Supreme Court Quashes Town’s Sign Ordinance
The U.S. Supreme Court recently struck down a city ordinance governing the display of outdoor signs in Gilbert, Arizona.[1]
The town’s comprehensive “Sign Code” prohibits the display of outdoor signs without obtaining a permit but exempts various categories of signs from this requirement. Three of these sign categories—ideological, political, and temporary directional—are subject to different rules as to size, location, and display time. For example, political signs in the town are allowed to be up to 32 square feet and can be erected any time before the election, whereas temporary directional signs must be limited to 6 square feet and may only be displayed for up to 12 hours before the advertised event and no more than an hour afterward.
Good News Community Church, a local church with no permanent building, posted temporary directional signs around the town to inform its members of future church services. Unfortunately, on multiple occasions, the church exceeded the time limit for displaying the signs and failed to include the event date as required by the Sign Code. After the town cited the church for these violations, the church filed a complaint in the U.S. District Court for the District of Arizona, arguing that the Sign Code abridged its freedom of speech in violation of the First Amendment.
The Supreme Court unanimously held that the Sign Code violated free speech guarantees. Justice Thomas made it clear that because the restrictions were based solely on a sign’s communicative content, the Sign Code was content-based on its face. According to the opinion, “[c]ontent-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.”
Under this strict scrutiny analysis, the town could not demonstrate that the Sign Code’s differentiation between temporary directional signs and other types of signs furthered a compelling governmental interest and was narrowly tailored to that end.[2] And even assuming the town had compelling governmental interests in preserving its aesthetic appeal and traffic safety, the Court opined that the Sign Code’s distinctions are far too under-inclusive.
This decision will no doubt impact local sign regulations across the nation.[3] The rule established by the Court appears to put firm limitations on a city’s ability to restrict certain signs, even off-premise signs (e.g., billboards), differently from on-premise signs. Consequently, few sign regulations will likely survive the strict scrutiny test. For now, the Court provides some guidance to help local governments; specifically, the Court suggests that sign ordinances that are content-neutral are subject to a lesser degree of scrutiny.
The City of Austin’s Sign Ordinance contains provisions similar to those at hand. Chapter 25-10 of the Austin Code of Ordinances allows for certain signs in all sign districts without installation permits. Yet, some of these sign categories have varying restrictions. For example, temporary freestanding or wall signs advertising the construction, sale, or lease of a building or piece of land, as well as bulletin boards or signs relating solely to a public, religious, or charitable institution, are subject to certain size restrictions.[4] Temporary on-premise wall signs advertising special events, sales, products, or services may not be displayed for more than 30 days and must include the date of installation; such wall signs are additionally limited as to sign area. Private property signs advertising garage sales, yard sales, neighborhood meetings, or similar events must include the installation date and may be displayed for not more than 3 consecutive days or 30 consecutive days for a sign concerning a lost or found pet. Government signs, on the other hand, are generally not restricted in size, duration, or location.
Under the Supreme Court’s ruling in Reed v. Town of Gilbert, Arizona, there may be valid arguments that the above provisions violate free speech rights. If you or your company is facing issues with sign regulation, it may be prudent to contact attorneys well-versed in challenging local regulations to protect your First Amendment rights.
[1] Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015).
[2] “The Town has offered no reason to believe that directional signs pose a greater threat to safety than do ideological or political signs. If anything, a sharply worded ideological sign seems more likely to distract a driver than a sign directing the public to a nearby church meeting.” Id. at 2232.
[3] Though Justice Thomas asserts, “[o]ur decision today will not prevent governments from enacting effective sign laws.” Id. at 2232.
[4] Austin, Texas, Municipal Code § 25-10-101.