Supreme Court ruling on sign regulation has major implications for all local governments
The decision means many, if not all, sign regulations in Michigan will need to be reviewed and likely changed if the municipality wants to reduce legal risks.
In the case Reed et al. v. Town of Gilbert, Arizona, et al., (No. 13-502, June 18, 2015), the United States Supreme Court ruled 9-0, regulations that categorize signs based on the type of information they convey (e.g. temporary, political and ideological) and then apply different standards to each category are content-based regulations of speech and are not allowed under the First Amendment to the United States Constitution.
In this case, Gilbert, Arizona has sign regulations that prohibit the display of outdoor signs without a permit, but exempts 23 categories of signs, including the three relevant here:
- Ideological Signs are defined as signs “communicating a message or ideas” that do not fit in any other category and may be up to 20 square feet without placement or time restrictions.
- Political Signs are defined as signs “designed to influence the outcome of an election” and may be up to 32 square feet, but may only be displayed during an election season.
- Temporary Directional Signs are defined as signs directing the public to a church or other “qualifying event” and include greater restrictions: No more than four of the signs, limited to six square feet, may be on a single property at any time, and signs may be displayed no more than 12 hours before the “qualifying event” and 1 hour after.
Petitioners, Good News Community Church and its pastor, Clyde Reed, whose Sunday church services are held at various temporary locations in and near Gilbert, posted signs early each Saturday bearing the Church name and the time and location of the next service and did not remove the signs until around midday Sunday. The Church was cited for exceeding the time limits for displaying temporary directional signs and for failing to include an event date on the signs. Unable to reach an accommodation with the Town, petitioners filed suit, claiming that the sign regulations limited their freedom of speech. The United States District Court denied their motion for a preliminary injunction, and the Ninth United States Circuit affirmed, ultimately concluding that the sign categories (the three noted above) were content neutral.
Upon appeal, the United States Supreme Court held the sign provisions are content-based regulations of speech – the categories of temporary, political and ideological signs are based on their messages and different restrictions apply to each category. As such, the restrictions depend entirely on the sign’s communicative content and are unconstitutional.
Courts have long ruled that government cannot regulate the content of signs because doing so could violate the right to free speech contained in the First Amendment. In reviewing government regulations, the Supreme Court applies various ‘tests’ for the constitutionality of a regulation. When a regulation is challenged based on its free speech content, the Court applies the strict scrutiny test, which means the regulation must be for a compelling governmental interest and the regulation must be narrowly tailored to serve the governmental interest. In Reed et al., the Town of Gilbert did not demonstrate that the differentiation between the various types of signs – temporary, political and ideological – furthered a compelling governmental interest. The Supreme Court wrote “The town cannot claim that placing strict limits on temporary directional signs is necessary to beautify the town when other types of signs create the same problem. Nor has it shown that temporary directional signs pose a greater threat to public safety than ideological or political signs.”
It is fairly common (although unconstitutional) for communities to have definitions and/or regulations that classify signs, based on the message being communicated, into categories such as those subject in this case. Typically, regulations will refer to ‘open’ signs or ‘political’ signs and have distinct standards for both. In order to reduce the chance of an adverse lawsuit, local governments will want to review their sign regulations with their municipal attorney very carefully to determine whether any regulation(s) in their ordinance(s) might be content-based. If the ordinance can be implemented without reading the message of the sign, then the regulations are content-neutral. That is what the Court says is minimally necessary. However, local governments must go further and also make sure the underlying governmental purposes of the regulations are compelling. The Town of Gilbert failed to prove to the satisfaction of the Supreme Court that the underlying governmental purposes of traffic safety and aesthetics are compelling. The Court did not say it was impossible to make such a showing, only that the Town had failed to do so in this case. The Court also said there were ample content-neutral ways of achieving traffic safety that would pass constitutional muster.
In reviewing local regulations, it will be helpful to refer to the Michigan Sign Guidebook: The Local Planning & Regulation of Signs prepared by the Planning & Zoning Center at Michigan State University for Scenic Michigan (for a summary of the Michigan Sign Guidebook, see Sign regulation guidebook helps communities find their way).