by Adi Dynar

Lady Bird Johnson believed that beautiful highways would make the United States a better place. Her husband, President Lyndon Johnson, made passage of the Highway Beautification Act of 1965 a priority for his administration. “Beautiful”—whatever that means—morphed into “public safety” to lull Congress. But some congressmen weren’t fooled. Informal polling suggested that the House of Representatives was initially against the bill, although it had passed the Senate. But after the First Lady and fifty-odd congressional wives organized a sit-in in the gallery overlooking the House floor, congressmen passed it around 1 a.m. by a vote of 245 to 138. The Washington Post reported that “members hooted and yelled and shouted across the aisles” as their wives, “decked out in their party clothes, watched from the gallery.”

That was how the First Amendment was eroded in the early morning hours of October 8, 1965. The act imposed extreme limits on how people communicate messages on signs—one of the oldest and most important forms of expression—all because of some nebulous notion of beauty. The Act gave federal money to states to adopt the First Lady’s highway beautification agenda, which, in practice, meant a crusade against billboards located beside highways. When he signed the Bill, Johnson recalled his drive along George Washington Memorial Parkway the day before and how he was distracted by “nature at its purest. The dogwoods had turned red. The maple leaves were scarlet and gold. … And not one foot of it was marred by a single unsightly man-made obstruction—no advertising signs, no junkyards.” But he made no mention of the fact that the law severely restricted Americans’ ability to communicate messages to the public.

States acted quickly to implement the federal mandate. These state acts made it a crime to display a sign that is visible from a highway without government permission, even if it’s on private property. They also tightly regulated what messages were displayed on the few billboards that were permitted. Unsurprisingly, these acts quickly created a burgeoning class of insiders who were able to obtain special favors to construct billboards and get the state enforcement officers to look the other way when it was time for them to change display copy.

As a result of these state and federal laws, bureaucrats today have extraordinary power to micromanage display copy on each and every billboard. These laws were written in such a way that literally every word and comma displayed on a billboard is subject to a bureaucrat’s arbitrary whim. For example, a “Veterans: Buy One Shirt Get One Free” sign would not be allowed under these laws, but a “Veterans: Buy One Shirt Get One Free. Store Closing on Veterans Day. Property For Sale” sign would be allowed.

The arbitrariness and confusion caused by these federal and state laws resulted in an important Supreme Court case in 1981 called Metromedia, Inc. v. City of San Diego. At issue were billboards that conveyed a broad range of messages—political, social, commercial and noncommercial. Under the complicated rules, some messages were allowed, some weren’t. Billboard owners argued that government’s micromanagement of their display copy violated their right to freedom of speech. The Court was sharply divided and issued five separate opinions that never coalesced around any one rationale. Metromedia has since come to be viewed as providing the Court’s imprimatur on the Highway Beautification Act. Justice William Brennan, in a separate opinion, issued a warning that has proved prescient. The Court’s confusing opinions, he said, will only encourage Billboard Acts to be arbitrarily enforced. That is precisely what happened.

This matter came to a head a few years ago when William Thomas, Jr., a billboard owner, displayed the United States flag with the Olympics rings on his billboard beside a highway in Tennessee. The state Department of Transportation was quick to crack down on him for violating the state’s Billboard Act. A billboard displaying the U.S. flag and Olympics rings is not allowed.

Facing fines and jail time, Thomas filed suit in federal court to challenge the Tennessee law. He argued that the law is unconstitutional under the 2015 Supreme Court case Reed v. Town of Gilbert, because it requires government officials to read his sign to determine if it is permitted or prohibited. This sort of censorship, the Reed Court said, is invalid under the First Amendment.

The federal district court agreed. It struck down Tennessee’s Act as an infringement on Thomas’s fundamental right to speak freely because the enforcement officer must read the sign and, based on her implicit or assumed value judgments, decide whether the display copy is legal or illegal.

The state appealed to the Sixth Circuit. The U.S. Department of Justice and the billboard lobbyists supported the state. The Goldwater Institute filed a brief supporting Thomas. A decision is expected late this year.

The state argues that distraction-free driving maintains public safety. That argument is not new—it’s basically the same argument President Johnson made to sell the First Lady’s dream to Congress. But the evidence since 1965 points in the other direction. Visual variety makes driving safer.

In a 2008 report to Congress, the U.S. Department of Transportation concluded that there is no evidence that accidents on highways are attributable to billboards. Billboards as a cause of vehicle crashes are conspicuously absent from that report. And the lack of directional signs is identified as a factor in road accidents.

Without billboards, people cut across lanes of traffic or brake without warning to take the desired exit. Billboards contribute to driver alertness by breaking the monotony of driving. In fact, states use their own billboards to keep drivers alert. Messages such as “Pokemon Go is a No-Go When Driving,” “Luck of the Irish Won’t Help if You Drive Drunk,” “Trust the Force But Always Buckle Up, “Drive Hammered, Get Nailed,” are common on highways.

Despite Tennessee’s revival of the First Lady’s vision of beauty—which is itself a specific viewpoint or message which was used to drown out all other viewpoints and messages on our highways—the state has no evidence to stand on, and no valid argument under the First Amendment.

Adi Dynar is a staff attorney at the Goldwater Institute.

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