Institute for Free Speech to Handle Appeal in Tennessee Sign Case

Alexandria, VA – The Institute for Free Speech yesterday notified a federal court and Tennessee state officials that it will represent William H. Thomas, Jr. in the state’s appeal of a ruling that Tennessee’s sign rules are unconstitutional. Last March, a federal judge ruled for Thomas, saying Tennessee law violated the First Amendment by creating “an unconstitutional, content-based regulation of speech.”

Mr. Thomas owns several roadside signs. This appeal concerns one such sign, which Mr. Thomas has used to express various non-commercial messages and opinions, such as cheering on U.S. athletes during the Olympics and celebrating “the glory of the season” during the holidays. Tennessee has sought to tear down Mr. Thomas’s sign, but crucially, it would not attempt to do so had it advertised on-site commercial activity or the sale of his property. Such ads are exempt under the law governing billboards in Tennessee. So if a nearby auto body shop wanted to advertise its sale on tires with the same-sized billboard, it could do so. As a result of this exemption, the state must look to a sign’s content to determine whether it should be regulated. This creates a major First Amendment problem.

“A law that permits a sign that says ‘Fireworks for sale here’, but prohibits an identical sign that reads ‘Support our troops’, imposes a content-based restriction on speech. Such restrictions must survive strict scrutiny, which requires more than the state’s vague assertions about promoting highway aesthetics and safety,” said Institute for Free Speech Legal Director Allen Dickerson.

Tennessee appealed the lower court’s ruling last October. The Institute for Free Speech is representing Thomas during the appeal but was not involved in the case previously.

The case, known as Thomas v. Schroer, is currently before the Sixth Circuit Court of Appeals. John Schroer, Commissioner of the Tennessee Department of Transportation (TDOT), is a defendant in his official capacity only.

As the lower court decision recognized, Tennessee has failed to prove a valid reason for its two-track regulatory system for billboards.

“In the instant case, the Court finds the State’s interests in aesthetics and traffic safety are not compelling interests… The provisions at issue here concern the distinction between signs with content concerning on-premises-related activity versus other messages. The State fails to establish how this specific distinction relates to traffic safety and aesthetics,” wrote Judge Jon P. McCalla.

In his opinion, Judge McCalla found that even if the state had proved the interests were valid, the law “is not narrowly tailored to those interests.” He agreed that Thomas had suggested five possible alternatives that were less burdensome on speech.

The lower court ruling was issued by the United States District Court for the Western District of Tennessee on March 31, 2017. To read the decision, click here. To read more about the case, click here.

About the Institute for Free Speech

The Institute for Free Speech is a nonpartisan, nonprofit 501(c)(3) organization that promotes and defends the First Amendment rights to freely speak, assemble, publish, and petition the government. Originally known as the Center for Competitive Politics, it was founded in 2005 by Bradley A. Smith, a former Chairman of the Federal Election Commission. The Institute is the nation’s largest organization dedicated solely to protecting First Amendment political rights.

The Center for Competitive Politics is now the Institute for Free Speech.