Five Things Local Governments and Elected Officials Can Take Away from the Supreme Court Signage Ruling
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A case was brought against the Town of Gilbert, Arizona after their code enforcement issued two citations against the Clyde Reed and the Good News Community Church for leaving their directional signs out more than one hour past the end of service. This case made its way through the Federal Court System and eventually to the Supreme Court. On June 18th, they issued a ruling on ‘REED ET AL. v. TOWN OF GILBERT, ARIZONA, ET AL. ‘.
While the Town argued that the ordinances were not content based as their codes were based on the purpose of the sign (election signs, directional signs, ideological signs among a total of 23 categories of temporary signage) instead of specific message. The Supreme Court decided that purpose is in itself a type of communications. As written in the majority opinion:
We hold that these provisions are content-based regulations of speech that cannot survive strict scrutiny.
On its face, the Sign Code is a content-based regulation of speech. We thus have no need to consider the government’s justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny.
So, what does that mean for you local government?
1 Don’t Panic
No, your business district isn’t going to suddenly turn into Las Vegas Boulevard. The ruling doesn’t mean that local governments can’t have any rules, only that the rules can’t be different based on the sign’s purpose. You can still differentiate based on construction, materials, dimensions, if it’s temporary, and anything else that doesn’t require what’s on the sign to be taken into consideration.
2 Most Signs Won’t be Affected
In general, most signage laws are concerned with format (dimensions, maintenance, illumination). Since these laws do not differentiate on content, they will likely stay in place.
3 Review Your Existing Codes
If you look at your signage laws and look for areas that specify content, such as :
- ‘Political Campaign Signs’
- ‘Real Estate Signs’
- ‘Directional Signs’
Most content-specific laws focus around temporary signs, like those you may use on the road side to give directions or a street sign you may put out on the sidewalk to display your lunch specials, so take a careful look in there.
4 Craft Replacement Codes
Many of these laws won’t withstand a challenge so go ahead and work with your planning and codes enforcement departments and boards, as well as your state and national associations, to identify and replace them with language that meets your community’s needs. Justice Alitos’ concurring opinion gives examples of where your community may still regulate signage independent of the sign’s content:
- These rules may distinguish between freestanding signs and those attached to buildings.
- Rules distinguishing between lighted and unlighted signs.
- Rules distinguishing between signs with fixed messages and electronic signs with messages that change.
- Rules that distinguish between the placement of signs on private and public property.
- Rules distinguishing between the placement of signs on commercial and residential property.
- Rules distinguishing between on-premises and off-premises signs.
- Rules restricting the total number of signs allowed per mile of roadway.
- Rules imposing time restrictions on signs advertising a one-time event.
- Rules of this nature do not discriminate based on topic or subject and are akin to rules restricting the times within which oral speech or music is allowed.*
In addition to regulating signs put up by private actors, government entities may also erect their own signs consistent with the principles that allow governmental speech. See Pleasant Grove City v. Summum, 555 U. S. 460, 467–469 (2009). They may put up all manner of signs to promote safety, as well as directional signs and signs pointing out historic sites and scenic spots. Properly understood, today’s decision will not prevent cities from regulating signs in a way that fully protects public safety and serves legitimate esthetic objectives
By crafting a law that differentiates on construction (plastic corrugated material and wire stand), dimensions (less than 4′ x 5′) and installation (not secured with concrete) instead of purpose, many of the same goals of duration and density may be achieved. Density could also be allowed to increase during election times (x weeks before or after an election day designated by the state or county board of elections), or designated high-density zones on public property or right of way could be defined as places where extra signage may be placed in high-visibility areas.
5 Be Patient
Savvy business owners are going to take this opportunity to stretch the boundaries of what is acceptable over the next few months while you get new ordinances into place. Accept this window as a by-product of the democratic process and focus on getting your new laws in place. You can also use this as an opportunity to catalog what examples of signage you’d like to prevent in the future and see if you can craft the your next version to be able to take those into account.
While we’re pretty amazing, we’re not lawyers, so we aren’t giving you legal advice, just our editorial opinion. Want legal opinion? Ask a lawyer…or a judge… or your friend’s uncle’s lawyer.. just not us.