Ban on mobile billboards may be unconstitutional, prof says

City aldermen may be trying to kick mobile billboards off the street, but a legal expert says the ban will never stand up in court.

Martin Redish, professor of constitutional law at Northwestern University’s Law School, says the ban is a clear violation of freedom of speech.

“There are serious constitutional problems with it,” Redish says. “Over the last 10 to 15 years, the Supreme Court has been giving commercial speech more and more protection.”

The ban was supposed to be considered today by the Committee on License and Consumer Protection, but was deferred at the request of Alderman Bob Fioretti , D-2, its sponsor. Fioretti says his office still needs time to gather witnesses and experts and is also looking into certain exemptions for parade vehicles.

Fioretti says he doesn’t think the ban violates the First Amendment.

“It’s advertising speech. It’s not free speech,” Fioretti says. “Advertising is a different kind of speech that does not have the full protection as provided by the Frst Amendment.”

He noted a district court case decided by Judge James Zagel which upheld a similar ban on advertising boats running along Lake Michigan.

However, Redish says the amount of protection commercial speech receives has drastically increased over the last few decades and that the Zagel decision would no longer apply.  

“He’s clearly wrong or living 20 years ago. Yes, they still maintain that commercial speech is given less protection, but it’s a different world out there,” Redish says.

Fioretti proposed the law because he says mobile billboards present a distraction to drivers, increase to traffic congestion and contribute to global warming. But Redish says those claims aren’t going to be enough for the law to stand up in court.

“Global warming? Give me a break,” he says. “We’re picking out sand from the Sahara desert. Picking out these vehicles and leaving unregulated all the others."

Redish, who describes himself as a militant protector of commericial speech, says laws prohibiting commercial speech have to show a material interest by the government and that the law can’t restrict more speech than necessary. 

He cited several cases where the courts have overturned bans on commercial speech, including a ban in Cincinnati on commercial newsracks. In that case, the city of Cincinnati tried to ban commercial newspapers, like those advertising real estate or personal ads, but allowed daily newspaper racks to remain. The city said it was trying to preserve safety and aesthetics, but the court said the ordinance was unreasonable.

Redish says the current proposed ban would create the same problem in that it’s specifically aimed at mobile billboards and doesn’t do anything to combat other driver distractions or traffic problems.

“When what you leave unregulated presents the same danger as what you are regulating, it’s unconstitutional,” Redish says.

A similar mobile billboard ban was overturned in Collier County, Florida in September. A federal court judge sided with Bonita Media Company, a mobile billboard business in the area, that the ban was unconstitutional.

Brian Younker, owner of Younker Media, a mobile billboard company that operates within the city of Chicago, says he may consider challenging the ban in court  if it passes.

“I just hope it doesn’t have to get to that point. It’s my livelihood. It’s how I make a living,” Younker says.

Fioretti says the ban will come up in next month’s committee meeting, which has yet to be scheduled. He says the ban has community support and he expects it to pass.

“People are calling saying they’re wholly in support of it,” Fioretti says.