The U.S. Supreme Court has granted a petition for certiorari review in a case with significant practical ramifications regarding the validity of many local sign and advertising regulations, and the ability of businesses, artists and others to freely post outdoor signage.  In Reed v. Town of Gilbert, the Court will be asked to determine whether the Town of Gilbert, Arizona’s sign code meets the constitutional requirement of “content neutrality” under the First Amendment Free Speech Clause.  In doing so, the Court has the opportunity to clear up a division between federal appeals courts regarding the concept of content neutrality.

In 1972, the Court articulated the requirement that regulations of speech be content neutral, saying in Chicago Department of Police v. Mosley, “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”  While the First Amendment always disallowed government regulations that gave preference to, say, one side of a political debate over another, the Court’s pronouncement meant that the government could not prefer, say, political debate over religious expression.  Since that time, the federal courts have applied the doctrine of content neutrality in striking down hundreds of local governments’ sign codes that distinguish signs based on their message.

Sign codes’ constitutional validity carries practical consequences for billboard advertisers, business owners, artists, and residents placing everything from political signs to real estate signs and holiday lights.  All of these groups rely on outdoor signage to convey important messages, and sign codes typically impose restrictions on the display of such messages.

At issue in Reed, Gilbert’s sign code distinguishes among a variety of categories of signs.  The Gilbert code provides different regulations for “political signs,” “ideological signs,” qualifying event signs,” “real estate signs,” and others.  Pastor Clyde Reed and Good News Community Church placed temporary signs in street right-of-ways advertising religious services, but Gilbert enforced its sign code against the church’s temporary signs.  The church filed a challenge to the Gilbert sign code.  The Town’s sign code was upheld on summary judgment by the federal district court, and the Ninth Circuit Court of Appeals affirmed.

The Supreme Court’s determination in this case will resolve a split among the federal appeals courts by clarifying the content neutrality concept.  Some federal appeals courts have held sign codes content neutral only if the code can be enforced without any regard to the text or images on a sign’s face, while other courts have permitted some category-based or “context-sensitive” distinctions—like Gilbert’s—among signs.  Potentially at risk are thousands of local governments’ sign codes that rely on category-based distinctions in order to regulate signage.

As of this writing, oral arguments before the Court have not been set.  Business owners, political groups, interested citizens, local governments, and anyone with an interest in outdoor signage or advertising should stay posted for what will likely be an impactful decision.

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Photo of Brian J. Connolly Brian J. Connolly

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private…

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private covenants and restrictions, land use and zoning litigation, initiatives and referenda associated with land use approvals, and real estate transactions.  Brian additionally specializes in the First Amendment and land use issues associated with outdoor sign and advertising regulation, and fair housing matters in local planning and zoning.