by Brian J. Connolly, Denver, Colorado
Regulating signs in a content-neutral manner satisfying First Amendment limitations became more difficult for local governments following last summer’s U.S. Supreme Court decision in Reed v. Town of Gilbert. In Reed, all nine Supreme Court justices agreed that the Town of Gilbert, Arizona’s sign code failed the First Amendment’s content neutrality requirement, although the Justices came to that conclusion in different ways.
At issue in Reed, Gilbert’s sign code distinguished among a variety of categories of signs. The Gilbert code provided different regulations for “political signs,” “ideological signs,” qualifying event signs,” “real estate signs,” and others. Pastor Clyde Reed and Good News Community Church placed temporary signs in street right-of-ways advertising religious services, but Gilbert enforced its sign code against the church’s temporary signs. The church filed a challenge to the Gilbert sign code. The town’s sign code was upheld on summary judgment by the federal district court, and the Ninth Circuit Court of Appeals affirmed.
In the decision, which was the first Supreme Court case in over two decades to address local sign regulations, six justices agreed that the town’s sign code was facially content-based; that is, the code improperly distinguished between types of noncommercial speech based on the particular subject matter of the speech. The town’s sign code made several exceptions to a general permit requirement for signs, including exceptions for political, ideological, temporary event, and other types of signage, and regulated each of these excepted forms of signage in different ways. A majority of the Court found that these distinctions were impermissibly regulated on the basis of the signs’ content, which is prohibited under the Court’s First Amendment doctrine.
In the majority’s eyes, because the code regulated based on content or message of speech, the code was subject to the “strict scrutiny” standard of review, which required the town to demonstrate a compelling governmental interest and narrow tailoring of the regulations to the governmental purpose. According to the majority, the town failed to meet that standard, and thus, the sign code was held invalid.
In separate concurring opinions, three justices agreed with the majority that the town’s sign code improperly distinguished among speech based on content but disagreed with the application of strict scrutiny to the regulations. In the concurring justices’ view, the town’s sign regulations would have failed even a much lower standard of review.
Reed clarifies several decades of constitutional law regarding content neutrality in speech regulations. In 1972, the Court articulated the requirement that regulations of speech be content neutral, saying in Chicago Department of Police v. Mosley, “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” While the First Amendment always disallowed government regulations that gave preference to, say, one side of a political debate over another, the Court’s pronouncement meant that the government could not prefer, say, political debate over religious expression. Since that time, the federal courts have applied the doctrine of content neutrality in striking down hundreds of local governments’ sign codes that distinguish signs based on their message.
The Supreme Court’s determination in Reed, however, resolved a split among the federal appeals courts by clarifying the content neutrality concept. Before Reed, some federal appeals courts held sign codes content neutral only if the code can be enforced without any regard to the text or images on a sign’s face, while other courts have permitted some category-based or “context-sensitive” distinctions — like Gilbert’s — among signs.
The result in Reed has put a much greater obligation on local governments to ensure that sign regulations and other regulations of speech are content neutral both on the face of the regulations and in the government’s underlying purpose for the regulations. Some First Amendment watchers anticipate that the decision will result in more freedom for sign owners to display signs of various messages, while others have suggested that the result in Reed will encourage governments to take a more cautious approach to sign regulation that more broadly suppresses speech.
With a year of experience post-Reed, many local governments throughout the country are working on rewriting sign codes to ensure that they meet the rigorous standard set by Reed. Additionally, we are seeing several cases from the lower courts clarifying some of the unanswered questions following Reed.
Uniformly, the lower courts have invalidated content-based regulations of noncommercial speech, particularly those relating to political signs (Marin v. Town of Southeast). Conversely, the lower courts have upheld several examples of content-neutral time, place, and manner regulations, including restrictions on painted wall signs (Peterson v. Village of Downers Grove) and a New York City prohibition on illuminated signage extending more than 40 feet above curb level (Vosse v. City of New York).
At least one lower court has looked unfavorably at specific exemptions for artwork (Central Radio, Inc. v. City of Norfolk), which at least suggests that artwork must be subject to the same regulations as all other noncommercial signs. Additionally, most courts that have reviewed special billboard regulations have continued to apply the Central Hudson test for commercial speech regulations, which appears to be unaffected by Reed. In addition, the California Court of Appeals, in a much-watched decision in Lamar Central Outdoor, LLC v. City of Los Angeles, ruled that the California Constitution allows local governments to distinguish between commercial and noncommercial speech in their regulations, and to maintain the off-premises/on-premises sign distinction that permits special regulation of billboards.
In addition to sign codes, some other areas of local regulation have been affected by Reed. Most significantly, local prohibitions on panhandling and solicitation appear to be vulnerable in light of the Supreme Court’s pronouncement regarding content neutrality. Several cases have invalidated local ordinances that prohibit individuals from approaching others to make immediate requests for donations of money, services, or other goods, including McLaughin v. City of Lowell, Thayer v. City of Worcester, Norton v. City of Springfield, and Browne v. City of Grand Junction. All of these courts have ruled that regulations targeting specific forms of speech associated with begging or panhandling are content based and unconstitutional.
Brian J. Connolly is an Attorney at Law with Otten Johnson Robinson Neff + Ragonetti PC in Denver, Colorado. He represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues. He is a board member of the Rocky Mountain Land Use Institute.
Readers are encouraged to follow the Rocky Mountain Sign Law blog (rockymountainsignlaw.com) for regular updates on sign regulation and other First Amendment issues relating to zoning, planning, and other areas of local government regulation.