The U.S. Supreme Court’s recent ruling in the landmark case, Reed v. Town of Gilbert, directly affects each and every municipality that regulates sign usage within its borders. Tressler LLP has reviewed this case and continues to analyze its overarching effects on municipal sign regulation. Tressler will provide a more detailed analysis and client specific guidance in the coming weeks. In the mean time, provided below is a brief synopsis of the case.
On June 18, 2015, the U.S. Supreme Court unanimously ruled that an Arizona municipality violated the First Amendment by placing limits on the display of outdoor signs. At issue was Gilbert, Arizona’s comprehensive sign code (Code) that had differing restrictions on political, ideological and directional signs. The Code contained a number of exemptions for various sign types, such as “ideological signs,” “political signs” and “temporary signs.”
Good News Community Church and its pastor Clyde Reed (the Petitioners), conducted services at a new, temporary location every Sunday and posted signs the prior Saturday bearing the name of the Church and the location for the service that week. The Church was cited for violating the Code, specifically in its failure to include an event date and for exceeding the time limits for displaying directional signs. After failing to come to an agreement with municipal authorities, the Petitioners challenged the Code, arguing that it infringed their free speech rights.
Supreme Court’s Analysis
The U.S. Supreme Court Justices all agreed that the distinctions drawn by the ordinance were impermissible. However, a concurring opinion, authored by Justice Samuel Alito and joined by Justices Anthony Kennedy and Sonia Sotomayor, disagreed on the extent to which governments may regulate forms of speech. The majority held that if a law is content-based “on its face” — that is, if it “draws distinctions based on the message a speaker conveys” — it is to be treated as content-based. The Court noted that all content-based laws require strict scrutiny, which is the most exacting form of judicial review. The concurring Justices, on the other hand, listed a number of regulations they felt would not be subject to strict scrutiny, including rules regulating:
Lighted and unlighted signs;
Signs with fixed messages and electronic, varying messages;
Placement of signs on public and private property;
Placement of signs on commercial and residential property; and
Placement of a set number of signs per mile of roadway.
Justice Stephen Breyer wrote a separate concurrence, joined by Justices Elena Kagan and Ruth Bader Ginsberg, that agreed that the Code was unconstitutional, but disagreed with the majority’s broad condemnation of content-based restrictions. However, this concurrence is less likely to guide lower courts’ interpretation of the case than the majority opinion and Justice Alito’s concurrence.
What the Decision Means for Municipalities
This decision is far-reaching and will require every municipality to revisit its sign code. Nearly all content-based categories will need to be rewritten in a manner that removes the content-based restrictions and creates a new content-neutral restriction, using standards such as those listed above. Furthermore, distinctions between commercial and non-commercial signs will have to be revisited and regulated in a manner not based on the sign’s message or content.