Portland's sign code, which restricts both signs and murals to 200 square feet, is catching hell—again.
But what's new in this go-round is that professional mural artist Joe Cotter has gotten to speak up for the muralist in the court battle between the City of Portland and sign giant Clear Channel. He hopes that ultimately will mean more murals in Portland because it puts muralists where they should be in the longtime fight: right in the mix.
"Our side is not peripheral," Cotter says. "It's actually essential to the whole analysis of the case."
But Cotter and all the parties in the latest court dispute involving Clear Channel know that nothing is easy when it comes to the long, tortured history of Portland's sign code.
That fight dates back to at least 1998 (see "When Billboards Attack," WW, June 21, 2000), when Clear Channel's predecessor, AK Media Group, sued the city over its sign code. The company contended then that the exemption of murals from sign regulations—limiting signs to 200 square feet for aesthetic reasons—was unconstitutional.
The courts agreed that the mural exemption violated free-speech rules, saying the exemption discriminated based on content. The city then worked to revise the code, with the ultimate result being that murals got lumped in with signs under the 200-square-foot limit (although existing large signs were "grandfathered in" at their current locations).
But in a three-week period between the court decision and City Council revising the code, Clear Channel applied for dozens of new large-sign permits. The city denied those permits, prompting Clear Channel to return to court in 1999, a process that spun back recently into the courtroom of Multnomah County Circuit Judge Michael H. Marcus. Last month, Marcus heard arguments over whether Clear Channel can keep the $499,417 he awarded it as compensation for the denied permits and be allowed to put up the mega-billboards it sought eight years ago.
With Cotter the only new voice, the same counsel for Clear Channel and the city found themselves back in Marcus' courtroom, occasionally laughing like old friends when someone became tongue-tied. Here's what the sign behemoth, the city and Cotter brought to the legal mÉnage À trois.
Clear Channel says:
* There is no alternative to billboards that can reach the same audience for the same price, which makes the sign code unconstitutional due to lack of "alternative avenues."
* During the three-week window in 1998 when the code was being revised after the courts found it unconstitutional, that lack of a code ought to have equaled an automatic rubber stamp for sign-permit applications
* Large billboards benefit the community since they're occasionally donated to charity.
The city says:
* Myriad forms of advertising, from newspaper to signs smaller than 200 square feet, constitute sufficient "alternative avenues."
* Though the code was in flux at the time of the applications, the criterion on which the permits were denied (size) was not altered during the revision.
* The sign code is unconstitutional because it "chills" speech. It is technically possible to put up a large mural in Portland, but no one is doing it because it is so difficult.
* It is possible to distinguish between art and commercial signs without infringing on the constitutional rights of advertisers.
In 2004, City Hall responded to complaints from muralists such as Cotter about the dearth of murals by creating a narrow and complicated process that involved the Regional Arts and Culture Commission and led to a few city-funded and -owned murals. But the only possibility for a large, privately owned mural currently requires a $1,400 nonrefundable application fee for an "adjustment process," or official bending of the rules.
Cotter claims that if artists had had a voice in the 1998 trial or the revision of the sign code that led to it, the mural privation of the past eight years could have been avoided.
He's working to have that voice now—the judge let Cotter cross-examine and call his own witnesses last month when Marcus said Cotter's perspective was relevant. Though the scope of this case is limited, Cotter believes it could help lead to more murals in Portland because he amassed a record of testimony from 18 witnesses, including artists, business owners, professors and experts on public art. He believes:
"Any First Amendment restrictions require a certain kind of scrutiny," says Cotter.
Closing arguments will be submitted to Judge Marcus in writing by Nov. 30.