Regulating signs in a content neutral manner satisfying First Amendment limitations will be more difficult for local governments following the U.S. Supreme Court’s 2015 decision in Reed v. Town of Gilbert, Arizona. 1 In Reed, all nine Supreme Court justices agreed that the Town of Gilbert’s sign code violated the guarantee of freedom of speech in the First Amendment, although the justices arrived at that conclusion in different ways.
As this article will discuss, the Court’s opinion in Reed focused on the appropriate meaning of content neutrality as a central requirement of the First Amendment with respect to the regulation of noncommercial speech, such as signs. Since the early 1970s, the Supreme Court has required that regulations of speech must avoid any regulation of message or subject matter under the theory that government control of the content of speech — like government control of viewpoint — equates to government control of ideas.2 In so holding, the Court has broadly classified content regulation as a suspect form of speech regulation, and has subjected so-called “content based” regulation to heightened judicial scrutiny and its concomitant burden on government defendants.3
The Reed ruling, which resolves a long-standing split between federal circuit courts of appeal on the meaning of content neutrality, carries significant consequences for the validity of local sign regulations. Indeed, many local codes may become unconstitutional as a result of the case’s outcome. Sign litigation can be expensive and risky,4 and it is likely to become more frequent after Reed.
This article explores the Reed decision and its implications for local government sign regulation. Section I reviews the Reed case, with an overview of the context of the decision, the procedural history of the case, and the Supreme Court’s decision — including the “mechanical” majority opinion and three divergent concurrences. Section II discusses several of the unanswered questions following Reed identifying both doctrinal inconsistencies and practical problems. Finally, Section III provides practical guidance regarding post-Reed sign code drafting and enforcement for local governments, their lawyers and planners, who are tasked with the day-to-day regulation of outdoor signage and advertising.
I. Reed v. Town of Gilbert: Facts and Court’s Rulings
A. Factual Background
Reed is the first U.S. Supreme Court case to address local sign regulations since City of Ladue v. Gilleo,5 decided in 1994. Reed addressed a challenge to Gilbert’s sign code, which contained a general requirement that all signs obtain a permit, but exempting several categories of signs from that requirement.6 These provisions treated certain categories of exempted signs differently.7 As with many other sign codes around the United States, Gilbert’s sign code recited traffic safety and aesthetics as the reasons for its existence.8
Three of the exempted categories were at issue in Reed: “political signs,” “ideological signs,” and “temporary directional signs.”9 While the town did not prohibit any of these categories of speech, each category was treated differently by the sign code. The town’s regulations of political signs, defined as “temporary sign[s] designed to influence the outcome of an election called by a public body,” allowed such signs to have a sign area of up to 16 square feet on residential property and up to 32 square feet on nonresidential property, and such signs could be displayed beginning up to 60 days before a primary election and ending up to 15 days following a general election.10 Political signs were allowed to be placed in public rights-of-way, with any number of signs permitted to be posted.11
Temporary directional signs were defined as a “[t]emporary [s]ign intended to direct pedestrians, motorists, and other passersby to a ‘qualifying event.’”12 A “qualifying event” was any “assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar non-profit organization.”13 Temporary directional signs could not exceed six square feet in sign area, could be placed on private property with the consent of the owner or in the public right-of-way, and no more than four signs could be placed on a single parcel of private property at once.14 Additionally, temporary directional signs could be displayed for no more than 12 hours before the qualifying event, and no more than one hour after the qualifying event.15 The date and time of the qualifying event were required to be displayed on each sign.16
Finally, “ideological signs” were defined as any “sign communicating a message or ideas for noncommercial purposes that is not a Construction Sign, Directional Sign, Temporary Directional Sign Relating to a Qualifying Event, Political Sign, Garage Sale Sign, or a sign owned or required by a governmental agency.”17 Ideological signs could be as large as 20 square feet and could be placed in any zoning district without limitations on display time.18