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.