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Regulation of off-premises signs okayed; Equal access to government flag poles

Recent Supreme Court cases have helped clarify issues with “off-premises” signs and religious speech in public forums.

First, in City of Austin, Texas v. Reagan National Advertising of Austin, LLC, 142 S.Ct. 1464 (2022), the Supreme Court retreated from its opinion in Reed v. Town of Gilbert, 576 U.S. 155, 135 S.Ct. 2218, 192 L.Ed.2d 236, which the First Circuit Court of Appeals (as well as most everyone else) interpreted to mean that a regulation cannot be content neutral if its application requires reading the sign at issue. The Court said such an interpretation was too extreme. Unlike in Reed, the Court said, the City of Austin's provisions regulating off-premises signs (such as billboards) did not single out any topic or subject matter for differential treatment—there were no content-discriminatory classifications for political messages, ideological messages, or directional messages concerning specific events, such as those sponsored by religious and nonprofit organizations. In fact, the Court held, a sign's message was irrelevant to the application of the provisions. Instead, the Court found that the message on the sign matters only to the extent that it informs the sign's relative location. The on-/off-premises distinction, the Court determined, is therefore nothing more than an ordinary time, place, or manner restriction.

The dissenting judges criticized the majority opinion saying: “The upshot of the majority's reasoning appears to be that a regulation based on a sufficiently general or broad category of communicative content is not actually content based.”

So, at least municipalities can know that the distinction of a sign as on/off premises is not considered a “content-based” regulation subjecting their sign regulations to strict scrutiny by the courts.

In Shurtleff v. City of Boston, Massachusetts, --- S.Ct. ---- (2022), the City of Boston denied a request by an organization to raise its self-described “Christian flag” under the city's flag-raising program wherein the City had for years allowed private groups to use one of the three flag poles on Boston’s City Hall Plaza to fly a flag for the duration of events sponsored by the groups. The City had based its denial on the fear that allowing a religious flag would violate the Establishment Clause because it was on a government flagpole and therefore, government speech. The Court decided it was not government speech because of Boston’s general lack of involvement in the decision as to what flag would fly. Except for the plaintiff’s flag, Boston allowed the raising of the flag of all comers who held events at public forums. As such, Boston’s denial of the religious flag was impermissible viewpoint discrimination. So, municipalities should be aware that if they open a municipally owned reader-board sign, bulletin board, website, or similar area for posting of messages by certain groups (church groups, non-profits, etc.), they likely will have to open in it to other groups as well—regardless of content or viewpoint.

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