The United States Supreme Court, in a recent decision by Justice Thomas, unanimously held that the “content based regulation” of signs by municipalities is an impermissible regulation of free speech under the First Amendment. All municipalities should review their sign regulations and consult with counsel regarding potential amendment of the regulations.
In Reed v. Gilbert (2015), the Town of Gilbert, Arizona, implemented regulations for the display of outdoor signs. The town’s code distinguished between types of signs, including “ideological signs,” “political signs,” and “temporary directional signs.” Based on the content category the sign fell into, the town restricted the size of the sign and the length of time it could be posted, with some categories of signs treated more favorably than others. A community church brought suit after it was cited for violating these sign regulations, claiming the regulations abridged the church’s right to freedom of speech under the First Amendment.
Under the First Amendment a government has no power to restrict expression because of its message, ideas, subject matter, or content. The Supreme Court determined that the town’s signage regulations were “content based” because they classified signs based solely on their subject matter. “Content based” laws are presumed unconstitutional and can be justified only if the government can prove that they are narrowly tailored to serve compelling state interests—a high level of judicial review called “strict scrutiny.”
Municipalities should understand that a law that is viewpoint neutral is not the same as a law that is content neutral. While government discrimination among different viewpoints is obviously offensive to the First Amendment, so is singling out an entire matter for differential treatment. Although the Town of Gilbert did not distinguish based on the point of view expressed on a sign—for example, the town did not regulate which political groups could post signs—it violated the First Amendment because it treated political signs differently from other types of signs, thus impermissibly regulating and restricting the content of speech.
As Justice Thomas wrote in his opinion, “[i]nnocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech.”
Ultimately, Gilbert’s sign regulations did not survive the Supreme Court’s application of strict scrutiny. While the municipality has a compelling interest in aesthetic appeal and traffic safety, its regulations were deemed “hopelessly underinclusive” because other types of signs causing the same problems were not similarly regulated.
This decision does not prevent governments from regulating signage altogether, however. As Justice Thomas pointed out in his opinion, municipalities can still regulate in content-neutral ways, including regulating size, building materials, lighting, moving parts, and portability. Municipalities can even forbid posting signs on public property altogether, provided the same rules apply to all signs.
J. Benjamin Gailey is a Partner practicing Municipal law, as well as zoning, land use and environmental permitting and litigation. He can be reached by phone at 845-778-2121 and by email.