A recent Supreme Court decision will be changing the way that municipalities implement and enforce their sign ordinances. In Reed v. Town of Gilbert, the U.S. Supreme Court held that a municipal ordinance creating different categories of signs (temporary, political, and ideological) and subjecting each category to different regulations, was content-based on its face and accordingly was subject to strict scrutiny. Upon engaging in strict scrutiny analysis, the Court determined that the ordinance was not narrowly tailored to serve a compelling state interest, and was therefore unconstitutional. This marked a significant change from the Court’s prior jurisprudence (where previously content-based distinctions were deemed permissible so long as differing viewpoints within those categories were provided equal treatment) and will result in most municipalities being required to update their sign ordinances.
Facts of the Case
The facts of that case are as follows. The Town of Gilbert’s Sign Code had a generally applicable provision prohibiting outdoor signs without a permit, but created twenty-three (23) categorical exceptions to this provision. The Petitioners, Good News Community Church, sought to advertise their church services pursuant to the Town’s exception for “temporary directional signs relating to a qualifying event.” The Code stated that such signs could be no larger than six (6) square feet and could only be displayed for twelve (12) hours prior to the event and one (1) hour following. The church was then cited for exceeding the time limits for displaying its signs (the church regularly removed the signs within a few hours of the last church service, but not within the one (1) hour time limit) and for failure to include the date of the event (instead, the sign contained the location and time of services). Under the Town of Gilbert’s Sign Code, “temporary directional signs relating to a qualifying event” were subject to the most stringent size and temporal requirements. By way of comparison, “ideological signs” were allowed to be up to twenty (20) square feet and had no limits on the time that they could be displayed. “Political signs” were allowed to be sixteen (16) square feet and were granted a display window of sixty (60) days prior to a general election and fifteen (15) days following.
Court’s Analysis
Upon review, the Court held that the Village’s Sign Code constituted content-based regulations that did not withstand strict scrutiny. In its analysis, the Court noted that “government regulation of speech is content based if a law applies to a particular speech because of the topic discussed or the idea or message expressed” (emphasis added). It found that by creating different categories of signs and then subjecting each category to different regulations, the Code was content based on its face – it made no difference that the Town was neutral to particular viewpoints or ideals within those categories. It went so far as to describe the Town’s Sign Code as “a paradigmatic example of content-based discrimination” in that it “singles out specific subject matter for differential treatment, even if it does not target viewpoints within that subject matter.”
In addressing the implications of its decision, the Court articulated “the Town has ample content neutral options available to resolve problems with safety and aesthetics, such as: size building materials, lighting, moving parts, and portability.” Addressing the strict scrutiny standard, the Court stated that “a sign ordinance narrowly tailored to the challenges or protecting the safety of pedestrians, drivers, and passengers – such as warning signs marking hazards on private property, signs directing traffic, or street numbers associated with private houses – may well survive strict scrutiny.”
In his concurring opinion, Justice Alito, joined by Justice Kennedy and Justice Sotomayor, further opined with regard to the types of regulations that were not content based, including: size of signs, locations in which signs may be placed, lighting on signs, whether a sign can have a scrolling message or whether such message must be fixed, distinguishing between on-premises and off-premises signs, total number of signs allowed, and time restrictions on signs advertising a one-time event. Justice Kagan, joined by Justice Ginsburg and Justice Breyer and concurring in the judgement only, noted that as a consequence of the majority’s sweeping rationale, “our communities will find themselves in an unenviable bind: They will have to either repeal the exemptions that allow for helpful signs on streets and sidewalks, or else lift their sign restrictions altogether and resign themselves to the resulting clutter.” Noting these sweeping implications, Justice Kagan even went so far as to warn that the Court “may soon find itself a veritable Supreme Board of Sign Review.
Implications for Municipalities and Subsequent Case Law
This decision represents a marked change in the Court’s application of the First Amendment. As such, nearly all municipalities will be required to reevaluate their sign ordinances for content-based distinctions. While it is clear that the government retains the ability to restrict the aesthetics and location of a sign, any differential treatment based on content will likely fail a strict-scrutiny analysis.
Moreover, this case is also important to understand because its implications extend well beyond that of a sign ordinance. The Illinois Supreme Court has already decided at least one case, based upon Reed, in which it declared a city’s panhandling ordinance unconstitutional. Other courts have invoked Reed when addressing issues such as election sign regulations, robocalling laws, and solicitor licensing. It is likely that in the future, these principles will continue to be extended into many other areas of governmental-regulated speech.
By way of illustration, the following cases have been decided post-Reed and apply the principles discussed herein:
7th Circuit Court of Appeals
Norton v. City of Springfield, 806 F.3d 411 (2015).
The City of Springfield had a panhandling ordinance that defined panhandling as an “oral request for the immediate donation of money.” Accordingly, the City allowed signs and requests for deferred donations, but prohibited signs and requests for immediate donations. This ordinance was challenged on the grounds that it constituted unlawful content discrimination. Citing Reed, the court noted that Reed “effectively abolishes any distinction between content regulation and subject matter regulation” and that “[a]ny law distinguishing one kind of speech from another by reference it its meaning now requires a compelling justification.” As such, it found that the City’s panhandling ordinance was unconstitutional.
BBL, Inc. v. City of Angola, 809 F.3d 317 (2015).
In addressing a City’s zoning actions with regard to converting a restaurant to an adult entertaining venue, the court invoked the “secondary effects” doctrine to uphold the regulation. The secondary effects doctrine establishes that “as long as one purposes of the ordinance is to combat harmful secondary effects, the ordinance is regarded as content neutral…and thus intermediate scrutiny applies.” In citing this doctrine, the court specifically referenced Reed, stating “we don’t think Reed upends established doctrine for evaluating regulation of businesses that offer sexually explicit entertainment, a category the Court has said occupies the outer fringes of First Amendment Protection.”
4th Circuit Court of Appeals
Center Radio Co. v. City of Norfolk, 2016 U.S. App. LEXIS 1498
The City’s sign code had a provision establishing size and location restrictions, but exempted certain “governmental flags or emblems” and “works of art” from this limitation. The question presented on appeal was whether this provision of the code was content-neutral or content-based, and what corresponding level of scrutiny was required. Citing Reed, the court held that the provision was content based and could not withstand strict scrutiny. While the City cited aesthetic concerns as its basis for the regulation, the court opined that while aesthetics and safety were “substantial government goals,” they do not constitute a compelling government interest. Even assuming the interests were compelling, the court went on to establish that like Reed, the exemptions were “hopelessly under inclusive.”
United States District Court for the District of Minnesota
Working Am., Inc. v. City of Bloomington, 2015 U.S. Dist. LEXIS 151524
A non-for-profit labor advocacy organization challenged the City of Bloomington’s ordinance requiring that it obtain a “solicitor license.” The basis for the argument was that the City ordinance only regulated certain types of solicitations. Specifically, it required a permit for “speech that has the function or purpose of generating money or property on behalf of a person, organization, or cause” but did not require a permit for an individual who is trying “to raise awareness for an issue or to collect signatures for a proposed ballot initiative. Citing Reed, the court held that the City’s solicitor ordinance was clearly content based, in that determining whether the solicitation falls under “regulated activity” depended entirely upon the content of the message. Because the ordinance could not pass strict scrutiny, it was found to be unconstitutional.
United States District Court for the Northern District of Indiana
Women’s Health Link, Inc. v. Fort Wayne Public Transp. Corp., 2016 U.S. Dist. LEXIS 713
Women’s Health Link, a free referral resource for women’s healthcare issues, sought to advertise its counseling services on ads placed inside the City’s buses. The City denied this request, based upon the fact that the advertisement violates its policy prohibiting advertisements of a religious, political, or moral nature. Acknowledging that the City’s restrictions were content based, the court distinguished the case from Reed based upon the fact that the inside of the bus was not a public forum and granted the city’s motion for summary judgment. The case has been appealed.
By: Laura M. Julien
To learn more about the implications of this decision, and how it may affect you as a municipality, or for information about any other municipal law issue, please contact Jessica L. Briney, or Laura M. Julien, of Mickey, Wilson, Weiler, Renzi, Lenert, & Julien, P.C., 2111 Plum Street, Suite 201, Aurora, Illinois 60506. Telephone Number: 630-801-9699, or by E-mail at: jlb@mickeywilson.com; and lmj@mickeywilson.com.