SUPREME COURT OF GEORGIA

Case No. S24C0144

April 16, 2024

The Honorable Supreme Court met pursuant to adjournment. 

The following order was passed:

VICTORY MEDIA GROUP, LLC v. GEORGIA DEPARTMENT OF 

TRANSPORTATION

The Supreme Court today denied the petition for certiorari in 

this case.

All the Justices concur.

Court of Appeals Case No. A24D0007

SUPREME COURT OF THE STATE OF GEORGIA

Clerk’s Office, Atlanta

I certify that the above is a true extract from the

minutes of the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto

affixed the day and year last above written.

, Clerk
2

 PETERSON, Presiding Justice, concurring.

Plaintiff Victory Media Group LLC argues that the state law 

regulating billboards violates their right to free speech. The trial 

court ruled for the State without meaningfully addressing Victory 

Media’s free speech argument, and the Court of Appeals denied

Victory Media’s application for discretionary appeal. The State 

argues that our Court had resolved this claim in its favor 40 years 

ago. The State is wrong; our decision from 1984 could not and did 

not address Victory Media’s central argument, which focuses on 

later developments in the United States Supreme Court’s treatment 

of content-based speech restrictions. But this is not a proper case to 

consider those developments. Even if Victory Media’s legal 

arguments are correct, they still lose; the parts of the law that may 

violate the First Amendment are not the parts of the law that 

harmed Victory Media. Accordingly, I concur in the denial of the 

petition for a writ of certiorari, but write to flag this important issue 

for future litigants and courts.

This case centers on Victory Media’s attempt to obtain a 
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multiple message sign permit from the Department of 

Transportation. The Department approved Victory Media’s 

application but later revoked the permit because another sign, 

which was already established pursuant to a permit, was located 

less than 5,000 feet from the requested location for Victory Media’s 

multiple message sign. See OCGA § 32-6-75 (c) (1) (C) (“No . . . 

multiple message sign shall be placed within 5,000 feet of another 

multiple message sign on the same side of the highway[.]”). In 

appealing the Department’s decision, Victory Media challenges 

among other things the constitutionality of the Outdoor Advertising 

Control Act (“the Act”), which governs the permit application process 

for outdoor advertising signs. Victory Media contends the Act is 

unconstitutional because it imposes content-based restrictions on 

speech.1

1 For instance, Victory Media points to the Act’s direction that “[n]o 

outdoor advertising shall be erected or maintained within 660 feet of the 

nearest edge of the right of way and visible from the main traveled way of the 

interstate or primary highways in this state, except the following: (1) 

[d]irectional and other official signs and notices; (2) [s]igns advertising the sale 

or lease of the property upon which they are located; (3) [s]igns advertising 
4

In defense of the Act, the State relied below on our decision in 

DOT v. Shiflett, where this Court rejected a claim that the Act 

violated the right to free speech and held that it did “not violate the 

freedom of expression.”2 251 Ga. 873, 876 (1) (310 SE2d 509) (1984). 

Because the case involved commercial speech and we concluded that 

the Act indirectly controlled expression, we applied the four-part 

analysis from Central Hudson Gas v. Pub. Serv. Comm’n, 447 U.S. 

activities conducted or maintained within 100 feet of the nearest part of the 

activity . . . ; (4) [s]igns located in areas zoned commercial or industrial, which 

signs provide information in the specific interest of the traveling public; (5) 

[s]igns located in unzoned commercial or industrial areas, which signs provide 

information in the specific interest of the traveling public; and (6) [d]irectional 

signs, displays, and devices about goods and services in the specific interest of 

the traveling public[.]” See OCGA § 32-6-72. Appellant contends that the “Act 

further restricts permissible signs based on the type of message contained in 

the sign[,]” and in support Appellant points to the “spacing, location, and 

configuration requirements” and various exemptions in the Act. 

2 We did not specify whether the free speech claim was brought only 

under the U.S. Constitution or was also brought under a similar provision of 

the Georgia Constitution. Our analysis cited only federal caselaw decided 

under the First Amendment. Accordingly, I do not understand Shiflett to have 

decided anything about the Georgia Constitution’s speech protections, and note 

further that there’s ample reason to think those protections may be different 

from their federal equivalent. See, e.g., Maxim Cabaret, Inc. v. City of Sandy 

Springs, 304 Ga. 187, 196-197 (816 SE2d 31) (2018) (Peterson, J., concurring) 

(noting textual differences between federal and state provisions).
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557 (100 SCt 2343, 65 LE2d 341) (1980).3 See Shiflett, 251 Ga. at 

874-875 (1).

But the State’s reliance on Shiflett is misplaced. To begin, we 

did not consider there whether the Act contained content-based 

restrictions on speech, which United States Supreme Court 

precedent now makes clear is a critical consideration. See Nat. Inst. 

of Fam. and Life Advocs. v. Becerra (“NIFLA”), 585 U.S. 755, 766 (II) 

(A) (138 SCt 2361, 201 LE2d 835) (2018) (“When enforcing [the First 

Amendment’s] prohibition [on laws that abridge the freedom of 

speech], precedents distinguish between content-based and contentneutral regulations of speech.”).

“Content-based laws — those that target speech based on its 

communicative content — are presumptively unconstitutional and 

may be justified only if the government proves that they are 

3 That analysis considers whether (1) the commercial speech was 

misleading or concerned an unlawful activity, (2) the governmental interest 

was substantial, (3) the regulation directly advanced the government interest, 

and (4) the regulation was more extensive than necessary to serve that 

interest. See Shiflett, 251 Ga. at 874 (1); H&H Operations, Inc. v. City of 

Peachtree City, 248 Ga. 500, 502 (2) (283 SE2d 867) (1981) (striking down sign 

ordinance because we found “no substantial governmental interest in 

permitting commercial signs yet prohibiting the posting of prices”).
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narrowly tailored to serve compelling state interests.” Reed v. Town 

of Gilbert, 576 U.S. 155, 163 (II) (A) (135 SCt 2218, 192 LE2d 236) 

(2015). Strict scrutiny applies “when a law is content based on its 

face or when the purpose and justification for the law are content 

based[.]” Id. at 166 (II) (C) (1) (striking down content-based 

regulations of speech in sign code that failed to survive strict 

scrutiny); see also Alvarez, 567 U.S. at 724 (IV) (content-based 

restriction on speech failed to satisfy the “most exacting scrutiny”). 

“This stringent standard reflects the fundamental principle that 

governments have no power to restrict expression because of its 

message, its ideas, its subject matter, or its content.” NIFLA, 585 

U.S. at 766 (II) (A) (cleaned up; emphasis added).4 “Laws that are 

content neutral are instead subject to lesser scrutiny.” Reed, 576 U.S. 

4 In City of Austin v. Reagan National Advertising of Austin, LLC, the 

United States Supreme Court indicated that “restrictions on speech may 

require some evaluation of the speech and nonetheless remain content neutral” 

and held that a regulation’s distinction between on-premise and off-premise 

signs was content neutral because it did not turn on the substantive message 

of the sign. 596 U.S. 61, 72-74 (II) (B) (142 SCt 1464, 212 LE2d 418) (2022). 

But the statute here purports to distinguish permissible off-premise signs from 

impermissible off-premise signs based in part on content, which creates 

different issues than the ordinance at issue in City of Austin.
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at 172 (IV).

At the time that Shiflett was decided, it had “[o]nly recently . . 

. been recognized that commercial speech is afforded protection 

under the First Amendment.” Shiflett, 251 Ga. at 874 (1). See 

NIFLA, 585 U.S. at 767 (II) (B) (“professional speech” is not exempt 

from the normal prohibition on content-based restrictions); see also 

Sorrell v. IMS Health Inc., 564 U.S. 552, 566 (II) (A) (1) (131 SCt 

2653, 180 LE2d 544) (2011) (“[c]ommercial speech is no exception” 

to the general rule that content-based restrictions of speech warrant 

heightened judicial scrutiny). To satisfy its burden to justify that a 

content-based restriction on commercial speech is consistent with 

the First Amendment, the State must show “at least that the 

[burden] directly advances a substantial governmental interest and 

that the measure is drawn to achieve that interest.” Sorrell, 564 U.S. 

at 571-572 (II) (B). This standard requires a proportional fit 

“between the legislature’s ends and the means chosen to accomplish 

those ends.” Id. 

In the light of this precedent, this Court has since struck down 
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local sign ordinances that contained such content-based distinctions. 

See Fulton County v. Galberaith, 282 Ga. 314, 317-319 (3) (647 SE2d 

24) (2007) (affirming trial court’s ruling that sign ordinance that 

banned all signs, including commercial ones, but exempted signs 

from the ban on a case-by-case basis was the “the antithesis of the 

narrow tailoring that is required under the First Amendment, even 

in the context of commercial speech”); Union City Bd. of Zoning 

Appeals v. Justice Outdoor Displays, Inc., 266 Ga. 393, 394-398 (467 

SE2d 875) (1996) (striking down sign ordinances because they 

imposed content-based restrictions on speech). But we have yet to 

address whether the Outdoor Advertising Control Act contains such 

content-based restrictions, and that important question remains 

open in our precedent. See State v. Cafe Erotica, Inc., 270 Ga. 97, 97 

(507 SE2d 732) (1998) (resolving challenge to the Act under Central 

Hudson test without reaching whether the “legislation [was] 

content-based and therefore . . . subject to strict scrutiny”).

Victory Media points to provisions of the Act and regulations 

promulgated under the Act that may well be content-based. See, e.g., 
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OCGA § 32-6-71 (defining among other things categories of signs 

referenced in the Act); OCGA § 32-6-72 (limiting outdoor advertising 

visible from the main traveled way of the state’s interstate or 

primary highways to specific categories of signs); OCGA § 32-6-75 

(a) (establishing additional conditions associated with certain 

categories of permissible signs); Ga. Comp. R. & Regs., r. 672-6-.03 

(requiring a permit before the construction of certain categories of 

signs). But none of those provisions were actually enforced against 

Victory Media. Instead, Victory Media’s permit was revoked because 

OCGA § 32-6-75 (c) (1) (C) directs that “[n]o multiple message sign . 

. . be placed within 5,000 feet of another multiple message sign on 

the same side of the highway[,]” and the Department had already 

approved the permit of another multiple message sign located less 

than 5,000 feet from the location that Victory Media requested. 

Our caselaw requires a party challenging a state statute as 

unconstitutional to show that the unconstitutional provision 

harmed the party. See Parker v. Leeuwenburg, 300 Ga. 789, 790 (797 

SE2d 908) (2017) (“As a prerequisite to attacking the 
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constitutionality of a statute, the complaining party must show that 

it is hurtful to the attacker.”); Black Voters Matter Fund, Inc. v. 

Kemp, 313 Ga. 375, 393 (870 SE2d 430) (2022) (Peterson, J., 

concurring) (“One clear line of case law . . . holds that persons 

seeking to challenge a state statute as unconstitutional may do so 

only if that statute has injured them in some specific way.”).5 Victory 

Media has failed to make that showing, and so we cannot reach the 

open constitutional question they raise.

5 Victory Media did not challenge the Act on overbreadth grounds. See 

Bo Fancy Prods., Inc. v. Rabun County Bd. of Comm’rs, 267 Ga. 341, 344-345 

(2) (a) (478 SE2d 373) (1996) (adopting a “more relaxed standard of ‘standing’ 

applicable to a First Amendment challenge of an allegedly overbroad statute”).