Opposition Brief — Barber v. Texas Department of Transportation

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No. 03-510

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In the

Supreme Court of the United States

PAT BARBER,

Petitioner,

TEXAS DEPARTMENT OF TRANSPORTATION, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

Supreme Court of Texas

BRIEF IN OPPOSITION

GREG ABBOTT

Attorney General of Texas

BARRY R. MCBEE

First Assistant Attorney General

EDWARD D. BURBACH

Deputy Attorney General for

Litigation

R. TED CRUZ

Solicitor General

Counsel of Record

AMY WARR

Assistant Solicitor General

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

(512) 936-1700

COUNSEL FOR RESPONDENTS

QUESTION PRESENTED

Whether the Texas Supreme Court majority erred in

concluding that the Texas Highway Beautification Act can

be applied, consistent with the First Amendment, to prohibit

Petitioner from engaging in political speech on a billboard

on his own property.

TABLE OF CONTENTS

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II. The Texas Highway Beautification Act ............. 2

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I. The Petition Fails to Demonstrate a Conflict for the

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II. Barber’s Claim Is Moot Because He Has Voluntary

Removed, and Never Re-erected, the Sign That Is the

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III. The Texas Supreme Court’s Decision Was Correct .. 11

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TABLE OF AUTHORITIES

Cases

Ackerley Communications of Mass., Inc. v.

City of Cambridge, 88 F.3d 33 (CA1 1996) ............ 7

Arizonans for Official English v. Arizona,

oy re 10

Barber v. Tex. Dep't of Transp.,

49 S.W.3d 12 (Tex. App.—Austin 2001),

rev @, 111 5.W.3d 86 (Tex. 2003) ....... 0... 0.0 00e 1-2

Boag v. MacDougall, 454 U.S. 364 (1982) ............04.. 5

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) .......... 10

City of Renton v. Playtime Theaters, Inc.,

ces kik ok alae sks VHA Y RES RON OSS 11

ila v. Town of Needham, 764 F.2d 58 (CA1 1985)..... 7

Metromedia v. City of San Diego, 453 U.S. 490 (1981) ... 6, 12

Murphy v. Hunt, 455 U.S. 478 (1982) ................ 10, 11

Nat'l Adver. Co. v. Town of Babylon,

ee We BOO i vice e hensive cseiavavens 7

O'Shea v. Littleton, 414 U.S. 488 (1974) ..........0..... 10

mene v. Geary, S01 U.S. 312 (1991)... 6. cece wes 10

Wheeler v. Commissioner of Highways,

822 F.2d 586 (CA6 1987), cert. denied,

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Whitton v. City of Gladstone, 54 F.3d 1400

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Rules, Statutes & Constitutional Provisions

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TEX. TRANSP. CODE §391.001(10)....... | Perr Tr eT eee ee 3

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TEX. TRANSP. CODE §391.002(b)(2) .... 00.0... ee eee

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TEX. TRANSP. CODE §391.031(a)(1) ............ ccc ee eee

TEX. TRANSP. CODE §391.031(a)(2) ...........c cece ee

TEX. TRANSP. CODE §391.031(b)........... 0.00. ee eee

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STATEMENT OF THE CASE

This case concerns an as applied, First-Amendment-based

challenge to the Texas Highway Beautification Act (THBA) arising

from the placement of a sign on the Petitioner’s non-residential,

rural property. The case is splitless, and Petitioner asks merely for

error correction. The decision of the Texas Supreme Court is

correct, and there are significant vehicle problems with the case

because Petitioner has voluntarily removed the sign in question,

leaving nothing to sustain a controversy.

if. THE SIGN.

The genesis of this suit is a billboard bearing the statement,

“Just say NO to searches,” installed in 1997 by Pat Barber, an

attorney, on a strip of non-residential property adjacent to Interstate

20 in Mitchell County, Texas. See Pet. App., at 4a. Barber failed

to apply for a license to display the sign, which was within 660 feet

of the right-of-way in a rural area and which admittedly did not

qualify for any of the THBA’s exemptions. See id., at 45a. The

Texas Department of Transportation (TxDOT), which is charged by

law with enforcing the THBA, TEX. TRANSP. CODE §391.034(b),

sent Barber written notice that the sign violated the THBA and

requested its removal. See id., at Sa.

In response, Barber filed this lawsuit, seeking injunctive relief

and a declarat« ry judgment that the THBA is unconstitutional. /d.,

at 6a. The State filed a counterclaim seeking to enforce the THBA.

Id. The trial court granted the State summary judgment, held that

the THBA is constitutional under the Texas and United States

Constitutions on its face and as applied to Barber, enjoined Barber

from displaying the sign, and awarded the State attorneys’ fees and

costs. See id., at 45a. Prior to judgment, Barber voluntarily

removed his sign. See App. 2a-3a, 7a. On appeal, Barber argued

that the THBA as applied to his sign was unconstitutional. The

state court of appeals reversed and held that the THBA as applied

to Barber violated the First Amendment of the United States

Constitution. Barber v. Tex. Dep't of Transp., 49 S.W.3d 12, 25

(Tex. App.—Austin 2001), rev'd, 111 S.W.3d 86 (Tex. 2003). Two

years later, the Supreme Court of Texas reversed and rendered

judgment for the State. See Pet. App., at la-2a.

II. THE TEXAS HIGHWAY BEAUTIFICATION ACT.

Like similar statutes across the nation, the THBA was passed in

response to the Federal Highway Beautification Act, which requires

States to “effective[ly] control” outdoor advertising in areas

adjacent to interstate and federally funded state highways or forego

ten percent of their federal highway funds. 23 U.S.C. §131(b). The

federal act seeks to curb the proliferation of billboards along the

nation’s highways and to “protect the public investment in...

highways, to promote the safety and recreational value of public

travel, and to preserve natural beauty.” 23 U.S.C. §131(a).

The express purpose of the THBA is to comply with the federal

law: “{I]t is the intent of the legislature to comply with the

Highway Beautification Act of 1965 (23 U.S.C. §§131, 136, 319)

to the extent that it is implemented by the Unitec States Congress.

This chapter is conditioned on that law.” TEX. TRANSP. CODE

§391.002(a). Consistent with the federal law, the purpose of the

THBA is to “promote the health, safety, welfare, morals,

convenience, and enjoyment of the traveling public,” and to

“protect the public investment in the interstate and primary

systems.” Jd. §391.002(b)(1), (2).

To accomplish these objectives, the THBA prohibits “outdoor

advertising” in a limited protected area along interstates and

federally funded state highways: either (1) within 660 feet of a

right-of-way if the advertisement is visible from the interstate or

primary highway system, ' or (2) if outside an urban area, more than

1. The definition limits the THBA’s coverage to federally funded

highways in Texas. See TEX. TRANSP. CODE §391.001(5); 23 U.S.C.

660 feet from the right-of-way, but visible from the highway and

erected for the purpose of having its message seen from the

highway. /d. §391.031(a)(1), (2). “Outdoor advertising,” is defined

as:

an outdoor sign, display, light, device, figure, painting,

drawing, message, plaque, poster, billboard, or other thing

designed, intended, or used io advertise or inform if any

part of the advertising or information content is visible from

the main-traveled way of the interstate or primary system.

Id. §391.001(10) (emphasis added). By including the terms

“advertise or inform,” the definition applies to both commercial and

noncommercial signs. The THBA restricts advertising only along

this federal corridor. It does not apply to any other locations in the

State.

In compiiance with federal directive, the THBA exempts from

regulation:

(1) directional or othei official outdoor advertising

authorized by law, including advertising pertaining te a

natural wonder or a scenic or historic attraction;

(2) outdoor advertising for the sale or lease of the property

on which it is located;

(3) outdoor advertising solely for activities conducted on the

property on which it is located;

(4) outdoor advertising located within 660 feet of the

nearest edge of a right-of-way in an area in which the land

use:

§131(t).

(A) is designated industrial or commercial under

authority of law; or

(B) is not designated industrial or commercial under

authority of law but the land use is consistent with an

area designated industrial or commercial;

(5) outdoor advertising that has as its purpose the protection

of life and property; or

(6) outdoor advertising erected on or before October 22,

1965, that the commission, with the approval of the

secretary of the United States Department of Transportation,

determines to be a landmark of such historic or artistic

significance that preservation is consistent with the

purposes of this subchapter.

§391.031(b); see also 23 U.S.C. §131(b), (c), (d) (federal directive).

In addition, the THBA exempts signs solely for and relating to

a public election if the sign:

(1) is on private property;

(2) is erected not earlier than the 90th day before the date of

the election and is removed not later than the 1 0th day after

the election date;

(3) is constructed of lightweight material; and

(4) has a surface area not larger than 50 square feet.

Id. §391.00S.

SUMMARY OF THE ARGUMENT

The Court should decline to grant a writ of certiorari for three

reasons. First, no conflict exists between the Texas Supreme

Court’s decision and decisions of other state supreme courts or

federal courts of appeals on the particular issue in this case. In fact,

the only circuit court decision addressing a similar statute upheld

that statute’s constitutionality. Absent a conflict among courts,

Barber essentially asks the Court to engage in error correction, an

exercise that does not justify the Court’s certiorari jurisdiction.

Second, Barber’s suit is moot because he voluntarily removed his

sign at the outset of the litigation and because his case does not fit

any exception to the mootness doctrine. Finally, the Court should

deny the writ because the Supreme Court of Texas properly

concluded that the Texas statute comports with the First

Amendment.

ARGUMENT

I. THE PETITION FAILS TO DEMONSTRATE A CONFLICT FOR

THE COURT TO RESOLVE.

In his petition, Barber fails even to allege a conflict between the

decisions of the Texas Supreme Court and federal circuit courts or

other state high courts as a basis for granting certiorari. He does not

argue that there is a conflict over the constitutionality of state

statutes enacted pursuant to the FHBA. He does not

contend—much less demonstrate—that another relevant court

would have reached a different decision than the decision below

when presented with the same facts. Rather, he argues merely that

the Supreme Court of Texas “misapplie[d] the law for determining

whether a restriction on speech is_ content-based” and

“undervalue[d] Petitioner’s right to engage in core political speech

on his own property.” Pet., at 5. But an allegation of a single

misapplication of the law simply does not satisfy the Court’s

prerequisites for review. See S.CT. R. 10. Despite the fact that

“this Court is not a forum for the correction of errors,” Boag v.

MacDougall, 454 U.S. 364, 368 (1982) (Rehnquist, J., dissenting),

that is precisely the task that the petition requests the Court to

perform.

Although Barber argues, as a general proposition, that the

multiple opinions in Metromedia v. City of San Diego, 453 U.S.

490 (1981), have led to disparate decisions among the lower courts,

see Pet., at 5-6, 19, he merely cites a string of cases with no

discussion of their facts or holdings and no explanation of why they

allegedly conflict with the Texas Supreme Court’s decision in this

case. The most Barber can say about this group of cases is that it

demonstrates “disparate directions in applying the First Amendment

to billboards,” id., at 19, a “conflict” of such generality that it does

not bear on Barber’s question presented. Far from establishing a

conflict between the Texas Supreme Court’s decision and a

decision of a relevant court striking down a substantially similar

statute, Barber alleges only that lower courts have generally applied

the Court’s Metromedia decision both narrowly and broadly. /d.,

at 19. Barber’s observation does not even come close to

demonstrating that, if presented with the same facts, a federal

circuit court or state high court would reach a different conclusion

than the one reached by the Supreme Court of Texas. If all that

were necessary to show a conflict were one decision upholding and

one decision invalidating a restriction of some type on a billboard

somewhere, with no similarity of statute and facts, then every

billboard case—or every First Amendment case regarding any

means of communication—would be appropriate for certiorari.

Not surprisingly, when Barber’s cases are examined, it is

apparent that they do not support a genuine conflict. Only one of

the decisions, Wheeler v. Commissioner of Highways, 822 F.2d 586

(CA6 1987), involves a similar statute and circumstance, and that

case does not demonstrate any division in the lower courts. Rather,

the Sixth Circuit, like the Texas Supreme Court in this case, upheld

Kentucky’s Billboard Statute, which was also enacted pursuant to

the Federal Highway Beautification Act and is almost identical to

the THBA. Thus, far from being in conflict, Wheeler is entirely in

agreement with the decision below.

The Court declined certiorari in Wheeler, 484 U.S. 1007 (1988),

and no conflict has arisen since then that make this issue any more

worthy of the Court’s review. Indeed, Petitioner has been unable

to point to even a single case—state or federal—striking down a

state highway beautification act on First Amendment grounds.

Moreover, the cases identified by Barber all concern statutes

wholly distinct from the THBA, making them insufficient to

support a conflict. The THBA permits signs related to onsite

activity (without regard to whether the activity is commercial or

non-commercial), offsite signs in industrial or commercial areas,

and various other types of offsite signs. See Pet. App., at 70a-7 1a.

By its terms, therefore, the THBA does not ban all offsite signs.

See id. Yet all but one of Barber’s cited cases striking down

billboard restrictions concern total bans on offsite billboards. See

Matthews v. Town of Needham, 764 F.2d 58, 59-60 (CA1 1985);

Ackerley Communications of Mass., Inc. v. City of Cambridge, 88

F.3d 33, 34 (CAI 1996); Nat’l Adver. Co. v. Town of Babylon, 900

F.2d 551, 554 n.1 (CA2 1990). In contrast, the THBA permits

many categories of offsite signs. See Pet. App., at 70a-7la. The

fact that other courts have held that total bans on offsite billboards

violate the First Amendment sheds no light on whether those courts

would also hold that a more narrow ban is unconstitutional, nor do

they suggest that the Texas Supreme Court was incorrect in

deciding that the THBA’s limited ban is constitutional. Thus, these

decisions demonstrate no conflict.

The single case Barber cites that did not concern a total ban on

offsite billboards addressed a restriction directed solely at political

speech. See Whitton v. City of Gladstone, 54 F.3d 1400, 1402 n.2-4

(CA8 1995) (overturning restriction on election signs). Whitton did

not address the onsite/offsite distinction or the subject-matter

exceptions that are at the heart of this case; thus, it likewise does

not conflict with the decision below.

Because no genuine conflict exists with regard to the decision

below, nor any important and unsettled question of constitutional

law, the Court should deny certiorari. See S. CT. R. 10. Even if

Barber were correct that this case presents an important issue of

constitutional law, then it surely would recur again in another

context. The fact that Barber can point to no decision, state or

federal, invalidating any state highway beautification act—despite

the existence for decades of many such state states pursuant to the

federal Highway Beautification Act of 1965—powerfully refutes

Barber’s claim that this case presents an important and recurring

issue of constitutional law.

At a minimum, the Court should allow the issue to percolate

and wait until a conflict does develop before granting review. To

grant review now, as Barber urges—before any federal court of

appeals or state supreme court has heard and accepted a First

Amendment challenge to a state highway beautification act—would

be premature. With the passage of time, three outcomes are

possible: first, given the paucity of reported cases challenging these

laws over the past four decades, no further decisions could issue;

second, additional federal courts of appeals and state supreme

courts could consider the issue and agree with the Texas Supreme

Court; or third, a conflict could develop, and other courts could

write opinions explaining their reasoning for questioning the

constitutionality of state highway beautification statutes. In the first

two instances, the issue would not merit this Court’s consideration,

and, in the third, the Court would have the benefit of the analysis of

the lower courts before deciding whether to grant review. In short,

if the issue does not recur, it is not important, and if it does, then the

Court should wait for a conflict before considering the question.

Accordingly, because there is no conflict'in the courts of

appeals or the state supreme courts, and because a conflict is

unlikely to arise, the Court should deny certiorari.

II. BARBER’S CLAIM IS MOOT BECAUSE HE HAS VOLUNTARY

REMOVED, AND NEVER RE-ERECTED, THE SIGN THAT ISTHE

SOURCE OF CONTROVERSY.

Additionally, a significant vehicle problem strongly counsels

against granting certiorari: Barber’s suit challenging the THBA

became moot when he voluntarily removed his sign prior to any

order of the district court that he do so. Contrary to subsequent

statements he has made, Barber admitted in his trial-court pleadings

that he voluntarily removed his sign on November 4, 1999—prior

to the court’s summary judgment order—because TxDOT had

declined to postpone any enforcement action to remove the sign

pending appeal. App., at 2a-3a, 7a. Any intention Barber might

have to erect the billboard again cannot revive his suit after it has

been moot for over four years.”

Moreover, and critically, there is no evidence that Barber made

any attempt to raise the billboard anew during the two-year interval

between the state appeals court’s decision, which was favorable to

Barber, and the Texas Supreme Court’s reversal of that decision.

During that two-year interval, Barber was entirely free to re-erect

the billboard, as the state appeals court had held the THBA

unconstitutional as applied to it. But he did not. Because Barber

voluntarily removed, and never replaced, the billboard in question,

there is no live controversy for the Court to resolve.

For a plaintiff to have standing, an actual controversy must exist

at all stages of the litigation, not merely at the time the complaint

2. The Supreme Court of Texas rejected TxDOT’s mootness

argument without discussion. See Pet. App., at 7a. Although that court

properly resolved the merits of the First Amendment issue, it should have

determined that Barber’s suit was moot, and mootness remains a barrier

to this Court’s jurisdiction.

is filed. Arizonans for Official English v. Arizona, 520 U.S. 43, 67

(1997). A case becomes moot “when the issues presented are no

longer ‘live’ or the parties lack a legally cognizable interest in the

outcome.” Murphy v. Hunt, 455 U.S. 478, 481 (1982) (internal

quotations omitted).

Barber’s voluntary acts of removing his sign and then failing to

replace it after the state court of appeals’s decision rendered the

litigation merely hypothetical. See Arizonans for Official English,

520 US., at 72 (recognizing that voluntary resignation from public

sector employment mooted case). Lacking a current controversy,

Barber’s suit challenging the THBA rests instead on his assumed

intention to put up the sign again, an assumption belied by his

conduct during the two years after the court of appeals decision.

Yet “[a]bstract injury is not enough . .. . The injury or threat of

injury must be both ‘real and immediate,’ not ‘conjectural’ or

‘hypothetical.’ O'Shea v. Littleton, 414 U.S. 488, 494 (1974); see

also City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983). Past

exposure to allegedly illegal conduct does not in itself show a

present case or controversy. Renne v. Geary, 501 U.S. 312, 320-21

(1991); O'Shea, 414 US., at 494.

Barber argued below that his case falls within the “capable of

repetition, yet evading review” exception to the mootness doctrine.

This exception, however, applies only in rare circumstances. To

invoke the exception, a plaintiff must prove that (1) the challenged

action was too short in duration to be litigated fully before the

action ceased or expired; and (2) a reasonable expectation exists

that the same complaining party will be subjected to the same .

action again. Murphy, 455 U.S., at 482 (emphasis added). A

plaintiff must demonstrate that he meets both elements of the

mootness-exception test. /d., at 482 (observing that the “doctrine

[is] limited to the situation where two elements are combined.”).

Barber’s suit cannot satisfy the first prerequisite of this

exception because TxDOT’s enforcement of the THBA was not too

short in duration to be litigated fully before Barber removed his

sign. Indeed, TxDOT had not even secured a judgment on its

counterclaim to enforce the THBA when Barber removed the sign

on his own initiative. App., at 2a-3a, 7a. In fact, in granting

summary judgment on TxDOT’s counterclaim, the district court

had to strike through the portion of the order requiring Barber to

remove the sign because he had already removed it. App., at 2a-3a.

Rather than litigating his case fully, Barber voluntarily removed the

sign and with it his sole basis for bringing suit. Therefore, even if

Barber could satisfy the second prong of the mootness exception,

he could not satisfy the first requirement, and so the exception

cannot apply. See Murphy, 455 U.S., at 482. Because this case is

moot by virtue of the petitioner’s voluntary action of removing the

sign, the Court should deny certiorari.

Hil. THE TEXAS SUPREME COURT’S DECISION WAS CORRECT.

Even if the Court were inclined to grant certiorari for the error-

correction purpose to which the petition is on its face limited, this

case would not be an appropriate candidate because it was correctly

decided by the Supreme Court of Texas. As that court properly

determined, the THBA is content-neutral, treating commercial and

non-commercial speech equally. See Pet. App., at 17a-24a. Thus,

as recognized by the court, it is subject to, and satisfies,

intermediate scrutiny because it is narrowly tailored to serve the

substantial state interests of highway safety and aesthetics. See id.,

at 25a (citing City of Renton v. Playtime Theaters, Inc., 475 U.S.

41, 47 (1986)). Moreover, as the Texas Supreme Court concluded,

it leaves open adequate alternative channels of communication,

because Barber could arrange to erect his sign in an industrial or

commercial area along the same highway. See id., at 26a-29a.

The main concern advanced in the petition is that the THBA’s

exception for signs related to onsite activities, although facially

neutral as between commercial and non-commercial speech, will in

practice result in greater restrictions on non-commercial speech,

which, Barber contends, is prohibited by the plurality opinion in

Metromedia. See Pet., at 8-11. Thus, although the onsite-activity

exception would allow a veterans organization to display a sign on

its property stating, “Support Our Vietnam Veterans,” and would

allow a church to exclaim, “Praise God,” just as it would permit a

restaurant to advertise, “Eat at Joe’s,” Barber argues that this

exception impermissibly favors commercial speech. Yet this appeal

is not an appropriate vehicle to address Barber’s concern, because

he introduced no evidence that signs with non-commercial

messages are less likely to fall under the onsite-activity exception

than signs with commercial messages nor any evidence that the

exception has had any discriminatory effect historically, despite the

fact that the THBA has been in effect for over thirty years. The

Court should decline to accept Barber’s invitation to engage in

presumptions concerning the alleged disparate impact of the onsite-

activity exception when he failed to introduce any evidence

supporting his disparate-impact contention.

Because the petition does not identify any weaknesses in the

decision below that merit the Court’s attention, the Court should

deny certiorari.

CONCLUSION

The Court should deny the petition for writ of certiorari.

Respectfully submitted,