case before us today," Owen wrote, "I do not see how Barber's sign is any more harmful than the signs that are permitted by the Act." The THBA allows for several exceptions to its rules, including one for "outdoor advertising solely for the activities conducted on a property on which it is located," as well as several other exemption categories that are based solely on the message's content. "Whether a sign is prohibited can only be determined by examining its content," Owen wrote, suggesting that the THBA would really be content-neutral, and thus constitutional, if it were only to regulate billboards based on number, size, or proximity to one another. Instead, its clear content-based exemptions "diminishes" its "credibility."

Barber's attorney, Jim Harrington of the Texas Civil Rights Project, said he intends to seek U.S. Supreme Court review of the case.

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