January/February 2023 Issue

Also in this issue: Wisconsin Appellate Court Rules City of Milwaukee Violated Family Dollar’s Due Process Rights When it Denied the Renewal of Food Dealer and Weights & Measures Licenses     |     Welcome Joesph Hasler and Maximillian Buckner     |     Wisconsin Supreme Court Clarifies How Tax Assessment Claims Must Proceed     |     Court Dismisses RLUIPA Challenge to City's Stadium Lighting Decision

Seventh Circuit Dismisses Challenge to Madison’s Digital Sign Ordinance

Tanner G. Jean-Louis | 02.02.23

On January 4, 2023, the Seventh Circuit Court of Appeals in Adams Outdoor Advert. Ltd. P’ship v. City of Madison, Wisconsin, 56 F.4th 1111 (7th Cir. 2023) dismissed a challenge to the City of Madison’s digital sign control ordinance.

In 2009, the City of Madison amended its sign ordinance to, among other things, prohibit most digital sign technology, including off-premises digital billboards, citing motorist safety and aesthetic concerns. Adams Outdoor Advertising, a company that owns billboards across the country including in Madison, brought a federal suit in 2017 challenging the constitutionality of the City’s entire sign ordinance, including the 2009 digital ban. The City was represented by a team of Boardman Clark attorneys. In 2020, the district court granted the City’s motion for summary judgment, finding that all of Adams’s claims failed on the merits, and nearly all of its claims were precluded by a 1993 consent decree entered into between Adams and the City that resolved a prior lawsuit.

Adams appealed the 2020 ruling to the Seventh Circuit. The Seventh Circuit agreed with the district court on appeal and found that all of Adams’s claims were precluded by the 1993 consent decree except its challenge to the digital ban, which was part of the 2009 amendment to the sign ordinance.

In its challenge to the digital ban, Adams argued that the City’s regulation of digital signs applied differently to off-premise signs (billboards) than on-premise signs, and thus violated the First Amendment because treating off-premise signs differently was an impermissible content-based regulation of speech subject to strict scrutiny under Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015). However, the Seventh Circuit agreed with the City and ruled that the ordinance actually contained a place-based restriction unrelated to content and subject to intermediate scrutiny. The application of intermediate scrutiny rather than strict scrutiny was key to this case and supported by the recent U.S. Supreme Court decision of City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 142 S. Ct. 1464 (2022). City of Austin clarified Reed’s impact on the on-premise, off-premise distinction that many municipalities rely on in their regulation of signs. Applying intermediate scrutiny, the court found that the City of Madison had a significant interest in promoting motorist safety and preventing aesthetic harm. Because the ordinance regulating digital signs was designed to further those interests, it passed intermediate scrutiny and the case was dismissed.