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A year after Houston
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As Wade Swormstedt reported in his November 2007 editorial, “Houston, We Have an Opportunity,” (page 200), a federal judge held the Houston Sign Code unconstitutional and unenforceable in a September 2007 preliminary injunction ruling. More specifically, on September 26, 2007, the Honorable Melinda Harmon, judge of the U. S. District Court for the Southern District of Texas, Houston Div., issued a preliminary injunction and supporting opinion in RTM Media Inc. vs. City of Houston; C.A. No. 07-02844. Judge Harmon’s preliminary injunction order stated:
ORDERED that the City shall be enjoined from enforcing its Sign Code, codified at Chapter 46 of the City of Houston Building Code, because there is a substantial likelihood that its content-based distinction between commercial and noncommercial speech violates the Free Speech Clause of the First Amendment and (2) from fining or threatening to fine advertisers placing advertisements on billboards in the ETJ [extraterritorial jurisdiction] not permitted by the City.
Almost exactly one year later, on September 29, 2008, Judge Harmon entered her final judgment and decision in the case. This time, however, the judge ruled completely opposite from her preliminary injunction order, against RTM and for Houston. More importantly, even though the facts, law, attorneys, parties and arguments hadn’t changed, Judge Harmon also found the code complied with the First Amendment.
Judge Harmon’s preliminary and final orders are extremely broad, in terms of both the activities that were enjoined, and the parties affected by the injunction. This article summarizes Judge Harmon’s opinions and discusses their ramifications to the sign industry.
Factual/procedural background
RTM Media Inc., an independent, Houston-based, outdoor-advertising company, started constructing billboards in the ETJ of the City of Houston, adjacent to federal interstate and primary highways, with permits issued only by the Texas Dept. of Transportation (TxDOT)
in 2003. RTM argued it need not comply with Houston’s permit and other sign regulations, because TxDOT maintains exclusive jurisdiction over off-premise signs located in Houston’s ETJ adjacent to federal highways.
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