Citgo, Sponsored by Boston: Why We Shouldn't Landmark Ads

Abstract

The Citgo sign, a massive lighted advertisement just beyond the bounds of Fenway Park, is a Boston landmark. The sign has been a fixture in the Boston skyline for decades. For almost as many years, the city has debated whether to give the sign protected landmark status, freezing the advertisement—and potentially much of the surrounding development—in place. Unquestionably, the Citgo sign and other advertisements like it meet statutory criteria for landmark designation, and landmarking them would serve the goals supposed to be furthered by historic preservation in general. But landmarking advertisements, as opposed to buildings, boats and bridges, presents constitutional and statutory issues that should give landmarks commissions pause. This Note is the first to explore the many legal problems caused by landmarking advertisements. It also addresses certain policy concerns raised by decisions to grant the legal protection of historic preservation laws to ads. In designating advertisements as landmarks, cities expose themselves to takings claims (by affected property owners) and statutory economic- hardship claims (by affected advertisers) that could ultimately force taxpayers to bear the cost of advertising for profitable corporations. And because advertisements communicate, while more traditional subjects of historic preservation do not, landmarking them could also subject cities to compelled-speech claims. Unlike the takings and economic-hardship claims, First Amendment violations cannot be satisfied by paying just compensation. The potential landmarking of the Citgo sign is used as a case study to explain the issues, but the problems would accompany the decision to landmark almost any advertisement. The approaches suggested for decisions to landmark advertisements would serve any preservation commission. I have posted the paper on SSRN to be accessed by the Boston Landmarks Commission and other interested parties in the ongoing Citgo sign debate.