US Supreme Court holds sign regulations can’t impose different restrictions based on informational content

If a city or county’s laws impose different restrictions on signs based on their informational content, the laws are presumptively unconstitutional and may be justified only if the government proves they are narrowly tailored to serve compelling state interests, the US Supreme Court has held.

In Reed v. Town of Gilbert, decided in the last blockbuster month at the US Supreme Court, the justices established a powerful tool for real estate owners, developers and brokers to challenge local sign ordinances. Cities and counties throughout the US should carefully review their signage laws and regulations in light of the court’s decision, as many local governments likely have non-compliant laws on the books.

The Town of Gilbert is a municipality in Arizona that had, like many U.S. cities, a sign code that limits the use and display of outdoor signs without a permit.  The Town’s sign code applied different time, size, and other restrictions on the signs, depending on whether they were ideological, political or for religious assembly, among other categories.  The petitioners, a church and its pastor, held temporary worship services in and near the Town.  The church posted signs early each Saturday bearing the church’s name and the time and location of the next service.  The church did not remove the signs until around midday Sunday.  The Church was cited by the Town for exceeding the time limits for displaying temporary directional signs and for failing to include an event date.

The U.S. Supreme Court held that the sign code’s provisions were content-based regulations of speech, violating the First Amendment to the U.S. Constitution.    The Town’s sign code defines categories of temporary, political and ideological signs on the basis of their messages and then subjects each category to different restrictions.  Because the nature of the restrictions depend entirely on the signs communicative content, the signs are subject to the strictest level of Constitutional review. The Town’s claims that the disparate treatment was justified on the basis of keeping the Town beautiful and safe were inadequate and rejected by the high court.

Justice Thomas, writing for the court, rejected the Ninth Circuit’s prior decision upholding the Town’s sign code.  A court must first ask whether a law is content based on its face. If so, the inquiry ends and strict scrutiny applies. It doesn’t matter if a local government has a benign motive, content-neutral justification, or lack of animus toward the ideas contained in the regulated speech. However, if a sign law is content neutral on its face, the inquiry is not over.  A court must still inquire into the purpose and justification for the law and determine whether it is content based.

The Court rejected the Ninth Circuit’s conclusion that the Sign Code did not single out any idea or viewpoint for discrimination.  While the Town may not have been guilty of blatant content discrimination, the sign code did single out specific subject matter for differential treatment.

In light of the Court’s decision, local governments enacting sign ordinances must resolve their public policy concerns with regulations that focus on size, building materials, lighting, moving parts, portability, and location.  Those requirements cannot differ based on the content or message of the sign.  For example, it is no longer acceptable to have different sign requirements for political signs and commercial real estate listing signs.

Only in extraordinary circumstances would a content-based sign survive strict scrutiny — such as, for example, where absolutely necessary to protect the safety of pedestrians, drivers and passengers. Local governments are well advised to closely review Justice Alito’s concurring opinion, which describes additional helpful examples of sign restrictions that would likely survive First Amendment testing.

Real estate owners, developers and brokers often confront cities and counties that seek to impose strict limits on the types of signage that can be placed on public and private property.  In light of the holding of Reed v. Town of Gilbert, commercial signage will be harder for local governments to prohibit and limit.  All signage in the community must be treated equally, regardless of its content, with very limited exceptions.