This sign was banned in Tennessee because of what it says.

Before explaining why let’s clear the decks. This sign belonged to a Memphis-area gentleman, Bill Thomas, who was perfectly within his rights to have a sign on this location. He actually owned the property and the State specifically allows the construction of billboards on-premises. Everything about this sign was by the book. Except for what it said. This violation of free speech is why we joined a case to support the legal effort to protect Mr. Thomas’ first amendment right to celebrate holiday cheer.

This case relates to the law by which the federal government – and by extension, the states, which administer federal law – regulates billboards. Many of these regulations are simply designed to stop the proliferation of billboards or providing standard sizes. Those are fine. However, there are a few that overtly make distinctions based on content, that is, they treat billboards differently based on what they say. And the First Amendment has a problem with that.

In Bill’s case, his sign was illegal solely because what it said. The State allows only a limited number of messages to be available for display on-premises. Advertising a business located on-site, for instance, would be allowed. So if the sign had advertised a restaurant on the property and read “Eat at Bill’s,” or if it was a “For Sale” sign he would have been fine. But he can’t wish you a Merry Christmas on the same sign that he could have advertised tires.

This is just completely upside down. The government should be getting out of the business of preferring different types of speech. But it really makes no sense to crack down on speech that is non-commercial in nature. Other signs the State banned encouraged supporting American Olympic athletes, and another sign critical of state officials who were enforcing these laws. American flags and pumpkins shouldn’t be banned on any sign that could contain an advertisement.

Hopefully, we can count on the courts to police the policing of speech. You wouldn’t believe how unnecessarily complicated the ostensibly simple question of what a “content-based” speech restriction is. Fortunately, the courts are swinging back around to a rule that probably seems like common sense. If you have to read the content of a sign to know if a law prohibits a sign, then the law is based on content.

To read our amicus brief on the subject, click here.