Supreme Court Ruling Dictates Rigid Application of Strict Scrutiny to Content-Based Distinctions in Sign Ordinances
On June 18, 2015, the United States Supreme Court issued its much awaited opinion in Reed v. Town of Gilbert, 2015 WL 2473374 (June 18, 2015). The Court unanimously found that the sign ordinance at issue violated the First Amendment. The Reed Court analyzed the constitutionality of the different size and timing limitations placed on three categories of noncommercial signs: ideological signs, temporary directional signs, and political signs. The Ninth Circuit had ruled that the distinctions were content-neutral and passed First Amendment scrutiny. The Supreme Court reversed. The unanimous ruling was accompanied by a sharp divide among the Justices as to the appropriate analytical framework to apply. The majority opinion (penned by Justice Thomas) applies a rigid strict-scrutiny analysis to content-based distinctions used in sign ordinances. As content-based exemptions and distinctions are commonly found in municipal sign ordinances, cities should review and possibly reconsider the language used in their regulations in light of the majority opinion in Reed.
The Reed majority opinion explained that distinctions enacted by the Town of Gilbert (“the Town”) in its sign ordinance were content-based on their face and that when analyzing a facially content-based ordinance courts have no need to consider the government’s justification or purpose for enacting the regulations to determine whether it is subject to strict scrutiny. Rather, a facially content-based restriction is subject to strict scrutiny regardless of the government’s benign or reasonable intent for enactment. The majority opinion also explained that the Ninth Circuit mistakenly conflated the viewpoint-based and content-based distinctions which are two distinct but related limitations. Viewpoint-based discrimination (i.e. the regulation of speech based on the opinion or perspective of the speaker) is an egregious subset of content-based discrimination. The Reed Court explained that while the distinctions in the sign ordinance may have been viewpoint-neutral this did not mean that they were also content-neutral and the Ninth Circuit had been in error when it found otherwise. The majority opinion also found that the Ninth Circuit’s speaker-based and event-based analysis was in error because the distinctions were not based on who was speaking or whether an event was taking place. Moreover, even if analyzed as speaker-based or event-based distinctions, the Court noted that this does not automatically render the distinctions content-neutral as courts must also analyze whether speaker-based or event-based distinctions reflect a content preference by the regulator.
Having found the distinctions made between ideological signs, temporary directional signs, and political signs to be content-based, the majority opinion then applied strict scrutiny to the Town’s ordinance and found that the distinctions failed to meet this standard. Specifically, the distinctions were not narrowly tailored to meet a compelling government interest. The majority opinion directed the Town to consider sign regulations that have nothing to do with a sign’s message such as regulating size, materials, lighting, moving parts and portability. The majority opinion noted that the Town could “go a long way toward entirely forbidding the posting of signs so long as it does so in an evenhanded, content-neutral manner.” Justice Alito’s concurrence (joined by Justices Kennedy and Sotomayor) expanded upon the list of content-neutral types of regulations to consider, identifying, among others, rules regulating location, rules restricting total number of signs allowed per mile of roadway, rules distinguishing between signs with fixed messages and electronic signs with messages that change, and rules distinguishing between on-premises and off-premises signs. For this latter distinction, California cities should take note that a case is pending before the California Court of Appeal (Lamar Central Outdoor, LLC v. City of Los Angeles, California Court of Appeal, Second Appellate District, Division 8, Case No. B260074) regarding whether the on-premises/off-premises distinction will be deemed content-neutral under the California constitution as well. Finally, the majority opinion also noted that a limited subset of content-based signs which are supported by a compelling interest in vehicle and pedestrian safety – such as warning signs marking hazards, signs directing traffic, or street numbers associated with private houses – may survive strict scrutiny.
Justice Kagan’s concurrence (joined by Justices Ginsberg and Breyer) expressed a sharp analytical difference with the majority opinion. While Kagan’s concurrence agreed that the Town’s sign ordinance did not pass muster under the First Amendment, noting that the distinctions do not pass “even the laugh test,” the agreement with the majority opinion ended there. Instead, the Kagan concurrence notes that cities and towns across America have sign regulations that exempt certain categories of signs based on their subject matter and that the majority’s opinion places these ordinances in jeopardy. The Kagan concurrence argues for a less rigid approach to evaluating sign regulations where the distinctions and exemptions do not reveal even a hint of bias or censorship. For now, however, it is the majority’s more rigid approach that has prevailed.
Given the ruling in Reed, cities should ensure that exemptions or distinctions in their sign codes comply with the majority’s approach. Specifically, sign ordinances may regulate signs unrelated to the message (such as regulating size and location). Cites may also consider applying an evenhanded ban on signs with very limited content-based exemptions supported by a compelling safety interest such as signs identifying hazards. Cities may, with some caution, also look to the more expansive list in Justice Alito’s concurrence as to additional types of regulations to consider.