Local Government Law Bulletin October 23, 2015 Mark E. Nettleton

All Signs Point to Trouble Based on Recent U.S. Supreme Court Case on Local Sign Regulation

In Reed et al v Town of Gilbert, the U.S. Supreme Court recently ruled that provisions in an Arizona town’s sign ordinance were unconstitutional because the ordinance impermissibly regulated the content of various signs. Consequently, local governments must carefully review sign ordinance provisions to ensure that the ordinance does not regulate the content of signs or treat signs differently based on the content of the signs.

The Town of Gilbert sign ordinance had various size and time limitation provisions for different types of signs. For example, the ordinance distinguished between “ideological signs,” political campaign signs and “temporary directional signs” that related to a “qualifying event.” A local church, which did not have a designated building where its services were held, sought to post “temporary directional signs” as a means to direct people to the location of the weekly services. The church’s temporary directional signs indicated the location and time of the services, but not the date of the event. The Town’s sign ordinance permitted temporary directional signs to be in place for only 12 hours before an event, and required that temporary directional signs be removed one hour after the event. The church’s minister requested that the zoning administrator allow the church to post the signs on Saturday morning the day prior to the Sunday service, and collect them Sunday afternoon – more than one hour after the service. The zoning administrator refused. The church filed suit, alleging that the Town’s sign ordinance provisions impermissibly regulated the content of the signs in violation of the First Amendment.

Both the federal district court and the U.S. Court of Appeals upheld the Town’s sign regulations. However, on appeal to the Supreme Court, the Court overturned the lower courts’ decisions, determining that the sign ordinance provisions impermissibly regulated the content of signs in violation of the First Amendment.

In the majority opinion written by Justice Clarence Thomas, the Supreme Court held that because the sign ordinance’s provisions differentiated between signs based on the message conveyed by the signs, and applied different size and permitted time periods for the various signs, the ordinance regulated the content of the signs. Under prior First Amendment cases, where the government seeks to regulate the content of a message, the government has the burden to show that it has a compelling interest in such regulation and that the regulation is “narrowly tailored” to meet that compelling interest. Using this “strict scrutiny” standard, the Supreme Court found that there was no “compelling interest” for treating ideological, political campaign, and temporary directional signs differently from each other with respect to their size and the time period during which they could remain posted. The Supreme Court’s opinion noted that the regulation of a specific subject matter, such as political signs or temporary signs, is impermissible “content based regulation,” even if the regulation does not “discriminate among viewpoints within that subject matter.” The sign provisions required Town officials to determine the message to be conveyed with the sign – for example, whether the message was a political message – such as “vote for candidate X,” an ideological message – “support (or oppose) Y issue,” or a temporary directional message “Z Church meets every Sunday at 1 pm at the Z Community Center” – and then apply the ordinance’s size and time restrictions, which differentiated among those signs, based on the message conveyed. This, to the Court, represented an impermissible content-based regulation and the Town could not show a compelling interest for such regulation.

The Town suggested that the differentiation between signs based on the size of the sign and corresponding limits on the duration of display met the Town’s compelling interest in promoting community aesthetics and traffic safety. The Court, however, found otherwise, based on the fact that temporary signs, for example, were “no greater an eyesore” than ideological or political signs. Further, the Court noted that restrictions on the duration of display of a temporary directional sign did nothing to enhance traffic safety, particularly when other signs, such as ideological, which could be more distracting based on the ideological message conveyed, were allowed to be displayed for much longer periods.

While invalidating the Town’s sign restrictions, the Court noted that there were numerous content-neutral regulations that the community could impose and enforce. The Court recognized that restrictions such as the size, building materials, lighting, moving parts and portability all could be valid, content-neutral regulations.

In a concurring opinion written by Justice Alito, which was joined by two other Justices, Justice Alito emphasized what regulations were not impacted by the Court’s Gilbert decision. Justice Alito observed that the decision does not affect municipal sign rules regulating the size, number and location of signs; distinguishing between lighted and unlighted signs; changing message signs; distinguishing between the placement of signs on commercial and residential property; distinguishing between on-premises and off-premises signs; and rules imposing time restrictions on signs advertising a one-time event.

Based on the Gilbert decision, municipalities must carefully review the community’s sign ordinance provisions to ensure that distinctions between different types of signs are content-neutral and do not impermissibly favor the message of one type of sign over other signs. Otherwise, such content-based regulations may result in legal challenges to the validity of such provisions.

If you would like to discuss the current provisions of your sign ordinance to ensure it complies with the Gilbert decision, please contact one of the attorneys in our Local Government Practice Group.

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