In 2015, the U.S. Supreme Court upended the constitutional standards applicable to local sign regulation. The court held unanimously that a sign code in the Town of Gilbert, Arizona, violated the First Amendment because it treated signs differently based on their content.
The case involved a local church that moved its meeting locations from week to week. The church used temporary directional signs to direct members to the current meeting place. The local sign ordinance had special rules for temporary signs including size, duration, and location requirements. Applying this ordinance, the town’s sign code compliance manager issued multiple citations against the church and confiscated at least one sign. The resulting disagreement between the church’s pastor and the town’s government eventually made its way to the Supreme Court.
Content-based regulation
The Supreme Court held that that the town’s sign code was a content-based regulation of speech. This means that an observer would have to read the text of the sign to know which regulation applied. Under the ordinance, “ideological signs” and “political signs” were subject to different size, location, and duration requirements than were temporary directional signs.
The Supreme Court held that that the town’s sign code was a content-based regulation of speech. This means that an observer would have to read the text of the sign to know which regulation applied. Under the ordinance, “ideological signs” and “political signs” were subject to different size, location, and duration requirements than were temporary directional signs.
To understand the distinction, consider two signs posted by a charity. One reads, “Silent Auction this Thursday, 6 p.m., at 100 Main St.,” while the other says, “Give Generously to Support Those in Need.” The Gilbert ordinance would have classified the first as a temporary directional sign, and the second as an ideological sign. It would apply different rules based on these classifications.
Content-based laws are subject to a “strict scrutiny” standard under the First Amendment, which requires that the government must demonstrate that the law has been “narrowly tailored” to serve a “compelling interest.” Courts find that content-based rules almost always fail to meet this standard, and are therefore unconstitutional.
The Supreme Court invalidated the Town of Gilbert’s ordinance. Assuming that the governmental interests were those of preserving aesthetic appeal and traffic safety, the court noted that the church’s signs were no more problematic for aesthetics and safety than ideological or political signs, allowable in unlimited number under the ordinance.
The ruling also specified ways that a government might regulate signage in a content-neutral way, such as establishing restrictions focused on the size, building materials, lighting, moving parts, and portability of the signs.
Implications of Reed vs. Town of Gilbert
Content-based issues go beyond signs. The Fourth Circuit recently invalidated a 40-year-old ordinance that applied to tour guides in the City of Charleston. The ordinance required that, before offering paid historic tours of Charleston, guides had to pass an exam on local history and architecture. The court strongly suggested that the regulation was content-based because it applied to only certain kinds of tours, and was therefore subject to strict scrutiny. However, the court did not issue a decision on this matter.
Content-based issues go beyond signs. The Fourth Circuit recently invalidated a 40-year-old ordinance that applied to tour guides in the City of Charleston. The ordinance required that, before offering paid historic tours of Charleston, guides had to pass an exam on local history and architecture. The court strongly suggested that the regulation was content-based because it applied to only certain kinds of tours, and was therefore subject to strict scrutiny. However, the court did not issue a decision on this matter.
For those crafting local sign regulations, the Reed case presents many difficulties. How can they effectively prevent sign clutter without making some rules specifically applicable to temporary signs, such as yard sale and auction signs? As the Charleston tour guide case shows, the impact of the Reed decision is not limited to signs alone. Ordinary economic regulations, such as licensing paid tour guides, might raise questions of content neutrality under the First Amendment.
Municipalities must consider the First Amendment before they adopt local regulations. They need to be careful when drafting and amending sign regulations, but they should also know that courts may apply strict scrutiny to other types of content-based regulations that involve constitutionally protected speech.