As some have heard by now, the United States Supreme Court in Reed v. Town of Gilbert, Arizona (135 S. Ct. 2218, June 18, 2015) issued what some are calling a landmark decision on municipal sign regulation under the First Amendment. On August 18, 2015, the New York Times picked up on this issue and parroted other commentaries asserting that this decision represents a major shift in First Amendment jurisprudence and invalidates, or potentially invalidates, many municipal sign laws and ordinances. Some even believe that this decision rolls back consumer protection laws to the 19th Century. Limiting our analysis to the effect of the Court’s decision on municipal sign laws, our view is that, while the sky is not falling, it would be wise to review your municipal sign laws to ensure compliance with the Court’s guidelines. This decision does not represent a significant change in law, nor any significant change in the constitutional law standards applicable to signs, although the lower courts tasked with interpreting and following the Supreme Court’s judgment may indeed feel compelled to look more closely at what constitutes a “content-based” regulation.

PROCEDURAL HISTORY

The Town of Gilbert, Arizona, had enacted a comprehensive sign law governing the manner in which outdoor signs may be displayed. The sign code prohibited all signs without a permit, but exempted 23 different classifications if they met varying display, timing, size, locational, and other rules. Included were 3 sign classifications that proved problematic: (1) ideological signs communicating a message or ideas for noncommercial purposes, which were allowed to be up to 20 ft2 and which could be placed in all zoning districts without time limits; (2) temporary political signs that were designed to influence the outcome of an election called by a public body, which can be up to 16 ft2 if located upon residential property and up to 32 ft2 if located upon nonresidential property; and (3) temporary directional signs relating to a “qualifying event,” being temporary signs intended to direct pedestrians, motorists, and other passersby to an assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar non-profit organization, which signs could be only 6 ft2, located only upon private property or a public right-of-way, and which signs were subject to a 4-sign per lot limit and a restriction prohibiting display more than 12 hours before the qualifying event and more than 1 hour afterward.

The Good News Community Church and Pastor Clyde Reed wished to advertise the time and location of their Sunday church services. The Church did not have its own building so it held services at elementary schools and other locations. To inform the public about its services and their locations the Church placed 15-20 temporary signs around the Town, usually posting them early on Saturday for the Sunday morning service, and then removing the signs on Sunday afternoon. For whatever reason, this was a problem for the Town’s sign code compliance manager, who twice cited the Church for violating the law. Town officials even confiscated one of the signs. The Church tried communicating with the Town, but such efforts proved unsuccessful and the Town’s manager, perhaps never having heard of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), let alone the Constitution, told the Church there would be “no leniency under the Code” and promised to punish any future violations. Quite predictably, the Town was sued.

The Ninth Circuit, in its decision affirming the denial of the Church’s request for an injunction in part, claimed that the provisions regulating temporary directional signs did not regulate speech on the basis of content, even though an enforcement officer would have to read the sign to determine what provisions of the code applied. The Circuit Court reasoned that it would be only a “cursory determination” and not the type of analysis as may be held to regulate the expressive content of the sign. The case was then sent back to the District Court, and such Court then held that the code categories for signs were “content neutral” and permissible as based upon objective factors relevant to permit exemptions and the purposes for regulating such signs. On appeal a second time, the Ninth Circuit affirmed, explaining that because the Town did not regulate speech because it disagreed with the message conveyed this was a valid regulatory scheme. Simply stated, the Supreme Court unanimously disagreed.

The First Amendment prohibits the enactment of laws “abridging the freedom of speech,” and thus a municipal government has no or limited power to restrict expression because of its message, its ideas, its subject matter, or its content. Content-based laws that target speech based on its communicative content are presumptively unconstitutional and may be justified only if the government proves that regulations are narrowly tailored to serve compelling state interests. This “content based” standard requires a court to consider whether a regulation of speech “on its face” draws distinctions based on the message a speaker conveys. Some facial distinctions based on a message are obvious, such defining regulated speech by its particular subject matter. Other distinctions are more subtle, such as defining regulated speech by its function or purpose. However, both are distinctions based on the message a speaker conveys and are therefore are subject to strict scrutiny. Even more subtly, there are classes of laws that are facially content-neutral but which will none-the-less be considered content-based regulations if they cannot be justified without reference to the content of the regulated speech itself.

Based upon these standards the Supreme Court had no trouble finding the Town’s code was on its face a content-based regulation subject to strict scrutiny and, ultimately, unenforceable. For example, the code tried to define an ideological sign on the basis of whether a sign communicates a “message or ideas” that do not fit within the Code’s other categories. This cannot possibly be done without considerable subjective analysis, as the restrictions in the code could not be applied except as based entirely on the communicative content of the sign. Further, each of the multiple categories, even of temporary signs, were subjected to differing restrictions based upon the type of sign, even when a single sign could fit into multiple categories. Illustrating the problem, the Supreme Court reasoned that if a sign informs its reader of the time and place a book club will discuss John Locke’s Two Treatises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke’s followers in an upcoming election, and both such signs will be treated differently from a sign expressing an ideological view rooted in Locke’s theory of government. Hence, quite logically, the Supreme Court held that this regulatory scheme was a content-based regulation of speech.

Thus, the Supreme Court did not need to reach out to determine the government’s justifications or purposes for enacting the code to determine whether it is subject to strict scrutiny—as a content-based regulation it was subject to strict scrutiny. The Ninth Circuit Court of Appeals had relied upon the municipal justification for the code to determine that the justification was content neutral and this was procedurally and constitutionally wrong—the role of the Court is to first determine the level of scrutiny, and a law that is on its face content-based is subject to strict scrutiny regardless of the government’s benign motives or justification for the claimed regulations. Citing a string of precedent the Court held that “innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech.” This, said the Supreme Court, is why the First Amendment expressly targets the operation of these types of laws as an “abridgement” of speech.

For example, in NAACP v. Button, 371 U.S. 415 (1963), the Supreme Court denied a state’s attempt to use a statute prohibiting improper solicitation by attorneys to outlaw the litigation-related speech of the NAACP. The state’s attempt to silence the NAACP was rejected as content-based regulation and could not be upheld by claiming a laudable goal—regulating professional conduct—in the absence of a narrowly tailored compelling state interest. Hence, the NAACP could not be stifled under the claimed “neutrality” of an interest in regulating professional conduct. It is this same slippery slope that is present in the history of this particular amended and re-amended sign code, and in sign laws generally. Thus, the Court observed that a sign code could be used (or misused), as the professional licensing standards had, to regulate the speech of an organization that the state simply disagreed with. For example, could this sign code be deployed to make it more difficult for the Church, or any other person or agency, to inform the public of the location of its services? The answer was the Supreme Court found was an unequivocal “yes.”

THE CONTROVERSY

While the Court reiterated the rule that content-based laws are presumptively unconstitutional and therefore subject to a strict scrutiny standard, a number of commentators (including two concurring Justices) believe that the Court—whether deliberately or inadvertently—expanded its definition of “content-based laws.” This is not truly consistent with precedent on this point going back to 1939, but the point is that the Supreme Court made clear that any law which makes distinctions based upon the message or type of message conveyed is subject to strict scrutiny. As set forth in Justice Thomas’ majority opinion, “Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. This commonsense meaning of the phrase ‘content based’ requires a court to consider whether a regulation of speech ‘on its face’ draws distinctions based on the message a speaker conveys.”

ANALYSIS

It is worth noting that the Justices unanimously agreed in the judgment that the Town of Gilbert’s statute was unconstitutional, though the several concurring opinions differ as to the proper way to invalidate this particular code. In fact, we believe there was unanimity on the Court precisely because this really is not a controversial decision. It is our further view that understanding exactly what the municipality did here is critical to understanding this holding.

The Supreme Court notes this law was amended twice during the pendency of this case. When litigation began in 2007 the code defined the signs at issue as “Religious Assembly Temporary Direction Signs.” As religious signs, they were prohibited entirely in any public right-of-way and were forbidden for more than 2 hours before the religious assembly or more than 1 hour afterward. In 2008, during the pendency of this litigation, the Town amended the law to define such signs as “qualifying event” signs. Such amendment expanded the time limit to 12 hours before and 1 hour after the qualifying event. The term “qualifying event” was gussied-up to look content neutral by referencing any non-profit, but it still seems it was clearly aimed at particular assemblies. Then, remarkably, the Town amended this sign law again; this time to allow placement of temporary directional signs in the public right-of-way.

Hence, one wonders whether this Decision is a reflection upon how the Town kept trying to change a clearly impermissible law into an arguably permissible law, but only through the expediency of making it look neutral when it truly was not. Did this repeated attempt to “save the unsalvageable” trigger the strict scrutiny analysis by being, in and of itself, a demonstration of just how easily government can misuse its powers? Is this the very case highlighting the slippery slope the Court was concerned with? We believe the answers to these questions are “yes,” and that secondary lessons here abound, such as (i) understanding the impacts of a law or regulatory scheme, including unintended consequences; (ii) building in waiver processes and “back doors” to address disparate impacts before you get sued; (iii) understanding that enforcement is discretionary and to be careful when enforcing local laws; (iv) settling a bad case before your ego makes you blind to the obvious; and (v) being careful how you act during litigation. These amendments were, in an evidentiary sense of speaking, the equivalent of an admission that, by all appearances, affected the final outcome here.

In essence, the Town’s sign code singles out specific subject matter for differential treatment. Ideological messages are given more favorable treatment than messages concerning a political candidate, which are themselves given more favorable treatment than messages announcing an assembly of like-minded individuals. The Court found that to be a “paradigmatic example of content-based discrimination.” A regulation that targets a sign because it conveys an idea about a specific event is no less content based than a regulation that targets a sign because it conveys some other idea.

Because the Town’s sign code imposed content-based restrictions on speech, those provisions can stand only if they survive strict scrutiny. Strict scrutiny requires the government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest. Here, the Town failed. The only interests proffered by the Town were aesthetic appeal and traffic safety. The Court noted that these arguments must fail as temporary directional signs are “no greater an eyesore” than other temporary signage, including ideological or political signs. Yet, they are treated very differently, including as to the number of signs, the size, location and duration of allowed posting. If beautification were the goal, how do stricter limits on temporary directional signs achieve that goal when such restrictions do not apply to other signs that create the same problem? Similarly, traffic safety as a compelling governmental interest also failed under this same logic. How do directional signs pose a greater threat to safety than do ideological or political signs? Arguably, do not directional signs aid traffic, while bombastic political signage could more readily distract a driver?

The Court then noted many ample content-neutral options available to resolve problems with safety and aesthetics and the Court did not detract from the ability to prohibit or regulated signage. A sign law narrowly tailored to protect the safety of pedestrians, drivers, and passengers is perfectly permissible, but one such as this one simply failed. While some concurring opinions disagreed with how the Court arrived at such conclusion, all Justices agreed that this particular law was unconstitutional. The most reasoned concurrence, in our opinion, was that of Justice Alito, as joined by Justices Kennedy and Sotomayor. Although a concurrence does not hold the same precedential value as a majority opinion, lower courts may very well follow Justice Alito’s guidance in deciding municipal sign law challenges after Reed. Basically, this concurrence boiled it down as follows:

1. Content-based laws must satisfy strict scrutiny and merit this level of scrutiny as they present, though in a subtler form, the same dangers as laws that regulate speech based on viewpoint. Limiting speech based on its “topic” or “subject” favors those who do not want to disturb the status quo, and such regulations may interfere with democratic self-government and the search for truth.

2. The regulations at issue in this case are replete with content-based distinctions, and as a result they must satisfy strict scrutiny. This does not mean, however, that municipalities are powerless to enact and enforce reasonable sign regulations.

3. Non-exclusive examples of sign rules that would not be content based could include: (i) rules regulating the size of signs; (ii) rules regulating the locations in which signs may be placed; (iii) rules distinguishing between lighted and unlighted signs; (iv) rules distinguishing between signs with fixed messages and electronic signs with messages that change; (v) rules that distinguish between the placement of signs on private and public property; (vi) rules distinguishing between the placement of signs on commercial and residential property; (vii) rules distinguishing between on-premises and off-premises signs; (viii) rules restricting the total number of signs allowed per mile of roadway; (ix) rules imposing time restrictions on signs advertising a one-time event; (ix) rules allowing government signage needed for permissible governmental speech, such as those that promote safety, directional signs, and signs pointing out historic, cultural, or scenic sites and locations.

CONCLUSION

So, what is new? It is not news that a bad law that suffered an illusory “fix” did not get upheld. It is not news that it is improper to regulate signs based upon multiple classifications defined and regulated based upon the content and purpose of the sign. It is certainly not news that a violation of the First Amendment pertaining to religious speech was called what it was and prohibited. At most, we believe that what is potentially new here is that the Court will apply a strict scrutiny standard across-the-board to laws and codes that regulate based upon the classification or purpose of the sign, particularly where the classification is not a broadly based classification long recognized in zoning, such as residential versus commercial or on-premises versus off-premises signage.

We thus recommend that each municipality review its regulations and ensure that sign regulations treat signs equivalently regardless of their content, message, or purpose and, if a distinction is made based upon the type of sign involved, such distinction be justifiable under a strict scrutiny analysis.

This update represents the opinion of this law firm, and other attorneys might differ with the analysis or message herein conveyed. You should therefore consult with your own primary municipal counsel or any attorney of your own choice upon this topic. However, we remain available to assist with the analysis of your ordinances, laws, or codes, as needed.