Clear Channel Outdoor, Inc. v. Director, Department of Finance of Baltimore City

No. 9, September Term 2020

Taxation – Freedom of Speech – Billboards – Advertising. Local excise tax on the 

business of selling advertising space on billboards did not violate the constitutional 

provisions that protect freedom of speech and of the press.

United States Constitution, First Amendment; Maryland Declaration of Rights, Article 40.
Circuit Court for Baltimore City

Case No. 24-C-18-001778

Argument: November 6, 2020

IN THE COURT OF APPEALS

OF MARYLAND

No. 9

September Term, 2020

_____________________________________

CLEAR CHANNEL OUTDOOR, INC.

V.

DIRECTOR, DEPARTMENT OF FINANCE OF 

BALTIMORE CITY

_____________________________________

Barbera, C.J.,

McDonald

Watts

Hotten

Getty

Booth

Biran,

JJ.

______________________________________

Opinion by McDonald, J.

 Getty, J., dissents.

______________________________________

Filed: March 15, 2021
The power to tax is a necessary and essential power of government. Freedom of 

speech is a necessary and essential element of a democracy. Under the constitutional 

provisions that protect freedom of speech and of the press, differential taxation of those 

who operate platforms for speech is “constitutionally suspect when it threatens to suppress 

the expression of particular ideas or viewpoints.”1 Those constitutional provisions require 

“heightened scrutiny” of tax laws that “single out the press,” that “target a small group of 

speakers,” or that “discriminate on the basis of the content of taxpayer speech.”2 This case 

requires us to apply that test to a local tax on billboard operators.

A Baltimore City ordinance imposes a tax on the privilege of selling advertising on 

billboards that are not located on the premises where the goods or services being advertised 

are offered or sold. Petitioner Clear Channel Outdoor, Inc. (“Clear Channel”), which is in 

the business of selling advertising on its billboards in the City, sought a refund from the 

Respondent City Director of Finance of the taxes that it has paid pursuant to that ordinance. 

Clear Channel asserted that the ordinance is unconstitutional because a tax related to the 

sale of advertising on its billboards cannot survive the heightened scrutiny that is applied 

under the constitutional provisions that protect freedom of speech and of the press. The 

City denied the request for a refund and Clear Channel initiated this litigation by pursuing 

an administrative appeal of that decision in the Maryland Tax Court.

1 Leathers v. Medlock, 499 U.S. 439, 447 (1991).

2 Leathers, 449 U.S. at 447.
2

The Tax Court was not persuaded by Clear Channel’s constitutional arguments and 

upheld the City’s rejection of the refund request. On judicial review of the Tax Court 

decision, the Circuit Court for Baltimore City and the Court of Special Appeals reached 

the same conclusion. So do we.

I

Background

A. Baltimore City Enacts a Billboard Tax 

1. The Ordinance

In June 2013, the Baltimore City Council enacted an ordinance that imposed an 

excise tax “on the privilege of exhibiting outdoor advertising displays in the City.”

Ordinance 13-139 (June 20, 2013), codified as amended at Baltimore City Code, Article

28 (Taxes), §29-1 et seq. (2020) (“the Ordinance”).

3 The Ordinance defined an “outdoor 

advertising display” as:

[A]n outdoor display of a 10 square foot or larger image or message that 

directs attention to a business, commodity, service, event, or other activity 

that is: (i) sold, offered, or conducted somewhere other than on the premises 

on which the display is made; and (ii) sold, offered, or conducted on the 

premises only incidentally if at all. 

§29-1(d). The signs containing such displays are commonly referred to as billboards. 

However, as the definition indicates, the Ordinance does not encompass a sign that 

3 Unless otherwise indicated, statutory references are to sections of Article 28 of the 

Baltimore City Code.
3

advertises a business or other activity on the premises where the sign is located – i.e., the 

Ordinance applies only to off-site billboards.

The Ordinance levies the tax on the “advertising host” – defined as a person who 

owns or controls the billboard and charges for its use as an outdoor advertising display. 

§§29-1(b), 29-3.4 The tax is assessed annually based on the size and type of display: $15 

per square foot for an electronic display that changes images more than once a day5and $5 

per square foot for any other display. §29-3. The tax does not depend on the number of 

ads, the duration of an ad, or the subject matter of an ad. The advertiser who purchases an 

ad to be displayed on a billboard is not taxed under the Ordinance.

According to the City, the sole purpose of the Ordinance is to generate revenue. At 

the time of its passage, the City’s Bureau of Budget and Management Research estimated 

that the Ordinance would generate $1 million in tax revenue for the 2014 fiscal year and 

$1.7 million for each fiscal year thereafter. See Memorandum from the Bureau of Budget 

& Management Research to the President and Members of the Baltimore City Council 

(April 25, 2013), available at https://perma.cc/J7T9-KH6T. The Ordinance is part of the 

City’s Change to Grow Ten-Year Financial Plan and, according to the Bureau, was

“included in the plan to help protect arts and culture funding from further cuts.” Id.

4 While individuals and various types of entities are included in the definition of 

“person” in the ordinance, governmental entities are excluded. §29-1(e).

5 A digital billboard may change images frequently during a day and thus serve 

multiple advertisers in the same location during that day. A different City law limits the 

frequency of the alteration of images on a digital billboard. Baltimore City Code, Article 

32 (Zoning), §17-407(c). 
4

2. Billboards in Baltimore City

It is undisputed that the Ordinance affects 760 signs operated by four entities, 

including Clear Channel. It also appears to be undisputed that Clear Channel owns the vast 

majority of the affected billboards, which account for approximately 90% of the tax 

revenue generated by the Ordinance. The highly concentrated billboard market in the City

may be due, at least in part, to the fact that the City banned the construction of new 

billboards in March 2000.6 

While Clear Channel primarily displays content supplied by third parties who pay 

for the use of its billboards, it also occasionally displays its own content. Although the

billboards are largely devoted to commercial advertising, like other advertising platforms, 

some of the billboards also on occasion carry messages concerning sports and breaking 

news, as well as political messages and public service announcements, sometimes without 

charge. Like other advertising platforms, Clear Channel decides what it will allow to 

appear on its billboards as it allocates the limited space available. Testimony and exhibits 

presented in the Tax Court hearing touched upon the editorial discretion exercised by Clear 

Channel. Clear Channel prohibits some messages outright, such as those related to 

sexually-oriented businesses and those it deems factually inaccurate. According to Clear 

6 See Baltimore City Code, Article 32 (Zoning), §17-406(a)(1) (2020) (“Except as 

otherwise specifically provided in this Code, the erection, conversion, placement, or 

construction of new billboards, static or digital, is prohibited”); Jamie Stiehm, O’Malley 

Signs His First Bill into Law, Prohibits Construction of Billboards; Industry Has 

Threatened to Challenge Law in Court, The Baltimore Sun (Mar. 28, 2000), available at 

https://perma.cc/F8PB-3KYG.
5

Channel, it vets political messages for factual accuracy and ensures that no side of a

political issue or electoral race receives favorable pricing. 

B. Clear Channel Challenges the Tax

Shortly after the City enacted the Ordinance, Clear Channel sought to have it struck 

down as unconstitutional. An initial foray in federal court failed on jurisdictional grounds. 

Clear Channel then pursued a refund of taxes paid to the City under the Ordinance, citing 

the same constitutional grounds. That effort resulted in litigation in State courts, including 

this appeal.

1. Federal Declaratory Judgment Action Fails for Lack of Jurisdiction

In August 2013, Clear Channel brought an action challenging the Ordinance in 

federal court, arguing that the Ordinance impermissibly regulated commercial speech in 

violation of the First and Fourteenth Amendments of the United States Constitution. The 

City responded that, because the Ordinance imposes a tax, the Tax Injunction Act deprived 

the federal court of subject matter jurisdiction.

7

In December 2015, the federal district 

court agreed and granted summary judgment in favor of the City. Clear Channel Outdoor, 

Inc. v. Mayor and City Council of Baltimore, 153 F. Supp. 3d 865, 875 (D. Md. 2015). 

7 The Tax Injunction Act prohibits federal district courts from enjoining, 

suspending, or restraining “the assessment, levy or collection of any tax under State law 

where a plain, speedy and efficient remedy may be had in the courts of such State.” 28 

U.S.C. §1341 (2020).
6

2. Clear Channel Pays Taxes and Requests a Refund

Following the federal court decision, Clear Channel paid the tax due under the 

Ordinance for the 2014 and 2015 fiscal years under protest. It requested a refund from the 

City, reiterating its argument that the tax is unconstitutional under the First and Fourteenth 

Amendments, and also invoking Article 40 of the Maryland Declaration of Rights. The 

City denied Clear Channel’s refund request. It responded to Clear Channel’s arguments,

asserting that, because the Ordinance is a revenue-raising measure that satisfies rational 

basis review, it is constitutional. In July 2016, Clear Channel paid the tax due under the 

Ordinance for the 2016 fiscal year and again requested a refund – a request that was again 

rejected by the City. 

3. Maryland Tax Court Affirms Denial of Refund

Clear Channel pursued an administrative appeal of the City’s denial of its refund 

requests in the Maryland Tax Court. Again invoking the First Amendment and Article 40,

Clear Channel argued in the Tax Court that messages on billboards are constitutionally 

protected speech. It asserted that the tax imposed by the Ordinance targets a limited 

number of speakers, thereby chilling speech, and that the burden that the Ordinance places 

on such speech is not narrowly tailored and outweighs any governmental interest that the 

Ordinance advances. 

The Tax Court rejected Clear Channel’s arguments. It noted the “strong 

presumption in favor of duly enacted taxation schemes.” Clear Channel Outdoor, Inc. v. 

Department of Finance of Baltimore City, Appeal No. 16-MI-BA-0571 (February 27, 

2018), 2018 WL 1178952 at *2-3 (quoting Leathers v. Medlock, 499 U.S. 439, 451 (1991)). 
7

The Tax Court concluded that an excise tax imposed on the privilege of exhibiting outdoor 

advertising displays is “a tax on the privilege of continuing in business, not on exercising 

free speech.” Id. Indeed, the Tax Court continued, Clear Channel’s conduct as a billboard 

operator was insufficiently communicative for the First Amendment to come “into play,” 

because Clear Channel “does not express or say anything; it only sells space to advertisers 

who say things.” Id. The Tax Court concluded that the Ordinance does not “impose[] a 

burden on free speech” and is rationally related to the legitimate governmental purpose of 

raising revenue. Id.

The Tax Court also concluded that, although the burden of the tax falls only on Clear 

Channel and a few other billboard operators, the Ordinance does not target a limited 

number of speakers. According to the Tax Court, the criteria used to determine the amount 

of tax (size and type of billboard) did not raise a constitutional issue because those criteria

are unrelated to the extent of circulation and apply to all off-premises billboards. Id. The 

Tax Court stated that there was a rational basis for classifying large and immobile 

billboards separately from other signs for tax purposes. Id. The Tax Court further noted 

that the tax applies to a small group of billboard operators at least in part because of “the 

City’s long-standing zoning regulation controlling billboards and the concentrated 

marketplace in the City,” not the Ordinance’s structure. Id.

Based on this analysis, the Tax Court affirmed the City’s denial of Clear Channel’s 

refund requests. 
8

4. Judicial Review of the Tax Court Decision

Clear Channel sought judicial review of the Tax Court’s decision in the Circuit 

Court for Baltimore City. That court affirmed the Tax Court’s decision, reiterating much 

of the Tax Court’s analysis and concluding that the decision was legally correct and 

supported by substantial evidence. Clear Channel Outdoor, Inc. v. Department of Finance 

of Baltimore City, Case No. 24-C-18-001778 (October 24, 2018), 2018 WL 7890750.

Clear Channel then appealed to the Court of Special Appeals, which also affirmed the Tax 

Court in a reported decision. Clear Channel Outdoor, Inc. v. Director, Department of 

Finance of Baltimore City, 244 Md. App. 304 (2020). Clear Channel then filed a petition 

for a writ of certiorari, which we granted.

II

Discussion

Clear Channel asks us to reverse the decisions of the courts below and ultimately 

that of the Tax Court. It argues that the Ordinance violates the constitutional provisions 

that protect freedom of speech. It contends that a tax on a billboard advertising business is 

subject to “heightened scrutiny” under those constitutional provisions and that the 

Ordinance improperly targets a small group of speakers – billboard operators – in levying 

the tax. 

A. Standard of Appellate Review

The Tax Court is an administrative agency, and its decisions are reviewed under the 

same appellate standards generally applied to agency decisions under the Maryland

Administrative Procedure Act. Maryland Code, Tax-General Article, §13-532(a)(1). In 
9

an appeal from judicial review of an agency decision, we directly review the agency’s 

decision rather than the decision of a circuit court or of the Court of Special Appeals. Office 

of People’s Counsel v. Public Service Commission, 461 Md. 380, 391 (2018). Accordingly, 

we review directly the Tax Court’s decision and apply the same standard of review as those 

courts did.

When the Tax Court interprets Maryland tax law, we accord that agency a degree 

of deference as the agency that administers and interprets those statutes. Comptroller v. 

Wynne, 431 Md. 147, 160-61 (2013). In this case, the Tax Court decision turned on 

application and analysis of the First Amendment of the federal Constitution as well as 

Article 40 of the Maryland Declaration of Rights. Because our review concerns issues of

constitutional law, we do not defer to the agency’s determination of those issues. Wynne 

v. Comptroller, 469 Md. 62, 80 (2020).

B. Governing Principles under the State and Federal Constitutions

1. The First Amendment and Article 40

The First Amendment to the federal Constitution is made applicable to the states by 

the Fourteenth Amendment and, in relevant part, enjoins the enactment of laws “abridging 

the freedom of speech, or of the press.” Its Maryland counterpart, Article 40 of the 

Maryland Declaration of Rights, provides “[t]hat the liberty of the press ought to be 

inviolably preserved; that every citizen of the State ought to be allowed to speak, write and 

publish his sentiments on all subjects, being responsible for the abuse of that privilege.” 

Although the two constitutional provisions are worded differently and this Court has 

sometimes held out the possibility that Article 40 could be construed differently from the 
10

First Amendment in some circumstances, the Court has generally regarded the protections 

afforded by Article 40 as “coextensive” with those under the First Amendment. Newell v. 

Runnels, 407 Md. 578, 608 (2009); State v. Brookins, 380 Md. 345, 350 n.2 (2004). Neither 

party has suggested that the circumstances of this case provide a reason for departing from 

that general rule, and we see none. Accordingly, our analysis of Clear Channel’s 

contentions under the First Amendment applies equally to the same issues under Article 

40. For convenience, we will refer solely to the First Amendment in discussing the 

applicable standards in this opinion, but that discussion also encompasses the application 

of Article 40.

2. Standard for Review of Legislation under the First Amendment 

In its decision in this case, the Tax Court considered whether it should apply strict 

scrutiny, also called “heightened scrutiny,” or rational basis scrutiny to the Ordinance, and 

concluded that rational basis was the appropriate test. The heightened scrutiny standard is 

well established in the case law for situations in which legislation infringes First 

Amendment rights. See, e.g., Elrod v. Burns, 427 U.S. 347, 362 (1976). The source of a 

rational basis test in these circumstances is less clear as the judiciary does not have a 

freestanding general charge to review all legislation for rationality. A rational basis test 

does apply when a party challenges a classification in legislation under the Equal Protection 

Clause in circumstances where neither a fundamental right nor a suspect classification is 

involved. Regan v. Taxation with Representation, 461 U.S. 540, 546-51 (1983). Many

cases involving challenges to legislation under the First Amendment have also relied on 

the Equal Protection Clause, and the courts have applied a rational basis test after 
11

concluding that the heightened scrutiny test under the First Amendment was not applicable. 

Id.; see also Arkansas Writers’ Project v. Ragland, 481 U.S. 221, 227 n.3 (1987) (noting 

that a publication’s “First Amendment claims are obviously intertwined with interests 

arising under the Equal Protection Clause”). Although Clear Channel has not explicitly 

invoked the Equal Protection Clause in its complaint in this case, it is at least implicit in its 

argument that a tax triggered by the sale of advertising on off-site billboards treats it 

unequally. Thus, it was not inappropriate for the Tax Court to conclude that it should apply 

a rational basis test if heightened scrutiny under the First Amendment did not pertain to the 

matter at hand.

8

In any event, there does not appear to be any dispute that, if a rational basis test is 

applied, the Ordinance passes that test as a revenue raising measure that is clearly within 

the taxing authority of the City. Thus, the resolution of this case depends on whether the 

First Amendment’s heightened scrutiny standard is to be applied here and, if so, whether 

the Ordinance survives that scrutiny. 

3. Billboards and Speech

There is no dispute that billboards are a platform for speech and that the text or 

images that appear on billboards are entitled to some First Amendment protection. 

Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 501 (1981) (plurality opinion) 

8 Clear Channel has contended, without much elaboration, that, if heightened 

scrutiny does not apply, an intermediate scrutiny test should be applied. However, none of 

the cases concerning the taxation of speech platforms on which it relies applies such a test 

and, for the reasons stated later in this opinion, the cases it cites involving intermediate 

scrutiny do not apply in the circumstances of this case. See footnote 16 below.
12

(“Billboards are a well-established medium of communication, used to convey a broad 

range of different kinds of messages”); Donnelly Advertising Corp. of Maryland v. City of 

Baltimore, 279 Md. 660, 667 (1977) (ads on billboards are “entitled to some protection by 

the First Amendment, whether they be of a commercial, political, or charitable nature”). 

However, it is also true that billboards “combine communicative and noncommunicative 

aspects,” the latter of which “the government has legitimate interest in controlling.” 

Metromedia, 453 U.S. at 502. Because the regulation – or taxation – of the 

noncommunicative aspects of a medium may “impinge to some degree on the 

communicative aspects,” it has fallen to the courts to reconcile the exercise of those 

governmental powers with the protection provided by the First Amendment. Id.

4. Taxation and the First Amendment

a. Supreme Court Case Law

Taxation is, of course, essential to the support of government – a certainty 

sometimes equated to mortality.9 Unsurprisingly, perhaps, the Supreme Court has 

reiterated that, even in the context of the First Amendment, there is a strong presumption 

in favor of the validity of tax legislation. Leathers v. Medlock, 499 U.S. 439, 451 (1991); 

Regan v. Taxation with Representation, 461 U.S. 540, 547-48 (1983). Nevertheless, the 

choices that a legislature makes in devising a tax scheme may be a means of penalizing or 

discouraging speech and thereby violate the First Amendment. The Supreme Court has 

9 Benjamin Franklin is said to have coined the phrase “Nothing is certain except 

death and taxes.” National Constitution Center, Benjamin Franklin’s last great quote and 

the Constitution (November 13, 2019).
13

grappled in a series of cases with defining when a taxation scheme involving public media 

may infringe First Amendment rights. See Leathers, supra.; Arkansas Writers’ Project, 

Inc. v. Ragland, 481 U.S. 221 (1987); Minneapolis Star & Tribune Co. v. Minnesota 

Commissioner of Revenue, 460 U.S. 575 (1983); Grosjean v. American Press Co., 297 U.S. 

233 (1936). 

Grosjean

In Grosjean, Louisiana imposed a 2% gross receipts tax on the sale of advertising 

in newspapers, magazines and other publications with a circulation of more than 20,000 

copies per week. 297 U.S. at 240. Only 13 of the 137 newspapers circulating in Louisiana 

at that time were subject to the tax. Id. at 241. The publishers of the newspapers subject 

to the tax brought an action to enjoin it, invoking the First Amendment. 

In discerning the purpose of the First Amendment, the Supreme Court recounted a 

brief history of British taxes on newspapers that were effectively “taxes on knowledge” 

and that acted as a prior restraint on the free press, which the Court lauded as “one of the 

great interpreters between the government and the people.” Id. at 246-50. The Court 

observed that the opposition to such laws was not so much an effort to avoid taxation as to 

“preserve the right of the English people to full information in respect of the doings and 

misdoings of their government.” Id. at 247. On the other hand, the Court stated that the 

concern that a particular tax might be motivated to suppress criticism did not relieve 

newspapers from “ordinary forms of taxation for support of the government.” Id. at 250. 

In the case before it, the Court found the Louisiana tax to be “suspicious” as the tax 

was measured, not by the volume of advertising, but solely by the extent of the newspaper’s 
14

circulation, with the “plain purpose of penalizing the publishers and curtailing the 

circulation of a selected group of newspapers.” Id. at 251. Although not explicitly 

mentioned in the Court’s opinion, it was apparently well known at the time that the 

proponents of the measure had a retaliatory motive similar to that underlying the English 

tax legislation described in the Court’s opinion as part of the Framers’ inspiration for the 

First Amendment.10

Minneapolis Star

The Minneapolis Star decision concerned certain amendments to the Minnesota 

sales and use taxes. Prior to the amendments, periodic publications such as newspapers 

had been exempt from those taxes. 460 U.S. at 577. As a result of the amendments, the 

newspapers remained exempt from the sales tax, but ink and paper used in the publications 

were made subject to the use tax; a provision exempted the first $100,000 of those items 

consumed by a publication. Id. at 577-78. The end result was that only a small fraction of 

the newspapers circulating in Minnesota – 14 of 388 newspapers – were subject to the use 

tax and one publisher accounted for two-thirds of the revenues from the tax. Id. at 578-79. 

10 See City of Baltimore v. A.S. Abell Co., 218 Md. 273, 284-85 (1958) (noting that 

the tax under review in Grosjean was supported by Senator Huey Long as a form of 

retaliation against publications that had opposed his political agenda); Minneapolis Star & 

Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575, 579-80 (1983) (quoting a 

circular distributed by the Louisiana governor and Senator Long characterizing the 

publications subject to the tax as “lying newspapers” and the Louisiana tax as a “tax on 

lying”); see also Edward J. Gerald, The Press and the Constitution 1931-1947 at 100-01 

(1948).
15

The Supreme Court found that, although newspapers are appropriately subject to 

general economic regulation, including taxes, this application of the Minnesota sales and 

use taxes singled out the press for special treatment. 460 U.S. at 582. The Court observed 

that the use tax on paper and ink did not serve the normal function of a use tax – offsetting 

the incentive a sales tax creates for purchasing taxable items out-of-state – because the 

Minnesota tax applied to items (ink and paper) that were exempt from the sales tax. Id. at 

582. In addition, and contrary to the “ordinary rule” in Minnesota that only the ultimate 

retail sale and not intermediate transactions were taxed, this use tax applied to intermediate 

components even though they would ultimately become part of a publication sold at retail. 

Id. Moreover, the tax not only singled out the press, but targeted a small subset of the press

– those using paper and ink costing in excess of $100,000. The Court rejected Minnesota’s 

justification for this disparity – that it was favoring smaller businesses – because the state’s 

tax “resemble[d] more a penalty for a few of the largest newspapers than an attempt to 

favor struggling smaller enterprises.” Id. at 592. The Court stated that, even if the 

legislature had no “illicit” intent, “a tax that singles out the press, or that targets individual 

publications within the press, places a heavy burden on the State to justify its action.” Id. 

at 592-93.

Arkansas Writers’ Project

The Arkansas Writers’ Project decision concerned application of a gross receipts 

tax on the sale of tangible personal property in Arkansas. There were numerous 

exemptions from the tax, including for: “[g]ross receipts or gross proceeds derived from 

the sale of newspapers” and “religious, professional, trade and sports journals and/or 
16

publications printed and published within this State ... when sold through regular 

subscriptions.” 481 U.S. at 224. The Court struck down the tax on two grounds. First, as 

with the sales and use tax in Minneapolis Star, the exemptions from the Arkansas tax meant 

that the tax effectively targeted a small group of speakers – those magazines not 

encompassed in the exemptions. Id. at 229. Second, the tax discriminated based on content 

of a taxpayer’s speech because application of the magazine exemption depended on a 

review of the subject matter of the publication. Id. As to the latter rationale, the Court 

stated that it did not matter that the tax was based on the general subject matter of the 

publication, as opposed to the expression of a particular viewpoint on that subject matter. 

Id. at 230.

Leathers

In the Leathers decision, the Supreme Court reprised its prior discussions of the 

First Amendment in the context of tax laws affecting the media, but distinguished the 

operation of the tax in question from those that the Court had found to violate the First 

Amendment in Grosjean, Minneapolis Star, and Arkansas Writers’ Project. 

The Leathers case arose from an amendment that extended an Arkansas sales tax on 

sales of personal property and specified services to include the services of cable television 

operators. Sales of newspapers and magazines remained exempt from the tax, and the 

amendment did not extend the tax to satellite broadcast television services. 499 U.S. at 

441-43. The tax was challenged as violative of the First Amendment. The Court thus 

addressed the question “whether the First Amendment prevents a State from imposing its 

sales tax on only selected segments of the media.” Id. at 444. 
17

The Court summarized the principles it distilled from its prior decisions:

[D]ifferential taxation of First Amendment speakers is 

constitutionally suspect when it threatens to suppress the expression of 

particular ideas or viewpoints. Absent a compelling justification, the 

government may not exercise its taxing power to single out the press. The 

press plays a unique role as a check on government abuse, and a tax limited 

to the press raises concerns about censorship of critical information and 

opinion. A tax is also suspect if it targets a small group of speakers. Again, 

the fear is censorship of particular ideas or viewpoints. Finally, for reasons 

that are obvious, a tax will trigger heightened scrutiny under the First 

Amendment if it discriminates on the basis of the content of taxpayer speech.

499 U.S. at 447 (citations omitted).

11

 The Court also stressed that the inevitable 

classifications and distinctions made by legislatures in designing a tax statute are entitled 

to a strong presumption of constitutionality. Id. at 451-52.

As to the case before it, the Court observed that the Arkansas tax was generally 

applicable and did not single out the press; nor was it structured so as to raise suspicions 

that it was intended to interfere with a cable operator’s First Amendment activities. 449 

U.S. at 447-48. In contrast to the operation of the tax and exemption in Arkansas Writers’ 

Project – which effectively targeted a small group of magazines for the tax and exempted 

others – the tax at issue in Leathers applied uniformly to all cable systems in the state. Id. 

Finally, the Supreme Court concluded that the tax did not discriminate on the basis of the 

content of taxpayer speech. Id. at 449. The Court stressed that the underlying concern of 

the First Amendment is the potential for censorship of ideas. Thus, “differential taxation 

11 Although the Leathers opinion referred to the standard of review in such cases 

with the phrase “heightened scrutiny,” the Supreme Court later indicated that the standard 

was equivalent to that meant by the more familiar phrase “strict scrutiny.” See Turner 

Broadcasting System, Inc. v. FCC, 512 U.S. 622, 661 (1994).
18

of speakers, even members of the press, does not implicate the First Amendment unless the 

tax is directed at, or presents the danger of suppressing, particular ideas.” Id. at 453.12

b. Maryland Case Law

This Court has considered the constraints that the free speech provisions of the State 

and federal constitutions place on taxation of media on two occasions. Prior to most of the 

Supreme Court cases described in the previous section of this opinion, this Court 

considered a challenge to a Baltimore City ordinance that imposed a sales tax on the sale 

of advertising in various media, including billboards. City of Baltimore v. A.S. Abell Co., 

218 Md. 273 (1958). Several decades later, following all of the Supreme Court decisions 

described above, this Court applied the principles set forth in those cases to decide whether 

the exclusion of an advertising circular from the “newspaper exemption” to the State sales 

tax violated the First Amendment. Maryland Pennysaver Group, Inc. v. Comptroller, 323 

Md. 697 (1991).

A.S. Abell Co.

In A.S. Abell Co., two Baltimore City ordinances imposed a tax on the gross sales 

of advertising space and time in newspapers, radio and television broadcasts, and 

billboards. 218 Md. at 278. A regulation under those ordinances exempted most broadcast 

12 In the Arkansas state courts, the cable television operators had also contended that 

the tax, which did not apply to satellite television services, violated the Equal Protection

Clause of the Fourteenth Amendment. The Supreme Court left it to the Arkansas Supreme 

Court to address that issue on remand. 499 U.S. at 453. The state supreme court later held 

that the different treatment accorded to cable television and satellite television operators 

under the Arkansas law satisfied the rational basis test and did not violate the Equal 

Protection Clause. Medlock v. Leathers, 842 S.W.2d 428, 431 (Ark. 1992).
19

advertising from the tax – which this Court noted as a possible indication of “discrimination 

in a constitutional sense against the newspapers.” Id. at 280. The Court engaged in an

extended discussion of the Grosjean decision, the leading Supreme Court precedent at that 

time. Applying that decision to the situation before it, the Court observed that the 

Baltimore City tax was imposed on only a segment of the advertising industry – primarily 

newspapers and broadcasters – and “singled out” entities subject to the protection of the 

First Amendment. Id. at 287-88. The Court held that such a tax violated the free speech 

rights of the newspapers and broadcasters and effected just as serious a restraint upon First 

Amendment rights as one with an ulterior retaliatory motive, as apparently had been the 

case with the tax in Grosjean. Id. at 289. 

The Court did not classify billboards as equivalent to newspapers and broadcast 

media and did not reach the question whether a tax on billboard advertising revenue would 

violate the First Amendment. It assumed, without deciding, that the tax was constitutional 

as it related to billboard operators. Id. at 289. However, the Court concluded that the City 

would not have adopted the tax if the tax had applied only to billboard advertising and that 

therefore the provision concerning billboards was not severable. Id. at 289-90.13 

Accordingly, the Court struck down the tax as it related to billboard advertising as well.

13 The Court made a similar assumption as to the constitutionality of the tax as it 

applied to out-of-state purchasers of advertising and came to a similar conclusion as to 

severability of that application of the tax. 
20

Maryland Pennysaver

Several decades later and a few months after the Supreme Court’s decision in

Leathers, this Court had occasion to apply that decision in Maryland Pennysaver. That 

case involved a publication printed on newsprint and referred to as an advertising circular 

or “pennysaver.” The publication consisted largely of commercial ads purchased by 

businesses and classified ads purchased by individuals, but also included content labeled 

“Community News” consisting primarily of announcements of activities such as meetings, 

fundraisers and social events, as well as some columns on topics of local interest authored 

by public officials. 323 Md. at 699-700. The publisher sought to have the publication 

declared exempt from the State sales tax under a regulation known as the “newspaper 

exemption.” Alternatively, the publisher argued that exclusion of the pennysaver from that 

exemption would violate the First Amendment. Id. at 701.

This Court first determined that the pennysaver did not fall within the newspaper 

exemption as a matter of statutory and regulatory construction. 323 Md. at 701-11. It then 

assessed the constitutional question by reviewing the four Supreme Court decisions 

outlined in the previous section of this opinion and quoting extensively from Leathers. In 

concluding that application of the sales tax to the pennysaver was constitutional, the Court 

noted that the sales tax was broad-based, that other publishers with advertising targeted to 

localities were subject to the tax, and that it was not inappropriate to treat the pennysaver 

differently from a newspaper in light of the pennysaver’s “overwhelming commercial 

speech content.” Id. at 714-15. It concluded that there was “no threat to the dissemination 

of ideas” in treating a pennysaver differently from a newspaper and that there was no 
21

infringement of First Amendment rights.14 The Court also held that the exclusion of 

shopping advertisers from the definition of newspaper in the sales tax regulations was not 

unconstitutionally vague, at least as applied to the publication before the Court. Id. at 716-

17.

c. Summary

We discern the following principles from the decisions of the Supreme Court and 

this Court outlined above:

● The potential for censorship or prior restraint by the government was the 

animating concern of the First Amendment, particularly with respect to “the press” as the 

interpreter of the activities of the government to its citizens and with respect to a law that 

was effectively a “tax on knowledge.” However, to demonstrate infringement of First 

Amendment rights, it is not essential that a party show, or that a court find, that a legislature 

had an illicit intent in enacting a law that has such an effect. Grosjean; Minneapolis Star; 

A.S. Abell Co.

● Tax laws are presumed to be valid and constitutional, even in the context of 

a First Amendment challenge. The First Amendment does not exempt the press, or other 

speakers, from broad-based taxes. Grosjean; Leathers.

● A tax may not “single out the press” unless there is a compelling reason for 

doing so. Grosjean; Minneapolis Star; Leathers.

14 Even if the law was considered a restriction on speech in the pennysaver, the 

Court held that the tax was not a “restriction of constitutional dimension.” 323 Md. at 715.
22

● A tax that targets a small group of speakers among the press is suspect, 

particularly when that small group is defined by the content of its publication, even if not 

by the expression of a particular viewpoint. Grosjean; Minneapolis Star; Arkansas 

Writers’ Project; Leathers.

● Differential taxation of speakers is particularly suspect under the First 

Amendment when it discriminates on the basis of the content of speech and targets the 

expression of particular ideas or viewpoints. Grosjean; Arkansas Writers’ Project; 

Leathers.

C. Whether the Ordinance is Constitutional

Applying the principles outlined in the previous section of this opinion, we conclude 

that the First Amendment does not require heightened scrutiny of the Ordinance and that 

the Tax Court correctly concluded that the Ordinance is constitutional.

First, there is no dispute that the Ordinance is within the taxing power of the City,15

was properly enacted by the Mayor and City Council, and is entitled to the strong 

presumption of validity accorded to such enactments. 

As this Court did in Maryland Pennysaver, we look to the framework provided by 

Leathers. Leathers makes clear that a tax on selected segments of the media, like the tax 

15 The City has the “power to tax to the same extent as the State of Maryland has or 

could exercise said power within the limits of Baltimore City as a part of its general taxing 

power.” Baltimore City Charter, Article II, §40; Maryland Constitution, Article XI-A; see 

generally Department of Legislative Services, Maryland Handbook Series, Vol. VI 

(Maryland Local Government) at 108 (2018) (taxing authority of Baltimore City under 

State law established in Baltimore City Charter).
23

on billboards here, does not necessarily trigger heightened scrutiny16 or violate the First 

Amendment. Instead, differential taxation triggers heightened scrutiny “when it threatens 

to suppress the expression of particular ideas or viewpoints.” 499 U.S. at 447. The Tax 

Court made no finding of a retaliatory motive or potential for censorship such as that which 

inspired the tax law in Grosjean and the record would not support such a finding, if one 

had been made.17 There is no evidence that the Ordinance, in intent or effect, is designed 

to censor or exert a prior restraint on the press. Nothing in the legislative history of the 

16 Clear Channel argues that even if the Ordinance is not subject to strict scrutiny, it 

should be subject to intermediate scrutiny, citing Turner Broadcasting System, Inc. v. FCC, 

512 U.S. 622 (1994). Turner concerned a “must carry” regulation of the Federal 

Communications Commission (“FCC”) that required cable television systems to devote a 

portion of their channels to local broadcast television stations. In upholding the regulation, 

the Supreme Court applied an intermediate scrutiny test rather than heightened or strict 

scrutiny. Although the FCC regulation was content-neutral, it directly concerned what 

speech would appear on the cable stations, unlike the excise tax at issue in this case.

Likewise, the intermediate scrutiny applicable to commercial speech under Central 

Hudson Gas & Electric Corp. v. Public Service Comm’n, 447 U.S. 557 (1980) has no 

application here. Central Hudson concerned a state regulation that directly regulated 

commercial speech – it prohibited advertising by utilities that promoted the use of 

electricity. Accordingly, the four-part test created by that decision was addressed to how 

a regulation restricts content.

Even if an intermediate standard were to be applied, the Ordinance would satisfy 

that standard. Cf. Donnelly Advertising Corp. of Maryland v. City of Baltimore, 279 Md. 

660, 668-70 (1977) (applying intermediate scrutiny and rational basis tests in holding that 

ordinance requiring removal of all off-premises signs in urban renewal district did not 

violate First or Fourteenth Amendments).

17 Clear Channel suggests that an owner of a site leased for a billboard may be wary 

of messages critical of local officials and that, some years ago, City officials might have 

been unhappy about a billboard advertisement purchased by a public employees’ union that 

was critical of the City government at that time. Neither conjecture was linked to the 

Ordinance.
24

Ordinance suggests such an intent and, as outlined below, the tax imposed by the Ordinance 

has no relation to the content of the ads that might be displayed on Clear Channel’s 

billboards. The Ordinance does not regulate the size of a billboard, where it can be located, 

what it can say or who can say whatever it says. 

In the absence of a finding that the Ordinance was designed to suppress the 

expression of ideas or viewpoints, we consider the criteria identified in Leathers that may 

require heightened scrutiny: (1) whether the Ordinance “singles out the press”; (2) whether 

it “targets a small group of speakers”; and (3) whether it “discriminates on the basis of the 

content of taxpayer speech.” 499 U.S. at 447. Although Clear Channel primarily focused 

on the second Leathers criterion in the Tax Court and in its petition for certiorari in this 

case,18 it has asserted in brief and argument that all three apply. Accordingly, we shall 

address all three.

1. Whether the Ordinance Singles Out the Press

Although Clear Channel does not primarily urge a heightened scrutiny standard 

based on a theory that the Ordinance singles out the press, it does assert that off-site 

billboards are part of “the press.” This seems a bit of a stretch. The First Amendment 

18 In its petition for a writ of certiorari, Clear Channel posed the following two 

questions:

1 – Is the operation of billboards protected by the First Amendment, 

thereby subjecting its taxation to heightened scrutiny?

2 – Does the Tax single out a single platform for speech or a small 

group of speakers, thereby subjecting it to heightened scrutiny?
25

decisions invalidating taxes on which Clear Channel relies – Grosjean, Minneapolis Star, 

Arkansas Writers’ Project, and A.S. Abell Co. – all singled out newspapers, broadcasters, 

magazines, and other topical periodicals for special treatment – the sort of media that, in 

the words of the Grosjean decision, act as “interpreters of the government” to its citizens 

and that report on the “doings and misdoings” of government. 

Nevertheless, as methods of expression change, the First Amendment principles that 

protect speech adapt. For example, the Supreme Court noted that, upon the rise of cable 

television during the latter half of the 20th century, a cable television operator “partakes of 

some of the aspects of speech and the communication of ideas as do the traditional 

enterprises of newspaper and book publishers, public speakers, and pamphleteers.” City of 

Los Angeles v. Preferred Communications, 476 U.S. 488, 494 (1986). As a result, a cable 

television operator is thus “engaged in ‘speech’ under the First Amendment, and is, in 

much of its operation, part of the ‘press.’” Leathers, 499 U.S. at 444.19 Billboards have 

long displayed messages other than commercial advertising and the development of digital 

billboards creates the opportunity for a single billboard to display a greater number and 

variety of messages.

Even so, the billboards subject to the Ordinance are more akin to the advertising 

circular in Maryland Pennysaver which, although it devoted some space to editorial 

19 This Court has similarly recognized that freedom of the press is not necessarily 

limited to traditional media when the communication involves “such free and general 

discussion of public matters as seems essential to prepare people for an intelligent exercise 

of their rights as citizens.” Howard Sports Daily v. Weller, 179 Md. 355, 361 (1941).
26

content, was primarily a medium for advertising. While Clear Channel exercises some 

discretion in deciding how to allocate the scarce space on its billboards to its best 

advantage, it does not claim to be a newsgathering organization that curates what it 

disseminates according to journalistic principles. It is more accurately described as a 

commercial advertising vehicle that dabbles in non-commercial content, paid and unpaid. 

The fact that a billboard may function on occasion or in some measure like the 

traditional “press” does not make it equivalent to a newspaper or broadcaster for purposes 

of the First Amendment. Unlike traditional media that fall within the rubric of “the press,”

billboards could be limited or banned entirely – as Baltimore City has done prospectively 

– under the land use laws for esthetic and safety reasons without offending the First 

Amendment.20 See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 512, 541, 559-

61, 570 (1981); Major Media of the Southeast, Inc. v. City of Raleigh, 792 F.2d 1269, 1272 

(4thCir. 1986).

Clear Channel’s billboards thus may qualify as a medium that in some small aspect 

functions similarly to what is traditionally referred to as “the press.” However, even from 

that perspective, the Ordinance can hardly be said to “single out” the press. A tax singles 

out the press when some aspect of it indicates “a purposeful attempt to interfere with First 

Amendment activities” or it “is structured so as to raise suspicions that it was intended to 

20 A billboard operator may be of two minds about this. While such regulation could 

portend the demise of the operator’s business, it also – as in the case of Clear Channel’s 

Baltimore City billboard business – erects a barrier to entry that fortifies the market power 

of a dominant incumbent operator.
27

do so.” Leathers, 499 U.S. at 448. The tax in Grosjean singled out widely circulated 

newspapers and had the “direct tendency” to “restrict circulation.” 297 U.S. at 244-45. 

The Supreme Court found this effect similar to the early English “taxes on knowledge” that 

curtailed the circulation of newspapers and thus “the opportunity for, the acquisition of 

knowledge by the people in respect of ... the doings or misdoings of their government”

that the framers of the First Amendment had in mind. Id. at 247. The key in Grosjean was 

not simply that the tax was assessed on an element of the press, but that it singled out those 

that most acted as government watchdogs. Similarly, the tax in Minneapolis Star “single[d] 

out the press for a different method of taxation” under the otherwise broad-based use tax 

by taxing components of newspaper production (ink and paper) for the largest newspapers 

in the state and thus had the effect of “a penalty for a few of the largest newspapers.” 460 

U.S. at 578. 

By contrast, 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. The fact that it applies only to billboards, without 

more, is insufficient to deem it a tax that “singles out” the press. As in Leathers, there is 

no indication that the City has taxed billboard operators to interfere with First Amendment 

activities or that the tax is structured to raise suspicion that it was intended to do so.

2. Whether the Ordinance Targets a Small Group of Speakers

To determine whether the Ordinance targets a small group of speakers, one must 

first decide how to define the appropriate reference group. “Small,” of course, is a word 

of comparison. If the relevant universe is defined as all entities subject to a tax, then the 
28

tax is universal. If the relevant reference group is defined to include many besides those 

subject to the tax, then the taxed group is by comparison “small.” 

Unsurprisingly, the parties choose different reference groups to assess this question. 

Clear Channel argues that the Ordinance targets a small group of speakers because it 

applies to 760 billboards controlled by four entities, but not the many other outdoor 

commercial signs in the City or the many other businesses in the City. The City limits its 

comparison to off-site billboards. 

It is instructive to consider the taxes in Grosjean, Minneapolis Star, and Arkansas 

Writers’ Project, the groups of speakers affected by those taxes, and the benchmark group 

referenced in each of those cases by the Supreme Court. As indicated in Leathers, the 

design of the taxes in each of those cases affected a smaller group within a larger universe 

of similar members of the same media. The tax in Grosjean singled out higher circulation 

newspapers but left many more newspapers with lower circulation untaxed. The tax in 

Minneapolis Star fell on newspapers that consumed more paper and ink – which 

presumably correlated to higher circulation – but left the many more newspapers that

consumed less of those components untaxed. As the Court observed in Leathers, both of 

those taxes “selected a narrow group to bear fully the burden of the tax.” 499 U.S. at 449. 

Similarly, the tax in Arkansas Writers’ Project exempted newspapers and numerous 

categories of magazines and left only a few magazines subject to the tax, which “operated 

in much the same way as did the ... exemption in Minneapolis Star.” Id. at 446. 

Given that the test is whether a law “targets” a small group of “speakers,” implying 

that there are other speakers who are not targeted, the appropriate reference group should 
29

include similarly-situated members of the same medium. Thus, the principle drawn from

these cases is that a tax targets a small group of speakers when it distinguishes among 

members within related types of media, not simply when it applies to a specific form of 

media. 

It is over-inclusive to group off-premises billboards with all other commercial signs

for purposes of this analysis. Billboards have characteristics as a medium that can warrant 

separate treatment from other signs. See Metromedia, 453 U.S. at 509 (“We [] hesitate to 

disagree with the accumulated, common-sense judgments of local lawmakers and of the 

many reviewing courts that billboards are real and substantial hazards to traffic safety.”). 

Moreover, to hold that any tax on a particular form of media – or group of entities that 

could be characterized as “speakers” – automatically qualifies as targeting a small group 

of speakers would inject the First Amendment as a new uniformity requirement for tax 

legislation that would encumber a legislature’s legitimate and important ability to tax.21 

The Ordinance applies to all off-site billboards in the City for which the operator 

charges customers for displaying the customer’s advertising. It does not distinguish among

billboards according to any other factor, such as the duration or extent of speech (e.g., the 

circulation of a newspaper) or its subject matter. The fact that there are only four taxpayers 

21 See Herman v. Mayor and City Council of Baltimore, 189 Md. 191, 197 (1947) 

(“The State ... may impose different taxes upon different trades and professions and may 

vary the rates of excise upon various products. In levying such taxes, the State is not 

required to resort to close distinction or to maintain a precise, scientific uniformity with 

respect to composition, use, or value. To hold otherwise would be to subject the essential 

taxing power of the State to an intolerable supervision, hostile to the basic principles of our 

government.”). 
30

affected by the Ordinance is due largely to market conditions, not the structure of the 

Ordinance. As noted above, the City banned the construction of new billboards 20 years 

ago, which has effectively barred new entrants from challenging Clear Channel’s near 

monopoly of the medium. 

In our view, the Ordinance does not trigger heightened scrutiny under the First 

Amendment by targeting a small group of speakers.

3. Whether the Ordinance Discriminates Based on Content

As noted earlier, the tax imposed by the Ordinance does not depend on what 

messages are displayed on a billboard, who a message is attributed to, or how long any

particular message is displayed. Unlike the tax in Arkansas Writers’ Project, even the 

general content of the message does not matter. What matters is whether Clear Channel 

charges the person or entity responsible for the message to display it on the billboard. If 

Clear Channel devoted a billboard entirely to its own message or to a message of someone 

else without charge, no tax would be levied under the Ordinance, regardless of the 

substance of the message. It is the commercial transaction, not the content of the message,

that triggers the tax.

Clear Channel argues that the Ordinance discriminates on the basis of the content 

of taxpayer speech because it applies only to off-premises billboards, and one must read a 

billboard in order to determine whether it qualifies as an off-premises or on-premises sign. 

It cites the Supreme Court’s recent decision in Reed v. Town of Gilbert, 576 U.S. 155, 163 

(2015), which held that content-based restrictions on speech in signs could manifest both 
31

in obvious ways, such as by relating to the subject matter of a sign, and in more subtle 

ways, such as by relating to a sign’s function or purpose. 

The decision in Reed did not hold that an on-premises/off-premises distinction – a 

common distinction made in the regulation of billboards – was a content-based regulation 

that would trigger heightened scrutiny under the First Amendment. The sign regulation at 

issue in Reed was content-based on its face for other reasons. 576 U.S. at 164. Notably, 

while all nine justices joined in the judgment in that case, there were four separate opinions 

filed in the case. Of the six justices who joined the primary opinion in the case, three also 

joined Justice Alito’s concurrence, which listed types of sign regulation that are not

content-based. Included on that list were sign regulations “distinguishing between onpremises and off-premises signs.” Id. at 174-75 (Alito, J., concurring). Justice Kagan’s 

opinion, joined by two other justices, cautioned against an overly expansive definition of 

content-based sign regulation and, it seems safe to say, would likewise not find an onpremises/off-premises distinction in sign regulation to trigger strict scrutiny. See id. at 

179-85 (Kagan, J., concurring).22 

22 As noted in the text, the Reed decision did not involve the regulation or taxation 

of off-premises billboards. Clear Channel primarily relies on a Sixth Circuit decision that 

extrapolated the holding in Reed. That case concerned a Tennessee sign law that prohibited 

signage within a certain distance of a public roadway, but exempted from that prohibition 

signs “located on the same premises as the activity or property advertised.” Thomas v. 

Bright, 937 F.3d 721, 725 (6th Cir. 2019), cert. denied, 141 S.Ct. 194 (2020). The Sixth 

Circuit concluded that the Tennessee law was not content neutral because it required 

“Tennessee officials to assess the meaning and purpose of the sign’s message in order to 

determine if the sign violated the Act.” Id. at 730-33; see also Reagan National Advertising 

v. City of Austin, 972 F.3d 696 (5th Cir. 2020), petition for cert. filed, No. 20-1029 (Jan. 
32

We join the many courts and commentators who have concluded that, even after the 

Reed decision, a distinction between on-premises signs and off-premises signs in a 

regulatory or tax law does not discriminate on the basis of content and therefore does not 

trigger heightened scrutiny under the First Amendment. See, e.g., Adams Outdoor 

Advertising LP v. Pennsylvania Department of Transportation, 930 F.3d 199, 207 n.1 (3d 

Cir. 2019) (noting that Reed’s concurring opinions by Justices Alito and Kagan, “which 

received a total of six votes, both indicated that on-premise sign regulations are content 

neutral” and that strict scrutiny would not apply to billboard regulation merely because 

they exempted on-premise signs); Geft Outdoor LLC v. Consolidated City of Indianapolis 

& County of Marion, 187 F.Supp.3d 1002, 1017 n.2 (S.D. Ind. 2016) (noting that “at least 

six Justices continue to believe that regulations that distinguish between on-site and offsite signs are not content based and therefore do not trigger strict scrutiny”); Citizens for 

Free Speech, LLC v. County of Alameda, 114 F.Supp.3d 952, 968-71 (N.D. Cal. 2015) 

(noting that “onsite/offsite” distinctions are “content-neutral under the First Amendment’s 

28, 2021) (holding that sign code prohibiting digitization of off-premises signs was 

content-based).

The Thomas decision affirmed a similar holding in the federal district court that has 

been characterized as an “outlier” in terms of its assessment of Reed and the onpremises/off-premises distinction. Note, Free Speech Doctrine After Reed v. Town of 

Gilbert, 129 Harv. L. Rev. 1981, 1993 (2016). Moreover, the Sixth Circuit limited the 

breadth of its decision, noting that “[t]here might be many formulations of an on/offpremises distinction that are content-neutral, but the one before us is not one of them.” 

Thomas, 937 F.3d at 733. The Tennessee law at issue directed officials to determine a 

sign’s “purpose” and enumerated criteria to determine whether that purpose made it an on 

or off-premises sign. Id. at 725-26. The Ordinance in this case does not contain similar 

directions or criteria concerning the purpose or subject matter of a billboard.
33

free speech clause,” even after Reed); see also Note, Free Speech Doctrine After Reed v. 

Town of Gilbert, 129 Harv. L. Rev. 1981, 1993 n.82 (2016) (“regulations distinguishing 

between on-premises and off-premises signs should probably be treated as content-neutral 

regulations of place as the very same sign is treated differently only because of the location 

in which it is placed”); S.L. Trevarthen & A.M. Hapner, The True Impact of Reed v. Town 

of Gilbert on Sign Regulation, 49 Stetson L. Rev. 509, 533-34 (2020) (concluding that local 

government may continue to regulate or prohibit off-premise billboards after Reed); cf. 

Lone Star Security & Video, Inc. v. City of Los Angeles, 827 F.3d 1192, 1200 (9th Cir. 

2016) (holding that a city ordinance that distinguished between billboards that “advertise” 

and all others “refers to the activity of displaying a message to the public, not to any 

particular content” and was constitutional under Reed).

4. Summary

An ordinance imposing a tax related to the sale of advertising on billboards is 

indisputably within the City’s taxing power and, under First Amendment precedent, is 

entitled to a strong presumption of constitutionality. Differential taxation of media is 

subject to heightened scrutiny under the First Amendment when a tax suppresses or 

threatens to suppress particular ideas or viewpoints by (1) singling out the press, (2) 

targeting a small group of speakers, or (3) discriminating on the basis of the content of 

taxpayer speech. The Ordinance at issue in this case does not do so and thus is not subject 
34

to heightened scrutiny under the First Amendment.23 The Ordinance clearly survives the 

application of a rational basis test and, accordingly, is constitutional.

III

Conclusion

For the reasons set forth above, we hold that the Ordinance does not violate the First 

Amendment to the federal Constitution or Article 40 of the Maryland Declaration of 

Rights. The Tax Court properly upheld the City’s decision to deny Clear Channel’s 

requests for tax refunds.

JUDGMENT OF THE COURT OF SPECIAL 

APPEALS AFFIRMED. COSTS TO BE PAID BY THE 

PETITIONER.

23 Notably, the courts that have considered First Amendment challenges to excise 

taxes based on the sale of advertising on off-premises billboards have reached the same 

conclusion. See Lamar Advantage GP Co., LLC v. City of Cincinnati, 155 N.E.3d 245 

(Ohio Ct. App. 2020), appeal allowed, 154 N.E.3d 98 (Oct. 13, 2020); Adams Outdoor 

Advertising, Ltd. v. Borough of Stroudsburg, 667 A.2d 21 (Pa. Commw. Ct. 1995), appeal 

denied, 676 A.2d 1201 (May 30, 1996); see also Free Speech, LLC v. City of Philadelphia, 

884 A.2d 966 (Pa. Commw. Ct. 2005) (affirming denial of preliminary injunction in First 

Amendment challenge to billboard advertising excise tax on ground that challenger had 

not shown likelihood of success on the merits).
Circuit Court for Baltimore City

Case No. 24-C-18-001778

Argument: November 6, 2020

IN THE COURT OF APPEALS

OF MARYLAND

No. 9

September Term, 2020

CLEAR CHANNEL OUTDOOR, INC.

V.

DIRECTOR, DEPARTMENT OF FINANCE OF 

BALTIMORE CITY

 Barbera, C.J.,

 McDonald

 Watts

 Hotten

 Getty

 Booth

 Biran

 JJ.

 Dissenting Opinion by Getty, J.

Filed: March 15, 2021
[I]t is said, that a right to tax, in this case, implies a right 

to destroy; that it is impossible to draw the line of 

discrimination between a tax fairly laid for the purposes 

of revenue, and one imposed for the purpose of 

prohibition. 

Chief Justice John Marshall

McCulloch v. Maryland, 17 U.S. 316, 376 (1819).

I respectfully dissent from the Majority’s conclusion that Baltimore City’s (“the 

City”) excise tax (“the Ordinance”) “on the privilege of exhibiting outdoor advertising 

displays in the city” must only satisfy the low threshold of rational basis review. Balt. City 

Code, art. 28 § 29-2; see Maj. Slip Op. at 33–34. The City’s tax raises constitutional 

concerns that should prompt more rigorous judicial scrutiny. Departing from my 

colleague’s concise and well-written analysis, I instead believe that billboards are a 

constitutionally protected medium of communication and, thus, any legislation potentially 

affecting the “speech” from this platform implicates free expression concerns. 

As Chief Justice John Marshall explained 200 years ago, the “line of discrimination”

is difficult to discern. McCulloch, 17 U.S. at 376. The Tax Court concluded that an excise 

tax imposed on the privilege of exhibiting outdoor advertising displays is “a tax on the 

privilege of continuing in business, not on exercising free speech.” Clear Channel 

Outdoor, Inc. v. Dep’t of Fin. of Balt. City, Appeal No. 16-MI-BA-0571 (Feb. 27, 2018), 

2018 WL 1178952 at *3; see Maj. Slip Op. at 6–7. But how does one distinguish between 

the “privilege” of being in the business of speech and the speech itself? 

The Tax Court’s decision assumes that the act of leasing billboard space does not 

contain sufficient communicative elements to implicate the First Amendment. 
2

However, allowing a tax on the “privilege” of maintaining a speech platform necessary to 

convey speech that falls within the ambit of the First Amendment is an attempt to draw a 

line that runs contrary to prior Supreme Court precedent. If the needle can be thread so 

that the “privilege” of being in the speech business is taxable, yet the speech is not, may 

local governments, or the state, impose a tax specific to operating radio stations, or printing 

newspapers, just for the “privilege” of owning that speech platform? To what extent can a 

municipality tax a provider of speech by distinguishing the speech platform needed for 

them to convey the speech from the speech that is being disseminated? And why is this 

“privilege” defined as being outside the bounds of First Amendment protection?1 

The Tax Court also assumed, and the Majority agrees, that the Ordinance does not 

“impose[] a burden on free speech.” Clear Channel Outdoor, 2018 WL 1178952 at *3; 

see Maj. Slip Op. at 33. Instead, I think we can assume that billboard providers like Clear 

Channel will pass the costs of this tax on to their customers—who are providing the speech. 

The logic of the Tax Court confusingly, and improperly, creates a blurry distinction 

between being in the business of conveying speech and the content of the speech that is 

actually conveyed. 

1

If billboards are not considered speech platforms protected by the First Amendment, what 

is to stop state regulations on the types of messaging or speakers utilizing the medium? 

Certain political campaigns and candidates may lose a valuable means to interject their 

messaging into the marketplace of ideas. If outdoor advertising is protected by the First 

Amendment, but legislatures may impose taxes that are not generally applicable but 

focused on a singular medium, are more traditional, sacred vehicles of free expression next 

in line for governmental revenue raising measures?
3

In light of this foggy logic in demarcating a standard, I would find that the Ordinance 

is not “generally applicable.” Instead, the Ordinance applies solely to one class of speech 

platforms—“outdoor advertising displays”—which ratchets our review to a higher bar of 

scrutiny. The Ordinance’s application to off-premises, but not on-premises, signage further 

winnows the tax’s focus and presents a potential content-based distinction that is blatantly 

contrary to the First Amendment. Deferring to the City’s broad power to tax cannot wash 

away these concerns. For this tax to be constitutionally permissible, it must meet a more 

onerous standard of heightened scrutiny. 

This Court must acknowledge the potential for a tax to adversely affect paramount 

constitutional rights, even if that is not the intent of the legislative body, here the city 

council, in enacting the tax. Indeed, the city council need not intend to burden free speech 

by limiting speakers and ideas in the marketplace for its enactments to cause that result. 

The First Amendment protects against both intentional and unintentional burdens on free 

speech, which can only be achieved by scrutinizing the tax under a heightened burden of 

review.

A. Any Regulation of Billboards Inherently Implicates Free Expression Concerns, 

Prompting Heightened Scrutiny.

Billboards have both physical properties, subject to regulations similar to other 

structures, and communicative elements that enjoy First Amendment protection. 

Accordingly, any regulation of billboards inherently implicates free expression concerns, 

prompting heightened scrutiny. The combination of physical construction and 

communicative expression form the definitional elements of a “billboard.” 
4

See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 522–24 (1981) (Brennan, J., 

concurring). The City’s zoning code recognizes this dual identity, defining “billboards”

by their physical location and their intended communicative purpose. See Balt. City Code, 

art. 32 § 1-303(g) (“‘Billboard’ means any sign that directs attention[.]”). Further, 

billboards are a “well-established medium of communication, used to convey a broad range 

of different kinds of messages.” Metromedia, 453 U.S. at 501 (plurality opinion).

This Court’s decision in Maryland Pennysaver is distinguishable from the 

Ordinance here. Maryland Pennysaver Grp., Inc. v. Comptroller, 323 Md. 697 (1991). 

Notably, the retail sales tax examined by the Court in that case was extraordinarily broad 

and applied to mostly everyone, except for newspapers. This is fundamentally different 

than a tax that targets one industry or speaker. Moreover, in finding that the pennysaver 

publication did not fall within the “newspaper exception,” the Court distinguished the 

pennysaver because of its “overwhelming commercial speech content.” Id. at 714–15. As 

explained in Metromedia, the speech disseminated on billboards varies and encompasses a 

wide-ranging variety of messages. 453 U.S. at 501 (plurality opinion). The commercial 

speech disseminated in the pennysaver and considered by this Court, which consisted 

almost entirely of advertisements,2 has considerable differences to the breadth of speech 

disseminated on billboards.

2 The Court in Maryland Pennysaver viewed four illustrative pennysavers in the record 

extract, totaling 249 pages. 323 Md. at 699–70. Within those 249 pages, the Court noted 

that three half-pages were devoted to columns written by politicians serving around 

Maryland. In viewing the May 18, 1983, Kent Island/Grasonville pennysaver, the Court 

noted that it contained two-and-a-half-pages of “Community News,” which “consist[ed]

primarily of announcements of activities, such as meetings, fundraisers, and social events 
5

In evaluating the constitutionality of the Ordinance, this Court should not overlook 

the role billboards serve in the local media landscape, their ability to provide alternative 

means of communication, and the public interest the tax may serve compared to the public 

interest it may hinder if access to this form of messaging is limited by the tax’s economic 

burden. See Metromedia, 453 U.S. at 557–58 (Burger, J., dissenting) (“The uniqueness of 

the medium, the availability of alternative means of communication, and the public interest 

the regulation serves are important factors to be weighed[.]”).

Billboards hold a unique position within local media, offering a platform for both 

advertisement and speech that contributes to the public interest. As Clear Channel, amicus 

curiae, and the record highlight, billboards convey a broad array of messages, from 

commercial speech advertising products, services, and attractions, to public information 

delivering news, political speech, and public awareness campaigns. See Metromedia, 453 

U.S. at 501 (plurality opinion) (citation omitted). 

Local and national voices alike gravitate towards the medium, as the comparatively 

low cost of outdoor advertising provides an affordable option for ideas and speakers to 

enter the public discourse. See Dan Rodricks, Mikulski’s Plea for Billboards, Balt. Sun 

(Nov. 1, 1991), https://www.baltimoresun.com/news/bs-xpm-1991-11-01-1991305147-

story.html [https://perma.cc/HWF4-MTQA] (quoting former United States Senator 

Barbara Mikulski on her use of billboards in political campaigns: “I know that billboards 

. . . .” Id. at 699. The Court also noted that the pennysaver included two pages each 

containing a chapter of a “serialized Western novel” that was available for purchase from 

the publisher. Id.
6

play an important role in political campaigns. . . . I did not have big radio, big TV, but I 

sure had big billboards”). Campaigns expressing controversial, nontraditional, or 

marginalized views often utilize billboards as speech platforms. In all, billboards are an 

accessible medium that the non-incumbent may use to challenge the status quo. 

In our modern technology-driven society, billboards are also a medium that expands 

the marketplace of ideas in a world where consumers frequently seek information from a 

concentrated bubble of sources. See, e.g., Amanda Hess, How to Escape Your Political 

Bubble for a Clearer View, N.Y. Times (Mar. 3, 2017), 

https://www.nytimes.com/2017/03/03/arts/the-battle-over-your-political-bubble.html

[https://perma.cc/HW6N-3X3L]. To this end, much has been made of our fractured media 

and how such polarization affects what speech reaches different audiences. For example, 

the ability to seek out information and ideas in the echo chamber of social media shows the 

arduous task of introducing new information and ideas to an audience rapt by a 

concentrated mass of digital sources. See, e.g., Steven L. Johnson, Brent Kitchens, & Peter 

Gray, Facebook Serves as an Echo Chamber, Especially for Conservatives. Blame Its

Algorithm, Wash. Post (Oct. 26, 2020), 

https://www.washingtonpost.com/opinions/2020/10/26/facebook-algorithm-conservativeliberal-extremes/ [https://perma.cc/4H2V-9BSP]. Yet, billboards reach a plethora of 

audiences and inject speech into the marketplace of ideas without regard for the preferences 

of the viewer. 

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 
7

interjecting ideas into what is all too often a closed conversation. Packer Corp. v. Utah, 

285 U.S. 105, 110 (1932). The driver stuck in traffic or the pedestrian on the sidewalk 

cannot help but read the content their gaze finds on outdoor advertising. 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.

Inevitably any regulation of billboards will touch on the medium’s communicative 

elements. See Metromedia, 453 U.S. at 502–03 (plurality opinion). Those First 

Amendment concerns must be assessed. Id. (quoting Linmark Assocs., Inc. v. Willingboro, 

431 U.S. 85, 91 (1977)) (“[A] court may not escape the task of assessing the First 

Amendment interest at stake and weighing it against the public interest allegedly served by 

the regulation.”). Even if the Ordinance is an excise tax on the “privilege” of conducting 

Clear Channel’s business, when that business is the dissemination of messaging, the tax 

inherently implicates the First Amendment. See Clear Channel Outdoor, Inc. v. Dir., Dep’t 

of Fin. of Balt. City, 244 Md. App. 304, 314–15 (2020).

Speech is protected even if it occurs on a platform that is sold for profit. See Virginia 

State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761–62 

(1976) (“[W]e may assume that the advertiser’s interest is a purely economic one. That 

hardly disqualifies him from protection under the First Amendment.”). Commercial speech 
8

clearly falls within the First Amendment’s protective cloak.3 Central Hudson Gas & Elec. 

Corp. v. Public Serv. Comm’n, 447 U.S. 557, 562–63 (1980). A tax on the sale of display 

space on outdoor advertising implicates both these constitutional concerns.

By not extending traditional First Amendment protections to outdoor advertisers,

we defy the Supreme Court’s evolving understanding of who and what may count as 

“media” or “speech,” and thus how constitutional concerns with both have broadened. See 

Citizens United v. Fed. Elec. Comm’n, 558 U.S. 310, 352 (2010) (recognizing the blurred 

line between traditional media and other platforms that may provide social and political 

commentary alongside advancements of technology and rejecting the proposition that the 

former inherently enjoys constitutional protections greater than the latter). Though rapid 

advancements in communications technology may have hastened this “freedom of the 

press” pluralism, the Supreme Court’s extension of First Amendment protections to “every 

sort of publication which affords a vehicle of information and opinion” is long standing. 

Lovell v. Griffin, 303 U.S. 444, 451–52 (1938) (“The liberty of the press is not confined to 

newspapers and periodicals.”). 

3 The Supreme Court adopted a four-part test to determine the validity of restrictions on 

commercial speech, distinguishing the process from its analysis of “fully protected 

speech”:

(1) The First Amendment protects commercial speech only if that speech concerns 

lawful activity and is not misleading. A restriction on otherwise protected 

commercial speech is valid only if it (2) seeks to implement a substantial 

governmental interest, (3) directly advances that interest, and (4) reaches no further 

than necessary to accomplish the given objective.

Metromedia, 453 U.S. at 507 (1981) (plurality opinion) (citing Central Hudson Gas & 

Elec. Corp., 447 U.S. at 563–66).
9

A tax on billboard display space imposes an incidental burden on speech, thus its 

constitutionality must be evaluated, at the least, under an intermediate level of scrutiny. 

See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 661–62 (1994). Taxing an outdoor 

advertiser’s display space is akin to taxing the ink and paper used by newspapers; both 

taxes target a medium’s means of communication, and thus “impose[] some ‘burden’” on 

speech. See Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 

575, 577–78, 583 (1983). Imposing a tax on the revenue generated from the sale of outdoor 

advertising space indirectly implicates the ability to speak because these additional costs 

inevitably will be passed through to customers seeking to utilize this platform. 

Because of these incidental First Amendment concerns, the Ordinance’s burden on 

speech must be no greater than is essential to further the alleged government interest. See, 

e.g., Turner Broad. Sys., 512 U.S. at 662; Members of City Council of L.A. v. Taxpayers 

for Vincent, 466 U.S. 789, 805 (1984). Taxation of billboards is not per se unconstitutional, 

but like other billboard regulations, it must be shown to further an important government 

interest while infringing upon free expression no further than required to achieve this 

interest. See Metromedia, 453 U.S. at 502–03 (plurality opinion); Donnelly Advert. Corp. 

v. City of Balt., 279 Md. 660, 668–69 (1977). Using this standard, this case should be 

remanded to the Tax Court where the Ordinance must be analyzed against a heightened 

burden of at least intermediate scrutiny, as a court should evaluate any such regulation on 

billboards.

In arguing against applying to the tax a heightened burden of scrutiny, much was 

made, both in the City’s brief and at oral argument, of the potentially “absurd result” of a 
10

hypothetical situation in which the City may heavily regulate or even ban the location or 

construction of billboards, yet not so easily tax these platforms. This is a misguided 

dismissal of a court appropriately applying the intermediate scrutiny warranted by the First 

Amendment implications present in either hypothetical regulation. There is nothing 

“absurd” about such jurisprudence. 

As “large, immobile, and permanent structures,” billboards are subject to regulation 

“like other structures.” Metromedia, 453 U.S. at 502 (plurality opinion) (citation omitted). 

Such regulation stems from the state’s police powers, often embodied in a municipality’s 

zoning code. See Donnelly Advert. Corp., 279 Md. at 671; see also Balt. City Code, art. 

32 § 17-406. But both the Supreme Court and this Court acknowledge that these 

regulations affect a billboard’s communicative aspects as well. Challenges to such laws 

demand an accounting of such First Amendment concerns through heightened scrutiny. 

See Metromedia, 453 U.S. at 502 (plurality opinion); Donnelly Advert. Corp., 279 Md. at 

668–69. 

For either regulation to be upheld—the hypothetical zoning law or a tax like the one 

we assess sub judice—it must (i) derive from a constitutionally recognized power of the 

government, (ii) further a substantial or important government interest (iii) that is 

“unrelated to the suppression of free expression,” and (iv) the “incidental restriction” on 

First Amendment rights must be “no greater than is essential” to further the government’s 

interest. Taxpayers for Vincent, 466 U.S. at 805 (quoting United States v. O’Brien, 391 

U.S. 367, 377 (1968)). Both this Court’s and the Supreme Court’s precedent show that

zoning regulations often fulfill these mandates. See Metromedia, 453 U.S. at 509 (plurality 
11

opinion) (stating legislative concerns about traffic hazards caused by billboards presented 

legitimate interest unrelated to suppressing speech and doing so as necessary to achieve 

this end); Donnelly Advert. Corp., 279 Md. at 669, 671 (holding city’s police power 

extended to phase-out period for billboards as part of larger “urban renewal projects” that 

represented “an important government interest . . . unrelated to the suppression of free 

expression and no greater than essential”). 

If the billboard tax falls to this heightened standard, but a zoning law prevails, it is 

not an “absurd result.” It is the court appropriately fulfilling its role of evaluating the 

constitutionality of such a law within the context of how that law burdens the First 

Amendment. See generally Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is 

emphatically the province and duty of the judicial department to say what the law is. Those 

who apply the rule to particular cases, must of necessity expound and interpret that rule.”). 

Such an evaluation should utilize a standard of scrutiny more rigorous than rational review. 

This Court should respect its own precedent, and that of the Supreme Court, and apply a

heightened level of scrutiny to laws affecting billboards.4 See, e.g., Taxpayers for Vincent, 

446 U.S. at 805; Donnelly Advert. Corp., 279 Md. at 668–69.

4 Using the standard set by the Supreme Court for regulation that produces an indirect 

burden on free speech, intermediate scrutiny is the appropriate heightened burden to apply. 

See Taxpayers for Vincent, 466 U.S. at 804–05 (1984); Donnelly Advert. Corp., 279 Md. 

at 671.
12

B. The Ordinance Is Not Generally Applicable and Applies a Tax to One Class of 

Speakers Utilizing One Medium, Therefore Warranting Heightened Scrutiny.

The Ordinance is not generally applicable, but instead applies a tax to one class of 

speakers utilizing one medium—such taxes targeted at media platforms warrant heightened 

scrutiny. “It is beyond dispute” that media entities are subject to “generally applicable 

economic regulations without creating constitutional problems.” Minneapolis Star & 

Tribune, 460 U.S. at 581. But it is beyond the pale for the government to impose such 

economic regulations upon just the media or certain speakers therein. See Arcara v. Cloud

Books, Inc., 478 U.S. 697, 704 (1986) (citing Minneapolis Star & Tribune, 460 U.S. at 

582–83) (“We imposed a greater burden of justification on the State even though the tax 

was imposed upon a nonexpressive activity, since the burden of the tax inevitably fell 

disproportionately—in fact, almost exclusively—upon the shoulders of newspapers[.]”).

The Ordinance is just such a selectively applied tax. See Minneapolis Star & 

Tribune, 460 U.S. at 585. It is not “generally applicable.” Leathers vs. Medlock, 499 U.S. 

439, 447 (1991) (“[A] State may impose on the [media] a generally applicable tax”).5 

5 The City asserts that Leathers controls the Court’s assessment of such taxes selectively 

applied to certain media. See Maj. Slip Op. at 22–23, 27; Leathers, 499 U.S. at 453. But 

Baltimore’s Ordinance may be distinguished from the sales tax in Leathers in meaningful 

ways. Leathers concerned a “generally applicable” sales tax affecting the gross receipts of 

cable companies while otherwise exempting traditional members of “the press.” See 499 

U.S. at 441–42. The City relies too heavily on the Leathers Court’s affirmation that a 

general tax may apply to the media, in whole or in part. See id. at 450–53. The Ordinance 

was never a general tax which exempted certain media but not billboards. It specifically 

applies only to billboards. See Balt. City Code, art. 28 § 29-2. At best for the City’s 

position, the Ordinance is more akin to must-carry provisions that apply only to cable 

companies and were thus reviewed under intermediate scrutiny. Turner Broad. Sys., 512 

U.S. at 662–63.
13

The tax is “single in kind” in that it applies solely to billboards as a medium. See Grosjean

v. Am. Press Co., 297 U.S. 233, 250 (1936); see also Balt. City Code, art. 28 §§ 29-1(d), 

29-2. In so doing, it takes aim at a specific sub-segment of constitutionally protected 

speakers. By “appl[ying] only to a single constituency,” the Ordinance potentially 

insulates itself from larger political accountability. Leathers, 499 U.S. at 445–46. This 

narrow focus can operate like a censorial cudgel. See Minneapolis Star & Tribune, 460 

U.S. at 585. Even if the government’s intention is not to censor speech, such may be the 

effect when the extra burden of not otherwise general taxes is applied. See id. at 585, 588. 

No malicious legislative intent to curb speech need be found to prompt these constitutional 

concerns. See id. at 592 (“Illicit legislative intent is not the sine qua non of a violation of 

the First Amendment.”). This differential taxation “places such a burden on the interests 

protected by the First Amendment that we cannot countenance this treatment unless the 

State asserts a counterbalancing interest of compelling importance that it cannot achieve 

without differential taxation.” Id. at 585.

The Ordinance’s application to only certain speakers within the category of outdoor 

advertisers augments our constitutional concerns. That the tax singles out Clear Channel 

as a speaker is not constitutionally offensive, as the company’s local monopoly makes this 

fact an incidental result. Cf. Grosjean, 297 U.S. at 250–51; see generally E. 350 

(discussing Clear Channel owning nearly ninety-five percent of the signage affected by the 

Ordinance). But Baltimore’s billboard tax applies solely to companies controlling and 

selling outdoor advertising display space, and just to those “off-premises” signs larger than 

ten square feet. See Balt. City Code, art. 28 § 29-1(b) & (d). 
14

By not applying to smaller signage, or that which is “on-premises,” the Ordinance 

treads perilously close to distinguishing among like speakers based on their content or 

dissemination. See Leathers, 499 U.S. at 447–49. Such a tax may be doubly violative of 

the First Amendment by applying to a subset of a subset of speakers, and making this 

distinction based on the messages conveyed. See id. at 448–49 (discussing Arkansas 

Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 229 (1987)). When a court finds contentbased distinctions in legislation affecting speech, the law must overcome the heightened 

burden of strict scrutiny. See Reed v. Town of Gilbert, 576 U.S. 155, 170–71 (2015).

The City inherently establishes a content-based distinction by defining an “outdoor 

advertising display” as that which “directs attention to a business, commodity, service, 

event, or other activity that is: sold, offered, or conducted somewhere other than on the 

premises on which the display is made.” Balt. City Code, art. 28 § 29-1(d)(i) (cleaned up). 

It categorizes the class of billboards to which the tax applies based on whether they convey 

a message related to the property to which they are affixed, or to happenings elsewhere. 

See id. Such content-based distinctions must overcome the heightened burden of strict 

scrutiny. See Reed, 576 U.S. at 170–71. Though the Supreme Court’s plurality holding in 

Metromedia permitted such a distinction in the context of zoning regulations, it did so after 

assessing San Diego’s regulation under a heightened burden akin to intermediate scrutiny. 

See 453 U.S. at 511–12.

This Court should reverse the Court of Special Appeals and, upon remand, require 

the City to meet the heightened burden of strict scrutiny for taxes singularly focused on the 
15

media or individual classes of media therein. See Minneapolis Star & Tribune, 460 U.S at.

at 592–93.

CONCLUSION

The Constitution demands a more strenuous review of regulations, taxation, and 

related legislation that implicates the First Amendment, directly or indirectly. The First 

Amendment demands of us a stauncher defense for constitutionally protected mediums of 

communication. While the line of demarcation may be difficult to discern, here the 

ordinance clearly requires review at a higher standard of scrutiny. It is for these reasons 

that I respectfully dissent.
The correction notice(s) for this opinion(s) can be found here: 

https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/coa/9a20cn.pdf