From the time I started writing about the Uncle Sam Billboard, many assumed that my ultimate quest was to have the billboard removed. But to understand my question, you have to consider why I was asking it in the first place.
Before returning to The Chronicle as a web developer and columnist, I was marketing director for the Centralia-Chehalis Chamber of Commerce. The Chamber, in addition to working with the local business community, also serves as a tourist information center. As such, it was not uncommon to receive calls from all over the world and from people passing through the Centralia-Chehalis area.
In my time at the Chamber, handling such calls and inquiries, I can safely say that hardly a week went by in which someone didn’t call in to complain to us — or just otherwise yell at the staff — about something that was on the Uncle Sam Billboard. Because the billboard didn’t advertise a business, people from all over would call us instead.
They would call and ask how we could “allow” such a billboard in Chehalis (the billboard is technically in the city of Napavine, I believe) and make all sorts of statements like, “I’ll never spend a dime in this town!” or, “I’ll never stop here again!”
Of course, all we could do as a staff was calmly explain that the sign was on private property not owned or operated by any city entity, and that the Chamber had no control over those types of issues whatsoever.
The script was tiresome.
Over the years, between my time at the Chamber and now, I had read up on billboard laws and always wondered why WSDOT was choosing not to enforce the state law as it was written — the law that requires billboards visible from an interstate to qualify for (in this case) an advertising exemption to be legally permissible in the eyes of the State Highway Advertising Control Act.
If you’ve read my first two pieces on the Hamilton Uncle Sam Billboard (available here and here), then you’ve seen my exploration of that question. In the 1970s, the Hamilton family defended their billboard against a WSDOT lawsuit — State v. Hamilton — proving to the court that the Uncle Sam billboard truly did advertise Hamilton Farms.
But today, the billboard doesn’t advertise anything, yet current state laws still require that billboards meet the state standard for an exemption.
So why wasn’t WSDOT enforcing the state law, as it was written now, today?
WSDOT staff, to their credit, spent a considerable amount of time discussing this issue with me, which I appreciate, but we never reached a point where I felt my question was answered.
At least if the billboard was required to advertise something, as the state law required, people would know who to call when they disliked the message that was displayed, as opposed to placing blame on an entire community.
When I contacted WSDOT, I was essentially asking if the Uncle Sam billboard still qualified for the same advertising exemption it had used to shield itself in State v. Hamilton. No one at WSDOT seemed to have an answer.
After my first piece on the Uncle Sam billboard ran, WSDOT filed an official inquiry with the Attorney General’s Office.
I waited a month for an answer to my question. When the answer finally came, the only answer WSDOT would give was that “it’s covered by free speech.”
But that wasn’t the question that I had asked.
You see, State v. Hamilton established that the billboard was covered by free speech, under the state law, as long as it qualified for the advertising exemption — which is why the Hamiltons used that as the basis of their legal defense.
I was asking if the billboard still qualified for that exemption to the law, as the law was written.
WSDOT would not answer the question.
As a citizen, this was not a satisfactory answer to me. One could argue that WSDOT was potentially causing indirect harm to a municipality by not enforcing their own laws, nor answering questions as to why not. Why the stonewalling?
To better understand, I reached out to three professors of law at the University of Washington and one of the nation’s top billboard attorneys.
Essentially, it would appear that the State of Washington isn’t sure it can defend its own billboard laws anymore.
According to University of Washington Law Professor Hugh Spitzer, this area of the law “is in flux.” He also called billboard laws a “legal twilight zone.”
“It’s complicated and unpredictable from a state and federal constitutional standpoint,” said Spitzer.
Since the 1970s, several court cases have revealed a problem with state highway advertising control acts — the laws are not content neutral. They regulate the content of the sign, instead of the time, manner or placement of the signs.
For legislation to stand up in court, it has to be content neutral.
“Almost all laws, including Washington (state), are content based and are unconstitutional,” said Adam Webb, a billboard attorney based in Atlanta. “In 10 years, all 50 states will have new outdoor advertising laws.”
The federal government had incentivized passing highway advertising control legislation at the state level following the passing of Lady Bird Johnson’s “Highway Beautification Act” in 1965, allotting additional transportation dollars to states adhering to the new act.
So, all 50 states eventually passed billboard laws, and all 50 states have (or had) content-based billboard laws.
The view from my legal sources was basically unanimous. Recent court cases have essentially rendered Washington state billboard laws completely toothless.
“My reaction when I looked at the State v. Lotze and State v. Hamilton is that the U.S. Supreme Court probably has a different understanding of content discrimination now than it did in the 1970s,” said Bob Gomulkiewicz, a First Amendment law professor at UW. “Restricting political speech and allowing commercial speech really turns the First Amendment on its head.”
It’s an interesting look at the Uncle Sam billboard in context. Today, Washington state’s billboard laws likely wouldn’t stand in court. Articles in The Chronicle archives state that more than 8,000 billboards had been removed by the late 1970s — less than 20 of those became court cases.
In fact, State v. Hamilton might have been one of the earliest court cases to signal that there were potential problems with the state’s application of the laws.
“I thought the court in State vs. Hamilton was very clever in signaling that,” said Professor Gomulkiewicz.
And, the Uncle Sam billboard could be one of the last — if not the only — one of those original 20 cases still standing.
No matter what your stance on the political spectrum, completely irrespective of the content, you have to respect the legal victory that the Uncle Sam billboard ultimately won.
In that regard, the billboard will always be a landmark.
Brittany Voie is The Chronicle’s senior media developer. She welcomes correspondence from the community by email at firstname.lastname@example.org.