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Billboard speech

The Oregon Supreme Court has taken some heat over the years for its strict intepretation of the state’s constitutional ban on free speech. The new decision in Outdoor Media Dimensions v. Department of Transportation may win it some new critics from other angles. But those critics won’t be able to argue that the court is being inconsistent in its rigorous take on free speech rights in Oregon.

Outdoor Media Dimensions owns billboards, many of them positioned along state highways, and it sells the advertising space on them. It has chafed under Oregon’s restrictive rules on billboards, most of them included in a 1971 law, the Oregon Motorist Information Act, passed in part to meet the standards of federal highway beautification law. Some federal funds are tied to state adherence to that law.

The law includes a mass of provisions governing what is and isn’t acceptable. The Supreme Court upheld most of them. But one aspect of the signage law was troubling: The law treated differently signs located on commercial property that related to the business at that location, from signs which are about anything other than the owner of the local property. That meant the law treated the signs differently based on what they said, rather than on some other consideration, such as safety or size or unsightliness.

This can get more complicated that you might first imagine. At one point, the court muses:

Before turning to the state’s response, we note that the scope of the issue here is not as broad as petitioner suggests. Petitioner’s brief uses, as additional examples of signs that it contends are prohibited by the OMIA, signs that in fact might not be prohibited by that law. Petitioner asserts that signs expressing the message “Pray for Peace” or the message “Keep Abortion Legal” always would require permits because they necessarily would be “outdoor advertising signs” rather than on-premises signs. Arguably, however, if the first message were displayed on the property of a church or the second message on the property of a facility offering abortion services, those signs would inform the public about “activities conducted on the premises on which the sign is located,” ORS 377.710(22), and thus be considered on-premises signs not subject to the OMIA’s permit requirement. Moreover, a plausible argument can be made that a sign with the message “Pray for Peace” on a residential lot is about activity on the premises, namely that the owner of the residence prays for peace and exhorts others to do the same.

But then it notes:

We agree, as we have explained above, with the state’s view that Article I, section 8, does not prohibit reasonable time, place, and manner regulation of speech imposed for reasons apart from the message of the speech. We also understand that the state is asserting that there is a constitutionally meaningful difference between the OMIA and laws that focus directly on categories of speech that are familiar from First Amendment cases, such as obscenity, political speech, and commercial speech. However, unlike the dissent, we do not find the state’s argument persuasive. As noted, the OMIA would allow a sign with the message “Buy Gas Here,” but prohibit the same sign from carrying the message “Eat at Joe’s: 10 Miles Ahead.” As we explain at greater length below, such a restriction, on its face, prohibits certain speech based on its content. The OMIA’s different treatment of on-premises and off-premises speech therefore violates Article I, section 8.

That puts it in plain langauge. And it also suggests that the impacts of this decision may not be as great as some of the early news stories on the decision seem to suggest.

The seriousness the court takes the free speech issue occurred again in another of Outdoor Media’s contentions. The state law requires that a billboard operator obtain a permit and, in many cases, pay a fee before erecting the billboard; that, Outdoor Media said, is prior restraint of speech. The court analyzed the specifics closely, and noted the similarity of several other prior restraint cases – in which it said the restraint was impermissible – before concluding that, because the state didn’t have any control of what would actually be placed on the billboard, that “prior restraint” didn’t apply here.

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