By Nickolaus Hines
A new dual screen, 260-square-foot digital billboard towers over the Bread and Buggy gas station on the corner of Frederick Road and Gateway Drive. Depending on who you ask, it’s an eyesore, a symptom of capitalism, or a sign of the digital age we live in. No matter what you think, the sign is here to stay — and it has a Supreme Court ruling defending its position.
Rose City LLC, the Georgia company that erected the signs, secured their place overlooking the city’s streets via a court case against Opelika. But the signs and their case represent more than the intricacies of small-town politics — they represent how a decision from the most powerful court in the country can trickle down to the local level and affect individual lives in a very real way.
In Opelika’s case, it all starts with a simple sign application.
On May 29, 2015, Rose City Outdoor LLC, a Georgia-based billboard company, submitted eight digital sign applications to the Opelika Planning Department. They requested permits to construct four 672-square-foot commercial billboards, two 100-square-foot commercial billboards, and two 300-square-foot public service billboards. The height of each billboard varied from 30 feet to 90 feet high, and four of them would be visible from Downtown Opelika. All of the signs followed Alabama and local regulations.
Three days later, Marty Ogren, Opelika’s assistant planning director, emailed Rose City for illustrations or photos of what the two noncommercial signs will display. Rose City complied, and on July 20, Ogren sent an email regarding the status of Rose City’s permit applications:
“Planning staff reviewed the examples of noncommercial type signs you email (sic),” Ogren’s email said according to court documents obtained by the Opelika Observer. “I discussed the sign applications with the city attorney. The signs are not noncommercial type signs so a permit will not be issued.”
The possible distraction factor of the signs due to their location was not given or perceived as an issue, said Scott Parker, Opelika’s city engineer. In fact, no issues with the signs were given.
The other six signs meant for commercial use were not mentioned, and when Rose City asked for a written record of the status of the other signs, Opelika officials didn’t respond. So on August 5, 2015, Rose City Outdoor filed a court case against the city of Opelika with the Lee County Circuit Court. The basis for their lawsuit stated Opelika’s sign ordinances are unconstitutional under the First Amendment, and the lawsuit cited the precedent set by the June 18, 2015, Supreme Court decision Reed v. Town of Gilbert.
The Reed decision “directly impacts the enforcement of the City of Opelika’s sign ordinance,” a recent letter signed by Guy Gunter, Opelika’s city attorney, states. The letter also states that “a number of Opelika’s sign regulations are implicated by the ruling in Reed.”
How an Arizona Church Changed the Laws of the Nation
Clyde Reed, the pastor at Good News Community Church in Gilbert, Arizona, sued the town he preached in because he believed Gilbert’s sign ordinances restricted his speech. So he took the town to court. Eventually, the case evolved into an argument in front of the Supreme Court about the nuances of the First Amendment that would ripple over Opelika.
Gilbert regulated what type, and how many, curbside signs were allowed to be put up by an entity. Reed believed that if one entity was allowed to put up a sign of certain dimensions, then every entity should be able to put up a sign of those dimensions.
Supreme Court Justice Anthony Kennedy compared this logic to equating a sign that says “Happy Birthday, Uncle Fred,” to a sign that directs people toward the “Birthplace of James Madison.” It’s the public sign equivalent of being able to shout profanities in a crowded public square. The judgment was based on the social value of the message.
In the end, however, the Supreme Court sided with Reed in a decision that broadened the First Amendment. All nine justices (Justice Antonin Scalia was alive at the time of the ruling) voted together to decrease the power that all forms of government, from local to federal, have in creating sign ordinance.
The majority opinion, written by Justice Clarence Thomas, defines the ways in which signs are a form of public expression protected by the First Amendment. Essentially, the opinion states that laws that vary treatment of different entities using the same form of public expression regulates the message being said. Regulating people’s messages is a form of discrimination prohibited by the First Amendment.
Although all nine justices ruled together, their opinion on the matter was far from united. Justice Elena Kagan wrote that, due to the massive changes to current sign laws that every level of government will have to make, the Supreme Court will become a “Supreme Board of Sign Review.” Even with that sarcastic sting, Kagan agreed: limiting signs based on their message limited speech.
After the decision on June 18, 2015, every government body would have to adhere to the Supreme Court’s decision and stop regulating speech through sign ordinances.
Rose City Takes
Opelika to Court
Just two days after the Supreme Court ruling, Rose City LLC filed their case against Opelika.
According to court documents, Rose City argued that Opelika officials restrained Rose City’s speech by denying acceptance of the signs and delaying Rose City from building other signs. Two months passed between Rose City’s sign application and their lawsuit.
“Since the loss of speech activity for even one day is irreparable, speech delayed truly is speech denied,” Rose City’s lawsuit states. It continues to say that “the City’s virtually unbridled discretion to grant or deny speech applications has unconstitutionally suppressed the speech of Rose City and numerous others not before the Court.”
According to Rose City, the noncommercial signs that Opelika denied would have, for example, messages for the Kiwanis Club, advertise a free screening event for women’s health, a free heart health screening, Chamber of Commerce messages, and advertise a cancer benefit.
“… it is clear that Defendants (City of Opelika) have made decisions as to at least some of Rose City’s applications based purely on the content of the messages which would appear on the signs,” Rose City’s lawsuit states. It also accuses Opelika of favoring commercial speech over noncommercial speech and discriminating against both types of speech in violation of the First Amendment.
The Supreme Court decision in the Reed case supported Rose City’s lawsuit. Opelika settled the case on January 5, 2016.
Opelika enacted a moratorium on all future sign applications beginning last October. Rose City, however, is an exception.
Under the settlement, Rose City is permitted to install one sign each in four different locations clustered around Pepperell Parkway and Frederick Road. The settlement states that Rose City must give the city four weeks of community messages on three of the new signs. City Attorney Gunter wrote that the settlement protects Opelika “from the prospect of having to allow” Rose City’s eight original billboards. The company has three years to apply for new sign permits in the site, but clearly they didn’t waste any time.
What this means
for the future
The double-sided screen above the Bread and Buggy represents so much more than the messages that it will display. It represents the city government, and the power of individual companies. It’s a symbol of technological advancement, as well as how the city is adapting to an increasingly digital world.
Most importantly, the sign represents how decisions made in the top levels of government can affect the landscape of an Alabama city 740 miles from the highest courthouse in the country. Opelika isn’t unique in this sense — towns across the country will be revamping their sign codes as First Amendment lawsuits, or threats of lawsuits, are brought against them and settled.
On May 3, Opelika City Council will hold a public hearing before adopting a new sign ordinance that complies with the Reed decision. Adherence to a Supreme Court decision at the local level will be complete. After that, the rules which were in place during the rise of so many billboards in Opelika will be changed, and so will the scenery of the city.