Sign regulations have never been an easy issue for local governments. Municipalities have often found themselves between a rock and a hard place, trying to find the right balance between promoting public safety, aesthetics, economic development and the right to freedom of speech. With the Supreme Court decision in Reed v. Town of Gilbert and its more recent 2022 decision in Austin v. Reagan Nat. Advertising of Austin, this matter has once again been brought to the attention of all municipalities.
Reed v. Town of Gilbert
Definitions Matter
At issue in this case was the Sign Code of the Town of Gilbert, Arizona. The Town’s Sign Code defined regulations on temporary directional signs, including their size, the number of signs that could be posted on a single property, and the length of time they could be displayed. It was discovered, however, that those sign regulations were not consistent with regulations imposed on other types of temporary signs, including signs with political or ideological messages.
This issue was brought to light by a local church in Gilbert, AZ. Each week the church held services at various locations throughout the town and posted temporary signs each weekend that announced the time and location of the next service. A municipal sign ordinance adopted by Gilbert in 2005 regulated the manner in which signs could be displayed in public areas. When the town’s Sign Code compliance manager cited the local church for violating the ordinance, the church filed a lawsuit in which they argued the town’s sign regulations violated its First Amendment right to the freedom of speech. The Ninth Circuit Court of Appeals agreed with the town, but that decision was reversed by the U.S. Supreme Court.
The Supreme Court Decision
By a 9-0 vote, the Supreme Court found that the Town of Gilbert’s Sign Code was content-based on its face: “It defines the categories of temporary, political, and ideological signs on the basis of their messages and then subjects each category to different restrictions. The restrictions applied thus depend entirely on the sign’s communicative content.” As a result, the Sign Code was subject to the “strict scrutiny” standard, meaning that the law must have been passed to further a compelling government interest and narrowly tailored to achieve that interest. The Court found that Gilbert’s Sign Code failed this standard: “The Sign Code’s content-based restrictions do not survive strict scrutiny because the Town has not demonstrated that the Code’s differentiation between temporary directional signs and other types of signs furthers a compelling governmental interest and is narrowly tailored to that end.”
What Does This Mean for Other Local Governments?
In drafting and enforcing sign regulations local governments should be mindful of this case and the Supreme Court’s determination that content-based regulation of noncommercial signs must meet “strict scrutiny.” This decision does not, however, limit a local government’s ability to impose regulations that are unrelated to content. In its opinion the Court stated: “This decision will not prevent governments from enacting effective sign laws. The Town has ample content-neutral options available to resolve problems with safety and aesthetics, including regulating size, building materials, lighting, moving parts, and portability.” The U.S. Supreme Court’s decision is currently being interpreted and applied by lower courts across the country, which in some instances is raising more questions than answers; in the meantime, every community is encouraged to review its own sign regulations to make sure that they are as Reed-compliant as possible.
Helpful Resources
The full Supreme Court opinion can be viewed on the Court’s website.
Austin v. Reagan Nat. Advertising of Austin
More Clarification
In April 2022 the Supreme Court issued a decision in another case related to signs, Austin v. Reagan Nat. Advertising of Austin, which further clarified the scope of its decision in Reed v. Town of Gilbert. The case centered on whether regulations in the City of Austin’s Sign Code relating to off-premises signs were a content-based restriction on speech and therefore subject to the strict scrutiny standard under the Reed decision.
The Case
Reagan National Advertising of Austin, LLC, had been denied permits by the City to digitize some of its off-premises signs. The company filed suit in state court on the grounds that the City’s regulations which prohibited digitizing off-premises signs but not on-premises signs violated the First Amendment. The District Court found in favor of the City but the Court of Appeals reversed, finding that the City’s distinction between on-premises and off-premises signs imposed a content-based restriction on speech, was subject to strict scrutiny under Reed v. Town of Gilbert, and failed to meet that standard.
The Supreme Court Decision
The Supreme Court reversed the decision of the Court of Appeals, concluding that: “The distinction between on-premises signs and off-premises signs in the city of Austin’s sign code is facially content-neutral under the First Amendment.” The Court found that the interpretation of the Reed decision by the Court of Appeals: “which holds that a regulation cannot be content neutral if it requires reading the sign at issue, is too extreme an interpretation of this Court’s precedent. Unlike the sign regulations at issue in Reed, the City’s off-premises distinction requires an examination of speech only in service of drawing neutral, location-based lines. It is agnostic as to content. Thus, absent a content-based purpose or justification, the City’s distinction is content neutral and does not warrant the application of strict scrutiny.” Based on this opinion, the appropriate level of review for on-premises versus off-premises signs is intermediate scrutiny, meaning the government must show that the restriction is narrowly drawn to advance a significant government interest.
The full Supreme Court opinion can be viewed on the Court’s website.
What now?
Local governments that are concerned about the legality of their own sign regulations should work with their legal counsel to review those regulations in light of these decisions and to ensure that the regulations are content neutral. Special emphasis should be focused on eliminating content-based sign categories and definitions like “real estate signs” or “political signs.” Listed below are some additional available resources:
The International Municipal Lawyers Association (IMLA) has written a statement about the 2022 Sign Code decision and has created Model Sign Codes.
Additionally, the International Sign Association (ISA) provides complimentary educational material and assistance to local governments in reviewing their sign regulations. Since the Reed decision was issued in June 2015, ISA has been educating local officials about the decision through workshops, webinars and seminars. Information can be found on their website about both Reed v. Town of Gilbert and Austin v. Reagan Nat. Advertising of Austin. For free assistance, please contact ISA through [email protected].
