Ohio Supreme Court Strikes Down Cincinnati Billboard Tax on First Amendment Grounds
On September 16, 2021, the Ohio Supreme Court issued its opinion in Lamar Advantage GP Co., L.L.C. v. Cincinnati, Slip Opinion No. 2021-Ohio-3155, holding that a billboard tax adopted by Cincinnati was a discriminatory tax that violates the rights to freedom of speech and a free press protected by the First Amendment to the United States Constitution. Because the tax was challenged as violating the fundamental rights of free speech and a free press, the tax was subject to strict scrutiny review. The Court’s holding was based on a finding that the tax was, as a result of definitions and exemptions in the municipal code, imposed solely on the two largest billboard operators. For example, the code exempted on-site signs, signs in the public right of way, signs approved by the city for special events, and signs on public property. The Court’s opinion contains an exhaustive discussion of the U.S. Supreme Court opinions addressing First Amendment challenges. From its review of these opinions, the Ohio Supreme Court distilled four guiding principles. First, the press can be subjected to a generally imposed tax, such as a sales tax. Second, a tax violates the First Amendment if its application depends on the content of the speech. Third, a tax that singles out the press or a small segment of the press likewise violates the First Amendment. Finally, one challenging the tax does not need to prove that the intent of the tax was to suppress or punish speech to establish a violation of the First Amendment. A selective tax creates such a potential for censorship that it offends the protections of free speech and the press afforded by the First Amendment.
Applying these principles, the Ohio Supreme Court held that the billboard tax violated the First Amendment because it was not a generally applicable tax (it was imposed only on billboard operators) and was imposed on a small segment of the press (two billboard operators), thus discriminating against those two operators.