Local government attorneys, it’s time to revise your sign codes to comply with the U.S. Supreme Court’s decision Reed v. Town of Gilbert, 576 U.S. __, 135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015).
In this landmark case, Pastor Reed successfully sued the Town of Gilbert alleging violation of the First Amendment because the town’s code provided for greater restrictions on temporary event directional signs compared to other noncommercial signs like ideological and political signs. The court held that content-based laws, such as laws applying to temporary event directional signs, are presumptively unconstitutional and must meet a strict standard of review. To be held constitutional, they must be justified by a compelling governmental interest and be narrowly tailored to achieve it. A sign law is content-based when:
If the sign law is content neutral, the court explained that the standard of review is intermediate. The law must be justified by a substantial government interest such as legitimate aesthetic and traffic safety objectives.
In his concurring opinion, Justice Alito provided a non-exhaustive list of sign rules that are content neutral:
Based on this decision, local governments should avoid any content-based sign laws such as laws specific to political and real estate sale signs. This brings many challenges for local government attorneys who must revised sign codes. For example, if a municipality allows political signs for an upcoming election in its right-of-way, it must also allow other temporary signs as it cannot discriminate based on content.
Timeframe can also be an issue. Let’s say that temporary signs are allowed for 30 days, what happens to real estate sale signs and political signs which are based on an event? One could draft an ordinance to say that if a temporary sign pertains to an event, it should be removed within five days after the conclusion of the event. However, this would allow a temporary sign to be posted months before the event. This may work well for real estate sale signs, but not so much for other event-based temporary signs. I have studied and reviewed many revised sign codes to see what other cities have done to comply with the U.S. Supreme Court’s decision, but I have not found one that solves the above-mentioned issue.
As you can see, this decision provides a few guidelines on what content-based signs are, but it also creates practical issues for local government attorneys revising sign codes.
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