On June 18, 2015, the United States Supreme Court issued its ruling in Reed v. Town of Gilbert, striking down the Town of Gilbert’s sign ordinance as unconstitutional under the First Amendment for being a content-based regulation of speech.

Background

Gilbert, a small town in Arizona, adopted a comprehensive Sign Code which prohibited the display of outdoor signs without a permit. Exemptions were made, however, for 23 categories of signs, three of which included “Ideological Signs,” “Political Signs,” and “Temporary Directional Signs Relating to a Qualifying Event.” Each of these three categories were subject to different regulations governing their size, location, and time of display. In 2007, a local church was cited after failing to remove its temporary directional signs within the time limits prescribed by the Sign Code. The church’s pastor then filed a lawsuit against the town alleging that the Sign Code abridged the church’s freedom of speech in violation of the First Amendment.

Decision

Writing on behalf of a unanimous Court, Justice Clarence Thomas reasoned that the Sign Code was a content-based regulation of speech because the restrictions in the ordinance were entirely dependent upon the communicative content of the sign. Treating “Temporary Directional Signs” less favorably than “Political Signs” or “Ideological Signs” is tantamount to making an unlawful distinction of speech based on the message it conveys. In reaching its decision, the Court reversed the Ninth Circuit Court of Appeals and made a number of important determinations with respect to municipal sign ordinances.

First, sign restrictions that are content-based on their face will almost always be found unconstitutional, regardless of the benign motives a city may have in enacting the law. Innocent motives do not eliminate the danger that future government officials may one day abuse the statute to suppress disfavored speech. A code enforcement officer, for example, could have selectively enforced the Sign Code to make it more difficult for the church to inform the public of the location of its services.

Second, the Court’s hostility towards content-based regulations extends not only to restrictions on particular viewpoints, but also to restrictions that prohibit public discussion of an entire topic. On this basis, the Court found that the Sign Code restrictions against temporary directional signs violated the First Amendment.

Finally, the town’s objective of preserving its aesthetic appeal and ensuring traffic safety did not sufficiently justify the content-based distinctions in the Sign Code. In the Court’s view, temporary directional signs are no greater an eyesore than other signs, and the Court could think of no reason why directional signs pose a greater threat to traffic safety than other signs.

This ruling reaffirms the Supreme Court’s position that an ordinance, despite being a perfectly rational way to regulate signs, might still be struck down because of its content-based nature. There are, however, plenty of other ways for governments to enact effective sign laws. These include regulations over size, building materials, lighting, moving parts, and location. The most important feature of such regulations is that they remain content-neutral and apply evenhandedly to all signs.

Although this case does not prevent cities from regulating signs in a way that protects public safety and furthers aesthetic objectives, the broad reach of this case may result in increasing litigation in this area. We encourage all municipalities to consult their city attorney and review their existing ordinances to make sure they are content-neutral.