Update: On September 16, 2021, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read an analysis of the oral argument here. .

On June 16, 2021, the Supreme Court of Ohio will hear oral argument in Lamar Advantage GP Company, LLC, d.b.a. Lamar Advertising of Cincinnati, OH and Norton Outdoor Advertising, Inc. v. City of Cincinnati, Ohio and Nicole Lee, Treasurer of the City of Cincinnati, Ohio and Art Dahlberg, Director of the Department of Buildings and Inspects for the City of Cincinnati, Ohio and Reginald Zeno, Finance Director for the City of Cincinnati, Ohio, 2020-0931. At issue in this case is the constitutionality of an excise tax imposed exclusively on billboards. Justice Brunner has recused herself from the case, and Judge Anita Laster Mays of the Eighth District will sit for her.

Case Background

In June 2018, Cincinnati City Council passed an ordinance which created an excise tax on billboards. This tax (“Tax”) required the owner or operator of a billboard to pay the greater of (1) seven percent of the gross receipts generated by any sign, or (2) an annual minimum tax calculated based upon the type, location, and square footage of the sign. Additionally, the Tax contained a provision (“Gag Provision”) that prohibited a billboard operator from informing an advertiser that the advertiser would absorb the cost of the tax.

After the Tax was passed, Lamar Advantage GP Company (“Lamar”) and Norton Outdoor Advertising, Inc. (“Norton”) filed suit, challenging the constitutionality of the Tax and the Gag Provision. Hamilton County Court of Common Pleas Judge Curt Hartman found the Tax and the Gag Provision unconstitutional as violating the First Amendment, and enjoined further collection of the Tax. The City of Cincinnati (“City”) appealed.

Full disclosure: Professor Emerita Bettman was a paid consultant to the City’s attorneys in this appeal.

The Appeal

In a unanimous decision authored by Judge Robert Winkler and joined by Judges Beth Myers and Pierre Bergeron, the First District reversed the trial court’s finding that the Tax was unconstitutional, but affirmed the trial court’s decision that the Gag Provision was unconstitutional.

Acknowledging that billboards are a means of speech entitled to First Amendment protections, the appellate court reasoned that the Tax was content neutral, did not threaten to suppress the expression of certain viewpoints, and did not single out a particular group of billboard operators to bear the burden of the tax. The fact that there are only a small group of billboard operators has been determined by market forces.  Further, the First District noted that differential taxation of the media is permitted if justified by special characteristics. Billboard operators have special characteristics in that they are not traditional press mediums and seldom publish their own content. Because the Tax did not suppress expression of particular ideas or viewpoints, the First District held that the Tax was constitutional.

Regarding the Gag Provision, the First District held that the provision restricted commercial speech. Applying intermediate scrutiny, the appellate court found that the provision was broader than necessary to achieve the City’s goal, and therefore, the court held the Gag Provision was unconstitutional.

Key Statutes and Precedent

CMC 313-3 (ordinance creating an excise tax on billboards.)

CMC 313-7 (limiting communications between billboard operators and their customers, specifically prohibiting the billboard operators from indicating that their customers will absorb the cost of the tax.) (repealed)

Grosjean v. Am. Press Co., Inc., 297 U.S. 233 (1936) (holding that a tax on the sale of advertising on newspapers that applied to only 13 of the 124 publishers in the state violated the First Amendment.)

Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) (holding that billboards are a means to communicate a wide array of messages and are therefore entitled to First Amendment protections.)

Minneapolis Star and Tribune Co. v. Minnesota Commr. of Revenue, 400 U.S. 575 (1983) (holding that a use tax on paper and ink products consumed in publication that applied to only 14 of 388 newspapers violated the First Amendment because the tax singled out a small group of newspapers within the press for differential treatment and was not justified by some “special characteristic” of the press.)

Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221 (1987) (holding that a tax’s differential treatment among magazines that depended upon the magazine’s content violated the First Amendment because the tax could not overcome strict scrutiny review.)

Leathers v. Medlock, 499 U.S. 439 (1991) (holding that a generally applicable sales tax, which exempted certain media segments, did not violate the First Amendment because the tax applied generally and did not single out the press, or a group within the press, for special treatment.)

BellSouth Telecommunications, Inc. v. Farris, 542 F.3d 499 (6th Cir. 2008) (holding a Kentucky gag provision could not survive intermediate scrutiny and reasoning the provision allowed legislators to duck responsibility for a new tax by keeping voters in the dark about its economic impact.)

Clear Channel Outdoor, Inc. v. Dir., Dept. of Fin. of Baltimore City, 472 Md. 444 (Md. 2021) (holding an excise tax applicable only to billboard operators was constitutional because the tax did not discriminate based on content, did not single out the press, and did not target a small group of speakers.) 

Votes to Accept the Case

Yes: Chief Justice O’Connor* and Justices Kennedy, Fischer, French, DeWine,* Donnelly, and Stewart

*Chief Justice O’Connor and Justice DeWine would accept the appeal on proposition of law No. I only.

*Lamar and Norton’s Propositions of Law Accepted for Review

*(Lamar and Norton filed separate briefs but their propositions of law accepted for review are the same)

Proposition of Law No. 1

Constitutionally mandated heightened First Amendment scrutiny applies to a discriminatory excise tax only on billboards that does not apply to businesses generally but instead singles out only the press or targets a small group of speakers.

Proposition of Law No. 2

Section 313-7(b), the Tax’s Gag Provision, prohibits political speech and is an unconstitutional infringement of noncommercial speech.

Lamar* and Norton’s* Argument

*Lamar and Norton filed separate briefs. Below is a summary of Lamar and Norton’s combined arguments.

A tax law that singles out a small group within the press must overcome strict scrutiny to be valid under the First Amendment. Because the Tax here is a selective tax that cannot overcome strict scrutiny, the Tax is unconstitutional.

The First Amendment protects all speakers and all mediums of speech equally, including speech on billboards. Billboards are a time-honored medium of speech.  Billboards can disseminate both noncommercial and commercial speech and therefore, billboards must receive the same level of protection as any other media or means of speech. Indeed, the “institutional press” does not possess constitutional protection above any other speaker. Because billboard operators publish their own speech, and the speech of others, billboards are part of the press. Lamar and Norton disseminate speech through billboards, and therefore, their speech on billboards is entitled to the same First Amendment protections as speech published by any other member of the press.  

Additionally, the government may not control, such as through taxation, the communicative aspects of billboards. The fact that billboard speech is a business for profit does not remove the speech from First Amendment protections. Indeed, First Amendment protections apply to the business of newspapers and magazines, as well as on a newspaper’s advertising revenue. Lamar and Norton publish noncommercial, commercial, political, and editorial speech. Because the Tax impacts the communicative aspects of only billboards, and no other member of the press, the Tax is presumptively invalid. The content of the speech is irrelevant to this analysis.

The Tax here is not of general applicability, but rather targets a small group of speakers within the press, namely billboards. Singling out the press through taxation can abridge the freedom of speech. When a restriction is based on a speaker’s identity, the restriction is constitutionally suspect under the First Amendment. Taxes must be generally applicable; otherwise, taxes themselves can chill speech and operate effectively as a censor. A tax that is not generally appliable to all business, but instead singles out individual groups within the press, requires courts to apply strict scrutiny in order to uphold the tax.

Strict scrutiny requires the State to show a compelling governmental interest that is achieved through the most narrowly tailored means possible. The City’s stated sole purpose for the Tax is to raise revenue. An interest in raising revenue cannot, by itself, justify a special targeting of the press because an alternative means of achieving the same interest is available. In fact, raising revenue never constitutes the required compelling governmental interest to satisfy strict scrutiny. The State can raise revenue without engaging in differential taxation. In fact, the City already collects revenue from the billboard companies for various permits and through its cap and replace program. Therefore, the Tax is unconstitutional because the City cannot satisfy the strict scrutiny standard.

The legislature’s motive for enacting a tax law is not relevant. An innocent motive does not alleviate the danger of censorship. Rather, the structure of a tax alone is sufficient to find that the tax is unconstitutional. If a tax is structured to target a small group of the press, then the tax is unconstitutional. Here, the City’s motive for the Tax is irrelevant. But even if it were not, the City expressly designed and intended to target only billboards when drafting the Tax. Because the structure of the tax aligns perfectly with this intent, the Tax here is unconstitutional.

The appellate court erroneously applied a fabricated “market forces” exception to this case. Essentially, the court held that the Tax was constitutional because a small group of billboard operators could bear the burden of the Tax. This exception is utterly absent from relevant case law and the Ohio and U.S. Constitutions. The exception is also unworkable—under the exception, a tax may single out a group of speakers, as long as the group is created due to “market forces.” Upholding this exception would eliminate established First Amendment protections. The reasons a targeted group happens to be small is irrelevant to the right to free speech protection. Also, the appellate court ignored U.S. Supreme Court precedent that applied heightened scrutiny when a law singles out a small group of speakers, and instead relied on non-binding out-of-state authority. For these reasons, the appellate court’s decision should be overturned.

The Gag Provision prevents Lamar and Norton from speaking about the tax “in any manner, whether directly or indirectly.” This provision should be prohibited for two reasons. First, it allows legislators to avoid political responsibility for imposing the Tax, which effectively limits political speech. The Sixth Circuit has held that such restrictions are invalid. Second, the breadth of the restriction prohibits Lamar and Norton’s right to truthful and political speech. The restricted speech went beyond commercial speech—the provision prevented Lamar and Norton from publicly discussing that the cost of the Tax would be passed to consumers, and that the members of City Council are responsible for the Tax. This is political speech on a topic that is of great public interest. The Gag Provision is a content-based restriction on noncommercial political speech. Because the City has not overcome strict scrutiny for this provision, the Gag Provision is unconstitutional.

After the appellate court invalidated the Gag Provision, the City repealed the provision. But this issue is not moot. The City’s repeal of the Gag Provision does not cure the harm it has caused over the past two years. Also, the appellate court’s decision, while invalidating the provision, did so in a way that could lead to the restriction of free speech rights in the future. Therefore, this issue remains a live constitutional issue of public and great general interest in Ohio.

City’s Argument

The Tax does not implicate the First Amendment and is therefore subject to rational basis review. Because the Tax is rationally related to the City’s legitimate purpose of raising revenue, the Tax is constitutional.

The Tax does not threaten speech or expressive activity but is rather a legitimate exercise of the City’s authority to impose excise taxes on business activities, in this case, the billboards industry.  As such, the Tax is subject to rational basis scrutiny.  When undertaking this review, the Court should presume that the Tax is constitutional, and should overturn the Tax only if it is unconstitutional beyond a reasonable doubt.

A tax is subject to rational basis scrutiny if it regulates economic, not expressive, activity. The First Amendment does not protect the act of installing, placing, or maintaining billboards because such actions are economic, not expressive. These activities are economic because billboard operators rent their billboards to generate revenue. Further, billboards are placed in locations that are expected to generate the most money. The Tax here applies only to the installation, placement, and maintenance of billboards, which is solely economic, and is governed by the special “law of billboards.” This “law of billboards” provides that the noncommunicative aspects of billboard operations are subject to regulation, even though the communicative aspects of billboards enjoy First Amendment protection.  Because the First Amendment allows regulations directed at commerce to impose incidental burdens on speech, the Tax is constitutional.

Simply because billboards convey a message does not shield the economic activity of billboard operators from taxation. Unless conduct is “inherently expressive,” the First Amendment does not protect conduct merely because it is accompanied by speech. Otherwise, a taxpayer could challenge any economic tax on First Amendment grounds merely because an aspect of the economic activity involved using signs to communicate with consumers. Therefore, the noncommunicative aspects of billboard operation are not subject to heightened scrutiny.

Here, the Tax is a content-neutral regulation of the noncommunicative aspects of billboards. The Tax applies only to the exercise of installing, placing, and maintaining billboards. The Tax does not apply to placing a message on the billboard, the content or viewpoint of a message on a billboard, or the volume of information a billboard may display. Such regulation is an appropriate exercise of governmental authority subject to rational basis review. The Tax is not unreasonable or discriminatory—the City has simply constructed tax classifications, which is permitted.

Rational basis review requires that the Tax be upheld if there is any conceivable set of facts to support the rationale on which it was established. Lamar and Norton bear the burden to negate any conceivable basis that supports the Tax. Here, the Tax is designed to meet its goals. The Tax raises revenue for the City by reasonably taxing the business privilege of installing, placing, and maintaining billboards. Taxing these billboard operators is rationally related to the goal of raising funds. Therefore, this Tax is constitutional.

The ability to operate billboards is a business privilege subject to taxation. Indeed, it is well-established that the government may control billboards—even to the point of outright billboard bans—without requiring heightened scrutiny. In Cincinnati, engaging in the billboard business is a privilege, which the City has regulated for decades. Among the City’s powers to regulate is the power to levy excise taxes. The right to free speech does not endow the right to install and maintain billboards without any regulation whatsoever. The City’s Tax is simply an excise tax on a business privilege to engage in the billboard business.

A tax that suppresses expression that could effectively operate as a censor is constitutionally suspect and will be subject to heightened scrutiny. However, a law that singles out a certain medium is not automatically subject to heightened scrutiny. The Tax here does not apply to members of the press because billboard operators do not serve as a check on government abuse, a watchdog on the government, or interpreter between the government and the public. Indeed, billboard operators seldom publish their own thoughts and ideas and when they do, such publication is incidental to their billboards’ use as for-rent display boards. Additionally, the Tax does not threaten the expression of ideas or particular viewpoints. The Tax regulates billboard operators and their economic conduct, not those who publish their ideas through the billboards. Therefore, the Tax is valid.  

The Gag Provision ensured that billboard operators did not misinform their customers. This issue is moot because the provision has been repealed. But if the Court holds that this issue is not moot, the Court should hold that the provision regulated commercial speech and is subject to intermediate scrutiny. The provision regulated commercial speech because it applied to communications between billboard operators and their customers about commercial transactions. The Tax freely allowed billboard operators to inform their customers that costs were increasing because of the Tax, to protest the Tax, and to inform their customer that they disagreed with the Tax. The provision only prohibited billboard operators from making false claims about the Tax when billing their customers. Because the Provision does not apply to political speech, but only to commercial speech, the Provision is subject to intermediate scrutiny.

Amici  in Support of Norton and Lamar

The Outdoor Advertising Association of America, Inc.

The Outdoor Advertising Association of America, Inc. (“OAAA”) filed an amicus brief in support of Norton and Lamar. The OAAA is the primary trade association that represents the out-door advertising industry in the United States. The OAAA is interested in this case because the billboards of OAAA members convey commercial, noncommercial, social, political, and charitable messages.

The City’s Tax infringes on First Amendment rights because the Tax is not a general tax imposed on all businesses, but instead targets a small group of speakers within a single segment of the media. Billboards inform the public just as the press does. Additionally, no democratic check exists on the City’s ability to impose punitive taxes on the billboard operators for publishing speech critical of the City. Such a restriction could cause billboards operators to avoid publishing provocative or controversial speech, which results in chilling protected speech. Even when a targeted tax is viewpoint and content neutral the risk of chilled speech and self-censorship exists. In contrast, a generally applicable tax is not problematic because the government cannot destroy a selected group through taxation, since the tax is applied to all constituents. Because of the potential for governmental abuse, selective taxes are subject to heightened scrutiny. Because the Tax here is a selective tax that fails heightened scrutiny, the Tax is invalid, and the appellate decision should be reversed.

The Outdoor Advertising Association of America, Inc.’s Proposed Proposition of Law

Targeted taxes on platforms for speech are subject to heightened scrutiny, which Cincinnati’s billboard tax cannot survive.

The Outdoor Advertising Association of Ohio, the Ohio Association of Broadcasters, the Ohio News Media Association, the E.W. Scripps Company, Block Communications, Inc., and the Authors Guild, Inc.

The Outdoor Advertising Association of Ohio, the Ohio Association of Broadcasters, the Ohio News Media Association, the E.W. Scripps Company, Block Communications, Inc., and the Authors Guild, Inc. (the “Amici”) filed an amicus brief in support of Lamar and Norton. The Amici represent a combination of content providers who utilize different means and methods to inform the public. The Amici are interested in this case because the government’s ability to impose a tax targeted to a specific means of providing information invites abuse that violates the First Amendment.

When a regulation targets a specific mode of expression, the regulation is subject to strict scrutiny, regardless of whether the regulation is content neutral. A newspaper or billboard company may be taxed, as long as the tax is part of a general taxation scheme, rather than a specifically targeted tax. Additionally, billboards receive First Amendment protection, even though they are not “traditional” mediums of the press. Billboard operators publish their own content, as well as the content of others. Because there is no special characteristic that justifies the targeted Tax here, the appellate court’s decision should be reversed.  

Student Contributor: Maria Ruwe