The Supreme Court, in Reed v. Town of Gilbert, recently invalidated a town’s ordinance which created 23 sign classifications and restrictions thereto. The First Amendment’s freedom of speech was at specific issue, and whether the classifications, which did not identify or regulate particular viewpoints, were content-neutral and subject to intermediate scrutiny, or content-based and subject to strict scrutiny. Strict scrutiny presumes a regulation is invalid and the law must be the least restrictive manner possible to achieve a compelling government interest to survive, whereas intermediate scrutiny is more deferential to the law-making body.
The Court determined that creating different regulations for size and hours of display based on the topic of a sign (e.g., temporary, political, ideological) was content-based regulation that automatically triggered strict scrutiny. Of particular focus for the Court was that a sign ordinance was not content-neutral just because it did not attempt to regulate the viewpoint of any sign. Even an ordinance which is not intended to promote or discourage a particular message is still subject to strict scrutiny if it created different regulations based on the topic addressed by the sign.
Sign regulation remains a perilous area for municipalities, in large part because decades of court decisions have parsed subtle distinctions to reach different results in highly similar fact patterns. Municipalities are advised to seek legal review of any proposed sign ordinance amendment and to otherwise review their existing ordinances periodically to ensure compliance with current court interpretation of the First Amendment.
Author: Brad Stewart