Local Government Law Bulletin July 2, 2024 Ronald M. Redick

The Changing Landscape of Municipal Sign Regulation

In the October 2015 edition of our Local Government Law Bulletin, we reported on the U.S. Supreme Court’s seminal decision in Reed, et al v City of Gilbert, which had the effect of dramatically changing the landscape for municipal regulation of signs, so as to require a much more “content neutral” approach.  Since that time, there have been two other cases, one decided by the U.S. Supreme Court, and most recently by the Sixth Circuit Court of Appeals, that have limited and clarified the Reed decision.  Provided below is a refresher on Reed, followed by a discussion of these more recent “sign” cases.

The Reed case arose under circumstances where the Town of Gilbert had refused to allow a church to post temporary directional signs for more than 12 hours before a church service, or for more than one hour after the service ended, based on a sign ordinance that imposed such temporal limits on display.  This restriction was part of a broader regulatory scheme under which the ordinance generally banned all display of outdoor signs, but exempted twenty-three categories of signs from the blanket ban.  Each of the twenty-three categories came with its own unique regulations.  For example, the ordinance distinguished between “ideological signs,” defined as those “communicating a message or ideas for noncommercial purposes” and falling outside of other categories of signs; “political signs,” defined as “temporary signs designed to influence the outcome of an election;” and “temporary directional signs relating to a qualifying event,” which were signs “intended to direct” people to certain events held by religious, charitable, or like institutions.  Under the ordinance, ideological signs were the least regulated, whereas restrictive regulations applied to temporary directional signs, such as limits on the number of signs that could be posted, when they could be posted, how long they could be left up, and how big they could be.

The Supreme Court invalidated the Town’s sign ordinance, holding that it was “content based on its face,” and so needed to satisfy “strict scrutiny” in order to be valid under First Amendment principles.  In other words, the Town was required to show that its content-based regulation of signs “further[ed] a compelling governmental interest and [was] narrowly tailored to achieve that interest” – a standard which almost no law can survive.  And indeed, the Town’s sign ordinance did fail that test.

The Reed decision caused municipalities, nationwide, to evaluate their sign regulations, as it was not uncommon to encounter sign ordinance provisions that bore similarities to the Town of Gilbert sign ordinance.  Drafting compliant ordinances was challenging, however, because there were a number of uncertainties about the scope and implications of the Reed decision.  However, as noted above, two more recent decisions have helped to clarify certain matters.

In City of Austin v Reagan National Advertising of Austin, LLC (2022), the U.S. Supreme Court considered whether Reed had invalidated the regulatory distinction that municipalities had consistently applied to on-premises signs (i.e., signs advertising a business, goods or services available on the same premises as the sign) versus off-premises signs, which are often referred to as billboards (i.e., signs advertising a business, goods or services available on a different premises than the sign).  The good news for municipalities is that the Court upheld the validity of this traditional distinction.

The City of Austin case involved a situation in which the City had adopted a sign ordinance that prohibited the construction of any more off-premises signs, but still allowed a variety of on-premises signs.  The defendant-billboard company claimed that such a regulation was content based, but the Court rejected that argument, holding that the regulation “required an examination of speech only in service of drawing neutral, location-based lines.”  In other words, the regulation was “agnostic as to content,” even if one needed to examine the sign to determine whether it was an on- or off-premises advertisement.  Because this was a location-based determination, rather than a content-based determination, strict scrutiny did not apply, thereby allowing the City to defend its prohibition on off-premises signs.

Most recently, however, in Norton Outdoor Advertising, Inc v Village of St. Bernard (2024), the Sixth Circuit Court of Appeals clarified that a regulation establishing a general ban on certain types of off-premises signs is invalid if the regulation carves out exceptions for particular types of speech.  Specifically, the regulation that was invalidated in St. Bernard prohibited dynamic signs that are capable of automatically changing their digitally displayed message, but allowed such dynamic signs if they were “public service signs which disclose information such as time or weather.”  The Court provided several examples of how the general prohibition, coupled with such a “public service” exemption, would require the Village to make content-based determinations:

“A private individual or company could operate a variable-message sign to encourage drivers not to litter, but likely could not do the same to encourage the citizens of the Village to attend the high school softball game (an “event”).  Likewise, a “click it or ticket” message encouraging seat-belt use could be displayed on changing digital billboards, but not a message encouraging citizens to be familiar with the proper uses for naloxone (a “good” or “product”).  And a public health organization might be able to post a flashing sign encouraging drivers to stay up to date on their vaccines, but the local pharmacy may be barred from doing so by encouraging drivers to receive the flu shot at its closest location.  More basically, the threshold inquiry of the public service exemption – whether the content of a given sign serves a “public service” – is laden with the types of content-based and value-judgment determinations that call for strict scrutiny under the First Amendment.”

Ultimately, the Court invalidated the sign regulation, holding that it failed strict scrutiny because it was “hopelessly underinclusive.”  That is, the Village could offer no reason to believe that dynamic signs displaying a commercial message would pose any greater threat to traffic safety than would a dynamic sign displaying a public-service message.

These cases each demonstrate the complexity and difficulty of drafting sign regulations that are both effective and lawful.  If your municipality would like to have its sign regulations reviewed to ensure they comply with the rules established by these cases, please contact one of the attorneys in our Municipal Law Practice Group for assistance.

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