Billboard Imbroglio: Judge Says Ad Ban Does Not Violate Free Speech

The city of Cambridge is a step closer to being billboard-free after a U.S. District Court judge denied this month that the prohibition of the signs constitutes a violation of free speech rights.

In the decision, Judge Edward F. Harrington rejected Ackerly Outdoor Advertising's request for a delay of the city's sign elimination deadline. The ruling bolsters the City Council's four-year campaign to rid the city's skyline of billboards.

The council passed an ordinance in June 1991 that prohibited further erection of billboards. The ordinance allowed the city's 47 standing billboards--46 of which are owned by Ackerly--to remain in place for four more years. (The bill did not apply to smaller signs advertising businesses on which they are perched.)

In the November 3 ruling, Harrington rejected Ackerly's request for an injunction, which would have suspended the forced removal of the signs until the company exhausted its appeals.

Harrington cited a failure by Ackerly "to demonstrate a likelihood of success on the merits [of their case]." Chances for success in a pending suit are the primary consideration for judges issuing injunctions.

Harrington also denied that Ackerly's First Amendment right to free speech is violated by the ordinance. And he was reluctant to infringe on a local attempt to regulate land use.

"A federal court should be extremely reluctant to interfere with this local decision of such a fundamental nature," he wrote in the decision.

But Ackerly President Louis R. Nickinello said he will not tear down the billboards anytime soon. He said he plans to appeal the decision, and is prepared for a long legal battle.

Nickinello is optimistic about his chances for success, pointing to the defeat of a similar ordinance in neighboring Somerville, in which Ackerly collected $130,000 in damages.

"It took us years, but we won.... Our right to advertise has never been successfully challenged like this,' Nickinello said.

"This is like the government saying you have to move out of your house, but your compensation is you get to live there for four more years," Nickinello continued. "If the city of Cambridge takes our signs down they will be subject to lost income and property rights suits on your part."

The ban on billboards takes effect at the end of December. The city will then move to enforce the ordinance, including notice to the owners and possible fines for failure to comply.

"The city will move forward to enforce the deadline and will go to the courts to back it up if necessary," said Councillor Francis H. Duehay '55.

Duehay said he was "pleased by the decision as a proponent for many years of the curbing of visual pollution."

Councillor Katherine Triantafillou said she was "appalled" by Ackerly's pursuit of an injunction, but not surprised at "the lengths [to which] the advertising industry will go to to keep their profits."

"I think [the legal maneuvering] is a bunch of hooey, H-O-O-E-Y," she added.

A blue-ribbon panel, appointed by the council in 1989, had originally recommended that billboards be banned. The council approved the ordinance in 1991, 5-4, with the stated goals of enhancing the city's aesthetic appeal and reducing visual pollution.

But building owners may face a loss in rental fees under the ordinance. Nickinello refused to enumerate how much Ackerly charges in rent, but said the banning of billboards "would be a financial drain on the city of Cambridge."

Triantafillou said she didn't think the fate of the profits of landlords was "the appropriate question to be asking" in the debate over the billboards.

"A house of prostitution generates economic gains but it comes at the expense of the community," she said.

Opponents of the billboards contend that the signs incur structural damage on the buildings they adorn. Architects have attributed the deterioration of the Wursthaus building in Harvard Square partially to the stress from the billboard atop it.

In the four years since the ordinance was passed, Ackerly has placed non commercial messages on billboards in Cambridge and other cities. Nickinello says his free speech will be violated it the signs, which display uplifting quotes from such notables as Shakespeare and Einstein, are taken down.