US Supreme Court Issues Significant Sign Code Decision

On June 18, 2015, the U.S. Supreme Court ruled unanimously that an Arizona town’s sign code placed unconstitutional content-based restrictions on speech, in violation of the First Amendment. The court’s decision in Reed v. Town of Gilbert almost certainly places many sign ordinances throughout the state, and the country, on questionable legal footing.

The Town of Gilbert sign code identified various categories of signs based on the type of information they convey, and then subjected each category to different restrictions. For example, the sign code created a category they called “Temporary Directional Signs Relating to a Qualifying Event,” which it defined as signs directing the public to a meeting of a nonprofit group. The sign code imposed more stringent restrictions on these signs (in terms of size, location, duration, etc.) than it did on signs conveying other types of messages, such as political signs or ideological signs. (It is common for local governments to make the types of distinctions in their sign codes that the Town of Gilbert made here.)

In this case, the town cited a church that held Sunday church services at various temporary locations in and near the town for violating the durational restrictions on temporary directional signs. Unable to reach an accommodation with the town, the church and its pastor filed suit, claiming that the sign code abridged their freedom of speech.

The Court determined that the sign code drew distinctions based on the content of the signs:

Ideological messages are given more favorable treatment than messages concerning a political candidate, which are themselves given more favorable treatment than messages announcing an assembly of likeminded individuals. That is a paradigmatic example of content-based discrimination.

When a municipality regulates the content of signs, those regulations are subject to strict judicial scrutiny, the highest constitutional hurdle, which requires a municipality to show that the content-based restrictions further a compelling governmental interest and are narrowly tailored to that end. Applying strict scrutiny to the sign code, the Court held that its content-based distinctions were unconstitutional:  

The Town cannot claim that placing strict limits on temporary directional signs is necessary to beautify the Town while at the same time allowing unlimited numbers of other types of signs that create the same problem.
 
The Town similarly has not shown that limiting temporary directional signs is necessary to eliminate threats to traffic safety, but that limiting other types of signs is not. The Town has offered no reason to believe that directional signs pose a greater threat to safety than do ideological or political signs.

The Court emphasized, however, that its decision won’t prevent local governments from enacting effective sign laws:  

The Town has ample content-neutral options available to resolve problems with safety and aesthetics. For example, its current Code regulates many aspects of signs that have nothing to do with a sign’s message: size, building materials, lighting, moving parts, and portability. And on public property, the Town may go a long way toward entirely forbidding the posting of signs, so long as it does so in an evenhanded, content-neutral manner.

(Citations omitted.) And Justice Alito, in his concurring opinion, offered some “rules” for effective regulations that are not content-based:  

Rules regulating the size of signs. These rules may distinguish among signs based on any content-neutral criteria, including any relevant criteria listed below.
 
Rules regulating the locations in which signs may be placed. These rules may distinguish between freestanding signs and those attached to buildings.
 
Rules distinguishing between lighted and unlighted signs.
 
Rules distinguishing between signs with fixed messages and electronic signs with messages that change.
 
Rules that distinguish between the placement of signs on private and public property.
 
Rules distinguishing between the placement of signs on commercial and residential property.
 
Rules distinguishing between on-premises and off-premises signs.
 
Rules restricting the total number of signs allowed per mile of roadway.
 
Rules imposing time restrictions on signs advertising a one-time event. 

Justice Alito asserted that “Rules of this nature do not discriminate based on topic or subject and are akin to rules restricting the times within which oral speech or music is allowed.”

 As noted by Justice Kagan in her concurring opinion:  

Countless cities and towns across America have adopted ordinances regulating the posting of signs, while exempting certain categories of signs based on their subject matter . . .
 
Given the Court’s analysis, many sign ordinances of that kind are now in jeopardy.

Cities and counties across the state will need to heed Justice Kagan’s warning. Accordingly, we strongly recommend that cities and counties review their sign codes in consultation with their legal counsel to ensure their codes are in compliance with the Reed decision. If you take this opportunity to do a full sign code update, the City of Lacey’s sign code update experience provides some useful insights.

Photo courtesy of Henry de Saussure Copel.