The regulation of signs has never been an easy issue for local governments. Municipalities have often found themselves between a rock and a hard place, trying to find the right balance between promoting public safety, aesthetics, economic development and the right to freedom of speech. With the recent Supreme Court decision in Reed v. Town of Gilbert, this matter has once again been brought to the attention of all municipalities.
At issue in this case was the Sign Code of the Town of Gilbert, Arizona. The Town’s Sign Code defined regulations on temporary directional signs, including their size, the number of signs that could be posted on a single property, and the length of time they could be displayed. It was discovered, however, that those regulations were not consistent with regulations imposed on other types of temporary signs, including signs with political or ideological messages.
This issue was brought to light by a local church in Gilbert, AZ. Each week the church held services at various locations throughout the town and posted temporary signs each weekend that announced the time and location of the next service. A municipal sign ordinance adopted by Gilbert in 2005 regulated the manner in which signs could be displayed in public areas. When the town’s Sign Code compliance manager cited the local church for violating the ordinance, the church filed a lawsuit in which they argued the town’s sign regulations violated its First Amendment right to the freedom of speech. The Ninth Circuit Court of Appeals agreed with the town, but that decision was reversed by the U.S. Supreme Court.
The Supreme Court Decision
By a 9-0 vote, the Supreme Court found that the Town of Gilbert’s Sign Code was content-based on its face: “It defines the categories of temporary, political, and ideological signs on the basis of their messages and then subjects each category to different restrictions. The restrictions applied thus depend entirely on the sign’s communicative content.” As a result, the Sign Code was subject to the “strict scrutiny” standard, meaning that the law must have been passed to further a compelling government interest and narrowly tailored to achieve that interest. The Court found that Gilbert’s Sign Code failed this standard: “The Sign Code’s content-based restrictions do not survive strict scrutiny because the Town has not demonstrated that the Code’s differentiation between temporary directional signs and other types of signs furthers a compelling governmental interest and is narrowly tailored to that end.”
What Does This Mean for Other Local Governments?
In drafting and enforcing sign regulations local governments should be mindful of this case and the Supreme Court’s determination that content-based regulation of noncommercial signs must meet “strict scrutiny.” This decision does not, however, limit a local government’s ability to impose regulations that are unrelated to content. In its opinion the Court stated: “This decision will not prevent governments from enacting effective sign laws. The Town has ample content-neutral options available to resolve problems with safety and aesthetics, including regulating size, building materials, lighting, moving parts, and portability.” The U.S. Supreme Court’s decision is currently being interpreted and applied by lower courts across the country, which in some instances is raising more questions than answers; in the meantime, every community is encouraged to review its own sign regulations to make sure that they are as Reed-compliant as possible.
The full Supreme Court opinion can be viewed on the Court’s website: https://www.supremecourt.gov/opinions/slipopinion/14
Local governments that are concerned about the legality of their own sign regulations should work with their legal counsel to review those regulations in light of this decision and to ensure that the regulations are content neutral. Special emphasis should be focused on eliminating content-based sign categories and definitions like “real estate signs” or “political signs.” Listed below are some additional available resources:
The International Sign Association (ISA) provides complimentary educational material and assistance to local governments in reviewing their sign regulations. Since the Reed decision was issued in June 2015, ISA has been educating local officials about the decision through workshops, webinars and seminars, and the Sign Research Foundation has developed resource materials on the case. For free assistance, please contact ISA through [email protected].
The International Municipal Lawyers Association (IMLA) is in the process of creating a Model Sign Code.