Friday, January 29, 2021

Mandelker: Billboards, Signs, Free Speech, and The First Amendment

Dan Mandelker has just posted Billboards, Signs, Free Speech, and The First Amendment on SSRN.  View the article here; the abstract is below:

This Article reviews the competing demands free speech law makes when applied to sign and billboard ordinances. It describes the free speech doctrines that apply, explains ambiguities and conflicts, and makes recommendations for sign regulations that can avoid constitutional problems. The Article first explains how state courts decided the constitutionality of billboard controls before free speech law applied. It then describes the litigation problems municipalities face in sign litigation, and considers the overbreadth and severability doctrines that litigants can use to strike sign ordinances down. Ordinances that regulate signs typically regulate commercial speech. The Article explains the criteria the Supreme Court adopted for laws that regulate commercial speech, and how the Court liberally applied these criteria in a case upholding an ordinance that prohibited billboards. Lower court cases that applied this case are discussed next. They followed the Supreme Court’s approach in billboard cases but sometimes added new requirements. The Article then describes the free speech time, place, and manner rules that are an alternative to commercial speech doctrine, and how courts apply these rules to sign ordinances. Regulations for digital billboards are discussed next. The Article concludes by discussing the constitutional protections courts provide for noncommercial speech, and the constitutional restrictions they require for signs that regulate content.

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Thanks for highlighting this article that will be appearing soon in the Real Property Trust and Estate Law Journal. The Journal is seeking submissions for an upcoming issue right now, so if anyone is interested in submitting an article draft for consideration, it is a good time to do so. Thanks.

Posted by: Andrea Boyack | Jan 30, 2021 10:19:25 PM

And with the current billboards throughout the country calling on certain members of Congress to resign - the point about free speech and billboards is even clearly more timely and relevant than ever. Thanks for posting!

Posted by: Andrea Boyack | Jan 30, 2021 10:24:04 PM