Supreme Court of Ohio Clerk of Court - Filed December 18, 2020 - Case No. 2020-0931

IN THE OHIO SUPREME COURT

LAMAR ADVANTAGE GP COMPANY, Case No. 2020-0931 LLC, d.b.a. LAMAR ADVERTISING OF CINCINNATI, OH, On Appeal from the Hamilton County Court of Appeals, and First Appellate District

NORTON OUTDOOR ADVERTISING, INC., Court of Appeals Case No. C-180675 Plaintiffs-Appellants,

v.

CITY OF CINCINNATI, OHIO,

NICOLE LEE, TREASURER OF THE CITY OF CINCINNATI, OHIO,

ART DAHLBERG, DIRECTOR OF THE DEPARTMENT OF BUILDINGS AND INSPECTIONS FOR THE CITY OF CINCINNATI, OHIO,

and

REGINALD ZENO, FINANCE DIRECTOR FOR THE CITY OF CINCINNATI, OHIO,

Defendants -Appellees.

BRIEF OF AMICI CURIAE OUTDOOR ADVERTISING ASSOCIATION OF OHIO, THE OHIO ASSOCIATION OF BROADCASTERS, THE OHIO NEWS MEDIA ASSOCIATION, THE E.W. SCRIPPS COMPANY, BLOCK COMMUNICATIONS, INC. AND THE AUTHORS GUILD, INC. IN SUPPORT OF APPELLANTS, LAMAR ADVANTAGE GP COMPANY, LLC, D.B.A. LAMAR ADVERTISING OF CINCINNATI, OH AND NORTON OUTDOOR ADVERTISING, INC. John C. Greiner (0005551) R. Guy Taft (0021894) GRAYDON HEAD & RITCHEY LLP (Counsel of Record) 312 Walnut Street Stephen E. Schilling (0086897) Suite 1800 Strauss Troy Co., LPA Cincinnati, OH 45202 150 East Fourth Street, 4th Floor Ph: (513) 629-2734 Cincinnati, OH 45202-4018 Fax: (513) 651-3836 Telephone: (513) 621-2120 Email: [email protected] Facsimile: (513) 241-8259 Email: [email protected] Counsel for Amici Curiae Outdoor E-mail: [email protected] Advertising Association of Ohio, the Ohio Association of Broadcasters, the Ohio News Counsel for Plaintiff-Appellant Lamar Media Association, The E.W. Scripps Advantage GP Company, LLC Company, Block Communications, Inc. and The Authors Guild, Inc. Michael A. Galasso (0072470) (Counsel of Record) Virginia A. Seitz (Admitted Pro Hac Vice) Esther M. Norton (0072600) (Counsel of Record) Robbins, Kelly, Patterson & Tucker, Christopher S. Ross (0097459) LPA SIDLEY AUSTIN LLP 7 West Seventh Street, Suite 1400 1501 K Street N.W. Cincinnati, OH 45202-2417 Washington, DC 20005 Telephone: (513) 721-3330 Telephone: (202) 736-8000 Facsimile: (513) 721-5001 Facsimile: (202) 736-8711 Email: [email protected] E-mail: [email protected] [email protected] E-mail: [email protected] Counsel for Plaintiff-Appellant Norton Counsel for Amicus Curiae, Outdoor Outdoor Advertising, Inc. Advertising Association of America, Inc Andrew Garth (0088905) Deborah J. La Fetra (Admitted Pro Hac Vice) Interim City Solicitor (Counsel of Record) Marion E. Haynes, III (0080671) Pacific Legal Foundation (Counsel of Record) 930 G Street Kevin M. Tidd. (0080957) Sacramento, California 95814 801 Plum Street, City Hall, Rm. 214 Telephone: (916) 419-7111 Telephone: (513) 352-4894 Facsimile: (916) 419-7477 Fax: (513) 352-1515 Email: [email protected] E-mail: marion.haynes@cincinnati- oh.gov Counsel for Amicus Curiae, Pacific Legal E-mail: [email protected] Foundation Counsel for Defendants-Appellees TABLE OF CONTENTS

Table of Authorities ...... ii I. STATEMENT OF THE CASE AND FACTS ...... 1 II. STATEMENT OF IDENTITY AND INTEREST OF AMICI CURIAE ...... 1 III. A TAX TARGETED TO A SPECIFIC MEANS OF FIRST AMENDMENT EXPRESSION IS UNCONSTITUTIONAL...... 2 A. A “Content Neutral” Ordinance Can Be Subject to Strict Scrutiny...... 2 B. The Legislature’s Intent in Enacting the Regulation is Not Determinative...... 5 C. There is No Basis for a Finding that Billboards are Not Protected Speech...... 6 IV. CONCLUSION ...... 10

i TABLE OF AUTHORITIES

Page(s)

Cases

Brown v. Entertainment Merchants Assn., 564 U.S. 786 (2011) ...... 7

Century Fed., Inc. v. City of Palo Alto, 710 F. Supp. 1559 (N.D. Cal.1988) ...... 7, 9

City of Alameda v. Premier Commc’ns Network, Inc., 156 Cal. App. 3d 148 (Cal. Ct. App. 1984) ...... 7, 9

Grosjean v. American Press Co, 297 U.S. 233, 56 S. Ct. 444, 80 L. Ed. 660 (1936) ...... 2, 3, 5

Hawaii Newsp. Agency v. Bronster, 103 F.3d 742 (9th Cir. 1996) ...... 5

Inst. In Basic Youth Conflicts, Inc. v. State Bd. of Equalization, 213 Cal. Rptr. 98 (Cal. Ct. App. 1985) ...... 7

Lamar Advantage GP Co, LLC v. City of Cincinnati, 155 N.E.3d 245 (Ohio App. 1st Dist. 2020) ...... 6

M'Culloch v. State, 17 U.S. 316 (1819) ...... 10

Minneapolis Star & Tribune Co. v. Minnesota Com’r of Revenue 460 U.S. 575 (1983) ...... passim

News Am. Publ’g, Inc.v. FCC, 844 F.2d 800 (D.C. Cir. 1988) ...... 7

Okla. Broad.Ass’n v. Okla. Tax Comm’n, 789 P.2d 1312 (Okla. 1990) ...... 7

Police Dept. of City of Chicago v. Mosley, 408 U.S. 92 (1972) ...... 6

Reed v. Town of Gilbert, Ariz., 576 U.S. 155 (2015) ...... 5

Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105 (1991 ...... 7

Time Warner Cable, Inc. v. Hudson,

ii 667 F.3d 630 (5th Cir. 2012) ...... 7

United Artists Commc’ns, Inc. v. City of Montclair, 209 Cal. App. 3d 245 (Cal. Ct. App. 1989) ...... 7

Vt. Soc’y of Ass’n Execs. v. Milne, 172 Vt. 375, 388-89 (2001)...... 7

Statutes

Cincinnati Municipal Code Chapter 313 ...... 1

First Amendment to the U.S. Constitution...... passim

Other Authorities

Ashleigh M. Paige, Maryland Digital Ad Tax Bills Vetoed, RIA State & Local Tax Update, 2020 WL 2318812.………….………………….…………. 8

Jennifer W. Karpchuk & Ilya A. Lipin, Salt Trends in Taxing the Digital Economy, 30-NOV J. Multistate Tax'n 18, (2020).………...…………….….………………………… 8

Out of Home Advertising Association of America, History of OOH, (2020) https://oaaa.org/AboutOOH/OOHBasics/HistoryofOOH.aspx ...... 6

iii I. STATEMENT OF THE CASE AND FACTS

In June 2018, Cincinnati City Council enacted Ordinance No. 167-2018, which created an excise tax on billboards. The ordinance is embodied in Chapter 313 of the Cincinnati

Municipal Code (“CMC”). (See Appendix to Merit Brief of Lamar Advertising GP Company,

“Appx.” 69-84).

Appellants Lamar Advertising GP Company, LLC (“Lamar”) and Norton Outdoor

Advertising, Inc. (“Norton”) filed separate complaints against the city challenging the constitutionality of CMC Chapter 313. In their complaints, Appellants alleged that CMC

Chapter 313 was unconstitutional under the First Amendment, the Equal-Protection Clause, and the Commerce Clause.

The trial court ultimately issued a lengthy decision finding that CMC Chapter 313 violated the First Amendment. It entered an order granting in part Lamar’s and Norton’s requests for a permanent injunction and enjoined the city from enforcing CMC Chapter 313.

(Appx. 23-61).

The First District Court of Appeals concluded that that the tax was content neutral and did not single out a particular group of billboard operators to bear the burden. For that reason, it reversed the trial court’s decision on that portion of the Ordinance, and remanded the case for further proceedings. (Appx. 1-22).

II. STATEMENT OF IDENTITY AND INTEREST OF AMICI CURIAE

Amici curiae joining this brief are the Outdoor Advertising Association of Ohio, the Ohio

Association of Broadcasters, the Ohio News Media Association, the E.W. Scripps Company (the parent company of WCPO-TV in Cincinnati and WEWS-TV in Cleveland), Block

Communications, Inc. (the parent company of The Toledo Blade newspaper, television broadcast stations WLIO-TV and WOHL-CD in Lima, Buckeye Broadband, a cable television and internet

1 provider in Toledo, and Toledo Detroit Outdoor, an outdoor advertising company), and The

Authors Guild, Inc. (the nation’s oldest and largest professional organization for writers. Its over

10,000 members include novelists, 20 historians, journalists and poets, as well as literary agents and representatives of writers’ estates. The Guild advocates for authors on many issues, including free speech).

Amici curiae represent a broad array of content providers who use different means and methods for providing information to the public. These organizations recognize that a municipality’s ability to impose a tax targeted to a specific method of providing information offers an invitation to abuse that is contrary to the protections provided by the First Amendment to the United States Constitution. As such, amici curiae have an interest in seeing that this Court prohibits the imposition of such a tax.

III. A TAX TARGETED TO A SPECIFIC MEANS OF FIRST AMENDMENT EXPRESSION IS UNCONSTITUTIONAL.

The First District minimized the First Amendment infirmities of the Ordinance and in so doing, misapplied the law and the facts. There are three overarching issues presented by this appeal that have direct bearing on the First Amendment rights of the appellants, as well as on any media outlet in the state of Ohio.

A. A “Content Neutral” Ordinance Can Be Subject to Strict Scrutiny.

The City of Cincinnati (“the City”) appears to argue that, so long as the tax ordinance is

“content neutral” it is not subject to strict scrutiny under the First Amendment to the United

States Constitution. It argues essentially that, so long as the regulation is not triggered by the specific content of the message, the City is virtually unrestrained in its ability to regulate or tax it.

This is simply not the law. While in certain circumstances, “content neutral” regulations

2 are subject to a less demanding scrutiny, those circumstances don’t exist when the regulation targets a specific mode of expression. And that is precisely what the City is doing here.

In Grosjean v. American Press Co, 297 U.S. 233 (1936), the United States Supreme

Court, in invalidating a Louisiana tax imposed specifically on newspapers, magazines and other periodicals, noted that the First Amendment was enacted in part to prohibit such an “obnoxious” practice. Id. at 248. The Grosjean court noted, “Judge Cooley has laid down the test to be applied: ‘The evils to be prevented were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens.’ (citation omitted). It is not intended by anything we have said to suggest that the owners of newspapers are immune from any of the ordinary forms of taxation for support of the government. But this is not an ordinary form of tax, but one single in kind, with a long history of hostile misuse against the freedom of the press.” Id. at 250.

In Minneapolis Star & Tribune Co. v. Minnesota Com’r of Revenue 460 U.S. 575, (1983), the state of Minnesota imposed a “use tax” on the cost of paper and ink products consumed in the production of periodic publications. Although the Minnesota Supreme Court upheld the tax, the

United States Supreme Court ruled that the tax was unconstitutional. In commenting on

Grosjean, the Court noted, “[a]lthough the Court's opinion did not describe this history, it stated,

‘[The tax] is bad because, in the light of its history and of its present setting, it is seen to be a deliberate and calculated device in the guise of a tax to limit the circulation of information,’ (citation omitted), an explanation that suggests that the motivation of the legislature may have been significant.” Id. at 580. The Supreme Court distinguished the

Minneapolis case from Grosjean, and noted: “[i]n the case currently before us, however, there is

3 no legislative history and no indication, apart from the structure of the tax itself, of any impermissible or censorial motive on the part of the legislature.” Id.

The key question for the court was whether a tax that singled out rights protected by the

First Amendment could stand, regardless of the legislature’s motive in enacting it. And the

Court answered that question unequivocally: “A tax that burdens rights protected by the First

Amendment cannot stand unless the burden is necessary to achieve an overriding governmental interest.” Id. at 582.

And the Court was very clear in its description of the potential abuse: “That threat [of a targeted tax] can operate as effectively as a censor to check critical comment by the press, undercutting the basic assumption of our political system that the press will often serve as an important restraint on government.” Id. at 575. As the court noted, “even without actually imposing an extra burden on the press, the government might be able to achieve censorial effects, for “[t]he threat of sanctions may deter [the] exercise of [First Amendment] rights almost as potently as the actual application of sanctions.” Id. at 588 (quoting NAACP v. Button, 371

U.S. 415, 433 (1963)).

This does not mean that a newspaper or billboard company can never be taxed. Either could be subject to a generally applicable tax. But that fact illustrates the difference between a scheme of general taxation, and the specific tax levied here. As the Court noted, “A power to tax differentially, as opposed to a power to tax generally, gives a government a powerful weapon against the taxpayer selected. When the State imposes a generally applicable tax, there is little cause for concern. We need not fear that a government will destroy a selected group of taxpayers by burdensome taxation if it must impose the same burden on the rest of its constituency.

(citation omitted). When the State singles out the press, though, the political constraints that

4 prevent a legislature from passing crippling taxes of general applicability are weakened, and the threat of burdensome taxes becomes acute.” Id. at 585.

More recently, the United States Supreme Court rejected the notion that an ordinance is immune from strict scrutiny analysis so long as it is not enacted due to dissatisfaction with the content of the message. “Some facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny.” Reed v. Town of Gilbert, Ariz., 576 U.S.

155, 163-64 (2015).

The First District glossed over the critical point that the power to tax a subset of the population, based on its function, is a power to destroy that subset. And when, as here, that population subset engages in expressive conduct, any effort to tax is subject to First Amendment protection and strict scrutiny.

B. The Legislature’s Intent in Enacting the Regulation is Not Determinative.

While the City apparently does not intend to enact the tax as an act of retaliation or intimidation, this fact does not save the tax. Although some commentators believed that the ruling in Grosjean reflected only the Court’s concern that the Louisiana tax was motivated by

Governor Huey Long’s hostility to certain publications, Minneapolis Star established that ill intent was not a requirement for invalidating a tax targeted to a protected means of communication. As it noted, its ruling was not a function of the legislature’s intent. “Whatever the motive of the legislature in this case, we think that recognizing a power in the State not only to single out the press but also to tailor the tax so that it singles out a few members of the press presents such a potential for abuse that no interest suggested by Minnesota can justify the scheme.” (emphasis added). Id. at 591-592.

5 It is important to note that the Minneapolis Star case recognized two forms of unconstitutional discrimination: the tax was not a generally applicable tax but rather treated the press differently from other enterprises, or the tax targeted a small number of newspapers. Id. at

591; See Hawaii Newsp. Agency v. Bronster, 103 F.3d 742 (9th Cir. 1996). The City contends that since the tax does not single out a specific subset of outdoor advertisers, it is not subject to

Minneapolis Star. This is incorrect. Strict scrutiny applies in both cases. Here, the tax treats outdoor advertisers differently from other enterprises—this undisputed fact means that

Minneapolis Star applies here.

C. There is No Basis for a Finding that Billboards are Not Protected Speech.

Given the Minneapolis Star precedent, the only basis for upholding the tax would be a finding that billboards are not subject to First Amendment protection. Indeed, this is what the

First District posited in its decision, noting “differential taxation of the media is not constitutionally suspect if ‘justified by some special characteristic of the press.’(citation omitted). Billboard operators are different from more traditional press mediums like news organizations. Billboard operators themselves seldom display their own content, and news organizations generally publish their own content or viewpoints.” See Lamar Advantage GP Co,

LLC v. City of Cincinnati, 155 N.E.3d 245, 255 (Ohio App. 1st Dist. 2020).

The above quote represents the sum and substance of the First District’s analysis of this point. It essentially ruled that the law set out in Minneapolis Star does not apply to billboards because they are “different” from “more traditional press mediums.” 1 There is of course nothing

1 Billboards have a long tradition, dating back to ancient Egypt, where tall stone obelisks to publicize laws and treaties. See Out of Home Advertising Association of America, History of OOH, https://oaaa.org/AboutOOH/OOHBasics/HistoryofOOH.aspx. The first billboard lease was executed in 1867. Id. And since the early 1900’s billboard operators have donated space for public service advertising. Id.

6 in Minneapolis Star to suggest that it applies only to “traditional press mediums.” And indeed, the Supreme Court has consistently protected picketers and pamphleteers–who are not

“traditional” in any sense–from targeted regulation. See Police Dept. of City of Chicago v.

Mosley, 408 U.S. 92 (1972) and cases cited therein.2

And does the First District decision mean that more current non-traditional platforms – blogs, websites and podcasts, for example – are subject to targeted taxation because they are not

2 In addition, as evidenced in the following decisions, numerous courts have recognized that Minneapolis Star is not limited to the press or traditional media, but protects all businesses engaged in First Amendment activities. See, e.g., Time Warner Cable, Inc. v. Hudson, 667 F.3d 630, 640 (5th Cir. 2012) (applying Minneapolis Star and holding that a Texas law excluding a small group of incumbent cable service providers from terminating franchise agreements that other cable service providers were allowed to terminate violated the First Amendment); News Am. Publ’g, Inc.v. FCC, 844 F.2d 800, 815 (D.C. Cir. 1988) (applying Minneapolis Star and holding that a federal law prohibiting single broadcast media publisher from applying for FCC waivers violated the First Amendment); City of Alameda v. Premier Commc’ns Network, Inc., 156 Cal. App. 3d 148, 156-57 (Cal. Ct. App. 1984) (applying Minneapolis Star and holding that a city business tax that applied disproportionately to television subscription services violated the First Amendment); Okla. Broad.Ass’n v. Okla. Tax Comm’n, 789 P.2d 1312, 1316-17 (Okla. 1990) (applying Minneapolis Star and holding that an Oklahoma tax law that exempted print media but not broadcast media violated the First Amendment); Century Fed., Inc. v. City of Palo Alto, 710 F. Supp. 1559, 1580 (N.D. Cal.1988) (applying Minneapolis Star and holding that a franchise fee that applied to telephone companies seeking public easements but excluded other businesses violated the First Amendment); United Artists Commc’ns, Inc. v. City of Montclair, 209 Cal. App. 3d 245, 252 (Cal. Ct. App. 1989) (applying Minneapolis Star and holding that a city tax on admissions tickets that exempted many organizations and fell disproportionately on theaters and adult bookstores violated the First Amendment); Pitt News, 379 F.3d at 111 (holding that Minneapolis Star applies not only to taxation but also to other forms of disparate financial treatment, and that a Pennsylvania law prohibiting media associated with universities and colleges from running paid advertisements for alcohol distributors violated the First Amendment); Vt. Soc’y of Ass’n Execs. v. Milne, 172 Vt. 375,388-89 (2001) (applying Minneapolis Star and holding that a Vermont special tax on lobbying expenditures was an unconstitutional restriction on the First Amendment right to conduct political activities); Inst. In Basic Youth Conflicts, Inc. v. State Bd. of Equalization, 213 Cal. Rptr. 98, 1106 (Cal. Ct. App. 1985) (applying Minneapolis Star and holding that an occupation tax that was not generally- applicable but applied to religious non-profit selling literature violated the First Amendment); Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd.,502 U.S. 105, 120 (1991) (applying Minneapolis Star and holding a New York law requiring publishers to turn over all income derived from publishing an accused or convicted person’s depictions of their crimes violated the First Amendment).

7 sufficiently “traditional”? This is of course not the case. In Brown v. Entertainment Merchants

Assn., 564 U.S. 786, 790 (2011), an opinion holding that video games are protected by the First

Amendment, the Court noted “‘the basic principles of freedom of speech and the press, like the

First Amendment's command, do not vary’ when a new and different medium for communication appears.” (quoting Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503 (1952)).3

Moreover, to the extent the First District would justify its ruling on the reference in the

Minneapolis Star ruling to “some special characteristic of the press,” it identifies no “special characteristic” of billboards that would justify this targeted tax.

The only other justification for the First District’s conclusion that billboards are

“different” is its conclusion that “billboard operators themselves seldom display their own content.” There are several problems with this conclusion. First, it is not factually accurate. Billboard operators frequently post public service announcements that they themselves create. This is especially true with digital billboards, where a message can be posted almost instantly. Companies like Block Communications create the content that appears on billboards provided by its subsidiary Toledo Detroit Outdoor. And Lamar is instrumental in content creation and editing for its clients such as the Dragonfly Foundation.4

Second, nowhere does the Minneapolis Star opinion indicate that it applied only to those newspapers that exclusively created their own content. Indeed, newspapers publish much

3 First Amendment concerns also played a role earlier this year when the Governor of Maryland vetoed a proposed tax on digital advertising. See Ashleigh M. Paige, Maryland digital ad tax bills vetoed, 5/11/2020 RIA State & Local Tax Update, 2020 WL 2318812. Prior to the veto, commentators noted that the proposed tax would single out a subsection of speakers – digital advertisers – in a way that would violate the First Amendment, See Jennifer W. Karpchuk & Ilya A. Lipin, Salt Trends in Taxing the Digital Economy, 30 J. Multistate Tax'n 18, (2020). 4 See Jurisdictional Memorandum of Amicus Curiae Outdoor Advertising Association of Ohio, The Ohio Association of Broadcaster, The Ohio News Media Association, The E.W. Scripps Company and Block Communications in support of appellants, filed July 30, 2020.

8 content that the newspaper does not create. Syndicated columnists, comic strips, advertorials and third party opinion pieces are regular parts of a newspaper’s offerings. Television and radio stations frequently run content created by other companies, who are paid by the television stations and/or networks for that content. These television stations/networks are paid by advertisers, whose ads also run during the other content. Many blogs are curated – that is they collect third party content and aggregate it for niche audiences. The fact that billboards often feature advertisements does not alter the analysis. Newspapers, blogs and social media sites do as well. This cannot serve as a meaningful reason for not applying the Minneapolis Star holding here.

Moreover, case law does not support the notion that an entity must create its own content to avail itself of the protection of Minneapolis Star. The case of City of Alameda v. Premier

Communications Network, Inc., 156 Cal. App. 3d 148 (1984) illustrates the point. In that case, the City of Alameda, California imposed a business license tax of 3% of annual gross receipts upon “[e]very person conducting a television subscription service business.” Id. at 151. Premier

Communications Network successfully challenged the imposition of the tax. As the Court described it:

“Premier is a multipoint distribution service, headquartered in Burlingame, California, which operates under the name ‘Home Box Office.’ It receives signals transmitted from outside the state by satellite at a location in the City of Berkeley and retransmits those signals by microwave to its subscription customers in Bay Area cities, including the City of Alameda. Premier’s customers receive the microwave signals through an antenna leased from Premier for viewing via conventional television receivers. Premier provides programming, not otherwise available to television viewers, which includes recently released motion pictures, specially produced programs, sports events, and other entertainment and news programs.” Id. at 152.

It is clear from this description that Premier did not produce its own content, but simply served as a conduit for content created by others. But the California court held:

9 Under the teachings of Minneapolis Star, we find that the City’s business license tax on television subscription service businesses fails to pass constitutional muster as applied to Premier. The record before the trial court and us, consisting of the pleadings and pertinent portions of the City’s municipal code, unmistakably establishes that the challenged tax is differentially burdensome to television subscription service businesses, thus triggering an inquiry whether that burden is impermissible under the First Amendment. Id. at 155.

To the same effect is Century Federal, Inc. v. City of Palo Alto, 710 F. Supp. 1559, 1576

(N.D. Cal. 1988), where the court held that a targeted franchise fee imposed on a cable television operator, which simply provided access to programming created by third parties, was subject to the protection provided by Minneapolis Star. The notion that speakers must create their own content to receive First Amendment protection is belied not only by common sense, but by clear legal precedent.

IV. CONCLUSION

If the City of Cincinnati is free to impose a targeted tax on billboards, it is free to raise that tax to crippling levels. As Chief Justice John Marshall observed long ago in M'Culloch v.

State, 17 U.S. 316, 431 (1819), “the power to tax involves the power to destroy.” If this scheme may stand because the tax applies regardless of the content of the targeted platform, then every means of communication in this state is at risk. And if the only limitation on this broad ruling is that “traditional” media is exempt, then emerging non-traditional content providers in Ohio may soon confront that destructive taxing power being wielded by hundreds of cash-strapped municipalities. This scenario is precisely what the First Amendment guards against.

10 This Court should reverse the First District’s ruling.

Respectfully submitted,

/s/ John C. Greiner John C. Greiner (0005551) GRAYDON HEAD & RITCHEY LLP 312 Walnut Street, Suite 1800 Cincinnati, OH 45202 Phone: (513) 629-2734 Fax: (513) 651-3836 E-mail: [email protected]

Counsel for Amici Curiae Outdoor Advertising Association of Ohio, the Ohio Association of Broadcasters, the Ohio News Media Association, The E.W. Scripps Company, Block Communications, Inc. and The Authors Guild, Inc.

11 CERTIFICATE OF SERVICE

I certify that a true and accurate copy of the foregoing was served via electronic mail in accordance with S.Ct.Prac.R. 3.11(C)(1) upon the following counsel this 18th day of December 2020:

R. Guy Taft (0021894) 1501 K Street N.W. (Counsel of Record) Washington, DC 20005 Stephen E. Schilling (0086897) E-mail: [email protected] Strauss Troy Co., LPA E-mail: [email protected] 150 East Fourth Street, 4th Floor Counsel for Amicus Curiae, Outdoor Cincinnati, OH 45202-4018 Advertising Association of America, Inc. Telephone: (513) 621-2120 Facsimile: (513) 241-8259 Email: [email protected] E-mail: [email protected] Attorneys for Appellant Lamar

Michael A. Galasso (0072470) (Counsel of Record) Esther M. Norton (0072600) Robbins, Kelly, Patterson & Tucker, LPA Deborah J. La Fetra (Admitted Pro Hac 7 West Seventh Street, Suite 1400 Vice) Cincinnati, OH 45202-2417 (Counsel of Record) Telephone: (513) 721-3330 Pacific Legal Foundation Facsimile: (513) 721-5001 930 G Street Email: [email protected] Sacramento, California 95814 Email: [email protected] Telephone: (916) 419-7111 Attorneys for Appellant Norton Facsimile: (916) 419-7477 Email: [email protected] Virginia A. Seitz (Admitted Pro Hac Vice) Counsel for Amicus Curiae, Pacific Legal (Counsel of Record) Foundation Christopher S. Ross (0097459) SIDLEY AUSTIN LLP Andrew Garth (0088905)

12 Interim City Solicitor Telephone: (513) 352-4894 Marion E. Haynes, III (0080671) Fax: (513) 352-1515 (Counsel of Record) E-mail: [email protected] Kevin M. Tidd (0080957) E-mail: [email protected] 801 Plum Street, City Hall, Rm. 214 Attorneys for Appellees Cincinnati, OH 45202

/s/ John C. Greiner John C. Greiner (0005551)

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