March 23rd, 2007 5:33 pm | by Jason Simms News | Posted In: CLEAN UP, CLEAN UP

Writing (almost) on the wall for mural/billboard case

cotterWorking straight through the lunch hour to try to hasten the conclusion of what Judge Michael H. Marcus told his court Thursday is one of the longest-running cases in the building (nine years), Clear Channel, the City of Portland and local muralist Joe Cotter gave closing arguments today in Clear Channel's challenge to the city's sign code limiting the size of signs and murals to 200 square feet.

And arguments they were. Marcus interjected to play devil's advocate throughout the proceedings. The gist of Clear Channel's case is that limitations on the size of billboards constitute a violation of free speech because there do not exist “alternative avenues” of communication for reaching the same number of people for the same cost. Marcus pointed out that Clear Channel isn't actually doing any speaking: “The point of view of the speaker is different than the point of view of the vehicle, and you are the vehicle.”

Marcus also put Donald Joe Willis, Clear Channel's attorney, on the spot by asking if the existing 499 billboards in Portland weren't sufficient, and if there really was a need for alternative avenues. He aimed to point out that it isn't the job of the city to provide permits for all of the billboards anyone could desire, but merely adequate access to them. Then Clear Channel made the only argument that hit home for this reporter: “Let's say that to prevent litter the city passes a new ordinance and says to Willamette Week and the Tribune that it's OK to keep printing your newspapers, but there is now a three-page maximum.” Yikes.

Marcus wasn't as hard on the city's attorney, Tracy Pool Reeve, who argued that the fact that murals were at one point not included in the sign code didn't cause the plaintiff any damages (Clear Channel was awarded almost $500,000 on this basis three years ago). But technicalities surrounding the moment in which Clear Channel applied and was denied applications—during the revision of the sign code—cloud this issue.

As Cotter finished the day, Marcus found himself repeatedly asserting that he is a judge and not a legislator. Cotter persuaded Marcus to allow him to call witnesses and cross-examine them in the case, arguing that if muralists had had a say when the issue went to court in 1998, murals never would have gotten mixed up in the sign code in the first place. But Marcus does not have the power to strike the word “mural” from the code, although it appeared that he might do so given the power. Marcus said Cotter argued his point well, but that “this courthouse is a good place to deal with [the mural issue], but this case is not.” Marcus suggested a test case that would help to show that signs can be distinguished from murals based on the process that goes into creating them.

A ruling is expected later this spring.
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