Municipalities throughout the country have many different types of sign ordinances. Some ordinances distinguish signs by their subject matter. For example, an ordinance might apply stricter rules to "Event Signs" than "Political Signs."
In Reed v. Town of Gilbert, Ariz., the United States Supreme Court held that sign ordinances that apply different rules to signs based on their content or subject matter are subject to strict judicial review and may violate the First Amendment of the United States Constitution.
The Town of Gilbert, Arizona ("Town") had a sign ordinance that prohibited the display of outdoor signs without a permit, but provided 23 categories of exceptions. Three of these categories were: "Ideological Signs," "Political Signs," and "Temporary Directional Signs Relating to a Qualifying Event." The "Qualifying Event" includes church, community, educational events and events by non-profit organizations. Ideological Signs had the fewest time and size restrictions and included signs that communicate "a message or ideas" for non-commercial purposes that did not fit in any other category. Political Signs had an intermediate amount of restrictions. Temporary Directional Signs had the most restrictions including time and size limitations greater than the other types of signs.
The Good News Community Church ("Church") was cited by the Town for violating the sign ordinance when it posted signs promoting and directing potential congregants to its worship services. Such signs were not posted in compliance with the restrictive rules governing Temporary Directional Signs. After failing to reach an agreement with the Town, the Church filed suit against the Town. The Town won a series of favorable decisions in the lower courts, including the Ninth Circuit Court of Appeal. The Church appealed to the United States Supreme Court.
The United States Supreme Court ("Court") declared the Town's sign ordinance to be an unconstitutional violation of the First Amendment. The Court held that the ordinance's creation of different categories of signs based on the content of speech was a "content based" restriction of speech. A law is content based if it applies to particular speech based upon the topic discussed or the idea or message expressed. This includes regulating speech based on a particular subject matter, function or purpose. The specific restrictions of the Town's Sign Code differed depending entirely on the communicative content of the sign. The Court further noted that the Town's benign motive, content-neutral justification or lack of animus was not controlling. It is also not controlling that the ordinance does not mention or single out any idea or viewpoint for differential treatment. The fact a distinction is event based rather than speaker based is not controlling.
Such content based restrictions evoke a restrictive "strict scrutiny" test that requires the ordinance to serve a "compelling interest and [be] narrowly tailored to achieve that interest." The Court held that the Town's sign ordinance could not pass this test.
The Court noted that cities may impose reasonable sign regulations, but the regulations must not distinguish between the content of the signs or be based upon the sign's message. For example, regulations regarding the "size, building materials, lighting, moving parts, and portability" of signs may be permissible. Similarly, signs protecting the safety of pedestrians, drivers and passengers such as warning signs and signs directing traffic may be permissible. A town may also be able to forbid signs on public property if done in an evenhanded, content-neutral manner.
What This Means To You
Cities throughout California should review their sign ordinances in light of this opinion to determine whether the ordinance makes content based distinctions like the Town of Gilbert, and if so, whether such distinctions would satisfy strict judicial review.
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