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Van Wagner Boston, LLC v. Davey

United States Court of Appeals, First Circuit

October 20, 2014

VAN WAGNER BOSTON, LLC AND VAN WAGNER COMMUNICATIONS, LLC, Plaintiffs, Appellants,
v.
RICHARD A. DAVEY AND EDWARD J. FARLEY, IN THEIR OFFICIAL CAPACITIES; MASSACHUSETTS DEPARTMENT OF TRANSPORTATION; AND MASSACHUSETTS OFFICE OF OUTDOOR ADVERTISING, Defendants, Appellees

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Nathaniel M. Gorton, U.S. District Judge.

Henry C. Dinger, with whom Michael K. Murray, E. Abim Thomas, and Goodwin Procter LLP were on brief, for appellants.

Sookyoung Shin, Assistant Attorney General, with whom Martha Coakley, Attorney General, was on brief, for appellees.

Before Howard, Selya and Lipez, Circuit Judges.

OPINION

Page 34

SELYA, Circuit Judge.

First Amendment rights are fragile, and it is not only the occasional abuse of censorship power but also the threat inherent in the existence of that power that may chill protected expression. Where those risks exist to a significant degree, facial challenges to the grant of such authority may be mounted.

In this case, the plaintiffs (related companies engaged in the business of erecting and displaying billboards and other outdoor signage) undertook a facial challenge to a state permitting scheme. The district court dismissed their First Amendment claim for lack of standing. See Van Wagner Commc'ns, LLC v. Mass. Dep't of Transp., 953 F.Supp.2d 313, 316-19 (D. Mass. 2013). After careful consideration, we conclude that the complaint plausibly alleges that the plaintiffs are subject to a regulatory permitting scheme that grants an official unbridled discretion over

Page 35

the licensing of their expressive conduct and poses a real and substantial threat of censorship. No more is exigible to give the plaintiffs standing to proceed with their challenge. Because the district court erroneously dismissed the plaintiffs' First Amendment claim for lack of standing, we reverse.

I. BACKGROUND

Massachusetts has long regulated the display of billboards and other outdoor signage. Van Wagner challenges the Commonwealth's most recent regulatory scheme, which was enacted in 2012. A scheme similar to the one now in effect has existed since 2008.[1]

The challenged regulatory scheme requires most parties wishing to engage in outdoor advertising to obtain a license in advance. See 700 Mass. Code Regs. 3.02(1). Such parties must also (with some exceptions) obtain a permit for each sign. See id. § 3.02(2)(a); see also id. § 3.02(2)(b) (limning exceptions for, inter alia, on-premise signs, on-property for sale or for rent signs, artistic signs, and signs " erected solely for . . . public elections" ). The regulations vest the authority to issue such licenses and permits in the Director of the Commonwealth's Office of Outdoor Advertising (the Director), see id. § 3.01, and provide that he may withhold a permit, in his sole discretion, upon a determination that the particular sign " would not be in harmony with or suitable for the surrounding area or would do significant damage to the visual environment," id. § 3.07(4). In making such determinations, the Director " may" consider an array of enumerated factors, including (but not limited to) the physical characteristics of both the proposed sign and the locality; the effects on scenic beauty; and " the health, safety and general welfare of the public." Id.

When issued, a permit is for a fixed duration and is subject to annual renewal based on the same criteria. See id. § § 3.02(2)(c), 3.08(3). It is, moreover, subject to revocation at any time for cause. See id. § § 3.03(2)(d), 3.09(2). The regulations provide an illustrative list of grounds constituting cause for the revocation of a permit. See id. § § 3.03(2)(d), 3.09(2)(a)-(e) (listing, as examples, noncompliance with state and federal law; actions having an adverse effect on " the public health, safety, welfare or the environment" ; submission of false or misleading information; and refusal to submit requested information). Nevertheless, this list is non-exclusive, and the regulations emphasize that the Director's revocation authority is " [w]ithout limitation." Id. The regulations grant the Director similarly broad authority to revoke a billboard owner's license. See id. § § 3.03(1)(b), 3.09(2).

This new permitting scheme did not please all comers. Van Wagner Boston, LLC is a wholly owned subsidiary of Van Wagner Communications, LLC, which is the fourth largest outdoor advertising company in the United States. These two entities (collectively, Van Wagner) had lobbied unsuccessfully against the 2012 amendments to the regulatory scheme and, when those amendments were adopted, sought relief from them. To this end, Van Wagner brought suit in the United States District Court for the District of Massachusetts against state agencies and officials charged with administering the regulations (collectively, the Commonwealth).

Page 36

The complaint invoked 42 U.S.C. § 1983 and sought a declaration that the regulations imposed a prior restraint on, and therefore violated, Van Wagner's free speech rights under the First and Fourteenth Amendments.[2] It also alleged that the regulations were infirm on various state-law grounds.

The Commonwealth moved to dismiss for lack of subject-matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). The district court obliged: it jettisoned the First Amendment claim for want of standing and declined to exercise supplemental jurisdiction over the state-law claims. ...


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