U.S. Supreme Court Holds Local Sign Law Unconstitutional

The significant attention garnered by the United States Supreme Court decisions at the end of its most recent term, relating to such issues as the Affordable Care Act and same-sex marriage, overshadowed a significant decision relating to freedom of speech. This decision has potentially significant ramifications for municipal regulations throughout the country. In Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015), the Court found that the town's regulation of directional signs was not content-neutral and violated the free speech rights of a local church.

Background

The Town Code requires that permits be obtained for signs, but exempts 23 categories of signs from that requirement. The Court focused on three of those categories, noting the manner in which the local law treated each of these categories differently. The first category, “Ideological Signs,” are those that are defined as communicating noncommercial ideas and are not otherwise within the law's definition of political signs. Ideological Signs are permitted in any zoning district for any length of time and may be up to 20 square feet in size. Next are “Political Signs,” which are defined as a “temporary sign designed to influence the outcome of an election called by a public body ' .” The Court noted that these signs may be up to 16 square feet on residential property and 32 square feet on nonresidential property, vacant municipal property and rights of way. Political Signs may be erected up to 32 days before a primary election and must come down within 15 days after a general election. Id. at 2227

The signs at issue in the case are called “Temporary Directional Signs Relating to a Qualifying Event.” The law defines a “Qualifying Event” as “assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar non-profit organization.” However, the size, location and time these signs may be posted is limited. No more than four signs, no larger than six square feet each, may be placed on any property. They are permitted on private property and rights of way. Significantly, they may only be displayed up to 12 hours before a qualifying event and only one hour after.

The Case

The Good News Community Church is a small local church in the Town of Gilbert, without its own building. As a result, it holds services in different locations in the town and advertises the location of Sunday services by having its members put out signs early on Saturday and then remove them about mid-day on Sunday. This results in 15 to 20 signs being placed around Town, often on the right of way. The signs typically include the name of the Church and the time and location of the service. The Town's enforcement officer issued citations to the Church for violating the law. The Church Pastor, Reed, attempted to resolve the issue with the Town, but was advised that the Code would continue to be enforced. As a result, an action claiming violation of the First and Fourteenth Amendments to the U.S. Constitution was commenced with an application for a preliminary injunction against continued enforcement. The district court denied the application. The matter was remanded by the U.S. Court of Appeals for the Ninth Circuit.On remand, the district court granted the Town summary judgment and the Ninth Circuit affirmed, finding that the law did not violate the U.S. Constitution, as it is content-neutral. The Supreme Court (Thomas, J.) reversed.

The Decision

In finding that the local sign code is not content-neutral, the Court pointed to the distinct criteria applied to the Ideological, Political and Temporary Directional Signs.

' the Church's signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas. On its face, the Sign Code is a content-based regulation of speech.

Id. at 2227.

The Court rejected the argument that even if there are distinctions among signs the law may still be content neutral if the distinctions are based upon something other than the content. Rather, the Court held:

[T]his analysis skips the crucial first step in the content-neutrality analysis: determining whether the law is content neutral on its face. A law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of “animus toward the ideas contained” in the regulated speech. Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993).

Id. at 2228.

The decision went on to explain that the Temporary Directional Signs are not content-neutral because they relate to the time and place of an event. The Court found that 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.” Id. at 2230. As a result, the Court held that the burden falls to the Town to demonstrate a compelling interest in the distinction among the categories of signs that must be narrowly tailored to address that compelling interest.

The Court rejected the claim that there were aesthetic reasons for the distinction, assuming for the sake of argument that aesthetics is even a compelling interest. The Court noted that the Political and Ideological signs are no less of an eyesore, and the Town ” ' cannot claim that placing strict limits on temporary directional signs is necessary to beautify the Town while at the same time allowing unlimited numbers of other types of signs that create the same problem.” Id. at 2231. Likewise, the Court found that the traffic safety issue was unavailing. It noted that there was no evidence that potentially “sharply worded” ideological signs would be less hazardous to traffic safety than directional signs.

The Court also rejected the claim that the ruling would prevent municipalities from regulating signs, arguing that there are many content-neutral criteria that could be applied. Attempting to expand on that concept, the concurring opinion by Justice Alito, joined in by Justices Kennedy and Sotomayor, discussed regulation of signs based upon lighting, size, location and the like.

Yet, the other concurring opinion by Justice Kagan, joined in by Justices Ginsberg and Breyer, agreed that the regulation at issue went too far, but argued the strict scrutiny rule when applied to municipal sign regulations could have unintended consequences:

' courts would have to find that a town has no other way to prevent hidden-driveway mishaps than by specially treating hidden-driveway signs. (Well-placed speed bumps? Lower speed limits? Or how about just a ban on hidden driveways?) The consequence ' unless courts water down strict scrutiny to something unrecognizable ' is that our communities will find themselves in an unenviable bind '

Id. at 2237. Justice Kagan concluded that “this Court and others will regret” the application of strict scrutiny in such cases as it will likely result in the Court ultimately becoming the “Supreme Board of Sign Review.” Id. at 2239.

Steven M. Silverberg , a member of this newsletter's Board of Editors, is a partner in Silverberg Zalantis LLP, where he concentrates his practice in municipal and land-use law and related litigation. He blogs on related topics at http://blog.szlawfirm.net.

The significant attention garnered by the United States Supreme Court decisions at the end of its most recent term, relating to such issues as the Affordable Care Act and same-sex marriage, overshadowed a significant decision relating to freedom of speech. This decision has potentially significant ramifications for municipal regulations throughout the country. In Reed v. Town of Gilbert , 135 S.Ct. 2218 (2015), the Court found that the town's regulation of directional signs was not content-neutral and violated the free speech rights of a local church.

Background

The Town Code requires that permits be obtained for signs, but exempts 23 categories of signs from that requirement. The Court focused on three of those categories, noting the manner in which the local law treated each of these categories differently. The first category, “Ideological Signs,” are those that are defined as communicating noncommercial ideas and are not otherwise within the law's definition of political signs. Ideological Signs are permitted in any zoning district for any length of time and may be up to 20 square feet in size. Next are “Political Signs,” which are defined as a “temporary sign designed to influence the outcome of an election called by a public body ' .” The Court noted that these signs may be up to 16 square feet on residential property and 32 square feet on nonresidential property, vacant municipal property and rights of way. Political Signs may be erected up to 32 days before a primary election and must come down within 15 days after a general election. Id. at 2227

The signs at issue in the case are called “Temporary Directional Signs Relating to a Qualifying Event.” The law defines a “Qualifying Event” as “assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar non-profit organization.” However, the size, location and time these signs may be posted is limited. No more than four signs, no larger than six square feet each, may be placed on any property. They are permitted on private property and rights of way. Significantly, they may only be displayed up to 12 hours before a qualifying event and only one hour after.

The Case

The Good News Community Church is a small local church in the Town of Gilbert, without its own building. As a result, it holds services in different locations in the town and advertises the location of Sunday services by having its members put out signs early on Saturday and then remove them about mid-day on Sunday. This results in 15 to 20 signs being placed around Town, often on the right of way. The signs typically include the name of the Church and the time and location of the service. The Town's enforcement officer issued citations to the Church for violating the law. The Church Pastor, Reed, attempted to resolve the issue with the Town, but was advised that the Code would continue to be enforced. As a result, an action claiming violation of the First and Fourteenth Amendments to the U.S. Constitution was commenced with an application for a preliminary injunction against continued enforcement. The district court denied the application. The matter was remanded by the U.S. Court of Appeals for the Ninth Circuit.On remand, the district court granted the Town summary judgment and the Ninth Circuit affirmed, finding that the law did not violate the U.S. Constitution, as it is content-neutral. The Supreme Court (Thomas, J.) reversed.

The Decision

In finding that the local sign code is not content-neutral, the Court pointed to the distinct criteria applied to the Ideological, Political and Temporary Directional Signs.

' the Church's signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas. On its face, the Sign Code is a content-based regulation of speech.

Id. at 2227.

The Court rejected the argument that even if there are distinctions among signs the law may still be content neutral if the distinctions are based upon something other than the content. Rather, the Court held:

[T]his analysis skips the crucial first step in the content-neutrality analysis: determining whether the law is content neutral on its face. A law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of “animus toward the ideas contained” in the regulated speech. Cincinnati v. Discovery Network, Inc. , 507 U.S. 410, 429, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993).

Id. at 2228.

The decision went on to explain that the Temporary Directional Signs are not content-neutral because they relate to the time and place of an event. The Court found that 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.” Id. at 2230. As a result, the Court held that the burden falls to the Town to demonstrate a compelling interest in the distinction among the categories of signs that must be narrowly tailored to address that compelling interest.

The Court rejected the claim that there were aesthetic reasons for the distinction, assuming for the sake of argument that aesthetics is even a compelling interest. The Court noted that the Political and Ideological signs are no less of an eyesore, and the Town ” ' cannot claim that placing strict limits on temporary directional signs is necessary to beautify the Town while at the same time allowing unlimited numbers of other types of signs that create the same problem.” Id. at 2231. Likewise, the Court found that the traffic safety issue was unavailing. It noted that there was no evidence that potentially “sharply worded” ideological signs would be less hazardous to traffic safety than directional signs.

The Court also rejected the claim that the ruling would prevent municipalities from regulating signs, arguing that there are many content-neutral criteria that could be applied. Attempting to expand on that concept, the concurring opinion by Justice Alito, joined in by Justices Kennedy and Sotomayor, discussed regulation of signs based upon lighting, size, location and the like.

Yet, the other concurring opinion by Justice Kagan, joined in by Justices Ginsberg and Breyer, agreed that the regulation at issue went too far, but argued the strict scrutiny rule when applied to municipal sign regulations could have unintended consequences:

' courts would have to find that a town has no other way to prevent hidden-driveway mishaps than by specially treating hidden-driveway signs. (Well-placed speed bumps? Lower speed limits? Or how about just a ban on hidden driveways?) The consequence ' unless courts water down strict scrutiny to something unrecognizable ' is that our communities will find themselves in an unenviable bind '

Id. at 2237. Justice Kagan concluded that “this Court and others will regret” the application of strict scrutiny in such cases as it will likely result in the Court ultimately becoming the “Supreme Board of Sign Review.” Id. at 2239.

Steven M. Silverberg , a member of this newsletter's Board of Editors, is a partner in Silverberg Zalantis LLP, where he concentrates his practice in municipal and land-use law and related litigation. He blogs on related topics at http://blog.szlawfirm.net.