Well Qualified

On May 5, 2020, the American Bar Association – which had rated Judge Justin Walker “unqualified” to serve as a district judge – rated him “well qualified” to sit on the D.C. Circuit Court of Appeals, often called the second most important court in the nation. His decision in L.D. Management Company v. Thomas ___ F.Supp.3d ___ (W.D. Ky. April 24, 2020) shows why the ABA finally got it right. In L.D. Management, Judge Walker ruled that the Kentucky Billboard Act was content based under Reed v. Town of Gilbert (2015) because it exempts onsite signs and held the act unconstitutional in its entirety. After the Sixth Circuit held the Tennessee Billboard Act content-based for the same reason in Thomas v. Bright (2019), that may not seem surprising. But unlike Thomas, L.D. Management involved a commercial sign. Judge Walker correctly ruled that Reed’s definition of content-based regulation applies to commercial signs. But he did not apply strict scrutiny to the Kentucky statute. Instead, he made intermediate scrutiny just as effective by requiring the state – as the Supreme Court has done – to justify the onsite exemption by proving that an offsite sign is more harmful to safety and aesthetics than an otherwise identical onsite sign. If other courts apply Reed and Sorrell the way Judge Walker did, many other content-based restrictions on commercial signs will go the way of the Kentucky act.

 

Three aspects of L.D. Management are noteworthy. First, Judge Walker didn’t follow the plurality opinion in Metromedia, Inc. v. San Diego (1981), which found an onsite exception constitutional with respect to commercial signs. The four-justice plurality reasoned that courts must defer to legislative judgments to exempt onsite signs. Under the Metromedia plurality’s approach, the onsite exception is constitutional as a matter of law with respect to commercial signs.

 

Since Metromedia is widely viewed as the leading case on billboard regulation, one might well ask why Judge Walker didn’t follow the Metromedia plurality. His opinion does not mention Metromedia and neither did the parties. The reason may be that the Sixth Circuit (which includes Judge Walker’s court) has held that the 4-2-3 Metromedia decision isn’t binding precedent. (See Is Metromedia Binding? Billboard Insider July 3, 2019.) In its 1991 decision in Discovery Network, Inc. v. Cincinnati, the Sixth Circuit made a seldom-recognized point: Metromedia actually held San Diego’s sign ordinance unconstitutional in its entirety.  The Sixth Circuit refused to follow what it called Metromedia’s “plurality dicta” approving the onsite exemption.

 

Second, Judge Walker applied Reed to commercial signs. Some courts have held that Reed, which arose in the context of restrictions on noncommercial signs, is inapplicable to commercial signs. (See Rethinking Reed and Commercial Speech, Billboard Insider February 21, 2020.) Nor was Judge Walker sidetracked by the Alito concurrence in Reed, in which three justices said a regulation that distinguishes between on-premises and off-premises signs is not content based. (See The Alito Concurrence, Billboard Insider April 30, 2020.) He followed the majority opinion in Reed.

 

Third, in applying Sorrell’s “unforgiving” version of intermediate scrutiny to the Kentucky act, Judge Walker avoided the vexing issue of whether Reed requires strict scrutiny of commercial speech restrictions. Courts usually have dealt with that issue by holding Reed inapplicable to commercial speech or holding that it has no effect on Central Hudson. (See Contest Promotions, LLC v. San Francisco (9th Cir. 2o17).)

 

Without wading into the level-of-scrutiny morass, Judge Walker made Sorrell’s version of Central Hudson nearly the equivalent of strict scrutiny. He did so by requiring the state to prove that plaintiff’s sign was more harmful to safety and aesthetics than an otherwise identical onsite sign. The state couldn’t meet that burden because offsite messages are no more harmful to safety and aesthetics than onsite messages.

 

Judge Walker could have followed cases like Contest Promotions in framing the Central Hudson issue. Those decisions reason that a government entity is not required to restrict all equally dangerous or unattractive commercial signs. It can regulate part of a problem, these courts say, without addressing the whole. But Judge Walker followed a course closer to Supreme Court decisions. Cincinnati v. Discovery Network (1993) involved an ordinance that banned newsracks but exempted those that contained noncommercial publications. In holding the ordinance unconstitutional the Court reasoned in part that a newsrack that contained a commercial publication was “no greater an eyesore” than an exempt newsrack that contained a noncommercial publication. Like Judge Walker, the Court thus compared an exempt sign to a non-exempt sign and required the government to show that the non-exempt sign was more harmful to its aesthetic interest.

 

In R.A.V. v. St. Paul (1992), a cross-burning case that dealt with an ordinance that prohibited race-based “fighting words,” the Court recognized First Amendment limitations on government’s ability to distinguish between categories of “low value” speech. For example, said the Court, government can prohibit obscenity, but it cannot limit that prohibition to obscenity that contains political messages.  Under R.A.V., government can prohibit commercial signs because they are ugly and dangerous. But it can’t prohibit only offsite commercial signs unless their offsite content makes them more harmful to the government’s interests than otherwise identical onsite commercial signs. When Judge Walker required the state to prove that plaintiff’s offsite sign “interfered with aesthetics. . . in a different manner than if it referred to on-premises activities,” he therefore asked the right question. And when the state (of course) couldn’t meet that burden, he reached the right result in declaring the statute unconstitutional.

 

Where does L.D. Management go from here? The state could accept Judge Walker’s decision and revise its statute to define “off-site signs” in content-neutral terms – or try to. Or it could appeal, arguing that the First Amendment allows it to exempt onsite commercial speech. Such an appeal would bring up the whole Metromedia-as-precedent, Reed and Sorrell circus. Regardless of whether one agrees with his politics, Judge Walker’s deft handling of the First Amendment issues in L.D. Management shows he is well- qualified for the D.C. Circuit.