Signs Signs, Everywhere a Sign: U.S. Supreme Court Decides Reed v. Town of Gilbert

By: Cullen Seltzer. This was posted Tuesday, June 23rd, 2015

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Cullen D. Seltzer, Esq. - Sands Anderson PCThe Supreme Court of the United States handed down today an important First Amendment case concerning governments’ ability to regulate commonly displayed informational signs.

In Reed v. Town of Gilbert, the US Supreme Court (Justice Thomas wrote for a six Justice majority with three other Justices concurring) struck down a town’s Sign Code that regulated the size and manner of display of signs depending on whether they were “Ideological Signs,” “Political Signs,” or “Temporary Directional Signs.”  The Town didn’t care what the message was in these signs.  But if the signs’ messages fell into these categories, different requirements governing the signs’ size, how many could be displayed, and for how long, applied depending on the signs’ category.

The U.S. Supreme Court struck down the Sign Code on First Amendment grounds.

The Sign Code Was Content Based Regulation.

As a threshold matter, the Court held that the Sign Code amounted to content based regulation.  What category applied to a sign was, by definition, a function of what sort of message the sign communicated.  Thus, the Court ruled, the Sign Code would be reviewed with strict scrutiny which requires that the locality identify a compelling governmental interest for the regulation and explain that the regulation was narrowly drawn to meet that compelling interest.

In so holding, the Court rejected the Town’s claim that the Sign Code was content neutral.  Most importantly, the Court rejected the argument that the Government’s benign motive, or the fact that the regulation could be justified without reference to the content of the speech, made the regulation “content neutral.”  The Court insisted that regulating different sorts of speech differently, based on the sort of speech involved – even if the actual message of the speech was not regulated – was content regulation.  Thus, strict scrutiny was required.

The Town’s Sign Code Could Not Survive Strict Scrutiny.

It is a rare regulation of speech that has survived strict scrutiny analysis.  This case proved no exception to that general observation.

The Town identified two governmental interests that the Court assumed, for the sake of argument, were compelling: preserving the Town’s aesthetic appeal and traffic safety.  The Court held that these, in this case, were “hopelessly underinclusive.”

The Sign Code didn’t advance the preservation of aesthetics because Temporary Directional Signs are no greater an eye sore than Ideological or Political Signs.  Yet the Town treated the Temporary Directional Signs much less favorably.  As for traffic safety, the Court noted that the disfavored Temporary Directional Signs may well be less likely to cause accidents than Ideological Signs since the former may guide motorists while the latter may distract them.  Traffic safety, the Court held, is unrelated to the nature of a sign’s message.

Justice Alito Tries to Point the Way Forward for Permissible Regulation.

Justice Alito joined in Justice Thomas’s opinion but wrote separately, in an opinion joined by Justices Kennedy and Sotomayor, to list a number of regulations that would permissibly regulate signs without running afoul of the proscription against regulating content.  Permissible restrictions include signs’ location, whether they light up, whether they are on private or public property, and the number of signs permitted on a stretch of roadway.

Justice Breyer Rejects Strict Scrutiny for Some Governmental Content Regulation.

Justice Breyer wrote for himself and concurred in the judgment.  He emphasized, though, that strict scrutiny should not apply to all governmental regulation of speech.  For example, the government regulates what securities issuers, drug manufacturers, taxpayers, and physicians may, and may not, say, and sometimes what they must, and must not say, for a myriad of reasons.  Not all of these could survive strict scrutiny if applied as rigorously as the Court did in this case and it would not make sense to require the government to prove, for example, that “requiring a prescription drug label to bear the symbol ‘Rx only'” is narrowly tailored to meet a compelling governmental interest.

Justice Kagan Would Reserve Strict Scrutiny for Content Regulation that Limits the Debate of Ideas.

Finally, Justice Kagan concurred in the judgment, and wrote an opinion in which Justices Ginsburg and Breyer joined.  She worried that the result of the Court’s opinion would be that ordinances that exempted from permitting requirements certain signs, such as “Blind Pedestrian Crossing” or “Hidden Driveway”, but otherwise required permits for other signs would be struck down.  Also in jeopardy of being struck down are regulations that prohibit illuminated signs except for illumination of a homeowner’s name or street address.  Like Justice Breyer, Justice Kagan was concerned that strict scrutiny of all government regulation of speech risks imperiling “entirely reasonable” laws that have no effect on the public’s ability to debate ideas.  It is this latter concern that animates the First Amendment.  Justice Kagan worried that strict scrutiny of all governmental speech regulation was too big a club for a concern that is not the point of the First Amendment.

Local Governments Regulate Sign Content at Their Peril.

Local government officials will want to take care that their sign ordinances do not run afoul of the sort of content regulation the Supreme Court has now ruled against.

Some localities, like the Town of Gilbert, have regulated temporary directional signs under laxer rules than, say, commercial business or real estate for sale signs, or church signs under laxer rules than “going out of business” signs and other commercial speech. Going forward, it is likely that most signs must be governed by the same size, display, and permitting rules, or rules requiring otherwise risk being invalidated.

This ruling makes the difficult task of creating an enforceable sign ordinance a little harder, since sometimes there may be no political support or will to regulate certain types of signs.  Notwithstanding this, any sort of sign regulation that is content-based within the U.S. Supreme Court’s ruling in Town of Gilbert will have to apply across the board.

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