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The Supreme Court revisits sign regulations

Updated: Jun 12, 2019

In Reed v. Town of Gilbert, Ariz.,135 S.Ct. 2218 (U.S. 2015), the United States Supreme Court held that the Town of Gilbert’s Sign Code imposed “content-based” restrictions on speech in violation of the First Amendment. In this case, Good News Community Church wished to advertise their Sunday church services with 15 to 20 temporary signs around the Town displaying the Church’s name and the time and location of the upcoming service. Gilbert’s Sign Code identified categories of signs based on the type of information they conveyed. Each category was then subject to different restrictions. The Sign Code imposed more stringent restrictions on the Church’s category of temporary signs than it did on signs conveying other messages. The Church and pastor filed suit claiming Gilbert’s sign ordinance violated the right to free speech, arguing for the application of the “strict scrutiny” standard. The Court agreed. With this decision. the Court broadened the application of the almost insurmountable legal standard of “strict scrutiny” to all sign ordinances containing content-based sign exemptions (such exemptions might include, for example, “American flags” or “Real estate signs” or “political signs” all of which exempt signs based on the sign’s content).

This decision has ramifications for communities across the country because even reasonable exemptions that don’t relate to controversial subject matter are now almost certainly subject to attack as being unconstitutional. Some typical examples of signs with subject matter exemptions include: safety signs, historic site markers, and signs in residential neighborhoods that illuminate the property’s address. Many, if not most communities, like Gilbert, regulate some categories of signs in a way the Supreme Court now defines as content-based in this opinion. With this decision, if a city must read a sign to determine what local restrictions are applicable, those restrictions are now subject to strict scrutiny. This case casts doubt on the constitutionality of reasonable regulations that contain a subject-matter exemption. Most sign codes contain some degree of content-based regulation that is likely to fail a legal challenge under strict scrutiny. Cities therefore now need to revise their sign codes in light of Reed v. Town of Gilbert, Ariz., to bring their sign codes into compliance. Without review of its sign code, every city now risks a constitutional challenge that could result in enforcement problems and a potential award of attorneys’ fees to any successful challenge.

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