Mind the Signs
Local governments will want to re-examine their sign ordinances and codes over this coming summer. Why? Because by the end of June the United States Supreme Court will be issuing an opinion in Reed v. Town of Gilbert, a case that challenges a town’s regulation of signs.
Gilbert’s Sign Code
The Town of Gilbert enacted a sign code. It required a permit to place signs within town limits except for exempted political, ideological, or temporary directional signs that fit within size, number, duration, and location requirements. The requirements changed depending on the signs’ category of exemption. For instance, exempt directional signs pertaining to a qualifying event could be no greater than six feet in height and six square feet in area, while exempt political signs could be as large as 16 square feet on property zoned for residential use and up to 32 square feet on property zoned for nonresidential use, undeveloped Town property, or rights-of-way.
Clyde Reed was the pastor of a church that held services in a rented school space and believed it important to invite the public. Each week Reed posted directional signs for services. After posting 17 signs to publicize the time and location of services one week, Reed received an advisory notice from the town. The number and duration of Reed’s signs violated the town’s exemption for temporary directional signs.
Code Upheld by Lower Courts
Reed sued the Town of Gilbert, alleging violations of free speech and equal protection rights under the First and Fourteenth Amendments. The trial court declined to issue an injunction. It found the sign code content neutral and a reasonable balance of legitimate government interests that survived intermediate scrutiny. The United States Court of Appeals for the Ninth Circuit affirmed because the restrictions were not based on the content of the signs and the code was narrowly tailored, leaving open other channels of communication. Nonetheless, the Court of Appeals remanded for the trial court to consider whether the distinction among different types of noncommercial speech violated the Constitution. Upon further consideration, the trial court found no violation, and the Court of Appeals affirmed.
Guidance to Come?
The Supreme Court agreed to hear the case due to disagreement among the lower courts on how to treat local government efforts to regulate signs. In its forthcoming opinion, the Court may address some or all of the following questions.
Is a local government’s lack of discriminatory motive significant? The Town of Gilbert argued its ordinance did not favor particular viewpoints; it only imposed different limitations on broad categories of noncommercial speech. If there is no discriminatory motive for or against particular viewpoints, government may impose different burdens upon broad categories of speech?
Relatedly, what does it mean for a sign ordinance to be content neutral? Reed argued the Town of Gilbert’s sign ordinance was not neutral because it plainly imposed different restrictions based on content. The town argued sign ordinances inherently have to look to content to some degree, and thus they should only be deemed non-neutral if the government is seeking to impose a regulation because it has looked at the content and disagrees with the specific message.
What level of scrutiny should apply? If a sign ordinance does not impose the same size, number, duration, and location limits on all signs across the board, should strict scrutiny apply? Or can government take account of categories of speech without triggering strict scrutiny?
Finally, what weight should be given to a local government’s interest in preserving safety, community aesthetics and property values, all common justifications for the enactment of sign ordinances? Are such community interests ever sufficiently weighty to survive strict scrutiny? What about intermediate scrutiny? And what factors might make such interests sufficiently weighty in a particular instance?
Exactly how local government should balance community interests with speech rights is not clear. Although a pronouncement from the Supreme Court will be forthcoming within the next few months, how to strike that balance likely will remain challenging.
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