An Ever-Changing Signscape: Local Sign Regulations in the Aftermath of Reed v. Town of Gilbert

Lawmaking is frequently a balancing act. An example of this balancing act is signage regulation. When drafting such regulations, the locality must weigh the public’s interests in public safety and aesthetics against First Amendment freedoms guaranteed by the Constitution.

Reed v. Town of Gilbert

The Town of Gilbert, Arizona (“the Town”), had an ordinance that established rules for certain categories of signs. Signs advocating an ideology had one set of restrictions, which differed from signs with political messages, which in turn differed from signs that gave directions to an event. Political signs could be as large as 32 square feet, could be posted in any quantity, could be put up anytime before an election, and could remain up for ten days after the election. Ideological signs—which under the regulation were those that carried messages such as “Happy Thanksgiving,” “Religion Is Important,” or “My Football Team Is the Best”—could be as large as 20 square feet with no time or quantity restrictions. Even more restrictive were regulations for temporary directional signs. Event hosts could post no more than four signs giving directions to a one-time event on a single property—and all signs could be no larger than six square feet, could be posted no earlier than 12 hours before the event, and had to be removed within an hour of the event’s end.

The Good News Church, through its pastor, Clyde Reed, brought suit against the Town. Good News was a small congregation. It met in temporary locations and would frequently erect signs to provide location and direction information for members. The signs included an address, telephone number, and an arrow. With so much “directional” information attached to the invitation to worship, the Town deemed Good News’ signs as temporary directional signs. With the heightened restrictions, the church could not put up their signs until 10 p.m. on Saturday nights and had to collect signs immediately after the service ended.

The U.S. Supreme Court struck down the Town’s rules. As Justice Samuel Alito quipped during oral argument, the church could keep their signs up longer by saying, “Come to our service on Sunday morning; we can’t tell you now where it will be . . . [but if] you drive by here tomorrow morning at a certain time, you will see an arrow.”

The Court concluded that the regulations, while viewpoint neutral, were nevertheless content based on their face, and it therefore subjected the regulations to strict scrutiny and deemed the ordinance unconstitutional. A sign that advances a political message creates just as much clutter, and is equally distracting to drivers, as a sign that directs individuals to a soccer game. Highlighting the arbitrary lines the regulation drew, Justice Stephen Breyer exclaimed, “[So it comes down to,] can they put up a big sign, ideological, saying ‘Come to the next service next Tuesday, 4th and H Streets,’ . . . [but they can’t add onto that,] ‘three blocks right and two blocks left.’ . . . Well, my goodness!”

The Reed Test

In Reed, the Court interpreted previous tests of content neutrality and condensed prior tests into a two-part inquiry. In a challenge against a regulation, courts first determine whether the regulation, on its face, makes distinctions based on content; this determines under what level of scrutiny the court should evaluate the regulation. If a regulation is facially based on content, then it is subject to strict scrutiny and will survive only if it furthers a compelling government interest using the least restrictive means available.

Reed creates a simplified rule, but one that may require complex analysis for localities to effectively implement: If you must read a sign in order to determine how to regulate it, then the ordinance is “content based” and subject to strict scrutiny.

The Reed test does not look to the government’s justification when deciding whether the ordinance is content based on its face. It does not matter whether the locality has a content-neutral justification, nor does it matter whether the locality intended to prevent the advocacy of unpopular ideas. If the ordinance differentiates between who is putting up the sign, the viewpoint they promote, or simply the information they impart, it is presumptively unconstitutional.

The Reed test is sometimes called the “need-to-read” test, although the requirements of Reed are slightly less stringent than the moniker suggests. As the Ninth Circuit noted in Recycle for Change v. City of Oakland, a true “need-to-read” test “would mean that every sign, except a blank sign, would be content-based.” A locality’s regulations are neither content-based nor unconstitutional merely because they fail a “need-to-read” test; rather, failing a “need-to-read” test merely raises suspicion of content-based distinctions.

Passing Constitutional Muster: How Municipalities Can Best Regulate Signage

Making “Time, Place, and Manner” Restrictions

Restrictions on the method, length of time, or location of speech that do not restrict the message promoted and leave open other avenues of speech are traditionally called “time, place, and manner” restrictions and are generally acceptable.

For example, the City of Lexington, Kentucky, passed an ordinance that restricted the location and means of distributing unsolicited literature, such as dropping it through a mail slot or handing it directly to an individual. The ordinance applied to all literature distributed—from religious leaflets to political campaigns to local newspapers—and advanced the government interest in preventing litter. The court found that the restriction on the delivery of unsolicited materials was a valid restriction on when and how messages could be conveyed rather than what messages could be given.

Sizing the Categories

Creating categories of signs in order to regulate those categories differently is problematic if based on content rather than size, format, and location—factors linked to legitimate safety and aesthetic concerns. Justice Alito noted that a locality could distinguish between lit and unlit signs or between signs with fixed messages and signs with changing electronic messages. Categories that can be tied back to time, place, and manner restrictions are more likely to be upheld than categories that relate in any way to the message of the sign.

Categories should be broad but clear; trying to draw too fine a line leads to confusing overlap, as seen in Reed. The Town sought to reduce clutter from “temporary” signs. In trying to differentiate between types of temporary signs, the Town created impermissible distinctions in how the law would treat different speakers. Rather than regulating temporary signs as a whole, the Town attempted to break “temporary” down into even smaller categories. Creating different rules for each of these categories meant that the Town made judgments about how valuable each type of sign was to the public discourse based on its content. It was not within the Town’s purview to decide who would be interested in the speech, nor how long it would take passersby to notice one type of speech compared to another.

Event signage is not per se a content-based category, as found by the court in Act Now to Stop War & End Racism Coalition. v. District of Columbia. The District of Columbia had an ordinance requiring that signs referring to specific events be taken down within 30 days of the event’s completion. The court held that, even though an officer would have to read the sign in order to enforce the ordinance, the ordinance was a regulation of the time and place where event advertisement could occur, not what event advertisers could say.

Separating commercial from noncommercial material can become messy. In City of Cincinnati v. Discovery Network, Inc., the Court struck down a regulation prohibiting the distribution of commercial handbills through freestanding news racks while allowing newspapers to be distributed in the same manner. The regulation attempted to reduce the number of news racks overall to enhance the city’s aesthetics, but Cincinnati could not make such a distinction because all news racks, no matter what they distributed, were equally at fault in creating visual clutter.

Preserving Highway Views

Restrictions on billboards usually do not prevail. Following the Federal Highway Beautification Act of 1965, many states passed laws that limited billboards and other signage along the highway. Several state laws, including the Tennessee Billboard Act, were struck down as unconstitutional following Reed. In Thomas v. Bright, the Sixth Circuit found that preserving highway views was not a compelling state interest, and therefore the facially content-based law could not survive strict scrutiny. The Supreme Court denied certiorari in July 2020.

Including Exemptions

Regulations with exemptions can be problematic. If the ordinance purports to restrict all signage equally but allows for certain types of signs to be exempt, then it no longer applies those restrictions with an even hand. This was the case in Thomas. Tennessee required a permit for all billboards but allowed a broad category of exemption for “on-premises” commercial speech. Because law enforcement would have to read the sign and discern its meaning in order to determine whether a violation had occurred, this exemption was facially content-based and subject to strict scrutiny.

Referring to the Speaker

Regulations that target speakers rather than message are “all too often simply a means to control content.” The Court evaluates such regulations under strict scrutiny when the legislature’s speaker preference appears to demonstrate a preference for certain content. Distinguishing signs by the “speaker,” therefore, requires a separate investigation into whether the regulation demonstrates a preference for certain topics or viewpoints.

Furthering a Compelling Governmental Interest

Regulations on speech that are content based can sometimes be sustained by tying the regulation to a compelling governmental interest. Examples of what courts have deemed a “compelling” interest include the eradication of discrimination based on race, sex, and sexual orientation; preventing violence in prisons; reducing crime; ensuring the well-being of children; protecting golden and bald eagles; and preventing the spread of coronavirus.

Conclusion

Although implementing the Reed test can be tricky, localities may avoid challenges by examining the problems they seek to fix and then evaluating how to narrowly regulate the problem without basing the rule on the content of the speech and/or providing unacceptable exceptions to the rules.

Troubleshooting Regulations

• Can this regulation be applied without reading the sign?
• Does this regulation apply regardless of viewpoint, topic, or speaker, without exception?
• What governmental interest does this regulation promote?