Judging the Aesthetics of Billboards

Abstract

This Note is a cultural and judicial history of billboard regulation in the United States, with particular emphasis on how the public and the courts have judged billboards' aesthetic qualities. I find that the American public and our courts have generally agreed that billboards are unattractive and deserve to be regulated. In the earliest billboard-related opinions, in the first decade of the twentieth century, courts sometimes struck down billboard ordinances as unconstitutional takings of advertisers' private property. However, as municipalities' police power broadened and public opposition to billboards mounted, courts became more receptive to increasingly expansive billboard regulation, first premised on safety and health rationales and ultimately based on aesthetic reasons alone. After a half-century of judicial deference during which billboard laws were generally upheld, such laws have again come under fire in recent decades for violating advertisers' free-speech rights. The Note concludes with a description of current law related to billboard regulation and current advocacy for and against such restrictions.

It is no coincidence that American courts expanded their definition of municipal police-power authority, particularly as applied to aesthetic regulation, at the same time as billboards were spreading throughout the country and arousing widespread public disfavor. In fact, it appears that courts were responding to public opinion about billboards by facilitating regulation of these conspicuous eyesores. The courts' responsiveness reminds us that our judicial system is subsumed within, and thus reflects, the broader American culture. The courts' sensitivity to social values is both understandable and beneficial, showing that the courts are indeed majoritarian and that our common law - in this case, the police power in particular - gives courts flexibility to respond to evolving social needs.

Keywords: billboard, First Amendment, police power, Supreme Court, courts, free speech, property, countermajoritarian, Friedman, Klarman, Metromedia, advertising, advertisement