April 13, 2009 | last updated May 26, 2012 7:17 am
THE ARTFUL STRATEGIST

Billboard Envy

Accept as a given that billboards are inherently evil, because they steal advertising dollars from newspapers that employ hard-working, struggling columnists.

But beyond that, can billboards really be worth all the regulation and litigation and First Amendment angst that they seem to inspire?

From Connecticut to California, billboards are subject to wary suspicion — especially by those in power, who view unregulated public communication as a threat to the authoritarianism of the dominant culture.

It was about one year ago that Gov. M. Jodi Rell cranked out a bit of proposed anti-billboard legislation that was copied from the playbook of the old Soviet Union. She railed against billboards in general; against "provocative" billboards showing scantily-dressed Cohen look-alikes inviting you to one sex joint or another; against newfangled digital billboards that changed messages before your dazzled eyes.

The billboards "obscure the beauty of Connecticut," she wrote in her testimony — an obvious reference to some of the abandoned typewriter factories and brass mills.

Alarm Bells

Nothing much came of all the huffing and puffing, in part, because the governor's focus on sexy stuff sent off First Amendment alarm bells: If you allowed the government to control the "message," we could be setting the stage for a dictatorial regime that would prohibit the sale of wine in grocery stores and stifle taxi competition and stuff. We wouldn't want any of that in Connecticut.

Gov. Rell's executive order that sort of prohibited new billboards on state property allowed her to escape with her political dignity, but you still don't have any problems finding what you need from Saint Francis Hospital & Medical Center, various hamburger joints or the sex joints that represent an important industry cluster.

The latest wrinkle in the outdoor-advertising scenario features the Luv Boutique "adult" stores renting space on a few of Connecticut's "Adopt a Highway" signs. Oh, you lucky highways. I dream of being adopted by the Luv Boutique. Imagine how hot my new mom would be.

There has been a bit of legislative grumbling about the Luv Boutique sponsorship, but, in the end, the Luv Boutique will prevail, as will any other scantily dressed business doing its civic duty by being nice to a highway.

As "commercial speech," billboards don't have quite as much First Amendment protection as someone standing on a street corner baying at the moon or complaining about high taxes — but billboards still do pretty well in court, both as protected speech and on issues of business regulation and basic property rights.

Days In Court

A year ago, the Massachusetts Supreme Judicial Court tossed an effort by the towns of Medford and Somerville to regulate the size of billboards on Massachusetts Bay Transit Authority land. You may want to pretty up the place, justices ruled, but it ain't your land and the MBTA wants the ad revenue.

In 2006, a Missouri law banning sexy billboards along state highways was overturned by a federal appeals court panel, which sniffed at the notion that such a law would "protect" children and ensure highway safety.

San Francisco has been at war against billboards on private property, despite the fact that the billboards are, like, you know, on private property. Various federal court judges, to the tune of 'I Left My Heart in San Francisco," have killed the anti-billboard stuff.

I've been patiently waiting for the courts to deal with the sexy-billboard issue and the driver-distraction issue so that the Hartford Business Journal can launch its Cohen the Columnist billboard campaign. As far as Gov. Rell's "obscure the beauty" argument, remember, this is Cohen we're talking about.

Laurence D. Cohen is a freelance writer.

Reader response:

"The article seems to imply that the federal courts are throwing out attempts to ban or otherwise regulate billboards on private property. Nothing could be further from the truth. In January, the 9th Circuit Court of Appeals ruled that the city of Los Angeles could ban off-site advertising on private property even though it allows the same kind of advertising in bus shelters and other "street furniture." The outdoor advertising industry would like to perpetuate the myth that billboards and other forms of outdoor advertising constitute free speech that enjoys absolute protection under the 1st amendment, but the courts--including the U.S. Supreme Court--have repeatedly ruled to that these forms of advertising can be regulated, up to and including outright bans.'' -- D. Hathaway, President, Coalition to Ban Billboard Blight
Los Angeles, CA

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