Important Update from KLC Member Legal Services. The U.S. Supreme Court has totally changed the review of city sign ordinances.

United States Supreme Court Announces A New Standard of Free-Speech Review for City Sign Ordinances

Reed v. Town of Gilbert, AZ, 2015 WL 2473374 was decided on June 18, 2015 and the case will have long-lasting impact on our cities.  We will be updating you further on the fallout from this case in the days and weeks to come.

The facts of the case are that a church and pastor seeking to place temporary signs announcing services filed suit claiming that Gilbert’s sign ordinance, restricting size, duration, and location of temporary directional signs violated the right to free speech, in that it was not a content-neutral regulation of free speech.

Justice Thomas, writing for the majority, held that sign codes are subject to strict scrutiny, the highest hurdle of constitutional scrutiny, and that the sign code as enacted by the Town of Gilbert violated free speech guarantees.

Gilbert has a comprehensive code that prohibits the display of outdoor signs without a permit, but exempts 23 categories of signs, including three relevant here.

“Ideological Signs,” defined as signs “communicating a message or ideas” that do not fit in any other Sign Code category, may be up to 20 square feet and have no placement or time restrictions.

 “Political Signs,” defined as signs “designed to influence the outcome of an election,” may be up to 32 square feet and may only be displayed during an election season.

 And the sign at issue here - “Temporary Directional Signs,” defined as signs directing the public to a church or other “qualifying event,” have even greater restrictions: No more than four of the signs, limited to six square feet, may be on a single property at any time, and signs may be displayed no more than 12 hours before the “qualifying event” and 1 hour after.

 Petitioners, Good News Community Church and its pastor, whose Sunday church services are held at various temporary locations in and near the Town, posted signs early each Saturday bearing the Church name and the time and location of the next service and did not remove the signs until around midday Sunday. The Church was cited for exceeding the time limits for displaying temporary directional signs and for failing to include an event date on the signs. Unable to reach an accommodation with the Town, petitioners filed suit, claiming that the Code abridged their freedom of speech. The lower courts concluded that the Code’s sign categories were content neutral, and that the Code satisfied the intermediate scrutiny accorded to content-neutral regulations of speech.

The Supreme Court yesterday held that the sign code’s provisions are content-based regulations of speech that do not survive strict scrutiny.

Because content-based laws target speech based on its communicative content, they are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. Speech regulation is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. And courts are required to consider whether a regulation of speech “on its face” draws distinctions based on the message a speaker conveys. Whether laws define regulated speech by particular subject matter or by its function or purpose, they are subject to strict scrutiny. The same is true for laws that, though facially content neutral, cannot be justified without reference to the content of the regulated speech or were adopted by the government “because of disagreement with the message” conveyed.

The Sign Code IS content based on its face. It defines the categories of temporary, political, and ideological signs on the basis of their messages and then subjects each category to different restrictions. The restrictions applied depend entirely on the sign’s communicative content. Because the Code, on its face, is a content-based regulation of speech, there is no need to consider the government’s justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny.

The Sign Code’s content-based restrictions do not survive strict scrutiny because the Town has not demonstrated that the Code’s differentiation between temporary directional signs and other types of signs furthers a compelling governmental interest and is narrowly tailored to that end. Assuming that the Town has a compelling interest in preserving its aesthetic appeal and traffic safety, the Code’s distinctions are highly underinclusive. The Town cannot claim that placing strict limits on temporary directional signs is necessary to beautify the Town when other types of signs create the same problem. Nor has it shown that temporary directional signs pose a greater threat to public safety than ideological or political signs.

The Court concluded by stating that governments are not prevented from enacting effective sign laws. The Town has ample content-neutral options available to resolve problems with safety and aesthetics, including regulating size, building materials, lighting, moving parts, and portability. And the Town may be able to forbid postings on public property, so long as it does so in an evenhanded, content-neutral manner. An ordinance narrowly tailored to the challenges of protecting the safety of pedestrians, drivers, and passengers—e.g., warning signs marking hazards on private property or signs directing traffic—might also survive strict scrutiny.

This case was just handed down on June 18 and the KLC legal team is working to craft examples that would meet the new strict scrutiny standards.  If you believe that your local sign ordinances do not meet the new strict scrutiny standards or you are concerned that you could be facing a legal challenge based upon this new case - Please call us at 800-876-4552.