Adams Outdoor Advertising Limited Partnership v. City of Madison et al
Filing
118
ORDER denying 61 Motion for Partial Summary Judgment by Plaintiff Adams Outdoor Advertising Limited Partnership; granting 70 Motion for Summary Judgment by Defendants City of Madison, Matthew Tucker. Signed by District Judge James D. Peterson on 4/7/2020. (arw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ADAMS OUTDOOR ADVERTISING LIMITED
PARTNERSHIP,
Plaintiff,
OPINION and ORDER
v.
17-cv-576-jdp
CITY OF MADISON and MATTHEW TUCKER,
Defendants.
The City of Madison strictly regulates billboards, banning them in the city center and
limiting them elsewhere. Plaintiff Adams Outdoor Advertising Limited Partnership would like
to modernize its billboards and build more, but it can’t under Madison’s sign ordinance. Adams
Outdoor has challenged the ordinance several times before; this is the latest such challenge.
Adams Outdoor is suing Madison and its zoning administrator, Matthew Tucker,
alleging that Madison’s sign ordinance is unconstitutional on numerous grounds. But its
primary claim is that the ordinance violates the First Amendment by drawing content-based
distinctions between billboards and other kinds of signs, relying chiefly on the Supreme Court’s
2015 decision in Reed v. Town of Gilbert. Both sides move for summary judgment. Dkt. 61;
Dkt. 70.
Adams Outdoor’s claims are mostly ones that it brought, or could have brought, in a
prior lawsuit against the city, so most of its claims are precluded. But even if they weren’t,
Adams Outdoor’s claims would fail on the merits. Whether the Capitol Square should look like
Times Square is a decision that Madison city government is entitled to make, even after Reed.
The court discerns no constitutional infirmity in Madison’s sign ordinance, so the court will
grant summary judgment to the city and dismiss the case.
UNDISPUTED FACTS
The material facts are undisputed.
Plaintiff Adams Outdoor Advertising is an outdoor advertising company that owns and
operates billboards throughout the state of Wisconsin. It owns 90 billboard structures in
Madison containing 186 billboard faces. Adams leases those faces to clients, who use them to
display a wide variety of commercial and noncommercial messages.
Defendant Matthew Tucker is the zoning administrator for the city of Madison. He is
responsible for interpreting and enforcing Madison’s sign ordinance, which is codified at
Chapter 31 of the Madison General Ordinances.
A. Madison’s sign ordinance
Chapter 31 regulates all manner of signs, ranging from decorative banners and murals
to “business opening signs” and “condominium identification signs.” The purpose of Chapter
31, as set out in its purpose and intent section, is to promote “public safety and aesthetic
values.” Madison. Gen. Ord. § 31.02(1).
Under Chapter 31, billboards (which the ordinance calls “advertising signs”) are subject
to stricter regulation than other types of signs. In 1989, the city passed an ordinance requiring
removal of advertising signs from certain areas of downtown and imposing a prospective ban
on the construction of new or replacement advertising signs anywhere in the city. Those
advertising signs remaining after the 1989 ordinance are categorized as non-conforming uses,
and they may not be “relocated, replaced, expanded, enlarged, repositioned or raised in height,”
except in certain limited circumstances. § 31.05(2)(b). By contrast, Chapter 31 allows other
types of signs (such as “business signs” or “ground signs”) to be erected, relocated, repaired, or
altered so long as the sign owner first obtains a permit from the zoning administrator. See
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§ 31.041. Still other types of signs (such as “athletic field signage” and “election campaign
signs”) may be erected without a permit at all. See § 31.044.
The ordinance limits advertising signs to certain zoning districts within the city, and it
subjects them to strict setback, height, net area, and other spacing requirements. § 31.11. No
other type of sign regulated by the ordinance is subject to these restrictions. And whereas
owners of other types of signs may seek variances from strict application of ordinance
requirements through a process known as “comprehensive design review,” advertising signs are
generally ineligible for that process. § 31.043(4)(b)(5).
The city will allow the replacement or relocation of an advertising sign under limited
circumstances. For instance, advertising signs may be realigned (that is, relocated on the same
site) if necessary to accommodate a Wisconsin Department of Transportation highway project.
§ 31.05(2)(c). Advertising signs may be restored or reconstructed if they are “damaged or
destroyed by fire or other casualty or act of God,” but only if the total cost of the restoration
doesn’t exceed certain limits. § 31.04(2)(b). And under the city’s “advertising sign bank”
program, which the city established in 2015, owners of qualifying advertising signs that must
be removed due to redevelopment projects may “bank” the net area of the removed sign and
then apply for a permit to construct a replacement advertising sign elsewhere in the city. See
§ 31.112. The ordinance imposes a higher per-square-foot permit fee for advertising signs
($2.50 per square foot) than it does for other types of signs that require permits ($1.75 per
square foot). § 31.041(3)(a).
In addition to its advertising sign-specific regulations, the ordinance contains a blanket
prohibition on digital image signs—that is, signs that incorporate technology that displays
illuminated digital images. § 31.045(3)(i).
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B. Adams Outdoor’s challenges to Chapter 31
Over the years, Adams Outdoor has filed multiple lawsuits against the city, including
most notably one in 1990, which the city and Adams Outdoor settled with a comprehensive
agreement. The specific events giving rise to the current litigation began in 2016, when Adams
Outdoor began submitting applications for sign permits that were disallowed by the terms of
the ordinance.
1. Adams Outdoor applies for sign replacement credits through the advertising
sign bank program
Adams Outdoor operates a billboard at 615 Forward Drive, on property owned by a
local television station. The owners of that station constructed a new facility that partially
obstructed the view of Adams Outdoor’s billboard. So in 2016, Adams Outdoor sought to
remove the sign and bank its net area through the advertising sign bank program. Tucker
denied Adams Outdoor’s application for sign replacement credit after determining that the
billboard in question didn’t meet the program’s strict eligibility criteria. Although the new
development partially obstructed Adams Outdoor’s sign, the sign was not located in the same
physical space as the new facility, nor was it so close to the facility that it would result in a
building code violation. See § 31.112(2)(b)(3). Adams Outdoor could have appealed Tucker’s
decision to the Urban Design Commission, the deliberative body that considers appeals of
decisions made by the zoning administrator, but it chose not to do so. Adams Outdoor’s
billboard remains at its original location, now partially obstructed by a building.
2. Adams Outdoor applies for permits to modify or replace existing billboards
In April 2017, Adams Outdoor submitted 26 applications to the city seeking to modify
or replace existing billboards. Adams Outdoor expected the applications to be denied because
they proposed modifications that contravened the terms of the ordinance. In June, Tucker
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denied 25 of the 26 permits, citing the various ordinance provisions that Adams Outdoor’s
proposed modifications would violate. See Dkt. 93, ¶ 47. Tucker determined that the proposed
modifications would violate the general ban on new, relocated, or replacement advertising signs
in §§ 31.05(2) and 31.11(1). He also identified other ordinance provisions that supported the
permit denials, including height and size restrictions, setback rules, zoning conditions, and the
prohibition on the use of digital displays.
In July 2017, Adams Outdoor filed this lawsuit in federal court. Adams Outdoor also
appealed 22 of the 25 denials to the Urban Design Commission. Rather than contesting specific
factual errors that Tucker made in reviewing the permit applications, Adams Outdoor asserted
that the ordinance was unconstitutional. When the Urban Design Commission denied the
appeals, Adams Outdoor sought review in the Dane County Circuit Court. See Adams Outdoor
Advertising Ltd. P’ship v. City of Madison, No. 17-cv-2754 (filed Nov. 11, 2017). The state-court
case has been stayed pending resolution of this case.
C. 2017 amendments to the sign ordinance
In December 2017, the common council made several amendments to Chapter 31. The
amendments were prompted by Adams Outdoor’s litigation as well as a 2015 Supreme Court
case, Reed v. Town of Gilbert, --- U.S. ----, 135 S. Ct. 2218 (2015). See Dkt. 75-2, at 2, 3. The
amendments themselves were minor. As relevant here, definitions for the terms “commercial
message” and “noncommercial message” were deleted from the ordinance’s definitions section,
and references to “noncommercial messages” were excised from the ordinance’s definition of
“advertising sign.” The amended ordinance defines advertising sign as a “sign containing a
commercial message directing attention to a business, commodity, service, or entertainment,
not related to the premises at which the sign is located, or directing attention to a business,
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commodity, service or entertainment conducted, sold or offered elsewhere than on the premises
where the sign is located.”
ANALYSIS
Adams Outdoor challenges the constitutionality of Madison’s sign ordinance on several
grounds. But its core argument is that the city’s regulation of billboards depends on contentbased distinctions that are subject to strict scrutiny under Reed v. Town of Gilbert. For reasons
explained more fully in the body of this opinion, the court is not persuaded that Reed represents
the radical shift in First Amendment law that Adams Outdoor suggests. Reed leaves intact the
general framework for evaluating restrictions on commercial speech in Central Hudson Gas &
Electric Corporation v. Public Service Commission of New York, 447 U.S. 557 (1980), and for
evaluating billboard regulation in Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981).
Regulations based on the distinctions between commercial and non-commercial speech, and
between on-premises and off-premises signs, are not content-based distinctions, and they are
subject only to intermediate scrutiny under Central Hudson and Metromedia.
The dispositive issues in this case are legal ones, and the material facts are undisputed.
Accordingly, the case is appropriately resolved on summary judgment under Rule 56(a) of the
Federal Rules of Civil Procedure, which both sides have requested as to the merits. As with any
summary judgment motion, the court reviews these cross-motions “construing all facts, and
drawing all reasonable inferences from those facts, in favor of the non-moving party.” Auto.
Mechs. Local 701 Welfare & Pension Funds v. Vanguard Car Rental USA, Inc., 502 F.3d 740, 748
(7th Cir. 2007) (citation and alteration omitted).
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This opinion is divided into three main sections. First, the court will consider the city’s
challenges to Adams Outdoor’s standing. Second, the court will consider whether Adams
Outdoor’s claims are barred under the doctrine of claim preclusion as a result of its 1993
settlement with the city. Third, the court will consider the merits of Adams Outdoor’s
constitutional claims.
A. Standing
One of the jurisdictional prerequisites to filing a lawsuit in federal court is standing to
sue under Article III of the Constitution. To demonstrate standing, the plaintiff must show
that it has suffered (1) an injury in fact, (2) that is fairly traceable to the challenged conduct
of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. See
Spokeo, Inc. v. Robins, --- U.S. ----, 136 S. Ct. 1540, 1547 (2016). The city doesn’t dispute that
Adams Outdoor has standing to assert as-applied challenges to the billboard regulations
implicated in the denial of its permit requests in 2016 and 2017. Dkt. 100, at 8. And the court
agrees with that assessment. Being denied a permit to engage in speech is an injury in fact, see
Chicago Joe’s Tea Room, LLC v. Vill. of Broadview, 894 F.3d 807, 814 (7th Cir. 2018), the denial
is fairly traceable to the city ordinance, and striking down the ordinance would redress the
injury.
The city raises two narrower challenges to Adams Outdoor’s standing. First, it says that
Adams Outdoor lacks standing to challenge aspects of the ordinance that don’t relate to Adams
Outdoor or its business. Second, it says that Adams Outdoor lacks standing to assert claims
that the billboard ban is facially unconstitutional. (The city also contends that Adams’s claim
for damages dating back to 1990 is unripe, Dkt. 76, at 17–20, but the court need not consider
any damages issues because the court is granting summary judgment to the city on liability.)
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The court agrees that Adams Outdoor does not have standing to challenge parts of the
ordinance that don’t affect it. But Adams Outdoor has standing to bring a facial challenge.
1. Provisions in the ordinance with no bearing on Adams Outdoor
Adams Outdoor is challenging many parts of the ordinance, some of which don’t appear
to have any effect on Adams Outdoor or its business. Adams Outdoor parses the sign
ordinance’s definitions section, § 31.03(2), for definitions that it alleges are unconstitutionally
content based. For example, Adams Outdoor challenges the ordinance’s definition of terms
such as “condominium identification sign,” “menu or merchandise board,” and “mural,” even
though it does not seek to erect these kinds of signs.1 Then Adams Outdoor challenges
ordinance provisions that regulate these types of signs. Among other things, it says that the
comprehensive design review process, which is meant to help facilitate variances for signs other
than advertising signs, see § 31.043(4), poses an unconstitutional prior restraint on the speech
of the owners of those signs. It says that the ordinance is unconstitutionally vague because it
fails to give sign owners sufficient notice about what differentiates “electronic changeable copy
signs” from “digital image signs,” even though it is undisputed that Adams may install neither
type of sign on its billboards. It also points out various ordinance provisions that it says are
unconstitutionally content-based, such as its provisions exempting signs on city-owned bicyclesharing facilities from the regulations generally governing advertising signs.
1
Adams Outdoor also challenges the following definitions that aren’t related to its business:
“accessory sign,” “banner promotional,” “building entrance identification sign,” “business
sign,” “identification sign,” “logo,” “off-premises directional sign,” “political sign,” “project
sign,” “real estate sign,” “street occupancy sign,” “subdivision identification sign,” and “time
and/or temperature sign.” Dkt. 62, at 23–25.
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Adams Outdoor doesn’t have standing to challenge the entire ordinance simply because
the city has relied on some provisions in denying permits to Adams Outdoor. “[S]tanding is
not dispensed in gross.” Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996). “Rather, a plaintiff must
demonstrate standing for each claim he seeks to press and for each form of relief that is sought.”
Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008) (citations and quotation marks
omitted). Adams doesn’t explain how it is injured by provisions that don’t apply to it or relate
to its business. Certainly, the manner in which the city regulates other types of signs as compared
to advertising signs is relevant to Adams’s content-based discrimination claims. But that doesn’t
give Adams “a passport to explore the constitutionality of every provision of the Sign
[Ordinance.]” Covenant Media of SC, LLC v. City of N. Charleston, 493 F.3d 421, 429 (4th Cir.
2007). The court will not evaluate the constitutionality of ordinance provisions that don’t
apply to the signs that Adams Outdoor wishes to erect.
2. Facial challenge to the billboard ban
Adams Outdoor has standing to raise a facial challenge to the ordinance’s ban on
billboards. The analysis is straightforward: if Adams Outdoor could persuade the court to strike
down the ban entirely, that would redress its injury in being denied permits, just as would more
targeted challenges to specific provisions in the ordinance.
The city argues for the opposite conclusion, contending that striking down the billboard
ban won’t redress Adams Outdoor’s injuries because the city had other reasons for denying
Adams Outdoor permits, including time, place, and manner restrictions such as setback
requirements, height restrictions, and the prohibition on digital displays. The city relies on
Harp Advertising Illinois, Inc. v. Vill. of Chicago Ridge, 9 F.3d 1290 (7th Cir. 1993), in which the
court held that an outdoor advertising company’s claims were not redressable because the sign
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it wished to erect violated size restrictions that the company had not challenged. But Harp is
distinguishable because Adams Outdoor is challenging both the billboard ban and the time,
place, and manner restrictions. It may be true that Adams Outdoor must successfully challenge
both types of restrictions to prevail on the merits, but that doesn’t mean that Adams Outdoor
lacks standing to assert a facial challenge. See United States v. $304,980.00 in U.S. Currency,
732 F.3d 812, 818 (7th Cir. 2013) (“[T]o have standing, a claimant need not establish that a
right of his has been infringed; that would conflate the issue of standing with the merits of the
suit.” (internal quotations omitted)). The city cites a Ninth Circuit case that appears to take
the opposite view. See Get Outdoors II, LLC v. City of San Diego, 506 F.3d 886, 893, 894 (9th
Cir. 2007). But the Seventh Circuit has never endorsed such an approach so the court will not
employ it here.
B. Claim preclusion
At the court’s request, the parties filed supplemental briefs to address the city’s claim
preclusion affirmative defense. See Muhammad v. Oliver, 547 F.3d 874, 878 (7th Cir. 2008)
(“[It was not] improper for the district judge to invoke res judicata even though the defendants
had failed to argue it. The doctrine is not based solely on the defendant’s interest in avoiding
the burdens of twice defending a suit, but is also based on the avoidance of unnecessary judicial
waste.” (internal quotations omitted)). The question raised in the supplemental briefs is
whether a 1993 stipulated judgment between Adams Outdoor and the city bars some or all of
the claims that Adams Outdoor is raising in this case. As it turns out, it wouldn’t be necessary
to address claim preclusion because all of Adams Outdoor’s claims fail on the merits, for reasons
explained below. But the court will also explain why much of this lawsuit is barred by the 1993
stipulated judgment.
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The settlement and stipulated judgment arose out of an inverse condemnation lawsuit
that Adams Outdoor filed against the city in state court in 1990 after the city amended its sign
ordinance and required Adams Outdoor to remove some of its billboards. Adams Outdoor
sought compensation for the removal of its billboards, and it challenged the billboard ban itself
under the First Amendment. Under the terms of the agreement settling the lawsuit, the city
allowed Adams sixteen billboard permits, and the parties agreed that the “causes of action and
any and all claims or causes of action which have been brought or which could have been
brought, founded upon the facts which are the subject of this action . . . may be dismissed upon
the merits, with prejudice” following formal approval by the common council. Dkt. 71-2, at 3.
Because Adams Outdoor filed the 1990 lawsuit in state court, Wisconsin law determines
whether the 1993 settlement has preclusive effect in this case. See Wilhelm v. Cty. of Milwaukee,
325 F.3d 843, 846 (7th Cir. 2003); 28 U.S.C. § 1738. In Wisconsin, as in most jurisdictions,
claim preclusion bars “all subsequent actions between the same parties as to all matters which
were litigated or which might have been litigated in the former proceedings.” Teske v. Wilson
Mut. Ins. Co., 2019 WI 62, ¶ 23, 387 Wis. 2d 213, 225, 928 N.W.2d 555, 561 (2019) (quoting
Lindas v. Cady, 183 Wis. 2d 547, 558, 515 N.W.2d 458 (1994)). There are three elements:
(1) a final judgment on the merits; (2) an identity of the causes of action in the two lawsuits;
and (3) an identity between the parties or their privies in the prior and present lawsuits. Id.
¶ 25. The parties agree that the third element is established, so the court will focus on the other
two.
1. Final judgment on the merits
A “stipulated judgment (as a result of a settlement) on the merits may have the same
preclusive effect as a claim litigated to conclusion.” Wis. Pub. Serv. Corp. v. Arby Const., Inc.,
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2012 WI 87, ¶ 64, 342 Wis. 2d 544, 566, 818 N.W.2d 863, 875 (2012) (emphasis added).
In Wisconsin Public Service, the court gave preclusive effect to a stipulated judgment because it
provided for all claims “to be dismissed with prejudice.” Id. ¶ 65. Wisconsin thus appears to
follow the general approach under which stipulated judgments have a “basically contractual
nature.” Charles Alan Wright & Edward H. Cooper, 18A Federal Practice and Procedure:
Jurisdiction § 4443 (3d ed. 2017). As a result, their preclusive effect depends on the intent of
the parties, but as with a contract “an objective manifestation of intent may support preclusion
that was not subjectively intended.” Id.
Here, the 1993 stipulation was unambiguous: “any and all claims or causes of action
which have been brought or which could have been brought” were “dismissed upon the merits,
with prejudice.” Doc. 71-2, at 3. That language is decisive under an objective test. Resisting
this conclusion, Adams points to statements by the presiding judge about the effect of the
settlement to amendments to the ordinance. See, e.g., Dkt. 103-10, at 8–9 (“[T]o the extent
that [the city] make[s] a change that Adams or somebody else believes is invalid or improper
in some legal sense, anybody’s free to challenge that change when it’s made.”). The court will
discuss the legal effect of amendments since 1993 in the next section. But nothing in the
settlement itself suggests that the parties intended the settlement to be nullified if the city
made any amendments to the ordinance, so the judge’s statements aren’t probative for the
purpose of determining the preclusive effect of the stipulated judgment. The court concludes
that the city has satisfied this element.
2. Identity of the causes of action
To determine whether there is an identity of the causes of action, Wisconsin courts
have adopted the “transactional approach” set forth in the Second Restatement of Judgments.
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See Teske, 2019 WI 62, ¶ 31 (citing Restatement (Second) of Judgments § 24 (1982)).
“Pursuant to this analysis, ‘all claims arising out of one transaction or factual situation are
treated as being part of a single cause of action and they are required to be litigated together.’”
Id. (quoting A.B.C.G. Enters., Inc. v. First Bank Se., N.A., 184 Wis. 2d 465, 481, 515 N.W.2d
904, 910 (1994)). The underlying facts, not the plaintiff’s legal arguments, define the scope of
a transaction: “the number of substantive theories that may be available to the plaintiff is
immaterial—if they all arise from the same factual underpinnings they must all be brought in
the same action or be barred from future consideration.” N. States Power Co. v. Bugher, 189 Wis.
2d 541, 555, 525 N.W.2d 723, 729 (1995).
Both this case and the 1990 lawsuit involve First Amendment challenges to the city’s
sign ordinance. Compare Dkt. 105-1, at 9–11 (Adams’s April 19, 1990 complaint), with Dkt. 17,
at 17–25 (Adams’s April 16, 2018 amended complaint in this action). But Adams Outdoor
contends that the two lawsuits don’t arise out of the same transaction for two reasons: (1) the
1990 litigation concerned only the narrow issue of whether the city could renege on an earlier
promise to let Adams relocate sixteen billboards; and (2) the city has amended the ordinance
multiple times between 1993 and the present.2
Adams Outdoor’s first contention is based on a misunderstanding of the relevant
standard. Under the transactional approach, a plaintiff must present in the first lawsuit “all
2
Adams Outdoor doesn’t rely on Whole Woman’s Health v. Hellerstedt, --- U.S. ----, 136 S. Ct.
2292, 2305 (2016), in which the Court held that “[f]actual developments” in cases involving
“important human values” may give rise to a new claim for the purpose of determining whether
claim preclusion should apply to a second challenge to a statute. Because Adams Outdoor
doesn’t contend that the facts of this case meet the standard in Whole Woman’s Health, the
court doesn’t consider that issue.
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material relevant to the transaction without artificial confinement to any substantive theory or
kind of relief.” N. States Power Co., 189 Wis. 2d at 555, 525 N.W.2d at 729 (quoting DePratt
v. W. Bend Mut. Ins. Co., 113 Wis. 2d 306, 312, 334 N.W.2d 883, 886 (1983)). Under both
Wisconsin law and the language of the stipulated judgment, the question is whether Adams
Outdoor could have brought the same challenge in 1990 that it brings today.
In any event, the original 1990 complaint targeted the billboard ban generally, not just
the sixteen billboards. To remedy alleged First Amendment violations, Adams sought “an order
declaring unconstitutional, as applied, the amendment to Madison’s street graphic control
ordinance which purports to ban new or replacement outdoor advertising signs.” Dkt. 105-1,
at 10. So, for purposes of the preclusion analysis, the 1990 case was not limited to the 16
billboards that Adams Outdoor sought to relocate.
Adams Outdoor’s second contention—that claim preclusion doesn’t apply because the
city has amended the ordinance—has two parts. First, Adams Outdoor says that gaps in the
historical record make it impossible to determine the content of the ordinance in 1993. Second,
it says that the changes to the ordinance created a new transaction and a new claim.
a. Gaps in the historical record
As a threshold matter, Adams contends that it is too difficult to determine whether their
claims are precluded because of uncertainty about the version of the ordinance at issue during
the 1990 litigation and because certain litigation documents are missing. But a review of the
records the parties have provided leaves little doubt about what was or could have been
challenged in 1990.
First, the city has provided complete ordinance versions in effect at the time. Granted,
the city had to “reconstruct” the ordinance as it existed in 1990 by “tracking down” the history
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of amendments. Dkt. 103-8, at 2. But whatever obstacles the city faced in pulling the relevant
records together, it ultimately produced copies of the sign ordinance as it existed on April 19,
1990, and December 21, 1993, along with copies of ten ordinance amendments enacted by
the common council during the interim period. See Dkt. 104, ¶¶ 3–6 (declaration of Diane
Althaus); Dkt. 104-1 (1990 ordinance); Dkt. 104-2 (1993 ordinance); Dkt. 104-3 (interim
amendments). The city explained its compilation process in detail, see Dkt. 104, ¶¶ 2, 5, and
Adams has given no reason to doubt the accuracy or authenticity of these documents. The
documents show that all versions of the ordinance potentially at issue in that litigation were
materially identical in their treatment of billboards.3
Adams also suggests that a “second amended petition” and “rulings on the
constitutionality of the ordinance” are missing from the litigation records. Dkt. 102, at 7.
(Adams infers that such documents existed because they are mentioned in a February 16, 1993
letter from Adams’s then-counsel to a Dane County Circuit Court judge. See Dkt. 103-9.) But
even without the benefit of those documents, the record shows that Adams could have brought,
and in fact did bring, a First Amendment challenge to the sign ordinance in 1990. And then
the 1993 stipulation dismissed all claims that were brought or “could have been brought” by
Adams. Dkt. 71-2, at 3. So the court rejects Adams Outdoor’s contention that the historical
record isn’t clear enough to determine whether the 1993 stipulated judgment precludes Adams
Outdoor’s claims in this case.
3
There was only one substantive amendment between 1990 and 1993. In August of 1990, the
common council added a “message substitution” provision at § 31.04(1)(c), providing that
“[a]ny street graphic authorized in this chapter is allowed to contain any noncommercial
message in addition to or in lieu of any other message.” Dkt. 104-3, at 5. But since
construction, relocation, and replacement of billboards was at all times proscribed, this
amendment would not have affected Adams’s advertising business or its claims against the city.
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b. Amendments to the sign ordinance
The next question is whether the sign ordinance has changed since 1993 in ways that
give rise to a new transaction. The parties don’t cite any Wisconsin case law on this issue, and
the court hasn’t uncovered any that is on point. Again, however, the general question is whether
Adams Outdoor is raising claims in this case that it could have raised in the 1990 lawsuit. N.
States Power, 189 Wis. 2d at 550. Another way of posing that question is whether the “operative
facts in both the [old] and [new] claims are the same.” Kruckenberg v. Harvey, 2005 WI 43, ¶¶
29-30, 279 Wis. 2d 520, 534–35, 694 N.W.2d 879, 887. Applying this general concept, the
Court of Appeals for the Seventh Circuit has held under federal common law that claim
preclusion “is inapplicable when a statutory change creates a course of action unavailable in
the previous action.” Alvear-Velez v. Mukasey, 540 F.3d 672, 678 (7th Cir. 2008) (collecting
cases). So, in the context of this case, the question is whether the city has amended the
ordinance in a way that would give rise to a constitutional claim that Adams Outdoor could
not have raised in the 1990 litigation.
i. Non-substantive changes
Some of the changes Adams Outdoor challenges are stylistic rather than substantive.
For example, in 2009 the city replaced the word “street graphic” with “sign,” Dkt. 103-13, and
in 2013 the city renamed certain zoning districts, Dkt 103-15. None of these changes affected
the constraints the sign ordinance imposed on Adams’s business activities or otherwise gave
rise to a new claim.
ii. 2009 amendment
In 2009, the city added a general prohibition on “digital image signs” to the ordinance.
There was no such provision in 1990, before digital sign technology became ubiquitous. The
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1990 version of the ordinance did include an analogous prohibition on “flashing, motion street
graphics and displays” as well as the use of “any motion picture machine, projected images or
stereopticons” in connection with a sign. Dkt. 104-1, § 31.04(6)(d), (6)(j). But even if the
court assumes that the substantive scope of the two provisions is the same, the court doesn’t
have enough information to determine whether Adams Outdoor could have challenged the
1990 provision.
In 1990, Adams Outdoor didn’t have any digital signs or moving graphics and it wasn’t
asking the city for permission to put up those kinds of signs. And if Adams Outdoor wasn’t
intending to expand its business to include those signs, it wouldn’t have standing to challenge
restrictions on those signs. See Covenant Media, 493 F.3d at 429; see also Texas v. United States,
523 U.S. 296 (1998) (“A claim is not ripe for adjudication if it rests upon contingent future
events that may not occur as anticipated, or indeed may not occur at all.”). Because neither
side has adduced any evidence on Adams Outdoors’ plans in 1990, the court cannot say
whether Adams Outdoor could have challenged the 1990 bans on moving graphics. And
because the city has the burden to prove its affirmative defense, the court will not dismiss
Adams Outdoor’s challenge to the 2009 digital sign prohibition under the doctrine of claim
preclusion.
iii. 2015 amendments
In 2015, the city created the advertising sign bank program, which allows owners of
advertising signs removed due to redevelopment to obtain credits that they can use to erect
replacement signs. Rather than inflicting new wrongs or exacerbating old ones, the advertising
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sign bank program mitigated the burden of the billboard ban by giving Adams flexibility when
its signs are affected by outside development projects.
iv. 2017 amendments
In 2017, the common council amended the definition of “advertising sign” to eliminate
its reference to noncommercial speech,4 and eliminated “commercial message” and
“noncommercial message” from the ordinance’s definitions section. Although notes
accompanying the legislative file acknowledged that the amendments were made on the advice
of legal counsel “concerning strategy to be adopted by the body with respect to [the Adams
Outdoor] litigation,” Dkt. 17-4, at 3, the changes had no implications for the way that Adams
is regulated.
The bottom line is that there are few meaningful differences between the 1990 version
and present version of the city’s sign ordinance for the purpose of this case. With the exception
of the 2009 amendment related to digital signs, the court concludes that Adams Outdoor’s
claims in this case meet all of the elements for claim preclusion.
4
The amendment changed the ordinance text as follows:
Advertising Sign. A sign containing a commercial or noncommercial message
directing attention to a business, commodity, service, political candidate or
cause, public service, social cause, charity, community affair or entertainment,
not related to the premises at which the sign is located, or directing attention to
a business, commodity, service or entertainment conducted, sold or offered
elsewhere than on the premises where the sign is located. Advertising appearing
on public transportation vehicles, signs authorized on Madison Transit Utility
bus shelters under Sec. 3.14(4)(i), and sSigns on City-sponsored bicycle-sharing
facilities and the bicycles provided as part of a city-sponsored bicycle-sharing
program located in the right-of-way or on other City lands in compliance with
Sec. 10.33 are not advertising signs as defined herein and are not regulated by
this ordinance.
Dkt. 17-4, at 5.
18
3. Potential exceptions to claim preclusion
Alternatively, Adams Outdoor asks the court to make an exception to the claim
preclusion doctrine. It offers two reasons: (1) First Amendment law has changed since 1993;
and (2) its 1990 lawsuit was a request for a declaratory judgment, and claim preclusion doesn’t
apply to such cases. The court rejects both reasons.
a. Change in the law
Adams Outdoor asks the court not to apply claim preclusion because of changes in First
Amendment law since 1993, most notably Reed v. Town of Gilbert, in which the Supreme Court
applied strict scrutiny to a town’s rules governing noncommercial signs. Adams Outdoor
contends that it would be “inequitable” to apply claim preclusion when the standards for
evaluating the constitutionality of sign restrictions have changed so much. Dkt. 102, at 16. As
the court will discuss below when it addresses the merits of Adams Outdoor’s claims, Reed
hasn’t changed the law of billboard regulation as much as Adams Outdoor suggests. Regardless,
the court isn’t persuaded that a change in the law is a valid basis to avoid claim preclusion
under Wisconsin law.
“[C]ases admitting exceptions to [claim preclusion] are rare.” Patzer v. Board of Regents,
763 F.2d 851, 856 (7th Cir. 1985) (applying Wisconsin law). There is no “fairness” exception
to the doctrine, and it is “strictly applied” in Wisconsin. Kruckenberg, 2005 WI 43, ¶¶ 53–54.
Although “[c]laim preclusion may be disregarded in appropriate circumstances when the
policies favoring preclusion of a second action are trumped by other significant policies[,] . . .
[a]ny exception to claim preclusion . . . must be limited to special circumstances or the
exceptions will weaken the values of repose and reliance.” Sopha v. Owens-Corning Fiberglas Corp.,
230 Wis. 2d 212, 236, 601 N.W.2d 627, 638 (1999).
19
Neither party cites any decision of the Wisconsin Supreme Court that has considered
whether claim preclusion should apply when there are changes in the law. But in a
nonprecedential decision, the Wisconsin Court of Appeals relied on Kruckenberg to reject “an
exception to claim preclusion where an intervening change in the law would likely, if not
undisputedly, create a different result than in the prior litigation.” Samuels Recycling Co. v. Cont’l
Cas. Co., 2006 WI App 78, ¶ 5, 292 Wis. 2d 487, 713 N.W.2d 193 (Ct. App. 2006). That
conclusion is consistent with the federal rule. See Federated Dep’t Stores, Inc. v. Moitie, 452 U.S.
394, 398 (1981) (“[T]he res judicata consequences of a final, unappealed judgment on the
merits [are not] altered by the fact that the judgment may have been wrong or rested on a legal
principle subsequently overruled in another case.”).
Adams Outdoor has not identified a persuasive reason for concluding that the
Wisconsin Supreme Court would take a different approach from both the United States
Supreme Court and the state court of appeals. Law is constantly evolving, so creating an
exception to claim preclusion for changes in the law would substantially undermine the primary
purpose of claim preclusion, which is to give the parties certainty about their rights so that they
can plan accordingly. Moitie, 452 U.S. at 398–99; Kruckenberg, 2005 WI 43, ¶ 53.
b. Declaratory judgment exception
Adams argues that the 1993 stipulated judgment lacks preclusive effect because the
lawsuit that led to the judgment sought only declaratory relief. Wisconsin has adopted the rule
that “a declaratory judgment is only binding as to matters which were actually decided therein
and is not binding to matters which ‘might have been litigated’ in the proceeding.” Barbian v.
Lindner Bros. Trucking Co., 106 Wis. 2d 291, 297, 316 N.W.2d 371, 375 (1982); see also
Restatement (Second) of Judgments § 33 (current version of rule adopted in Barbian). But the
20
Court of Appeals for the Seventh Circuit, interpreting Wisconsin law, has held that this
“exception operates only if the plaintiff seeks solely declaratory relief in the first proceeding.”
Stericycle, Inc. v. City of Delavan, 120 F.3d 657, 659 (7th Cir. 1997) (emphasis in original) (citing
Restatement (Second) of Judgments § 33 cmt. c). Unless and until the Wisconsin Supreme
Court says otherwise, this court must follow the ruling in Stericycle. See Reiser v. Residential
Funding Corp., 380 F.3d 1027, 1029 (7th Cir. 2004) (district court must enforce an Erie guess
of the court of appeals unless a “decision by a state’s supreme court terminates [its]
authoritative force”).
Under Stericycle, Adams’s assertion that it qualifies for the declaratory judgment
exception fails. Although Adams Outdoor sought only declaratory relief in 1990 for the alleged
First Amendment violations, Adams sought an injunction for its inverse condemnation claims.
Specifically, Adams sought “an order declaring that Madison had taken Adams’ property and
requiring the commencement of condemnation proceedings by Madison pursuant to Sec.
32.10, Wis. Stats.” Dkt. 71-1, at 13; see also Dkt. 105-1, at 10 (same). The cited legislative
provision allows a property owner “who believes that his or her property has been taken by the
government without instituting formal condemnation proceedings . . . to recover just
compensation for the taking.” E-L Enterprises, Inc. v. Milwaukee Metro. Sewerage Dist., 2010 WI
58, ¶ 36, 326 Wis. 2d 82, 111, 785 N.W.2d 409, 424 (2010). In other words, it provides an
avenue to monetary damages, not merely declaratory relief.
Adams Outdoor has failed to show that the court should apply an exception to claim
preclusion in this case. The court concludes that Adams Outdoor’s claims are barred under the
doctrine of claim preclusion, with the exception of its challenge to the 2009 ban on digital
signs.
21
C. First Amendment claims
No one disputes that the speech that Adams Outdoor and its customers display on
billboards is entitled to some degree of First Amendment protection. The question at issue in
this case is how much. Signs “pose distinctive problems that are subject to municipalities’ police
powers. Unlike oral speech, signs take up space and may obstruct views, distract motorists,
displace alternative uses for land, and pose other problems that legitimately call for regulation.”
City of Ladue v. Gilleo, 512 U.S. 43, 48 (1995). But because sign regulations inevitably restrict
some amount of protected speech, courts are often called upon to evaluate whether a proper
balance has been struck between a government’s legitimate regulatory aims and free expression.
Adams Outdoor contends that the city’s billboard restrictions violate the First
Amendment for four reasons: (1) they constitute content-based discrimination; (2) they are
overbroad; (3) they are unconstitutionally vague; and (4) they impose a prior restraint. The
centerpiece of Adams Outdoor’s case is that the billboard ban constitutes content-based
discrimination. The court starts the analysis there.
1. Content-based regulation
“The First Amendment generally prevents government from proscribing speech, or even
expressive conduct, because of disapproval of the ideas expressed.” R.A.V. v. City of St. Paul,
Minn., 505 U.S. 377, 382 (1992) (citations omitted). “Content-based laws—those that target
speech based on its communicative content—are presumptively unconstitutional and may be
justified only if the government proves that they are narrowly tailored to serve compelling state
interests.” Reed, 135 S. Ct. at 2226. By contrast, content-neutral restrictions are subject to
intermediate scrutiny, meaning that the restrictions must promote a substantial governmental
interest that would be achieved less effectively absent the restriction while leaving open ample
22
alternative channels for communication of the information. Ward v. Rock Against Racism, 491
U.S. 781, 799 (1989).
As the parties recognize, the case turns primarily on what level of constitutional scrutiny
applies. Adams Outdoor devotes the bulk of its briefs to arguing that the billboard regulations
are content-based and subject to strict scrutiny, whereas the city contends that the regulations
are content-neutral and subject to intermediate scrutiny.
a. Level of constitutional scrutiny
Adams Outdoor contends that two parts of the city’s sign ordinance constitute contentbased discrimination subject to strict scrutiny: (1) the restrictions on advertising signs; and
(2) the prohibition on digital image signs. Because these challenges implicate distinct issues,
the court will separately discuss the standard of review for each one.
i. Restrictions on advertising signs
Adams Outdoor contends that the sign ordinance’s regulation of advertising signs
constitutes unconstitutional content-based restriction of speech, both facially and as applied
to Adams Outdoor. Its primary argument is that the sign ordinance is content based under the
Supreme Court’s holding in Reed v. Town of Gilbert. Reed was the pastor of a church that held
weekly services at various locations, and accordingly the church posted temporary signs
announcing the location of that week’s services. The church was cited for violating the city’s
sign code’s restrictions on “temporary directional signs relating to a qualifying event.” The sign
code treated other categories of temporary signs—“ideological signs” and “political signs”—
more favorably than the church’s temporary signs. The Supreme Court held that these
distinctions in the sign code were content based and unconstitutional. 135 S. Ct. at 2224. The
Court reasoned that a regulation on speech is content based if the regulation “on its face” draws
23
distinctions based on the message a speaker conveys: “Some facial distinctions based on a
message are obvious, defining regulated speech by particular subject matter, and others are
more subtle, defining regulated speech by its function or purpose. Both are distinctions drawn
based on the message a speaker conveys, and therefore, are subject to strict scrutiny.” Id. at
2227 (internal citation omitted).
Relying on Reed, Adams Outdoor contends that the Madison sign ordinance is content
based. It argues that the ordinance’s definition of
“advertising sign” requires the zoning
administrator to assess the sign’s content to determine whether the sign contains a “commercial
message” that “direct[s] attention” to some thing or place not related to or located on the
premises of the sign. Because the ordinance defines “advertising sign” by reference to the type
of message being conveyed (that is, commercial messages directing attention off-premises),
Adams Outdoor says that the various provisions singling out advertising signs for special
restrictions are content based and subject to strict scrutiny under Reed.
Adams Outdoor overstates Reed’s implications on the regulation of billboards. Reed
clarified the relevant inquiry for analyzing whether restrictions on noncommercial speech are
content based or content neutral. But it didn’t purport to change the level of scrutiny applicable
to billboard regulations like Madison’s, which single out signs for regulation based on
(1) whether they contain commercial content, and (2) whether they direct attention on- or offpremises. Under longstanding precedent, regulatory distinctions between commercial and
noncommercial speech and between on-premises and off-premises signs are subject to
intermediate scrutiny.
In Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, the
Supreme Court held that governments may impose restrictions on commercial speech so long
24
as those restrictions directly advance a substantial government interest and are not more
extensive than necessary to serve that interest. 447 U.S. at 566. The Reed majority did not
discuss Central Hudson, let alone purport to overrule it. Indeed, the only mention of Central
Hudson in Reed is in Justice Breyer’s concurring opinion, which discusses commercial speech
doctrine in a manner that suggests that it remains good law. See Reed, 135 S. Ct. at 2235
(Breyer, J., concurring) (noting that the majority’s holding is consistent with the principle that
the Court applies “less strict standards to ‘commercial speech’” (citing Central Hudson, 447 U.S.
at 562–63)).
Likewise, in Metromedia, Inc. v. City of San Diego, the Supreme Court held that
regulations distinguishing between on-premises and off-premises signs were subject to Central
Hudson’s intermediate-scrutiny standard. 453 U.S. at 507. Reed made no mention of Metromedia
either. In his Reed concurrence, Justice Alito listed “[r]ules distinguishing between on-premises
and off-premises signs” as an example of the type of “rule[] that would not be content based”
under the Reed majority’s holding. 135 S. Ct. at 2233 (Alito, J., concurring).
Reed may create some tension with Central Hudson and Metromedia. But the concurring
opinions of Justices Breyer and Alito, and the absence of any mention of Central Hudson and
Metromedia in the majority opinion, show that these two precedents apply to the regulation of
billboards. Regardless of what Reed may portend for the Court’s future decisions, this court has
no authority to disregard a Supreme Court decision that the Court itself has not overruled. See
Agostini v. Felton, 521 U.S. 203, 237 (1997) (warning lower courts against concluding that more
recent Supreme Court cases “have, by implication, overruled an earlier precedent”).
The Seventh Circuit hasn’t yet considered what if any implications Reed might have for
billboard regulation, see Leibundguth Storage & Van Serv., Inc. v. Vill. of Downers Grove, 939 F.3d
25
859, 860 (7th Cir. 2019), but other courts have. So far, even after Reed, courts have universally
concluded that billboard regulations are still governed by Central Hudson.5 And for the most
part, courts considering the constitutionality of on-premises versus off-premises distinctions
since Reed have concluded that such distinctions remain subject to intermediate scrutiny under
Metromedia. See, e.g., Adams Outdoor Advert. Ltd. P’ship by Adams Outdoor GP, LLC v. Pennsylvania
Dep’t of Transportation, 930 F.3d 199, 207 n.1 (3d Cir. 2019); Reagan Nat’l Advertising of Austin,
Inc., 377 F. Supp. 3d at 681; Citizens for Free Speech, LLC v. Cty. of Alameda, 114 F. Supp. 3d
952, 968–69 (N.D. Cal. 2015).
The only exception of which the court is aware is Thomas v. Bright, 937 F.3d 721 (6th
Cir. 2019), in which the Sixth Circuit relied on Reed to invalidate an ordinance that permitted
on-premises signs but banned off-premises signs. But Thomas involved an as-applied challenge
by a plaintiff who wished to display noncommercial speech on an off-premises sign, so its facts
were more akin to those of Reed rather than to the facts of this case. The court will follow the
majority approach and apply the standard in Central Hudson and Metromedia to Adams
Outdoor’s challenge to the ordinance’s billboard restrictions.
As a separate argument for applying strict scrutiny, Adams Outdoor contends that the
ordinance privileges commercial speech over noncommercial speech in a manner contrary to
the plurality holding in Metromedia. In Metromedia, the Supreme Court analyzed a city
5
See, e.g., Contest Promotions, LLC v. City and Cty. of San Francisco, 874 F.3d 597, 601 (9th Cir.
2017); Reagan Nat’l Advertising of Austin, Inc. v. City of Austin, 377 F. Supp. 3d 670, 681 (W.D.
Tex. 2019); Reagan Nat’l Advertising of Austin, Inc. v. City of Cedar Park, 343 F. Supp. 3d 674,
679 (W.D. Tex. 2018); GEFT Outdoor LLC v. Consol. City of Indianapolis & Cty. of Marion, Ind.,
187 F. Supp. 3d 1002, 1016–17 (S.D. Ind. 2016); Peterson v. Vill. Of Downers Grove, 150 F.
Supp. 3d 910, 928–29 (N.D. Ill. 2015), aff’d on other grounds sub nom. Leibundguth Storage & Van
Serv., Inc., 939 F.3d 859; California Outdoor Equity Partners v. City of Corona, No. CV 15-03172
MMM (AGRx), 2015 WL 4163346, at *9 (C.D. Cal. July 9, 2015).
26
ordinance that allowed on-premises commercial speech but banned off-premises commercial
and noncommercial speech. 453 U.S. at 493–96. A majority of the Court upheld the regulation
as applied to commercial speech under Central Hudson, but a plurality overturned the ordinance
as it applied to noncommercial speech, holding that if a city “tolerates billboards at all, it cannot
choose to limit their content to commercial messages; the city may not conclude that the
communication of commercial information concerning goods and services connected with a
particular site is of greater value than the communication of noncommercial messages.” Id. at
513.
Adams Outdoor contends that the Madison ordinance affords more protection to
commercial than noncommercial speech. The court is not persuaded, because the ordinance
includes a message substitution provision—designed to ensure compliance with Metromedia—
which provides that “any sign permitted or authorized under th[e] ordinance may contain any
noncommercial message in addition to or in lieu of any other message.” § 31.04(1)(c). This
provision ensures that the ordinance can’t disfavor noncommercial speech, because a
noncommercial message can go anywhere that a commercial message can. See GEFT Outdoor,
187 F. Supp. 3d at 1015–21 (incorporation of similar message substitution provision rendered
sign ordinance content neutral and subject to intermediate scrutiny).
Adams Outdoor contends that the ordinance violates Metromedia notwithstanding the
message substitution provision. It makes something akin to a disparate-impact argument,
contending that the ordinance systematically disfavors noncommercial speech because
nonprofits have fewer resources to spend on communicating noncommercial messages than
their for-profit counterparts. As an example, Adams Outdoor notes that a nonprofit seeking to
display a noncommercial message in a high-traffic commercial corridor in Madison wouldn’t
27
be able to erect a new billboard because of the billboard ban. But a commercial business located
on a high-traffic commercial corridor can display messages on its on-premises business sign.
The nonprofit could also display a message on an on-premises business sign, but that would
require the nonprofit to “construct a new office location . . . along those corridors and then
construct a business sign that displayed their intended message.” Dkt. 96, at 19. Thus, Adams
Outdoor says, under the ordinance, building a new office location is “the only way to ensure
that the nonprofit . . . can communicate [its] message as effectively as a business owner with
an on-premises sign.” Id.
But this example shows only that speakers with more resources will have an easier time
conveying speech. It does not demonstrate that the ordinance has any inherent tendency to
privilege commercial speech over noncommercial speech, like the provision at issue in
Metromedia did. That some entities may not be able to display as much noncommercial speech
as they would like does not render the billboard ban unconstitutional under Metromedia. “[T]he
First Amendment does not guarantee the right to communicate one’s views at all times and
places or in any manner that may be desired.” Heffron v. Int’l Soc. for Krishna Consciousness, Inc.,
452 U.S. 640, 647 (1981).
The court concludes that those provision of the Madison ordinance that restrict
billboards are subject to intermediate scrutiny, as articulated in Central Hudson and applied to
similar regulations in Metromedia.
ii. Prohibition on digital image signs
Under § 31.03(2), “digital image sign” is defined as “[a] sign, any portion of which
displays . . . digital images, produced by technology such as LED (light emitting diode) or LCD
(liquid crystal display) display screens, plasma, high-definition, interactive touch-screen, or
28
other such technology.” Adams Outdoor contends that the city’s ban on digital image signs,
§ 31.045(3)(i), is also content based and subject to strict scrutiny, even though digital image
signs are defined in terms of the technology they employ rather than the messages they convey.
Adams Outdoor’s argument rests on the distinction between “digital image signs” and
“electronic changeable copy signs.” Electronic changeable copy signs have electronically
illuminated scrolling or moving messages (think of the time and temperature displays once
common on banks). Digital image signs are banned entirely by the ordinance, but electronic
changeable copy signs are permitted in a few locations: on wall, roof, above-roof, ground,
projecting, or canopy signs. § 31.046(1). According to Adams Outdoor, “the practical effect of
this dichotomy is to prohibit owners of Advertising Signs, such as Adams, from using electronic
sign technology to convey any message (i.e., commercial or noncommercial) whatsoever.”
Dkt. 62, at 37. Thus, Adams Outdoor says, “these provisions, in combination with the
Ordinance’s restrictive regulations on ‘Advertising Signs,’ amount to a content-based
restriction on speech that discriminates against the messages conveyed through off-premises
signs (i.e., Advertising Signs), and in favor of messages conveyed through other on-premises
signs permitted under the Ordinance.” Id.
This is not what it means to be “content based.” The ordinance prohibits digital images
on all signs, not just billboards. Electronic changeable copy signs are permitted on a few types
of on-premises signs. Both rules apply without reference to a sign’s “message, its ideas, its
subject matter, or its content,” so it is content neutral. Reed, 135 S. Ct. at 2226. Adams
Outdoor’s argument about digital image signs is, at its core, another iteration of its argument
that the distinction between on-premises and off-premises is a content-based distinction that
must be subject to strict scrutiny. The court rejects this iteration, too.
29
The ban on digital image signs is evaluated using the intermediate scrutiny applicable
to content-neutral time, place, and manner restrictions. To survive a constitutional challenge
under that standard, the regulation “must be justified without reference to the content or
viewpoint of speech, must serve a significant government interest, and must leave open ample
channels for communication.” Leibundguth, 939 F.3d at 862 (citing Clark v. Comm. for Creative
Non-Violence, 468 U.S. 288, 293 (1984)).
To summarize the discussion of the level of constitutional scrutiny, the court will
evaluate the challenged provisions of the Madison ordinance under intermediate scrutiny. The
court starts with the billboard regulations, to which it applies the principles of Central Hudson.
It then turns to the digital image sign ban, which it analyzes as a content-neutral time, place,
and manner regulation.
b. Madison’s billboard regulations are constitutional under Central
Hudson
Central Hudson sets out the framework for determining whether restrictions on
commercial speech are valid under the First Amendment. First, to be entitled to constitutional
protection at all, the speech at issue may not concern unlawful activity or be misleading. If the
speech satisfies this requirement, then the burden falls on the city to show that: (1) its asserted
interest in regulating the speech is “substantial,” (2) its regulation “directly advances” the
government’s asserted interest; and (3) its regulation is “not more extensive than is necessary
to serve that interest.” 447 U.S. at 566.
For purposes of summary judgment, the city doesn’t dispute that the speech at issue in
this case is entitled to First Amendment protection, so the threshold element is satisfied.
Likewise, Adams Outdoor doesn’t dispute that the interests the city asserts as a basis for
regulating billboards—traffic safety and aesthetics—are “substantial” for purposes of the
30
Central Hudson analysis. It is well settled that they are. See Metromedia, 453 U.S. at 508 (“Nor
can there be substantial doubt that the twin goals that the ordinance seeks to further—traffic
safety and the appearance of the city—are substantial government goals.”). But the parties
dispute the remaining two elements: whether the billboard ban and other ordinance provisions
singling out advertising signs for stricter regulation directly advance the city’s interests in traffic
safety and aesthetics and, if so, whether those restrictions are appropriately tailored to those
interests.
i. Direct advancement of government interests
The city contends that its billboard-specific restrictions directly advance both its
interest in traffic safety and its interest in aesthetics. Adams Outdoor disagrees, contending
that the city has failed to adduce concrete empirical evidence that billboards are unsightly, or
that the ordinance makes the roads safer.
The city adduces the expert report of Jerry Wachtel, a certified professional ergonomist
with extensive experience in the study of roadside billboards and driver distraction. Dkt. 31.
Wachtel’s bottom line is that, according to the clear consensus of research, “[a]ll billboards
may distract drivers, but digital billboards are worse.” Id. at 4. Wachtel cites numerous
provisions in the Madison ordinance that advance safety by reducing distraction or the
obstruction of driver vision. Adams Outdoor counters with its own expert, Barry Strauch, who
opines that the risk of distraction from billboards, including digital billboards, can be mitigated
to an acceptable level without prohibiting them.6 Dkt. 111.
6
The court notes that the Strauch report was filed after summary judgment briefing, and thus
neither side mentioned it.
31
If the question before the court were whether specific provisions of the Madison
ordinance were justified by sound research on traffic safety, the court would deem the matter
to be disputed. But the question is whether the Madison ordinance directly advances the city’s
interest in traffic safety, not whether each provision is absolutely necessary. Adams Outdoor
cannot show that the ordinance is unconstitutional by challenging the regulations as unwise.
The Wachtel report is enough to show that Madison’s sign ordinance directly advances the
city’s interests in traffic safety, even if Strauch disputes some of Wachtel’s opinions. Adams
Outdoor could address this evidentiary argument to the city council, but it is not material to
this case.
The Supreme Court hasn’t required municipalities to present any supporting data in
cases involving sign regulations. For example, in Metromedia, the Court determined that an
across-the-board ban on billboards “would be proper, given the ability of billboards to distract
drivers,” and “did not require proof of this effect in the record.” Luce v. Town of Campbell,
Wisconsin, 872 F.3d 512, 516 (7th Cir. 2017) (citing Metromedia, 453 U.S. at 508–12, 541,
559–61, 569–70). The Seventh Circuit has taken the same approach in analyzing asserted
traffic-safety justifications for sign regulations. See id. at 517 (“It does not take a double-blind
empirical study, or a linear regression analysis, to know that the presence of overhead signs and
banners is bound to cause some drivers to slow down in order to read the sign before passing
it.”); Lavey v. City of Two Rivers, 171 F.3d 1110, 1114–16 (7th Cir. 1999) (court considered no
empirical evidence in holding that stricter requirements for off-premises signs directly advanced
government’s interest in traffic safety).
The billboard restrictions also directly advance the city’s interest in aesthetics. “It is not
speculative to recognize that billboards by their very nature, wherever located and however
32
constructed, can be perceived as an ‘esthetic harm.’” Metromedia, 453 U.S. at 510. Adams
Outdoor faults the city for failing to offer specific evidence that the billboard restrictions
directly advance its aesthetic interests. But aesthetic judgments are “necessarily subjective” and
“defy[] objective evaluation.” Id. As the Seventh Circuit recently emphasized, “[t]here’s no
accounting for taste. People’s aesthetic reactions are what they are,” and the government “need
not try to prove that [those] aesthetic judgments are right.” Leibundguth, 939 F.3d at 862
(internal alterations and quotation marks omitted). Neither the Supreme Court nor the
Seventh Circuit requires governments to provide polling data or other empirical support to
validate commonsense intuitions about the aesthetic concerns that billboards present.
The court concludes that the ordinance’s restrictions on advertising signs directly
advance the city’s interests in traffic safety and aesthetics.
ii. Reasonable fit between restrictions and the city’s asserted
interests
The last element of the Central Hudson analysis is whether the city’s restrictions on
billboards are more extensive than necessary to advance the city’s asserted interests. To satisfy
this element, the city does not need to show that its restrictions are “the least restrictive means
conceivable.” Greater New Orleans Broadcasting Ass’n, Inc. v. United States, 527 U.S. 173, 188
(1999). Rather, the city need only show “a ‘fit’ between the legislature’s ends and the means
chosen to accomplish those ends, a fit that is not necessarily perfect, but reasonable; that
represents not necessarily the single best disposition but one whose scope is in proportion to
the interest served.” Fla. Bar v. Went For It, Inc., 515 U.S. 618, 632 (1995) (citations and
quotation marks omitted).
The city has made this showing. In Metromedia, the Court held that “[i]f the city has a
sufficient basis for believing that billboards are traffic hazards and are unattractive, then
33
obviously the most direct and perhaps the only effective approach to solving the problems they
create is to prohibit them.” 453 U.S. at 508. This holding controls here. In an effort to
distinguish Metromedia, Adams Outdoor notes that the ordinance at issue in that case didn’t
contemplate “a total prohibition on outdoor advertising.” Id. at 515 n.20. But neither does the
Madison ordinance. Adams Outdoor still maintains 186 billboard faces in the city, and the
ordinance continues to permit outdoor commercial and noncommercial speech on a variety of
other types of signs. The ordinance in no way “foreclose[s] an entire medium of expression” in
the sense deemed constitutionally problematic by the Supreme Court in other contexts. See
Gilleo, 512 U.S. at 55 (collecting cases).
This analysis is likewise fatal to Adams Outdoor’s overbreadth claim. (Adams Outdoor
frames its overbreadth claim as a separate challenge, but the overbreadth analysis dovetails
with the final element of the Central Hudson analysis, so the court addresses in this context.)
Adams Outdoor contends that the ordinance is unconstitutional “because it seeks to prohibit
such a broad range of protected [speech] that it is unconstitutionally ‘overbroad.’” Members of
City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796 (1984). “An
overbroad statute is one that is designed to burden or punish activities that are not
constitutionally protected, but that includes within its scope activities that are protected by
the First Amendment.” Gaylor v. Thompson, 939 F. Supp. 1363, 1373 (W.D. Wis. 1996). For
an overbreadth challenge to prevail, “a statute’s overbreadth must be ‘substantial, not only in
an absolute sense, but also relative to the statute’s plainly legitimate sweep.’” Ctr. for Individual
Freedom v. Madigan, 697 F.3d 464, 476 (7th Cir. 2012) (emphasis in original) (quoting United
States v. Williams, 553 U.S. 285, 292 (2008)).
34
Adams Outdoor’s overbreadth challenge cannot be reconciled with the Metromedia
majority’s holding that governments may constitutionally ban off-premises commercial signs.
Adams Outdoor argues that a substantial proportion of the ordinance’s applications, both
before and after the 2017 amendment, run afoul of Metromedia by privileging commercial
speech over noncommercial speech. But as discussed above, the ordinance’s message
substitution provision ensures that noncommercial speech is always treated at least as well as
commercial speech. In light of that provision, Adams Outdoor can’t demonstrate that any
applications of the ordinance violate Metromedia, let alone the substantial proportion that
would be required to render the ordinance unconstitutionally overbroad. So Adams Outdoor’s
overbreadth claim fails.
c. The digital image sign ban is constitutional as a content-neutral time,
place, and manner regulation
Adams Outdoor contends that the ban on digital image signs is unconstitutional even
if it is evaluated under the intermediate standard of scrutiny typically applied to contentneutral time, place, and manner restrictions. Under that standard, a time, place, and manner
restriction will survive constitutional scrutiny if it is (1) content-neutral; (2) not substantially
broader than necessary to a serve a significant government interest; and (3) leaves open ample
alternative channels of communication. See Cmty. for Creative Non-Violence, 468 U.S. at 293.
The city easily makes this showing here, for reasons already discussed in the Central
Hudson analysis. Adams Outdoor contends again that the city hasn’t offered sufficient evidence
to demonstrate “how or why . . . static billboards or Electronic Changeable Copy signs are more
aesthetically palatable or safe than digital billboards.” Dkt. 62, at 42. But the Supreme Court
has “never suggested that empirical support is required for all time, place, and manner limits.”
Luce, 872 F.3d at 516. Here, the traffic-safety and aesthetic concerns associated with digital
35
image signs are obvious, even without empirical confirmation from an expert. Large, glowing
billboard signs are more eye-catching and distracting—and hence more of an aesthetic eye
sore—than conventional billboards or electronic changeable copy signs (which are subject to
strict time, place, and manner restrictions under the ordinance, see § 31.046(1)). And even if
empirical evidence were required to support this commonsense intuition, Wachtel’s expert
report provides it. See Dkt. 31, at 2–4 (providing overview of research literature on digital sign
technology and opining that the “research in general, and, in particular the most recent
research, is in strong agreement that digital billboards have an adverse effect on traffic safety”).
Adams Outdoor says that the ban on digital image signs “in combination with the City’s ban
on static billboards as a general matter, suppresses an entire mode of communication that is
protected under the First Amendment.” Dkt. 62, at 41. But as noted above, Adams Outdoor
still has 186 billboard faces in the city, and there are numerous other types of signs permitted
under the ordinance on which one can display commercial or noncommercial speech.
The city has satisfied its burden to show that its ban on digital image signs is content
neutral and not substantially broader than necessary to a serve its asserted interests, and that
it leaves open ample alternative channels of communication. So Adams Outdoor’s challenge to
the digital image sign ban fails as well.
2. Vagueness
Adams Outdoor also contends that various aspects of the ordinance are void for
vagueness. Due process requires that laws clearly define what they proscribe. Karlin v. Foust,
188 F.3d 446, 458 (7th Cir. 1999) (citing Grayned v. City of Rockford, 408 U.S. 104 (1972)).
To avoid unconstitutional vagueness, a law must both give people “a reasonable opportunity
to know what is prohibited” and provide “explicit standards” for those tasked with enforcing
36
the law to apply. Grayned, 408 U.S. at 108. Laws that interfere with the exercise of
constitutionally protected rights, such as the right of free speech, are subject to “a more
stringent vagueness test,” under which courts may invalidate laws as void for vagueness even if
they are not impermissibly vague in all of their applications. Karlin, 188 F.3d at 458, 458 n.7.
That said, due process doesn’t require mathematical precision: “perfect clarity and
precise guidance have never been required even of regulations that restrict expressive activity.”
Ward, 491 U.S. at 794. Naturally “there are limitations in the English language with respect
to being both specific and manageably brief.” Anderson v. Milwaukee Cty., 433 F.3d 975, 978
(7th Cir. 2006) (quoting U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 413
U.S. 548, 578–79 (1973)). Courts will typically reject vagueness challenges when an “ordinary
person exercising ordinary common sense” would understand what the language in the
government proscription at issue means. Nat’l Ass’n of Letter Carriers, 413 U.S. at 479.
Here, Adams Outdoor points to numerous provisions of the sign ordinance that it says
are void for vagueness. Its challenges fall into two general categories: provisions that fail to
sufficiently define key terms, and provisions that vest the zoning administrator with excessive
discretion.
a. Failure to define key terms
Adams Outdoor points to various terms in the ordinance that it says are insufficiently
defined and fail to provide sign owners with adequate notice of what’s prohibited. For instance,
Adams Outdoor contends that both the original and amended versions of the ordinance fail to
sufficiently define the terms “commercial message” and “noncommercial message.” Under the
original ordinance, “commercial message” was defined as a “message that directs attention to
a business, commodity, service or entertainment enterprise which is intended to produce a
37
monetary profit or earnings which may lawfully inure to the benefit of any private shareholder
or individual . . .” Dkt. 75-1, at 7. “Noncommercial message” was defined as a “message
intended to direct attention to a political, social, community or public service issue, event, or
cause, not intended to produce a monetary profit or earnings which may lawfully inure to the
benefit of any private shareholder or individual . . .” Id. at 10. The amended ordinance excises
these definitions and leaves both terms undefined, on the theory that they are adequately
“defined by caselaw.” See Dkt. 75-2, at 2–3 (drafter’s analysis). Adams Outdoor contends that
the original ordinance’s definitions were vague as to whether the “inten[tion] to produce a
monetary profit or earnings” should be ascribed to the owner of the advertising sign, or to the
entity whose message is displayed on the advertising sign:
For instance, the owner of an Advertising Sign could donate space
to a community organization, which may in turn display a
message regarding a fundraiser that it is conducting. Under the
terms of the Ordinance, it is unclear whether the message would
be “commercial” (i.e., because it is intended to produce earnings
for the organization) or “noncommercial” (i.e., because the owner
of the sign donated the space for free).
Dkt. 62, at 50–51. The amended ordinance does nothing to correct this problem, Adams
Outdoor says, because it fails to define the terms entirely.
A commonsense reading of the ordinance obviates these vagueness concerns. Under
both versions of the ordinance, the adjectives “commercial” and “noncommercial” modify the
term “message.” This indicates that it is the intention behind the message (i.e., whether it
proposes a commercial transaction of some kind) that determines whether the message is
commercial or noncommercial, rather than the manner in which the message came to be
displayed on the billboard (i.e., paid for by the customer versus donated by Adams). That the
amended ordinance omits specific definitions for these terms does not render the terms vague.
38
“Commercial advertising has long been well defined by Supreme Court commercial speech
doctrine. It constitutes paradigmatic commercial speech because its fundamental purpose is to
propose an economic transaction.” Lavey, 171 F.3d at 1116 (cleaned up) (rejecting vagueness
challenge based on ordinance’s failure to define “commercial speech” and “noncommercial
speech”). The meaning of commercial message and noncommercial message is clear from both
the context of the ordinance and the relevant case law, so those terms are not void for
vagueness.
Adams Outdoor challenges various other ordinance terms as inadequately defined, but
those challenges fare no better. Adams Outdoor notes that under the billboard ban, it is
unlawful to “erect, repair, alter, relocate, maintain, or change copy, except for signs designated
for changeable copy,” any sign within the city without first obtaining a permit from the zoning
administrator. § 31.41(1)(b) (emphasis Adams Outdoor’s). The ordinance defines “alteration”
as “[a]ny major change made to an existing sign, other than routine maintenance, painting or
change of copy of an existing sign.” § 31.03(2). But the ordinance doesn’t further define what
is meant by the phrases “any major change” or “routine maintenance.” Similarly, § 31.045 of
the ordinance, which deals with “unsafe and unlawful signs and structures,” doesn’t define or
provide criteria for determining when a sign has been “abandoned” or has become a “traffic
hazard.”7 And the provision of the ordinance permitting the zoning administrator to “cause
7
That provision reads, in relevant part:
All signs and structures shall be properly maintained and kept in an
overall clean, neat state of appearance. It shall be the responsibility of
the permit holder or property owner to maintain signs and
structures.
Abandoned Signs. Signs that no longer serve the purpose for which they
are intended, or are not maintained, or which have been abandoned, shall
39
any sign that is a hazard to person or property to be removed summarily and without notice”
doesn’t define “hazard to person or property.” § 31.04(4)(a).
These arguments fail. Legislators cannot predict every potential application of a
provision at the time of enactment. The words that legislators use will necessarily be subject to
later interpretation as new factual scenarios arise. The sign ordinance need not provide an
exhaustive enumeration of every conceivable “major change,” type of “routine maintenance,”
or way that a sign can become “abandoned” or “hazardous” to provide constitutionally
adequate guidance. These are commonsense terms susceptible to commonsense application. An
unconstitutionally vague statute is vague “not in the sense that it requires a person to conform
his conduct to an imprecise but comprehensible normative standard, but rather in the sense
that no standard of conduct is specified at all.” Vill. of Hoffman Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 495 n.7 (1982) (quoting Coates v. City of Cincinnati, 402 U.S. 611 (1971)).
“Uncertainty at a statute’s margins will not warrant facial invalidation if it is clear what the
statute proscribes ‘in the vast majority of its intended applications.’” Cal. Teachers Ass’n v. State
be removed by the most recent permit holder, the property owner,
or by the City, at the expense of the property owner and may be
charged to the property owner as a special charge.
...
Signs Not to Constitute a Traffic Hazard. No sign regulated by
this ordinance shall be erected at the intersection of any streets in
such a manner as to obstruct free and clear vision as further
delineated in other sections of this ordinance; or at any location
where, by reason of the position, shape or color, it may interfere
with, obstruct the view of or be confused with any authorized traffic sign,
signal, or device; . . . .
§§ 31.045(2)(a), (2)(b), (3)(b) (emphasis Adams Outdoor’s).
40
Bd. of Educ., 271 F.3d 1141, 1151 (9th Cir. 2001) (quoting Hill v. Colorado, 530 U.S. 703, 733
(2000)). The court is satisfied that these aspects of the ordinance are clear enough that a person
of ordinary intelligence would understand them, so they are not void for vagueness.
b. Zoning administrator’s discretion
Adams Outdoor also challenges four ordinance provisions that it says vest the zoning
administrator with unfettered discretion. First, Adams Outdoor notes that § 31.04(4) of the
ordinance provides that “the Zoning Administrator may cause any sign that is a hazard to
person or property to be removed summarily and without notice,” and “may refuse to issue a
sign permit to any permittee or owner who has failed to pay costs assessed for removal of a
hazardous sign” or has otherwise failed to pay a fine, forfeiture, or obey a court order arising
out of a violation of the ordinance. § 31.04(4)(a), (5) (emphasis Adams Outdoor’s). Adams
Outdoor says that the inclusion of the permissive verb “may” means that there are no objective
criteria to guide the zoning administrator’s determinations about whether a hazardous sign
should be removed or future permits withheld from a permittee.
But these provisions do not vest the zoning administrator with discretion to remove a
sign or deny a sign permit for vague, unknowable reasons. The reasons for any such removal or
denial are plain from the text of the ordinance: a sign may be removed if it constitutes a hazard
to person or property, and a permit may be denied if a sign owner fails to pay costs, fines, or
forfeitures, or to obey a court order. Permittees are on notice of what they need to do to ensure
that their signs aren’t removed and their permit applications are granted. That these
subsections vest the zoning administrator with discretion to leave up a hazardous sign or issue
a sign permit despite a permittee’s failure to abide by the ordinance does not render these
41
provisions void for vagueness. Indeed, they make the ordinance less restrictive of speech, not
more.
Second, Adams Outdoor contends that § 31.05(2)(b), which governs nonconforming
advertising signs, fails to provide objective criteria for the zoning administrator to apply. That
subsection provides in relevant part:
[E]xisting advertising signs may not be restored or reconstructed
for any reason, except if damaged or destroyed by fire or other
casualty or act of God, and only if the total cost of restoration to
the condition in which it was before the occurrence does not
exceed fifty percent (50%) of its assessed value or the cost to replace
with a new structure of equal quality, whichever amount is lower.
(emphasis Adams Outdoor’s). Adams Outdoor says that this provision is void for vagueness
because it gives the zoning administrator complete discretion to determine the replacement
cost of an advertising sign structure of equal quality, with “no guideposts or other metrics to
inform his or her decision as to what is considered ‘of equal quality.’” Dkt. 62, at 53. In fact,
this subsection doesn’t vest the zoning administrator with any authority at all. The very next
sentence of the provision reads: “The determination of eligibility for restoration or
reconstruction in the preceding sentence shall be made by the Urban Design Commission . . .”
§ 31.05(2)(b). The Urban Design Commission holds hearings on sign permitting matters
delegated to it under Chapter 31. See Madison Gen. Ordinance § 33.24(4)(j). This means that
decisions about whether a damaged or destroyed sign qualifies for restoration under
§ 31.05(2)(b) are made by a deliberative body after a hearing, not unilaterally by the zoning
administrator.
Regardless who is vested with authority to make these determinations, the phrase “of
equal quality” is not so vague and indefinite as to provide no meaningful standard. The word
“equal” is itself a standard. There may be various metrics for ascertaining “quality,” and as
42
currently written, the ordinance affords the Urban Design Commission flexibility to choose the
measure of quality it deems most appropriate in a given case. But the requirement that quality
be “equal,” in combination with the opportunity for interested parties to participate in the
Urban Design Commission’s administrative process, is sufficient to allay any vagueness
concerns. Cf. Blackwelder v. Safnauer, 689 F. Supp. 106, 126–28 (N.D.N.Y. 1988) (in rejecting
vagueness challenge to the terms “competent” and “substantially equivalent” in law governing
minimum standards of instruction for homeschooled children, court noted that “[a] party’s
ability to clarify the meaning of a regulation . . . through an administrative process[] can
ameliorate any vagueness problems that might otherwise be created by the terms of th[e]
regulation.”).
The other two ordinance provisions that Adams Outdoor says vest the zoning
administrator with too much discretion are not susceptible to vagueness challenges because
neither actually proscribes any speech. Section 31.04(1) of the ordinance, which sets out some
general interpretive rules, provides that “[i]n their interpretation and application, the
provisions of this ordinance shall be held to be the minimum requirements and least intrusive
means for the promotion and protection of the public health, safety, and general welfare.”
Adams Outdoor says that this doesn’t provide the zoning administrator with sufficiently
definite standards for interpreting and applying the ordinance. But § 31.04(1) poses no actual
substantive constraints on signage. Adams Outdoor doesn’t explain how it could possibly
function as a means of proscribing speech, let alone how its application could yield uncertain
results. So it’s not susceptible to a void-for-vagueness challenge. See, e.g., XXL of Ohio, Inc. v.
City of Broadview Heights, 341 F. Supp. 2d 765, 806 n.27 (N.D. Ohio 2004) (rejecting billboard
company’s vagueness challenge to “stated objectives of the sign ordinance and the
43
determinations in support of the ordinance” because they “mandate or prohibit nothing”); cf.
Beckles v. United States, --- U.S. ----, 137 S. Ct. 886 (2017) (advisory Sentencing Guidelines were
not subject to a vagueness challenge because they “do not fix the permissible range of
sentences” but “merely guide the exercise of a court’s discretion in choosing an appropriate
sentence”).
The same is true of the other challenged provision, § 31.05(2)(c), which allows existing
advertising signs to be relocated on the same site if a highway project of the Wisconsin
Department of Transportation requires it. The subsection provides that “sign[s] realigned
under this provision shall not be subject to applicable setback requirements found elsewhere in
this ordinance, if in the Zoning Administrator’s opinion a shorter setback is necessary to
accomplish the realignment.” Adams Outdoor says that this provision is unconstitutionally
vague because it “allows the Zoning Administrator to develop his or her own subjective opinion
as to whether a shorter ‘setback’ is necessary to accomplish the alignment.” Dkt. 62, at 53. But
this discretion applies only to the distances between signs and property lines; it doesn’t operate
as a prohibition on speech. So § 31.05(2)(c) isn’t susceptible to a vagueness challenge either.
The court concludes that Madison’s sign ordinance provides adequate notice as to its
prohibitions and sufficiently explicit standards for the zoning administrator to apply. So Adams
Outdoor’s vagueness claims fail.
3. Prior restraint
Adams Outdoor brings facial and as-applied challenges to the ordinance’s permitting
regimes as unconstitutional prior restraints on its speech. A system of prior restraint exists
whenever the government imposes conditions on the expression of ideas and opinions. Kraimer
v. City of Schofield, 342 F. Supp. 2d 807, 814 (W.D. Wis. 2004) (citing Southeastern Promotions,
44
Ltd. v. Conrad, 420 U.S. 546, 553 (1975)). “Prior restraints are not unconstitutional per se,”
although there is a “heavy presumption against [their] constitutional validity” where protected
speech is concerned. Southeastern Promotions, Ltd., 420 U.S. at 558. As with many other areas
of First Amendment doctrine, the standard for determining whether a system of prior restraint
is constitutional depends on whether the system is content based or content neutral.
For a content-based permitting regime to survive constitutional scrutiny, it must
contain three procedural safeguards: (1) any restraint prior to judicial review can be imposed
only for a specified brief period during which the status quo must be maintained;
(2) expeditious judicial review of that decision must be available; and (3) the censor must bear
the burden of going to court to suppress the speech and must bear the burden of proof once in
court. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 227 (1990) (citing Freedman v. Maryland,
380 U.S. 51, 58–60 (1965)). Content-neutral prior restraints, by contrast, need only contain
“adequate standards to guide the official’s decision and render it subject to effective judicial
review.” Thomas v. Chicago Park Dist., 534 U.S. 316, 323 (2002) (holding that content-neutral
municipal park ordinance requiring individuals to obtain permit before conducting events with
more than 50 attendees was constitutional despite not meeting Freedman’s procedural
requirements).
Here, Adams Outdoor challenges two of the sign ordinance’s permitting regimes: (1) its
general permitting process for all non-exempt signs, § 31.041; and (2) the advertising sign bank
program, § 31.112.8 Adams Outdoor’s assertion that these regimes must meet the standards
8
As discussed above, Adams Outdoor’s challenge to the ordinance’s comprehensive design
review process, § 31.043(4), as a prior restraint fails for lack of standing because Adams
Outdoor hasn’t been injured by that process.
45
articulated in Freedman is incorrect. As explained above, sign regulations that draw distinctions
between off-premises commercial signs and other kinds of signs are not considered content
based under Metromedia. So the court analyzes Adams Outdoor’s remaining prior-restraint
claims using the standard articulated in Thomas v. Chicago Park District rather than the more
stringent standard set forth in Freedman. Under that standard, the court will uphold the general
permitting and advertising sign bank processes unless they lack “adequate standards to guide
the official’s discretion and render it subject to effective judicial review.” Thomas, 534 U.S. at
323.
a. General permitting process
Adams Outdoor contends that the general permitting process established in § 31.041 is
unconstitutional because it doesn’t impose a reasonable time limit for the zoning administrator
to evaluate permit applications, which means that there is no prompt avenue for judicial review.
That’s not correct. The ordinance makes it “the duty of the Zoning Administrator upon the
filing of an application for permit to promptly examine such plans and specifications,” and if he
determines that the permit complies with the ordinance, he “shall promptly issue the appropriate
permit upon payment of the appropriate fee(s).” § 31.041(4) (emphasis added). Appeals from
the denial of a permit must be submitted in writing within 30 days, at which point the Urban
Design Commission has 60 days to make a final decision on the permit application.
§ 31.043(1). Once the Urban Design Commission decides an appeal, the applicant has 30 days
to seek judicial review. § 31.043(5). These provisions are sufficient to “render [permitting
decisions] subject to effective judicial review.” Thomas, 534 U.S. at 323. That the ordinance
requires the zoning administrator to act “promptly” rather than setting out a specific timeframe
in which he must act does not make the regime an unconstitutional prior restraint. See, e.g.,
46
Granite State Outdoor Advert., Inc. v. City of St. Petersburg, 348 F.3d 1278, 1282 n.6 (11th Cir.
2003) (holding that “time limits are not per se required when the licensing scheme at issue is
content-neutral”).
Adams Outdoor also contends that the general permitting process fails to provide
narrow, objective standards for the zoning administrator to apply in approving or denying sign
permits. It alleges three defects in particular. First, Adams Outdoor notes that the ordinance
allows the zoning administrator to determine “the form and contents of all applications for
permits” under the ordinance. § 31.041(2). Adams Outdoor omits the full sentence, which
reads: “The Zoning Administrator shall determine, consistent with the provisions of this ordinance,
the form and contents of all applications for permits.” Id. (emphasis added). The zoning
administrator may have discretion to design the permit application forms, but his discretion is
otherwise cabined by the numerous detailed, objective, and definite criteria that one must meet
to obtain a sign permit under the ordinance. The ordinance contains “very particular
requirements for signs, including limitations on size, height, location, area, and setback
conditions. . . . On [its] face, the sign ordinance[] contain[s] enough specificity to render the
decision of whether to grant or deny an application virtually ministerial.” H.D.V.-Greektown,
LLC v. City of Detroit, 568 F.3d 609, 623 (6th Cir. 2009).
Second, Adams Outdoor points to language from that same subsection stating that
“[w]hen all of the provisions of this ordinance or other ordinances relating to such sign shall
have been complied with and when the applicant has paid the required fee for every such
application, the permit may be granted.” § 31.041(2) (emphasis Adams Outdoor’s). Adams
Outdoor says that the presence of the permissive verb “may” shows that the zoning
administrator has unchecked discretion as to whether to issue a permit at all. But a broader
47
reading of the ordinance shows this to be false. Just two subsections later, § 31.041(4) provides
that “if the proposed sign is in compliance with all the requirements of this Ordinance and any
other applicable laws, [the zoning administrator] shall promptly issue the appropriate permit
upon payment of the appropriate permit fee(s).” (emphasis added). Read conjunctively with
§ 31.041(4), the permissive language in § 31.041(2) seems only to give the zoning
administrator discretion to grant a sign permit despite an applicant’s failure to comply with
other applicable laws. Such discretion poses no constitutional problem because it “furthers,
rather than constricts, free speech.” Thomas, 534 U.S. at 325.
Third, Adams Outdoor says that the ordinance vests the zoning administrator with
unbridled discretion to revoke a sign permit at any time, citing the subsection that provides:
“All rights and privileges acquired under the provisions of this ordinance or any amendment
thereto, are mere permits, revocable at any time by the Zoning Administrator . . . .”
§ 31.041(6). But this aspect of the ordinance contemplates post hoc revocation, not prior
restraint, so it’s not clear why the constitutional standards articulated in prior-restraint cases
like Thomas should apply. The provision potentially implicates due process interests, but Adams
Outdoor doesn’t bring a procedural due process challenge.
The court is not persuaded that these three alleged defects render the ordinance devoid
of “adequate standards to guide the [zoning administrator’s] decision[s],” Thomas, 534 U.S. at
325, so Adams Outdoor’s challenge to the general permitting process fails.
b. Advertising sign bank
Adams Outdoor next contends that the advertising sign bank program (through which
owners of advertising signs may apply for a replacement advertising sign when an existing sign
gets removed due to redevelopment) is an unconstitutional prior restraint, citing the same set
48
of issues it raised in challenging the general permitting process. First, it says that the ordinance
doesn’t provide a prompt avenue for judicial review because there is “no time limit in which
the Zoning Administrator must issue a permit for a Replacement Advertising Sign.” Dkt. 62,
at 62. But sign owners apply for replacement advertising sign permits using the general
permitting procedures discussed above. See § 31.112(5)(b). The only procedural difference is
that the zoning administrator must provide written notice to the alderperson of the district
where the replacement advertising sign is proposed to be placed. That alderperson can “request
a review by the Common Council within fourteen (14) calendar days of the date of the written
notice,” at which point the city clerk “shall place the matter on the next available Council
agenda for review.” § 31.112(5)(c). If the common council votes to deny the replacement
advertising sign permit, the aggrieved sign owner “may, within thirty (30) days after the
decision is published in the proceedings of the Common Council, commence an action seeking
the remedy available by certiorari.” Id. These are reasonable time limits that render decisions
on replacement advertising sign permits subject to effective judicial review, as required under
Thomas.
Second, Adams Outdoor contends that “because the square footage of the removed sign
cannot be banked until the Zoning Administrator ‘gives his or her written approval,’ the
program does not provide narrow, objective standards for the Zoning Administrator to apply
in approving or denying an application for [a] Replacement Advertising Sign.” Dkt. 62, at 62.
But this conclusory argument completely ignores the detailed eligibility criteria set out in
various subsections of § 31.112. See § 31.112(2), (4), (5), (6).
The court discerns no constitutional problem with the advertising sign bank program,
so Adams Outdoor’s challenge to that aspect of the ordinance fails as well.
49
4.
Fourteenth Amendment equal protection claims
Adams Outdoor makes a separate claim under the Equal Protection Clause, on the
theory that any law that jeopardizes the exercise of a fundamental right is subject to heightened
judicial scrutiny under the Fourteenth Amendment. See Vision Church v. Vill. of Long Grove, 468
F.3d 975, 1000 (7th Cir. 2006) (“Heightened scrutiny . . . is appropriate when government
action interferes with a person’s fundamental rights, such as freedom of speech or religion.”).
But its claim merely repackages its First Amendment content-based discrimination claim,
which fails for all the reasons explained above. Because Adams Outdoor hasn’t shown any
violation of its First Amendment rights, its redundant equal protection challenge also fails. See
Bogart v. Vermilion Cty., 909 F.3d 210, 215 (7th Cir. 2018) (in case involving mirror-image
First Amendment and equal protection claims, “the same considerations and evidence that
defeat[ed] [plaintiff’s] First Amendment claim cause the same claim repackaged under the
Equal Protection Clause to fail.”).
D. Conclusion
The court holds that most of Adams Outdoor’s challenge to Chapter 31 is claimprecluded by its 1993 stipulated judgment with the city. The only exception is its challenge to
the ban on digital image signs, which fails on the merits. Even if Adams Outdoor were not
precluded by the 1993 stipulation, its First and Fourteenth Amendment challenges would fail
because the distinctions that Chapter 31 draws between on-premises and off-premises
commercial signs survive intermediate scrutiny. The court will grant the city’s motion for
summary judgment and dismiss the case.
50
ORDER
IT IS ORDERED that:
1. Plaintiff Adams Outdoor Advertising Limited Partnership’s motion for partial
summary judgment, Dkt. 61, is DENIED.
2. Defendants City of Madison and Matthew Tucker’s motion for summary judgment,
Dkt, 70, is GRANTED.
3. The clerk of court is directed to enter judgment in favor of defendants and close this
case.
Entered April 7, 2020.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
51
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