In the case of Reed v. Town of Gilbert, the United
States Supreme Court recently issued a significant decision
regarding municipal sign regulation The Town of Gilbert regulated
signage differently based on the content of the message with
different requirements applicable to three categories of
non-commercial signs: political, ideological, and temporary
directional signs. The town cited a local church for its temporary
directional signs and the church challenged the ordinance on the
grounds that it treated those signs less favorably than signs in
the other two categories, requiring that they be smaller in size
and posted no more than 12 hours before the advertised event. The
Court unanimously held in favor of the church, finding that the
ordinance violated the First Amendment’s Free Speech
Clause.
Prior to this decision, many believed that it was permissible for
an ordinance to categorize signs based on content, so long as the
ordinance regulated each category in a reasonable fashion and did
not suggest hostility toward particular types of speech. Six of the
nine justices in Gilbert firmly rejected that position,
holding that content-based regulations are presumptively
unconstitutional. Specifically, the six-justice majority explained
that even perfectly reasonable content-based regulations are
subject to “strict scrutiny,” and are therefore
unlawful unless they are narrowly tailored to a compelling
government interest. The remaining three justices would have
applied a more flexible approach, but would have still found the
town’s ordinance to be unconstitutional because its
distinctions were not sufficiently justified.
The Gilbert decision is receiving significant attention in
the media and may result in a wave of challenges to municipal sign
ordinances. Any ordinance that includes specific allowances for
political signs, directional signs, real estate signs, or garage
sale signs is now constitutionally suspect. However, with careful
drafting, there are still ways to regulate signs in a manner that
enhances the aesthetics of the community and promotes traffic
safety. The Gilbert decision allows content-neutral regulation of
size, setback, construction materials, illumination, animation,
color-scheme, etc. It also appears to allow distinctions between
commercial and non-commercial speech, so long as commercial speech
is treated less favorably. Finally, some content-based distinctions
may still be permissible if the municipality can prove that it
would not be possible to achieve a compelling government interest
without singling out certain signs based on their message.
In sum, municipalities should carefully review their sign
ordinances before enforcing any content-based regulations.
Enforcing unlawful ordinances could result in liability for the
municipality.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.