Battle over billboards: San Jose faces lawsuit, pushback on proposed changes

San Jose faces allegations that its billboard ban—and proposed changes to its billboard policy—violate property owners’ constitutional rights.

In a lawsuit, a group called Citizens for Free Speech and Equal Justice claims San Jose violates residents’ free-speech and equal protection rights through a decades-old ban on new billboards. The suit comes just as the City Council reconsiders that ban, pushing forward with a proposal that would allow new billboards on city-owned property where San Jose can generate revenue. 

Jeff Herson, a member of the group suing the city, said San Jose needs to give residents the same opportunity the city could get to display billboards—and earn money.

“The city is giving themselves a special deal and is excluding everyone else,” Herson told San José Spotlight. 

Citizens for Free Speech and Equal Justice illegally erected a digital billboard near Highways 880 and 101 to sell advertising. They say the billboard is legal and the city’s policy unconstitutional. 

The suit was filed last year, with a first trial date scheduled for November 2022, according to City Attorney Nora Frimann. She said the city could not comment on pending litigation. 

A question of free speech or equal protection 

David Snyder, executive director of the First Amendment Coalition, said the question of whether it is unlawful for the city to allow new billboards on its own land but prohibit the billboards of private citizens really depends on the situation. And, he said, banning billboards may not be a First Amendment violation. 

“The city may have violated the First Amendment in the way it prohibited private speech,” Snyder said. “But the distinction at issue—between city billboards being allowed and others not being allowed—isn’t a First Amendment issue, exactly.” 

He said there might be a violation of some other law, such as the constitution’s equal-protection clause, since the city makes a distinction between its own speech and private speech.

 Are billboards back?

It was 1985 when San Jose banned new billboards while allowing existing ones to remain. But in 2017, the San Jose City Council reopened the issue. It voted to explore a two-part plan to make it easier for electronic billboards to pop up citywide. Officials championed digital billboards, saying the signs would make downtown more vibrant. The new policy also requires existing, non-digital billboards to come down, which supporters say will make San Jose more attractive. 

In 2018, the city gave the green light to 22 electronic billboards on 17 city-owned sites across San Jose. Eight of those sites are reserved for freeway-facing billboards. No signs are up yet.

A second part of the plan, currently under environmental review, would let the city build signs on public buildings downtown and approve up to 75 electronic billboards on private property along freeways. There’s a hitch, though. To get approval for a new electronic billboard along a freeway, a company would have to find four traditional billboards to take down. 

John Miller, a co-founder of the grassroots organization No Digital Billboards, said even though the city’s plans would allow for more billboards, the plans are inaccessible to most individuals if they are not part of a billboard company. Outdoor advertising firms own most existing billboards, so individual property owners wouldn’t be able to make that swap, Miller said. 

Miller has been a vocal opponent of digital billboards in San Jose. No Digital Billboards recently sent a letter to the San Jose City Council urging city leaders to halt all billboard contract negotiations. 

Les Levitt, another billboard opponent, said the lawsuit is a prime example of why the city should drop its electronic billboard plans. He said lawsuits surrounding billboards would cost taxpayers money. 

“We are concerned that the city may have made some decisions without assessing the legal risks or unintended consequences,” Levitt said. “We know that in Los Angeles, they’ve had year after year of litigation around billboards. These disputes just never seem to end.”

Challenging power

While they may be on different teams, Miller and Levitt, the anti-billboard advocates, and Herson, the pro-billboard individual, say San Jose is wrongly catering to billboard companies such as Clear Channel Outdoor and Outfront Media.

At a recent meeting, city leaders abruptly paused the plan to put digital billboards on private property following months of aggressive pushback from residents.

Since San Jose recently announced its intentions to move forward with the other aspects of Phase 2 plans to add more billboards downtown, Herson said the group is looking to amend their complaint and sue for damages. The government needs to follow the same rules as everyone else, he said.

Contact Carly Wipf at [email protected] or follow @CarlyChristineW on Twitter.