Kentucky’s new billboard regulations are unconstitutional because they deem billboards as “noncompliant” if they were built during a multi-month period when Kentucky had “no lawful regulatory scheme,” claims a federal lawsuit filed by four out of home media companies.
Kentucky’s new regulations “classify signs as ‘noncompliant’ based solely on the date they were constructed,” the lawsuit alleges. “Fabricating a ‘noncompliant’ category of signs without any legislative authority is arbitrary, without legal authority, and has no basis in fact.”
Plaintiffs in the case are United Outdoor Media (London, KY), Huntington Outdoor (Greenville, OH), Summit Locations (Centerville, OH), and J.R. Promotions (Columbus, IN). They seek a judgment declaring Kentucky’s billboard regulation unlawful and unconstitutional (United Outdoor Media v. Jim Gray, Secretary, Kentucky Transportation Cabinet, filed August 6).
On April 24, 2020, a federal judge ruled that Kentucky’s billboard law was unconstitutional due to its differing treatment of on-premise and off-premise signs. In response, Kentucky revised its billboard controls effective March 18, 2021. A similar change occurred earlier in Tennessee (i.e. enacting a new law to overcome the on-premise/off-premise distinction).
“The Tennessee statute did not retroactively attempt to prohibit billboards constructed after its statutes were ruled unconstitutional but before the effective date of the new statute and did not penalize such billboards so harshly that they were, essentially, regulated out of existence,” said the lawsuit filed against Kentucky.
Kentucky’s new regulation has the effect of prohibiting advertising changes on noncompliant billboards, which is prior restraint of speech, the lawsuit claims.
The inability to change ad copy on noncompliant billboards causes harm to the plaintiffs, they said. For example: “Both Huntington and JR Billboards have contracts to display content for McDonald’s which is required to change on August 23, 2021. The inability to change this copy will result in the displaying of inaccurate content with expired offers . . .”
The out of home companies are represented by attorneys Michael Galasso of Cincinnati, Adam Webb of Atlanta, and Gary Napier and Drayer Spurlock of London, KY. Note: Galasso represents Norton Outdoor Advertising in challenging Cincinnati’s billboard tax; that case is pending at the Ohio Supreme Court.