Court ruling could help loosen state control over billboards along state highways

A federal appeals court ruled today that the First Amendment trumps a state law that lets officials order the removal of billboards along highways.

The ruling means a billboard company can continue a lawsuit over the regulations even though the state has never ordered any of its billboards removed.

A lower-court judge had dismissed Van Wagner Communications suit against the state Department of Transportation and the state Office of Outdoor Advertising for lack of standing, because the state had never rejected any of the company's 70 requests for billboard permits.

But the US Court of Appeals for the First Circuit reinstated the suit, saying the company had legitimate worries about the First Amendment because state law gives regulators "unbridled discretion over the licensing of their expressive conduct and poses a real and substantial threat of censorship." The justices wrote:

First Amendment rights are fragile, and it is not only the occasional abuse of censorship power but also the threat inherent in the existence of that power that may chill protected expression. Where those risks exist to a significant degree, [constitutional] challenges to the grant of such authority may be mounted. ...

The regulations place no limit on what constitutes cause for revoking a permit. Because the revocation of a permit prevents a billboard owner from engaging in further protected expression, those provisions pose the same potential threat as the provisions governing the granting and renewal of permits. ... Under this paradigm, a permit holder always must be wary of displaying a contentious message out of concern that the Director will retaliate by revoking its existing permits.