Victory Media Group, LLC v. Georgia Department of Transportation

Victory Media Group applied for a permit to put up a multiple-message billboard sign. The Department of Transportation first approved the permit but then revoked it because another sign, already permitted, sat less than 5,000 feet away on the same side of the highway, which Georgia's Outdoor Advertising Control Act does not allow. Victory Media challenged the Act as unconstitutional, arguing it restricts speech based on content, which under recent United States Supreme Court cases would require the toughest level of judicial scrutiny. A trial court sided with the State without really addressing that argument, and the Court of Appeals of Georgia declined to hear a further appeal. The Supreme Court of Georgia denied Victory Media's petition for certiorari, meaning it chose not to take up the case. Presiding Justice Peterson concurred but wrote separately to explain that even if parts of the Act might be unconstitutional content-based restrictions, those are not the parts of the law that actually caused Victory Media's permit to be revoked, so Victory Media cannot win on that basis here.

The court declined further review, and the concurrence explains that a party challenging a state law as unconstitutional must show the specific provision harmed it; because the spacing rule that actually revoked Victory Media's permit was not shown to be a content-based restriction, Victory Media could not win even if other parts of the Act might be unconstitutional.

Billboard companies and other outdoor advertisers in Georgia continue to operate under the existing Outdoor Advertising Control Act, and the question of whether parts of that law improperly restrict speech based on content remains legally unresolved for future cases and litigants to raise.

Certiorari denied

1. The court explained that under United States Supreme Court precedent, laws that restrict speech based on its content are presumed unconstitutional and can only survive if the government proves they are narrowly tailored to serve a compelling interest, a rule known as strict scrutiny.
2. The concurrence noted that a 1984 Georgia Supreme Court case, Department of Transportation v. Shiflett, had rejected an earlier free-speech challenge to the same Act, but that decision used an older four-part commercial-speech test and never examined whether the Act's provisions single out speech based on its content, a question later Supreme Court cases made central.
3. The concurrence pointed to several sections of the Act that might contain content-based distinctions, but explained that Georgia law requires anyone challenging a statute's constitutionality to show that the specific provision they attack actually harmed them.
4. Applying that rule, the concurrence found that Victory Media's permit was revoked solely because of a spacing rule barring multiple-message signs within 5,000 feet of each other, not because of any of the potentially content-based provisions Victory Media identified.
5. Because the provision that actually harmed Victory Media was not shown to be content-based, the open constitutional question about the Act could not be resolved in this case, even though the issue may need to be addressed in a future case.

• billboard regulation
• free speech
• content-based restrictions
• Outdoor Advertising Control Act
• certiorari denial