Baltimore’s biggest billboard advertiser could not overcome the city’s power to levy taxes with a First Amendment challenge.
BALTIMORE (CN) — Maryland’s highest court snuffed a legal battle Monday from Clear Channel, which painted Baltimore’s new tax ordinance on billboard advertising as an issue of free speech and freedom of the press.
Judge Robert N. McDonald wrote the 6-1 lead opinion for the Maryland Court of Appeals, holding that the “power to tax is a necessary and essential power of government.”
The dispute actually started almost a decade ago when Clear Channel filed suit in 2013 over the ordinance in federal court. That court sided with the city after finding it lacked jurisdiction over the matter.
While representatives for Clear Channel and Baltimore have yet to return requests for comment, the ruling notes that the media giant owned most of the 760 signs that the city had eyed for million-dollar revenue when it passed its billboard tax in 2013.
Clear Channel has been unsuccessful at every leg of the challenge, paying the tax under duress after its first effort was thrown out of federal court. When the city refused to grant it a refund of the taxes it paid through 2016, it endured subsequent defeats from the Maryland Tax Court, the Baltimore City Circuit Court and the Court of Special Appeals. It was represented in the latest appeal by Washington attorney Todd Gordon with Sidley Austin.
Judge McDonald noted Monday that Clear Channel’s equal protection challenge failed because the tax was evenly applied across mediums and didn’t impede the display of a message.
“The Ordinance in this case taxes all operators of off-site billboards in the city who sell advertising on those billboards and has no direct or indirect effect on the extent of the circulation of billboards,” he wrote. “The fact that it applies only to billboards, without more, is insufficient to deem it a tax that ‘singles out’ the press.”
Writing in dissent, Judge Joseph M. Getty argued that the constitutional issues implicated by the tax demand “more rigorous judicial scrutiny.”
“The messages displayed on billboards ‘are constantly before the eyes of observers on the street’ and can “be seen without the exercise of choice or volition,’ thus interjecting ideas into what is all too often a closed conversation,” Getty wrote, quoting the 1932 decision Packer Corp. v. Utah.
“The driver stuck in traffic or the pedestrian on the sidewalk cannot help but read the content their gaze finds on outdoor advertising,” Getty continued. “Such messaging has the potential to enliven public discourse or sell a car, but in either case, billboards contain communicative elements that entitle them to protection under the First Amendment.”