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Signs, Signs, Everywhere a Sign

What hath the U.S. Supreme Court wrought in Reed v. Town of Gilbert, Arizona (decided June 18, 2015)?  In this case, the small, financially-strapped Good News Community Church could not afford a building of its own, so it held temporary services at different locations.  The church would place temporary signs around town in the public right-of-way announcing the time and location of its church services.  The signs would go up early on Saturday and would be removed around midday on Sunday.  Unfortunately, the town’s regulations for temporary directional signs only allowed four signs, limited to six square feet, to be on a single property at any time, and could only be displayed for 12 hours before the event and 1 hour after.  The church was cited for violating the sign ordinance, and the legal battle ensued.

The church filed a complaint with the federal district court seeking an injunction against the town for violating the church’s freedom of speech.  The core of the church’s argument was that since the town had less restrictive requirements for “ideological” signs and “political” signs, its signs were being targeted based on their content.  Regulating speech based on content is a big no-no in first amendment law.  The federal district court and the Ninth Circuit Court of Appeals found that the sign regulations were content neutral, and therefore, applied a lower level of scrutiny.  They both found that the sign regulations did not violate the First Amendment.  The church appealed to the U.S. Supreme Court

Not so fast, said Justice Thomas for the majority opinion.  Of course the sign regulations are based on content.  The restrictions that apply to the sign depend on whether it is directional, ideological or political.  In this case, the church’s signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas.  The Ninth Circuit incorrectly determined that the sign regulations were OK because the town did not adopt its regulation of speech based on disagreement with the message conveyed.  In other words, the town’s motives were pure in enacting the sign regulations so the fact that the regulations may have created different restrictions based on content did not mean that the regulations violated the First Amendment.  However, the majority found that an innocuous justification cannot transform a facially content-based regulation into one that is content neutral.  The majority opinion also held that the sign regulations single out a specific subject matter for different treatment, even if the town does not target viewpoints within that specific subject matter.  Since the regulations give ideological messages more leeway than political messages, which in turn are treated more favorably than directional messages, this is classic content-based discrimination.

Once the sign regulations are found to be content-based, the sign regulations are subject to strict scrutiny, which spells trouble for the sign regulations.  The town has to prove that the differentiation between temporary sins and other types of signs furthers a compelling state interest and is narrowly tailored to that end.  The town offered two governmental interests to support the distinctions:  aesthetic appeal and traffic safety.  The majority quickly dismissed both of those rationales.  First, temporary signs are not more of an eyesore than ideological or political signs, and the regulations allowed unlimited proliferation of larger ideological signs.  The same goes for traffic safety.  The town offered no reason to believe that directional signs are more of a threat to safety than ideological or political signs.

The majority opinion indicated that all is not lost in regulating signs, so long as the regulations are not content-based.  For instance, regulations can be based on size, building materials, lighting, moving parts and portability that have nothing to do with content.  The town can also prohibit the posting of signs on public property so long as it is even-handed and content-neutral.  Also, sign regulations narrowly tailored to protect the safety of the public such as signs directing traffic, warning signs, etc. well might survive strict scrutiny.

Justice Kagan concurred in the decision, but expressed her concern that the majority’s ruling on the application of strict scrutiny may place in jeopardy many existing sign ordinances. Communities will either have to repeal exemptions that allow for helpful signs on streets or sidewalks, or else lift their sign restrictions altogether and live with the resulting clutter.  Strict scrutiny only should be applied to content-based regulations of speech when there is any “realistic possibility that official suppression of ideas is afoot.”  Justice Kagan believes that we can administer the strict scrutiny doctrine with a dose of common sense, so as to leave standing laws that in no way implicate its intended function – to prevent government from discriminating against certain ideas or viewpoints.  Justice Kagan found that since the town’s defense of its sign regulations could not pass any test – let alone strict scrutiny- she had no problem joining in the majority’s decision to strike down the sign regulations.