Why Your Sign Ordinance Could Fail Even the “Laugh Test” (and What You Should Do About It)

June 22, 2015

By: Todd G. Messenger

Gilbert, Arizona’s Sign Ordinance Fails the Constitutional Test

The Town of Gilbert, Arizona (like almost every local government in Colorado) has a sign ordinance that classifies signs for the purpose of determining which rules in the ordinance will apply.  The classifications include common — perhaps ubiquitous — categories such as political sign, ideological sign, real estate sign, and temporary directional sign.  Of course, these classifications require the decision-making and enforcement officials to read the signs to determine which rules apply.  In other words, the regulations are, on their face, “content-based.”

On June 18, 2015, the U.S. Supreme Court struck down Gilbert’s sign ordinance, holding that its facially content-based regulations violated the free speech clause of the First Amendment.  The Court was unanimous in its support for the judgment.  In her concurring opinion, Justice Kagan put it this way:

The Town of Gilbert’s defense of its sign ordinance—most notably, the law’s distinctions between directional signs and others—does not pass strict scrutiny, or intermediate scrutiny, or even the laugh test.

Evidence of the Government’s Intent is a Sword, Not a Shield

Before Reed v. Gilbert, many facially content-based sign codes survived judicial review on arguments regarding the government’s benign intent.  The Reed v. Gilbert decision establishes that if a regulation is content based on its face, it is subject to strict scrutiny, period:

A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of “animus toward the ideas contained” in the regulated speech.

From here forward, it is only when a sign ordinance passes the threshold of facial content-neutrality that a reviewing court will question the government’s intent.  If regulations are facially content-neutral, but the regulations cannot be justified without reference to the regulated speech, or the government adopted the regulations because it disagrees with a particular message, the court will consider the regulations to be content-based anyway and apply strict scrutiny review. 

Ultimately, the reason to question the government’s motives is to provide additional protection for speech, not to provide a way to save facially content-based regulations from being struck down:

Innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech.

Speaker-Based Regulations Are Problematic Too

In the appellate court, Gilbert successfully argued that its regulations were “speaker-based” (that is, based on the person or entity that is doing the speaking) and therefore “content-neutral.”  The U.S. Supreme Court rejected the conclusion that the regulations were speaker-based, and rejected the connection between “speaker-based” and “content-neutral” regulations:

[T]he fact that a distinction is speaker based does not . . . automatically render the distinction content neutral.  Because “[s]peech restrictions based on the identity of the speaker are all too often simply a means to control content,” . . . we have insisted that “laws favoring some speakers over others demand strict scrutiny when the legislature’s speaker preference reflects a content preference.”

Although the Reed v. Gilbert Court did not strike down the Gilbert ordinance on the basis that it was “speaker-based,” it did articulate the law that would apply to speaker-based regulations.  Consequently, local governments that include speaker-based classifications (e.g., “gas station signs,” “non-profit signs,” etc.) must be prepared to demonstrate to a skeptical court that their “speaker preference” does not “reflect a content preference.”  Realistically, this is likely to be an impossible task.

Does Your Sign Ordinance Pass the Test?

The short answer is, probably not.  Indeed, more than nine out of every ten Colorado local governments classify signs in a manner that is strikingly similar to (or worse than) the Gilbert ordinance.  Colorado cities, counties, and towns are well advised to take immediate steps to review and, if necessary, reform their sign regulations to eliminate content-based definitions and requirements.

SeeIs It a Sign? Emerging Thinking on Sign Regulation” (March 9, 2015) for a primer on how to create a sign ordinance that can protect public safety and aesthetics while staying within the boundaries of the First Amendment under Reed v. Gilbert. ?

This Article is published for general information, not to provide specific legal advice. The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved.

Copyright © 2015 Fairfield and Woods, P.C., ALL RIGHTS RESERVED.