Ninth Circuit Upholds the Constitutionality of Speaker-Based and Event-Based Sign Regulations and Comments on the "Absurdity" of Construing the Officer Must Read It Test as a Bellwether of Content

The Ninth Circuit’s recent decision in Reed v. Town of Gilbert, 2009 WL 39250233 (9th Cir. 2009) reaffirms the Court’s acceptance that speaker-based and event-based exemptions to municipal sign codes may be a content neutral regulation.

Cities may confidently consider speaker-based and event-based exemptions to sign regulations but should take extreme care in drafting well tailored language. As with all First Amendment inquiries, the devil is in the details and this is particularly true with the speaker-based and event-based exemptions which are examples of the linguistic contortions often required for regulations to be considered content neutral.

In Reed, the Ninth Circuit was asked by plaintiff, the pastor of a non-profit religious organization, to consider the constitutionality of a city’s sign code which exempted nineteen types of signs from the permitting requirements including “Temporary Directional Signs Relating to a Qualifying Event” (“Qualifying Event Signs”). A qualifying event was defined as, among other things, a meeting sponsored by a non-profit organization including religious organizations. Plaintiff’s signs for his church’s gatherings clearly fit within the exemption but the exemption, while relieving plaintiff from the need for a permit, placed restrictions on the location of the signs (i.e. the signs could not be in the public right-of-way, the hours during which the signs could be posted, the size of the signs, and the number of signs).

Significantly, the Ninth Circuit found that the Qualifying Event Signs exemption was a speaker-based and event-based content neutral regulation. Plaintiff had argued that under prior Ninth Circuit precedent, Foti v. City of Menlo Park, the exemption was content based because it required the enforcement official to read his signs in order to decide whether they fit within the exemption. The Reed Court explained that the Foti test actually turns on whether regulations single out certain speech based on the idea expressed and that an enforcement official’s need to read a sign to make this determination is evidence of such a purpose but not determinative. Indeed, the Reed Court noted that it was absurd to construe the “officer must read it” test as a bellwether of content because if applied without common sense, this principle would mean that every sign, except a blank sign, would be content based. Thus, the Reed Court found that the regulations at issue were content neutral as they only required an officer to briefly review a sign to determine the content neutral elements of who is speaking and the timing of the listed event.

In making its content neutral determination, the Reed Court drew upon its prior authority in G.K. Limited Travel v. City of Lake Oswego. It is worth noting that the trio of cases (i.e. Foti, G.K. Limited and Reed) highlight the fine distinction the Ninth Circuit makes when considering the speaker-based and event-based exemptions. For instance, regulations calling for exemptions for real estate signs are content based while regulations calling for an exemption for temporary signs 90 days prior to the sale, lease or rental of property may be content neutral. Although the latter language clearly intends to provide an exemption for real estate signs if a city follows the language of the exemption and allows signs of any content when triggered by the event of selling, leasing or renting property, the Ninth Circuit has commented approvingly that this shows the extent to which a city is willing to go to avoid content-based regulations.

In Reed, once the Ninth Circuit made the determination that the Qualifying Event Signs exemption was content neutral, it unsurprisingly also found that the regulation was narrowly tailored to serve the significant government interest of aesthetics, traffic and pedestrian safety. The Court additionally held that while plaintiff was prohibited from placing his signs in the public right-of-way ample alternative channels for communication remained including distributing leaflets, sending emails, walking the sidewalks, holding signs or advertising in the print media.

Plaintiff also complained that the city’s sign code favored commercial speech over noncommercial speech. The Reed Court found to the contrary – that as required by the First Amendment the city’s regulations afforded greater protection to noncommercial expression. A careful comparison between the restrictions placed on Qualifying Event Signs and its commercial counterpart, Weekend Directional Signs, showcased that plaintiff’s speech received more favorable treatment. Specifically, the total number of signs allowed, the size of the signs allowed, the days during which signs were allowed (seven days a week versus just weekends) were greater for Qualifying Event Signs. Moreover, while plaintiff’s signs could not be placed in the public right-of-way (and Weekend Directional Signs could) Qualifying Event Signs were not restricted to a two-mile radius from the event like Weekend Directional Signs.

Finally, plaintiff argued that the city’s regulations were unconstitutional because they favored certain noncommercial speech over other noncommercial speech. The Ninth Circuit noted that although the city’s sign code treated noncommercial speech favorably, different categories of noncommercial speech such as Qualifying Event Signs, ideological signs and political signs had different restrictions and requirements. As the district court had not addressed this issue, the Ninth Circuit expressed no opinion as to whether this was impermissible discrimination and remanded the case to the district court to make this determination.

Meyers Nave closely monitors developments in the First Amendment arena and will continue to provide pertinent updates. For questions regarding the impact the Reed decision may have in your city or any other First Amendment issues, contact Deborah Fox or Meg Rosequist.