Anticipated Supreme Court Ruling in First Amendment Sign Ordinance Case

The Supreme Court of the United States granted Writ of Certiorari in the Ninth Circuit’s Reed v. Town of Gilbert (Reed II) case. The Ninth Circuit’s Reed II ruling considered a municipal sign ordinance that, among other things, imposed different limitations on signs depending on whether the sign was classified as a “temporary directional sign,” a “political sign” or an “ideological” sign.  Despite the fact that the sign ordinance drew distinctions based on the subject matter of the speech involved, the Ninth Circuit found that the regulation’s distinctions were content-neutral because the distinctions were not based on a preference for some messages over others. The Ninth Circuit’s ruling in Reed II was a departure from its previous precedent regarding the test for content-neutrality. While Reed II may have been seen by some as a welcome outcome for municipalities as it allowed potentially more latitude in distinctions and restrictions in sign regulations, its analysis does not appear to comport with previous precedent so left an already nuanced area of First Amendment law even more opaque.

Petitioners in Reed II filed their brief with the Supreme Court in September 2014, arguing that the ordinance is a content-based regulation that fails the strict scrutiny test and is thus unconstitutional. Numerous parties have filed amicus curiae briefs in support of Petitioners, including the United States. It appears that the United States is concerned that a ruling in Reed II could impact the constitutionality of the Highway Beautification Act. The United States urges the Supreme Court to take a context-dependent approach in determining whether to label a law content-neutral and argues that in the particular context of a sign-regulation scheme premised solely on the government’s interests in safety and aesthetics that such a regulation should be deemed content-neutral and subject to intermediate scrutiny. The United States posits that the regulation in Reed II fails intermediate scrutiny but that the federal Highway Beautification Act does not. By contrast, the amicus curiae brief filed by the American Center for Law and Justice argues that a speech regulation need not have an intent to discriminate in order to be classified as content-based.  Rather, it asserts that the test for whether a regulation is content-based is to determine if the regulation is content-discriminatory on its face or content-discriminatory in its purpose, but it need not be both. These arguments highlight the complex nature of this ever-evolving area of law.

The Supreme Court’s ruling in this case should resolve the divergent approaches to determining content-neutrality and provide some welcome guidance regarding the appropriate test for the lower courts to apply when determining whether the provisions of sign ordinances are content-neutral versus content-based. Respondents’ brief is due to be filed in mid-November 2014. A ruling by the United States Supreme Court in Reed v. Town of Gilbert is expected in early 2015.