Billboards Spur a Fight: Free Speech vs. Beauty

VIA The New York Times

Billboards on the Long Island Expressway in Queens. Billboard companies are appealing a court ruling allowing the city to regulate the signs on highways

By DOMINICK TAO

Published: September 13, 2009

Seen from the Long Island Expressway, the Manhattan skyline glows on the evening horizon. The Empire State and Chrysler Buildings rise above the rest, their art deco spires lit up like lighthouses marking the way.

Then the highway dips, and the view changes.

Martha Stewart’s face is plastered on a billboard promoting her new television show. An enormous cartoon dinosaur nudges a terrified woolly mammoth in an ad for “Ice Age 3: Dawn of the Dinosaurs.” A bright orange board advertises AT&T, and others hawk Honda Civics, Mercedes-Benz, Holiday Inn and the TV series “The Good Wife.”

The sight of marching billboards is also familiar to anyone who drives on the Gowanus Expressway, the Henry Hudson Parkway and other city highways. But unlike the ads-cum-attractions in Times Square, many of these billboards are illegal.

Since the 1940s, at least on paper, the city has restricted, or banned outright, the placement of billboards along its highways. But because of haphazard enforcement and what a federal judge described as “subterfuge” and willful lawbreaking by sign companies, the rise of the billboards — some even on city property — went on unchecked.

By the time the judge, Paul A. Crotty of Federal District Court in Manhattan, issued a decision in the spring that upheld the city’s right to regulate the billboards and excoriated it for not doing so sooner, no one could even say for sure which of the more than 600 highway billboards had the right to be there.

“The City’s enforcement of its zoning regulations has been inconsistent and less than vigorous,” the judge wrote in his 62-page opinion. “The billboard industry has taken advantage of this lax enforcement and has consistently ignored the regulations on billboard sign location.”

Billboard companies, which have earned far more from advertisers over the years than they have paid in fines, have appealed the ruling.

“Right now, it’s not as prevalent as it used to be,” Vanessa Gruen, director of special projects at the Municipal Art Society of New York, said of the advertising. The society has been keeping tabs on billboards in the city for more than 100 years. “But these companies still make enormous amounts of money, and over a long time, they have gotten used to it, and they are not ready to give it up.”

The debate over billboards goes back more than a century, and its contours were established early: free speech and enterprise versus aesthetics and safety. In 1902, The New York Times, in its periodic editorial Street Signs, declared that billboards had become a problem.

“A frightful spectacle, made so more by the wilderness of discordant and shrieking signs,” it read.

Over the years, the city eventually triumphed in limiting signs near most parks and residential areas. But along the arteries leading into New York, the wild west of the city’s advertising acreage, enforcement was difficult — even when zoning laws finally passed in the 1940s banned most billboards within 200 feet of major highways.

In 1979, when the federal government was threatening to withhold $25 million in highway funds from a cash-strapped New York because it was not enforcing its own highway advertising rules, City Council members performed a legislative trick: they grandfathered in every existing billboard — about 150 at the time — so none would be in violation of the law.

Today, there are at least 634, according to court documents. But not all the post-1979 billboards are illegal. City laws make exceptions for billboards attached to, or on the grounds of, the businesses they advertise, and for signs bearing public-service announcements.

But the judge wrote that some billboard companies built legal signs, with city permission, then converted them to so-called off-site commercial billboards, rendering them illegal.

“Other times,” he wrote, “the billboard companies would not bother with subterfuge and simply erected signs with no permitting at all.”

The city and billboard companies agree that many of today’s signs would be considered illegal, but neither side has been able to say how many.

Many billboards have changed ownership several times. Companies also have complained that city paperwork showing which billboards are legal is in disarray, while the city has blamed property owners for requesting documents over the years and not returning them. Billboard companies typically pay property owners for the right to operate signs on their lots, then charge rent to advertisers.

In an attempt to begin enforcing the law more regularly — and to get a handle on the size of the problem — in 2005 the city began requiring billboard companies to show proof that their signs were legal. It also began enforcing fines of $10,000 and up per violation.

Six billboard companies sued, including Clear Channel Outdoor, which has 84 signs along arterial highways, earning about $10 million in revenue per year from them, according to court records. A lawyer for Clear Channel said he would not comment on pending litigation.

The city argued that it had the right to control the spread of billboards for aesthetics and to limit distractions to drivers. The companies sued because “they basically realized their history of not conforming, and that it will have consequences,” said Gabriel Taussig, the city’s chief administrative lawyer.

The companies argued that the laws restricted free-speech rights, and noted that the city itself and other public works, like the Metropolitan Transportation Authority and Amtrak, had nonconforming signs on their own land. The companies also complained that the city was asking them to produce records of signs dating back more than 25 years after requiring no such record-keeping in the past.

“The city’s regulation of highway billboards has more holes than Swiss cheese, demonstrating plainly that its asserted interest is nothing but a pretext for the city’s true purpose for its regulation: to eliminate competition and make money for itself,” lawyers for some of the companies wrote.

The city said that it did not believe until recently that it had the power to regulate billboards on land owned by the M.T.A., a state agency or Amtrak. It also said that after the companies’ lawsuit was filed it began removing billboards on city land close to highways, including three on the High Line, an unused railroad track near the West Side Highway that it acquired in 2005 and is now a park.

Although the judge ruled in the city’s favor, the view along the city’s highways is not likely to change quickly.

Since April 6, the city has pledged not to levy any fines until the appeal is decided — a process that could take up to a year.