COURT: Paid Colorado Billboards Not Free Speech

In a recent ruling, the federal appeals court in Denver upheld Colorado's rules on paid advertising along highways, stating that they do not infringe upon the First Amendment. The regulations, which require billboard owners to obtain a permit from the Colorado Department of Transportation if they receive compensation for highway-adjacent advertising, were challenged by two outdoor advertising companies.

The three-judge panel of the U.S. Court of Appeals for the 10th Circuit determined that the U.S. Supreme Court's interpretation of the First Amendment allowed CDOT to treat paid signage differently. They also recognized that the state had valid justification for implementing such regulations.

"Rather than targeting the content of the advertisement, the regulatory scheme regulates the posting of billboards based on whether the speaker compensated the owner of the billboard," wrote Judge Timothy M. Tymkovich in the Aug. 22 opinion “Regardless of the message or content on the sign, only for-compensation signs visible from a state highway trigger the regulation."

Billboard signage became popular in the United States with the rise of interstate highways

The panel agreed that the Supreme Court's recent rulings led to the conclusion that Colorado's regulations were not content-based. Tymkovich wrote that Colorado had a legitimate interest in "highway safety and reducing visual clutter" by controlling the proliferation of paid billboard advertising.

Still, he cautioned, the law was not a "model of clarity."

"Ultimately, every sign is erected by someone in the sign business, no matter whether the sign is advertising a commercial product, a church, or a business," Tymkovich wrote. "Colorado seems to suggest this is not so, but the plain text of the Act says otherwise."

The panel concurred that the recent decisions of the Supreme Court led to the understanding that Colorado's regulations were not based on the content of the billboards. Judge Tymkovich acknowledged that Colorado had a legitimate interest in prioritizing highway safety and reducing visual clutter by regulating the expansion of paid billboard advertising.

However, he did express a cautious note, stating that the law was not perfectly clear in its language. He emphasized that every sign, regardless of its content, is ultimately erected by someone in the sign business, whether it advertises a commercial product, a church, or a business. While Colorado may suggest otherwise, the plain text of the Act contradicts this notion.