Regulating signs in a content neutral manner satisfying First Amendment limitations may become more difficult for local governments following today’s U.S. Supreme Court decision in Reed v. Town of Gilbert. In today’s opinion, all nine Supreme Court justices agreed that the Town of Gilbert, Arizona’s sign code failed the First Amendment’s content neutrality requirement, although the justices came to that conclusion in different ways.
Last year on this blog, I reported on the Supreme Court’s acceptance of the cert petition in Reed, and the facts of the case can be found on my post there.
In today’s decision, which is the first Supreme Court case in over two decades to address local sign regulations, six justices agreed that the town’s sign code was facially content based; that is, the code improperly distinguished between types of noncommercial speech based on the particular subject matter of the speech. The town’s sign code made several exceptions to a general permit requirement for signs, including exceptions for political, ideological, temporary event, and other types of signage, and regulated each of these excepted forms of signage in different ways. A majority of the Court found that these distinctions impermissibly regulated on the basis of the signs’ content, which is prohibited under the Court’s First Amendment doctrine. In the majority’s eyes, because the code regulated based on content or message of speech, the code was subject to the “strict scrutiny” standard of review, which required the town to demonstrate a compelling governmental interest and narrow tailoring of the regulations to the governmental purpose. According to the majority, the town failed to meet that standard, and thus the sign code was held invalid.
In separate concurring opinions, three justices agreed with the majority that the town’s sign code improperly distinguished among speech based on content, but disagreed with the application of strict scrutiny to the regulations. In the concurring justices’ view, the town’s sign regulations would have failed even a much lower standard of review.
The result in Reed is expected to put a much greater obligation on local governments to ensure that sign regulations are content neutral both on the face of the regulations and in the government’s underlying purpose for the regulations. Some First Amendment watchers anticipate that the decision will result in more freedom for sign owners to display signs of various messages, while others have suggested that the result in Reed will encourage governments to take a more cautious approach to sign regulation that more broadly suppresses speech.
Over the month of July, I will be participating in several hosted online webinar presentations analyzing the Reed decision, including webinars through the American Bar Association and the Planning and Law Division of the American Planning Association. Check these organizations’ websites for more details and information as these events open for registration.