319 Ga. 16 FINAL COPY
S24C0144. VICTORY MEDIA GROUP, LLC v. DEPARTMENT OF TRANSPORTATION.
ORDER OF THE COURT.
The Supreme Court today denied the petition for certiorari in this case.
All the Justices concur.
PETERSON, Presiding Justice, concurring.
Plaintiff Victory Media Group, LLC, argues that the state law
regulating billboards violates its right to free speech. The trial court
ruled for the State without meaningfully addressing Victory Media’s
free speech argument, and the Court of Appeals denied Victory
Media’s application for discretionary appeal. The State argues that
our Court had resolved this claim in its favor 40 years ago. The State
is wrong; our decision from 1984 could not and did not address
Victory Media’s central argument, which focuses on later
developments in the United States Supreme Court’s treatment of
content-based speech restrictions. But this is not a proper case to consider those developments. Even if Victory Media’s legal
arguments are correct, it still loses; the parts of the law that may
violate the First Amendment are not the parts of the law that
harmed Victory Media. Accordingly, I concur in the denial of the
petition for a writ of certiorari, but write to flag this important issue
for future litigants and courts.
This case centers on Victory Media’s attempt to obtain a
multiple message sign permit from the Department of
Transportation. The Department approved Victory Media’s
application but later revoked the permit because another sign,
which was already established pursuant to a permit, was located
less than 5,000 feet from the requested location for Victory Media’s
multiple message sign. See OCGA § 32-6-75 (c) (1) (C) (“No . . .
multiple message sign shall be placed within 5,000 feet of another
multiple message sign on the same side of the highway[.]”). In
appealing the Department’s decision, Victory Media challenges
among other things the constitutionality of the Outdoor Advertising
Control Act (“the Act”), which governs the permit application process
2 for outdoor advertising signs. Victory Media contends the Act is
unconstitutional because it imposes content-based restrictions on
speech.1
In defense of the Act, the State relied below on our decision in
Dept. of Transp. v. Shiflett, where this Court rejected a claim that
the Act violated the right to free speech and held that it did “not
1 For instance, Victory Media points to the Act’s direction that
[n]o outdoor advertising shall be erected or maintained within 660 feet of the nearest edge of the right of way and visible from the main traveled way of the interstate or primary highways in this state, except the following: (1) [d]irectional and other official signs and notices; (2) [s]igns advertising the sale or lease of the property upon which they are located; (3) [s]igns advertising activities conducted or maintained within 100 feet of the nearest part of the activity ...; (4) [s]igns located in areas zoned commercial or industrial, which signs provide information in the specific interest of the traveling public; (5) [s]igns located in unzoned commercial or industrial areas, which signs provide information in the specific interest of the traveling public; and (6) [d]irectional signs, displays, and devices about goods and services in the specific interest of the traveling public[.] See OCGA § 32-6-72. Appellant contends that the “Act further restricts permissible signs based on the type of message contained on the sign[,]” and in support Appellant points to the “spacing, location, and configuration requirements” and various exemptions in the Act. 3 violate [the] freedom of expression.”2 251 Ga. 873, 876 (1) (310 SE2d
509) (1984). Because the case involved commercial speech and we
concluded that the Act indirectly controlled expression, we applied
the four-part analysis from Central Hudson Gas & Elec. Corp. v.
Pub. Svc. Comm. of New York, 447 U.S. 557 (100 SCt 2343, 65 LE2d
341) (1980).3 See Shiflett, 251 Ga. at 874-875 (1).
But the State’s reliance on Shiflett is misplaced. To begin, we
did not consider there whether the Act contained content-based
restrictions on speech, which United States Supreme Court
precedent now makes clear is a critical consideration. See Nat. Inst.
2 We did not specify whether the free speech claim was brought only
under the U.S. Constitution or was also brought under a similar provision of the Georgia Constitution. Our analysis cited only federal case law decided under the First Amendment. Accordingly, I do not understand Shiflett to have decided anything about the Georgia Constitution’s speech protections, and note further that there’s ample reason to think those protections may be different from their federal equivalent. See, e.g., Maxim Cabaret, Inc. v. City of Sandy Springs, 304 Ga. 187, 196-197 (816 SE2d 31) (2018) (Peterson, J., concurring) (noting textual differences between federal and state provisions). 3 That analysis considers whether (1) the commercial speech was
misleading or concerned an unlawful activity, (2) the governmental interest was substantial, (3) the regulation directly advanced the governmental interest, and (4) the regulation was more extensive than necessary to serve that interest. See Shiflett, 251 Ga. at 874 (1); H & H Operations, Inc. v. City of Peachtree City, 248 Ga. 500, 503 (2) (283 SE2d 867) (1981) (striking down sign ordinance because we found “no substantial governmental interest in permitting commercial signs yet prohibiting the posting of prices”). 4 of Family and Life Advocates v. Becerra, 585 U.S. 755, 766 (II) (A)
(138 SCt 2361, 201 LE2d 835) (2018) (“NIFLA”) (“When enforcing
[the First Amendment’s] prohibition [on laws that abridge the
freedom of speech], precedents distinguish between content-based
and content-neutral regulations of speech.”).
“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 v. Town
of Gilbert, 576 U.S. 155, 163 (II) (A) (135 SCt 2218, 192 LE2d 236)
(2015). Strict scrutiny applies “when a law is content based on its
face or when the purpose and justification for the law are content
based[.]” Id. at 166 (II) (C) (1) (striking down content-based
regulations of speech in sign code that failed to survive strict
scrutiny); see also United States v. Alvarez, 567 U.S. 709, 724 (IV)
(132 SCt 2537, 183 LE2d 574) (2012) (content-based restriction on
speech failed to satisfy the “most exacting scrutiny”). “This stringent
standard reflects the fundamental principle that governments have
5 no power to restrict expression because of its message, its ideas, its
subject matter, or its content.” NIFLA, 585 U.S. at 766 (II) (A)
(cleaned up; emphasis added).4 “Laws that are content neutral are
instead subject to lesser scrutiny.” Reed, 576 U.S. at 172 (IV)
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319 Ga. 16 FINAL COPY
S24C0144. VICTORY MEDIA GROUP, LLC v. DEPARTMENT OF TRANSPORTATION.
ORDER OF THE COURT.
The Supreme Court today denied the petition for certiorari in this case.
All the Justices concur.
PETERSON, Presiding Justice, concurring.
Plaintiff Victory Media Group, LLC, argues that the state law
regulating billboards violates its right to free speech. The trial court
ruled for the State without meaningfully addressing Victory Media’s
free speech argument, and the Court of Appeals denied Victory
Media’s application for discretionary appeal. The State argues that
our Court had resolved this claim in its favor 40 years ago. The State
is wrong; our decision from 1984 could not and did not address
Victory Media’s central argument, which focuses on later
developments in the United States Supreme Court’s treatment of
content-based speech restrictions. But this is not a proper case to consider those developments. Even if Victory Media’s legal
arguments are correct, it still loses; the parts of the law that may
violate the First Amendment are not the parts of the law that
harmed Victory Media. Accordingly, I concur in the denial of the
petition for a writ of certiorari, but write to flag this important issue
for future litigants and courts.
This case centers on Victory Media’s attempt to obtain a
multiple message sign permit from the Department of
Transportation. The Department approved Victory Media’s
application but later revoked the permit because another sign,
which was already established pursuant to a permit, was located
less than 5,000 feet from the requested location for Victory Media’s
multiple message sign. See OCGA § 32-6-75 (c) (1) (C) (“No . . .
multiple message sign shall be placed within 5,000 feet of another
multiple message sign on the same side of the highway[.]”). In
appealing the Department’s decision, Victory Media challenges
among other things the constitutionality of the Outdoor Advertising
Control Act (“the Act”), which governs the permit application process
2 for outdoor advertising signs. Victory Media contends the Act is
unconstitutional because it imposes content-based restrictions on
speech.1
In defense of the Act, the State relied below on our decision in
Dept. of Transp. v. Shiflett, where this Court rejected a claim that
the Act violated the right to free speech and held that it did “not
1 For instance, Victory Media points to the Act’s direction that
[n]o outdoor advertising shall be erected or maintained within 660 feet of the nearest edge of the right of way and visible from the main traveled way of the interstate or primary highways in this state, except the following: (1) [d]irectional and other official signs and notices; (2) [s]igns advertising the sale or lease of the property upon which they are located; (3) [s]igns advertising activities conducted or maintained within 100 feet of the nearest part of the activity ...; (4) [s]igns located in areas zoned commercial or industrial, which signs provide information in the specific interest of the traveling public; (5) [s]igns located in unzoned commercial or industrial areas, which signs provide information in the specific interest of the traveling public; and (6) [d]irectional signs, displays, and devices about goods and services in the specific interest of the traveling public[.] See OCGA § 32-6-72. Appellant contends that the “Act further restricts permissible signs based on the type of message contained on the sign[,]” and in support Appellant points to the “spacing, location, and configuration requirements” and various exemptions in the Act. 3 violate [the] freedom of expression.”2 251 Ga. 873, 876 (1) (310 SE2d
509) (1984). Because the case involved commercial speech and we
concluded that the Act indirectly controlled expression, we applied
the four-part analysis from Central Hudson Gas & Elec. Corp. v.
Pub. Svc. Comm. of New York, 447 U.S. 557 (100 SCt 2343, 65 LE2d
341) (1980).3 See Shiflett, 251 Ga. at 874-875 (1).
But the State’s reliance on Shiflett is misplaced. To begin, we
did not consider there whether the Act contained content-based
restrictions on speech, which United States Supreme Court
precedent now makes clear is a critical consideration. See Nat. Inst.
2 We did not specify whether the free speech claim was brought only
under the U.S. Constitution or was also brought under a similar provision of the Georgia Constitution. Our analysis cited only federal case law decided under the First Amendment. Accordingly, I do not understand Shiflett to have decided anything about the Georgia Constitution’s speech protections, and note further that there’s ample reason to think those protections may be different from their federal equivalent. See, e.g., Maxim Cabaret, Inc. v. City of Sandy Springs, 304 Ga. 187, 196-197 (816 SE2d 31) (2018) (Peterson, J., concurring) (noting textual differences between federal and state provisions). 3 That analysis considers whether (1) the commercial speech was
misleading or concerned an unlawful activity, (2) the governmental interest was substantial, (3) the regulation directly advanced the governmental interest, and (4) the regulation was more extensive than necessary to serve that interest. See Shiflett, 251 Ga. at 874 (1); H & H Operations, Inc. v. City of Peachtree City, 248 Ga. 500, 503 (2) (283 SE2d 867) (1981) (striking down sign ordinance because we found “no substantial governmental interest in permitting commercial signs yet prohibiting the posting of prices”). 4 of Family and Life Advocates v. Becerra, 585 U.S. 755, 766 (II) (A)
(138 SCt 2361, 201 LE2d 835) (2018) (“NIFLA”) (“When enforcing
[the First Amendment’s] prohibition [on laws that abridge the
freedom of speech], precedents distinguish between content-based
and content-neutral regulations of speech.”).
“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 v. Town
of Gilbert, 576 U.S. 155, 163 (II) (A) (135 SCt 2218, 192 LE2d 236)
(2015). Strict scrutiny applies “when a law is content based on its
face or when the purpose and justification for the law are content
based[.]” Id. at 166 (II) (C) (1) (striking down content-based
regulations of speech in sign code that failed to survive strict
scrutiny); see also United States v. Alvarez, 567 U.S. 709, 724 (IV)
(132 SCt 2537, 183 LE2d 574) (2012) (content-based restriction on
speech failed to satisfy the “most exacting scrutiny”). “This stringent
standard reflects the fundamental principle that governments have
5 no power to restrict expression because of its message, its ideas, its
subject matter, or its content.” NIFLA, 585 U.S. at 766 (II) (A)
(cleaned up; emphasis added).4 “Laws that are content neutral are
instead subject to lesser scrutiny.” Reed, 576 U.S. at 172 (IV)
(emphasis in original).
At the time that Shiflett was decided, it had “[o]nly recently . .
. been recognized that commercial speech is afforded protection
under the First Amendment.” Shiflett, 251 Ga. at 874 (1). See
NIFLA, 585 U.S. at 767 (II) (B) (“professional speech” is not exempt
from the normal prohibition on content-based restrictions); see also
Sorrell v. IMS Health Inc., 564 U.S. 552, 566 (II) (A) (1) (131 SCt
2653, 180 LE2d 544) (2011) (“[c]ommercial speech is no exception”
to the general rule that content-based restrictions of speech warrant
4 In City of Austin v. Reagan National Advertising of Austin, LLC, the
United States Supreme Court indicated that “restrictions on speech may require some evaluation of the speech and nonetheless remain content neutral” and held that a regulation’s distinction between on-premise and off-premise signs was content neutral because it did not turn on the substantive message of the sign. 596 U.S. 61, 72-74 (II) (B) (142 SCt 1464, 212 LE2d 418) (2022). But the statute here purports to distinguish permissible off-premise signs from impermissible off-premise signs based in part on content, which creates different issues than the ordinance at issue in City of Austin. 6 heightened judicial scrutiny). To satisfy its burden to justify that a
content-based restriction on commercial speech is consistent with
the First Amendment, the State must show “at least that the
[burden] directly advances a substantial governmental interest and
that the measure is drawn to achieve that interest.” Sorrell, 564 U.S.
at 571-572 (II) (B). This standard requires a proportional fit
“between the legislature’s ends and the means chosen to accomplish
those ends.” Id. (citation and punctuation omitted).
In the light of this precedent, this Court has since struck down
local sign ordinances that contained such content-based distinctions.
See Fulton County v. Galberaith, 282 Ga. 314, 317-319 (3) (647 SE2d
24) (2007) (affirming trial court’s ruling that sign ordinance that
banned all signs, including commercial ones, but exempted signs
from the ban on a case-by-case basis was “the antithesis of the
narrow tailoring that is required under the First Amendment, even
in the context of commercial speech”); Union City Bd. of Zoning
Appeals v. Justice Outdoor Displays, Inc., 266 Ga. 393, 394-398 (1)
(467 SE2d 875) (1996) (striking down sign ordinances because they
7 imposed content-based restrictions on speech). But we have yet to
address whether the Outdoor Advertising Control Act contains such
content-based restrictions, and that important question remains
open in our precedent. See State of Ga. v. Cafe Erotica, Inc., 270 Ga.
97, 97 (507 SE2d 732) (1998) (resolving challenge to the Act under
Central Hudson test without reaching whether the “legislation [was]
content-based and therefore . . . subject to strict scrutiny”).
Victory Media points to provisions of the Act and regulations
promulgated under the Act that may well be content-based. See, e.g.,
OCGA § 32-6-71 (defining among other things categories of signs
referenced in the Act); OCGA § 32-6-72 (limiting outdoor advertising
visible from the main traveled way of the state’s interstate or
primary highways to specific categories of signs); OCGA § 32-6-75
(a) (establishing additional conditions associated with certain
categories of permissible signs); Ga. Comp. R. & Regs., r. 672-6-.03
(requiring a permit before the construction of certain categories of
signs). But none of those provisions were actually enforced against
Victory Media. Instead, Victory Media’s permit was revoked because
8 OCGA § 32-6-75 (c) (1) (C) directs that “[n]o . . . multiple message
sign . . . be placed within 5,000 feet of another multiple message sign
on the same side of the highway[,]” and the Department had already
approved the permit of another multiple message sign located less
than 5,000 feet from the location that Victory Media requested.
Our case law requires a party challenging a state statute as
unconstitutional to show that the unconstitutional provision
harmed the party. See Parker v. Leeuwenburg, 300 Ga. 789, 790 (797
SE2d 908) (2017) (“As a prerequisite to attacking the
constitutionality of a statute, the complaining party must show that
it is hurtful to the attacker.”); Black Voters Matter Fund, Inc. v.
Kemp, 313 Ga. 375, 393 (870 SE2d 430) (2022) (Peterson, J.,
concurring) (“One clear line of case law . . . holds that persons
seeking to challenge a state statute as unconstitutional may do so
only if that statute has injured them in some specific way.”).5 Victory
5 Victory Media did not challenge the Act on overbreadth grounds. See
Bo Fancy Productions, Inc. v. Rabun County Bd. of Commrs., 267 Ga. 341, 344- 345 (2) (a) (478 SE2d 373) (1996) (adopting a “more relaxed standard of ‘standing’ applicable to a First Amendment challenge of an allegedly overbroad statute”). 9 Media has failed to make that showing, and so we cannot reach the
open constitutional question it raises.
Ordered April 16, 2024 — Reconsideration denied May 14, 2024.
Certiorari to the Court of Appeals of Georgia — Case No.
A24D0007.
Webb Klase & Lemond, E. Adam Webb, for appellant.
Christopher M. Carr, Attorney General, Logan B. Winkles,
Deputy Attorney General, Amy L. Patterson, Senior Assistant
Attorney General, Denise E. Weiner, Assistant Attorney General; Hall
Booth Smith, Pearson K. Cunningham, for appellee.