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Will Multiple-Message Electronic Billboards Spread Along Kentucky's Highways? Posted: January 24, 2013
Pending before the Supreme Court of Kentucky is a request by the Kentucky Transportation Cabinet that the high court grant discretionary review of a Court of Appeals decision that held Kentucky’s billboard law to be unconstitutional. At issue in the cases is whether the Transportation Cabinet can prohibit electronic multiple-message billboards that change messages approximately 7 times a minute.
In two related cases, Lamar Advantage GP Company LLC v. Kentucky Transportation Cabinet and Lewisburg Enterprises, LLC v. KTC, a three-judge panel of the Court of Appeals rejected a Franklin Circuit Court decision finding that the billboards violated state law and regulations by being “illuminated with intermittent lights.”
The Court of Appeals panel rested the reversal of the Circuit Court decision on a 1996 Kentucky Supreme Court case that found unconstitutional a portion of the Billboard Act generally prohibiting billboards illuminated with flashing, intermittent, or moving lights, but allowing them where they provided only public service information. The Supreme Court found in the 1996 case of Flying J Travel Plaza et al. v. Commonwealth, Kentucky Transportation Cabinet that “content-based” distinction to be violative of the First Amendment, while noting that the state could, for reasons of public safety and aesthetics, limit multiple-message electronic billboards in a content-neutral manner.
Having ruled in 1964 that the Kentucky Billboard Act was constitutional, the Kentucky Supreme Court has the opportunity to clarify whether the Flying J decision rejecting content-based regulation of electronic billboards, was intended to eliminate all controls on the use of flashing or intermittently-lit multiple message boards, or whether the decision was limited to striking down the content-based limits, and that Cabinet’s content-neutral regulation in this instance is lawful.
The effect of the Court of Appeals decision is to undercut the state Cabinet’s ability to regulate this new billboard message technology for reasons of highway safety and aesthetics. The Kentucky Supreme Court can restore that ability by clarifying that the 1996 Flying J case set aside only so much of the law as made content-based distinctions.