PROPERTY ESSAY EXAMINATION #1

Question #1

The Federal Highway Beautification Act reads as follows:
No billboard can be placed within 660 feet of interstate highways or other highways in which the United State government pays more than 50% of the cost of building such highways.

Public Interest Sign Company (hereafter PISC), a non-profit organization, purchases land adjacent to Exit 1000 of the I-80. PISC executes leases to the following organizations permitting them to erect billboards:

1. Borris Mart, PLC, a law firm specializing in personal injury cases. On his sign, he depicts an 18 wheeler crushing a mini-van with the words ‘Check with me before you take their check’. His 800 number also appears.

2. Citizens for the Fourth Amendment, a lobbying group that seeks to control police searches of cars on interstate highways. On the sign are the following words: ‘Just say NO to searches. Stopped by the cops? Dial 800- 321-7654 before you let’em search’.

3. Gentlemen’s Emporium, a one-stop adult book and video outlet. On the sign are the following words: ‘Another burger? Why not have a more satisfying break at Gentlemen’s Emporium. Next Right.’

Each group applies to Highway Commission for an exemption from the act on the grounds that the act as applied to their organization violates constitutionally protected rights. You are counsel for the Highway Commission. Does the act as applied violate the constitutional rights of any or all of the parties above?

View Answer

I. Mart v. Commission
1. Exercise of police powers
The FHBA is a zoning law, and as such must be justified under the police power, the government’s right to limit land use in order to protect the public from harm. Both state and federal courts have found that environmental regulation is with the ambit of the police power. Though dealing with amenities, the act is a valid exercise of the police power.
2. Fifth Amendment taking

Though a valid exercise of the police power, a zoning law may clash with constitutional rights, and therefore be invalid as applied to individual conduct. Borris Mart will argue that the ordinance as applied to him is a taking of his property (his lease of the sign) which will require just compensation under the Fifth Amendment. Should he receive just compensation for the loss of his sign and perhaps lost profits from accident victims, the court will deny his claim. A property owner will receive compensation only when his primary expectations are thwarted. When Bart leased the sign he should have known of the law. He assumed the risk of its enforcement.
3. First Amendment
Borris Mart will argue that enforcement of the ordinance should be enjoined because it violates his First Amendment right to free speech the ordinance as applied to him. The court should find that his speech is commercial rather than political, and in such cases the legislature need only show that there is a rational basis for their exercise of the police power that, there is connection between signs and accidents, and/or signs despoil the environment.
II. Citizens v. Commission
1. Exercise of police powers
The FHBA is a zoning law, and as such must be justified under the police power, the government’s right to limit land use in order to protect the public from harm. Both state and federal courts have found that environmental regulation is with the ambit of the police power. Though dealing with amenities, the act is a valid exercise of the police power.
2. First Amendment
Though a valid exercise of the police power, a zoning law may clash with constitutional rights, and therefore be invalid as applied to individual conduct. Citizens for the Fourth Amendment have a strong claim to enjoin the enforcement of the FHBA as applied to them. They are exercising their free speech rights, and are also assisting others in protecting their Fourth Amendment rights. Moreover, their speech is directly linked to the conduct in question. Don’t let them violate your rights here. The free speech claim triggers strict scrutiny, and the court will have to decide whether the ban is absolutely necessary to protect the environment, and whether such environmental legislation is critical. The state may claim that there are other ways of getting the message across, such as leaflets in rest stops or radio spots. If the balance turns in favor of the law’s validity, the same just compensation argument obtains.
III. Gentlemen’s Emporium

1. Exercise of police powers
The FHBA is a zoning law, and as such must be justified under the police power, the government’s right to limit land use in order to protect the public from harm. Both state and federal courts have found that environmental regulation is with the ambit of the police power. Though dealing with amenities, the act is a valid exercise of the police power.
2. First Amendment
Although a valid exercise of the police power, a zoning law may clash with constitutional rights, and therefore be invalid as applied to individual conduct. Gentleman’s Emporium is also exercising commercial speech. However, they may argue that their advertising is linked to free expression, erotic dancing. Were the court to concede the link, scrutiny would be of the intermediate variety. The court would require the state to demonstrate that it was not trying indirectly to regulate the conduct by banning the advertisement. Likewise, if other advertising modes are available, it would be possible inform travelers of the protected conduct.

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