Rights and wrongs of billboards

By Linda P. Campbell
Ft. Worth Star-Telegram
July 14, 2003

Maybe Pat Barber should have put up a lemonade stand. Then he might have been able to post his political message along with the price of a tall, cool drink.

But Barber chose to put up an 8-by-16-foot billboard telling passing motorists they have constitutional rights. That, the Texas Supreme Court decided, was a no-no.

In a state that prides itself on preserving individual property rights, one would expect to find fierce defense of a landowner’s right to have his say on his own billboard posted on his own field. Guess again.

The Texas Highway Beautification Act gives the state the power to prohibit outdoor advertising within 660 feet of the right of way to interstate highways. The goal is to protect the "health, safety, welfare, morals, convenience and enjoyment of the traveling public," not to mention the continued influx of federal highway funds.

To some, it might appear that the method of making Texas byways scenic and safe has an unsightly impact on free-speech rights. But a 6-3 court majority saw no First Amendment problem, no conflict with the Texas Constitution.

They saw no perversity in letting Barber publicize his runs for the Texas Court of Criminal Appeals but not letting him post a sign telling passersby to "Just say NO to Searches."

Barber, a lawyer in Colorado City, posted the billboard on his property about 70 miles west of Abilene in 1997 because he believed police were stopping motorists and intimidating them into consenting to vehicles searches even though the officers didn’t have probable cause to obtain search warrants. The sign showed a phone number to a recorded message explaining that drivers have the constitutional right to decline a warrantless vehicle search.

The Texas Department of Transportation got a trial court to order Barber to remove the sign. He burned it down in 1999 but then won an appellate ruling. TxDOT, in turn, convinced the Texas Supreme Court that the law is a reasonable restriction on speech.

Under Supreme Court precedents, if a law regulates speech but doesn’t focus on content, it’s considered valid if it is narrowly tailored to promote a substantial government interest. Justice Craig Enoch, who wrote the July 3 majority opinion, concluded the highway beautification law isn’t content-based.

Didn’t matter that it contains a slew of exceptions based on what signs say: Ads for natural wonders and historic attractions are OK, so are "for sale" signs, ads for commercial activities on the property, signs that have the purpose of protecting life or property and election campaign signs displayed for limited times.

Enoch found the law narrowly tailored because Barber could have moved his billboard to a commercial or industrial area.

Didn’t matter that he might get priced out of speaking by the cost of advertising on someone else’s land.

Enoch cited a Supreme Court ruling that allows cities to zone adult movie theaters out of residential neighborhoods based on the "secondary effects" such as increased crime and falling property values.

Didn’t matter that the only "secondary effect" of notifying drivers of their constitutional rights might be that they exercise them. What’s the substantial state interest in preventing that?

Enoch also chose to follow the reasoning in a 6th U.S. Circuit Court of Appeals ruling on a Kentucky billboard law. Didn’t matter that the ruling isn’t binding outside of Kentucky, Michigan, Ohio and Tennessee.

As Justice Priscilla Owen — yes, "that" Priscilla Owen, the lingering 5th Circuit nominee — pointed out in a dissent, this case looked just like a 1994 Supreme Court ruling that said the Missouri city of Ladue couldn’t prevent a woman from displaying an anti-war sign in the window of her home.

"I think that owners of rural property, even if they do not live on the property, would be dismayed to learn that they cannot place even a single sign on that property expressing their political views, although they would be permitted to display a sign that said, ‘Watermelons for sale’ if they erected a fruit stand on the property," she wrote.

"Preserving scenic beauty and promoting public safety are legitimate aims, but the state could have limited the number or density of signs that an owner may display on property abutting highways and achieved the same end."

Does Texas really mean to say that a highway billboard carrying a political message is uglier and more hazardous than one touting Motel 6?

Linda P. Campbell is a Fort Worth Star-Telegram editorial writer.
New York Times News Service