Place or Advertising? Supreme Court to Decide

Read Time: 6 minutes

On November 10, 2021, the US Supreme Court will hear oral arguments in a case that has implications for the SEGD community. City of Austin v. Reagan Advertising considers whether regulation of billboards violates the First Amendment rights of advertising companies. SEGD past board president, Paula Rees (principal of Foreseer), provides some context behind the case and how its outcome is likely to affect all of us.

“(Media saturation changes) people’s experience of space, so that it becomes abstract, dominated by signs and images that dispel meaning, history, and presence.”

– Ackbar Abbas, Hong Kong: Culture and the Politics of Disappearance          

The best experiential design engages all the senses, but what we see creates the most significant first impression and memory of place. Visual communication is key to our mental mapping and distinguishing a place’s unique characteristics. 

Visual communication in the public realm is regulated by century-old laws. US sign codes are managed in the domain of planning and land use and are mainly oriented to cars and speed—while experiential graphic designers promote more pedestrian-friendly solutions. Many planning departments are way behind the curve as our tools are changing quickly: technology, new materials, lighting, and an ability to scale more affordably. 

As professionals, we know, in the simplest terms, that sign codes break down into two categories: Signs and Billboards. In the US, the laws rely on the terminology of on-premise (signs) or off-premise (billboards). 

On-premise means precisely that—signs that identify those businesses, institutions, or services on that property. Local commerce is a source for financial well-being and the lifeblood of creating vibrant streets. These community resources need to clearly mark their location, products, and services as an economic driver. By legal definition, signs are locative and support the notion of place.

On the other hand, off-premise or billboards are not place-based. Outdoor advertising directs attention toward products and services in another location or to no specific location at all. The outdoor industry positions itself as Out-of-Home (OOH), meaning when you leave home, the most frequent ads you’ll see on the taxpayer’s public-right-of-way are for beverages/alcohol, cars, financial institutions, and entertainment venues (casinos, theme parks, etc.). More than 700 cities and most states have billboard restrictions. Four states (Maine, Alaska, Hawaii, and Vermont) have outright bans on billboards.

Billboard companies are strategically pushing to switch out their static signs for digital faces, especially before local citizens can successfully stop that change. Digital transformation increases the typical 12 postings per billboard a year to an average of 4 million image transitions per face. An aggressive part of the billboard industry thinks it’s worth fighting for; it’s big money. 

The US Supreme Court will hear oral arguments in a case that has critical implications for SEGD designers involved in the public realm. City of Austin v. Reagan Advertising considers whether regulation of billboards violates the First Amendment rights of advertising companies. The ruling is expected in early 2022.

Why should we care? Because this case poses tremendous consequences to our work and the places we love to create. Since 1919, the Supreme Court has affirmed the constitutionality of restrictive billboard laws ten times. However, if the court upholds an opinion favoring Reagan Advertising, billboard bans and sign ordinances in other communities will be unenforceable. It will limit the ability of state and local governments to restrict billboard advertising, sign code revisions will become necessary in most places, and it will impact scenic protections of the Highway Beautification Act.

SEGD is undeniably the design organization with the most expertise in communications, wayfinding, and placemaking. While SEGD terminology is cited in the case, unfortunately, we are not at the table. The City of Austin has gained incredible support for its case with an impressive list, including many of our clients and peers: major real estate developers, mayors, chambers of commerce, 21 states, environmental organizations, National League of Cities, International City/County Management Association, Scenic America, American Planning Association, the International Sign Association (who submitted an amicus brief in support of Austin) and others. Even a few billboard companies like Outfront Media, the US’s second-largest, supports Austin’s position.

We know amazing, dynamic solutions are now possible; video can stream through glass or mesh materials, while cameras or sensors follow our movements. Regardless of Austin’s legal challenge, each city should be asking how this technology is to be addressed in the public realm. For what purpose should it be used—for art, entertainment, information, or off-premise advertising? Who gets what and why? How big, how bright, how fast can it move in the commons? Should ‘special districts’ for sports or entertainment be lit up with sponsorship advertising on our streets in the offseason?

Suppose a city wants to be like Times Square. In that case, they should understand that defining a ‘special district’ allows taxation and even shared revenues with the city if carefully negotiated.

Advertising at this scale dominates its environment and attracts “eyeballs,” as defined by the industry. Advertising in other media (social media, TV, print, etc.) is tolerated because we get something in return: free or inexpensive content. Outdoor advertising provides nothing in exchange. Our eyeballs and attention are, therefore, free for billboards which are many times the size allowed for on-premise signs. Where I live, billboards are eight times the average wall sign permit.

Privacy concerns should also be addressed; outdoor advertising often embeds GPS, facial recognition, or license plate identification within billboards, kiosks, and transit ads. The top billboard companies have added data-mining opportunities to collect analytics on where, when, or what you did, making this information available for commercial purposes.

As SEGD designers, we can sit back and wait to see what happens or be leaders in establishing new sign code guidelines and a checklist of best practices. For instance, researching the recommended lighting levels from international studies, not assuming preferences from the sign or billboard industry. We can help define what a local community might desire and help illustrate what a jurisdiction wants ‘to be’ in establishing its unique characteristics—instead of being just like any place else.

Fortunately, we can click off annoying ads in our homes or at work on our TVs or computers. If we visit a place that uses new media in an interior application, say an office lobby or coffee shop, it’s our choice to be there or not. However, with outdoor media, we have a medium that commands our attention. It will be there for the rest of our lives, and we can’t turn it off. If we remain invisible in the process, the transformation will happen by default, not by design.

Paula Rees is principal of Foreseer, a multi-disciplinary design studio involved in designing mixed-use urban places internationally for the past four decades. Paula is a past president of SEGD, is currently the Center for Design Institute president, and a Research Fellow of the Process of Change: Laboratory of Innovation and Design. Both facilities were founded by her mentor, Sara Little Turnbull. These properties have been informing America’s top corporations about change ever since the late 1950s. They have both been re-established in Seattle, WA, with tours by appointment.