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Friday, June 19, 2015

Supreme Court's Sign Case May Require Sign Code Amendments

As we noted yesterday, the Supreme Court finally issued its ruling in the sign case involving a local church's challenge to the Town of Gilbert, Arizona's sign regulations. Reed v. Town of Gilbert, Arizona (USSCT, June 18, 2015).  In a nutshell, the Supreme Court held that the Town's sign code was a content-based regulation that could not survive the strict scrutiny required by the First Amendment. This case is certain to have an impact on how local governments regulate signage within their community, and is likely to require most communities to review and revise their current sign regulations to bring them into conformity with the Supreme Court's decision.

The facts are fairly straightforward. The Good News Community Church wanted to advertise the time and location of their Sunday services. They did not have a regular site for services, so held them at various locations in or near the Town of Gilbert. To inform the public about the services, they posted 15-20 temporary signs around the Town of Gilbert that included the name of the church, and the time and location of the upcoming service. After the church was cited by the Town for violating the Town's sign code, the church sued the Town, arguing that the sign code violated their freedom of speech rights under the First Amendment. The Ninth Circuit Court of Appeals ruled in favor of the Town and upheld the sign code as a content-neutral regulation. The U.S. Supreme Court disagreed, however, finding the sign regulations content-based.

According to the Supreme Court, a government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. Thus, a court must consider whether a regulation of speech "on its face" draws distinctions based on the message a speaker conveys. Acording to the Court, the Town's sign code is content based on its face because the Town treats temporary directional signs, political signs, and ideological signs (all temporary signage) differently, depending "entirely on the communicative content of the sign."  For example, ideological signs (signs communicating noncommercial messages that are not directional political, garage sale, or construction signs) are treated most favorably of the three categories. Political signs, on the other hand, are treated somewhat less favorably (stricter time limits and size restrictions) than ideological signs. And directional signs relating to events are treated even less favorably, with much more restrictive size and time restrictions. In the Court's view, singling out a specific subject matter for differential treatment, as evidenced by the way the Town treated these three categories of signs, is the perfect example of content-based discrimination.

Because the sign code imposes content-based restrictions on speech, they could only be upheld if they can survive strict scrutiny. That means that the Town had to prove that the restriction "furthers a compelling interest and is narrowly tailored to achieve that interest." The Town's two arguments in favor of a governmental interest (aesthetics and traffic safety) were not, according to the Court, a sufficiently compelling reason to treat directional event signs less favorably than other temporary signs. For example, there was no evidence that the type of directional signs placed by the church posed any greater threat to traffic safety than ideological or political signs. There was also no evidence that limiting directional signs but allowing larger ideological signs for a longer period of time would protect the aesthetics of the Town.

The opinion raises a number of questions, including what a municipality can legally do to regulate signs.  The majority opinion does not provide much guidance, except to say that its decision "will not prevent governments from enacting effective sign laws." The Court stated that the Town has a variety of "content-neutral" options available to protect aesthetics and traffic safety, such as regulating the size, building materials, lighting, and other aspects of signs that have nothing to do with the sign's message. The Court also noted that the Town could completely ban signs from public property, so long as it is done in an evenhanded manner. What the Town could not do, however, was treat similar signs differently based on the message on the sign.

Justice Alito wrote a concurring opinion, joined by Justices Kennedy and Sotomayor, attempting to provide guidance to local governments as to what type of sign regulations would not be content-based, including the size, lighting, electronic vs. static, location, total number of signs along a roadway, and time limits for signs advertising a one-time event. However, the Town of Gilbert's temporary signs included many of these same regulations, but those were struck down because they differed between categories. Does that mean that a municipality can limit the size of signs, but that limitation must apply to all signs, regardless of type or function?

Justice Kagan also wrote a concurring opinion, joined by Justices Ginsburg and Breyer, acknowledging that many sign ordinances are now in jeopardy due to the Court's decision. Specifically, Justice Kagan noted that a municipality may have to repeal sign exemptions for warning, caution, and similar signs to ensure the code does not discriminate based on the message of the sign. Although Justice Kagan agreed with the majority that the Town of Gilbert's code could not survive strict scrutiny, she cautioned that the broad scope of the majority's ruling will result in striking down other entirely reasonable laws because they simply cannot survive a strict scrutiny review.

So, what does this mean for municipal sign codes? Many, if not most municipalities regulate categories of signs in a way that would subject them to the same content-based analysis used by the Supreme Court  to strike down Gilbert's sign code. Political signs are a very good example, particularly in Illinois, where state law prohibits municipalities from restricting the number and time limits for political signs installed on residential property. Does that mean that a municipality must eliminate restrictions on time limits and number of signs for all temporary signs or risk a challenge that it is treating other temporary signs less favorably than political signs?  Maybe.

There are plenty of other questions that municipalities will have to answer following this decision, which will certainly impact the way sign codes treat categories of signage with similar characteristics (like temporary signs). It is very likely that most municipalities will need to modify their codes, or risk a challenge that their own codes are unconstitutional.

Post Authored by Julie Tappendorf


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