Sign Regulation: Supreme Court Strikes Down Code as Content-Based.

Some local governments attempt to regulate outdoor signage by classifying them according to their purpose or message. They may regulate them as “political signs” or “directional signs” and further define those sign types by the message they display. Doing so invokes the First Amendment’s protection against the infringement of free speech. These local governments, while attempting to permit certain types of signs for practical reasons, nonetheless unwittingly violate the First Amendment by favoring some speech over others based upon the content of the sign’s message. Such regulation is subject to the most exacting of judicial scrutiny (“strict scrutiny”) and rarely withstands constitutional challenge.

This is what occurred in the case of Reed v. Town of Gilbert, U.S. Supreme Court Case No. 13-502, decided on June 18, 2015. Gilbert, Arizona enacted a sign code which permitted certain types of temporary outdoor signs. Examples included “political signs” which by definition pertained to elections and “temporary directional signs” which directed members of the public to certain types of specified events. Other non-commercial messages were prohibited from being displayed, or, were subject to different restrictions based upon their content. The Supreme Court rejected Gilbert’s assertions that aesthetics and traffic safety were relevant to the degree of judicial scrutiny to be applied because the regulations were facially content-based. The Court further rejected aesthetics and traffic safety in this instance as being a “compelling governmental interest” which is “narrowly tailored to achieve that interest” as required under the strict scrutiny test because ultimately some signs were permitted solely based upon messages while identical signs would not, again, based solely upon their message.

HSK has developed a content-neutral model sign code which has been adopted by local governments which addresses this legal issue as well as the myriad of other legal issues present in municipal sign regulation.