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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. Continue Reading U.S. Supreme Court Deals Significant Setback for Local Governments in Sign Case

As the outcome of Reed v. Town of Gilbert hangs in the balance, another case challenging a local sign code has been filed with the Supreme Court. This week, the plaintiff in Central Radio Company, Inc. v. City of Norfolk filed a petition for writ of certiorari seeking review of the Fourth Circuit Court of Appeals’ January decision upholding the City of Norfolk, Virginia’s sign regulations against a First Amendment challenge.

The history of Central Radio began in 1998, when Norfolk approved a redevelopment plan allowing for a taking by eminent domain of Central Radio Company’s property as part of an Old Dominion University campus expansion and redevelopment plan. In response to the city’s action and a Virginia state court ruling allowing the city to proceed with its plans, in 2012, the property owners placed a 375 square-foot protest banner on the building which was the subject of the eminent domain proceeding. Because the banner was placed without a permit and exceeded the size limits applicable to temporary signs, the city took enforcement action against Central Radio Company. The trial court denied the plaintiff’s motion for summary judgment, and the Fourth Circuit affirmed. During the course of the proceedings on the plaintiff’s First Amendment action, in 2013, the Virginia Supreme Court found that the city was barred from taking Central Radio Company’s property.

Much like the Gilbert, Arizona sign code in Reed, the Norfolk code regulates signs based upon categories of speech. Category-based regulation of speech is the subject of a federal circuit split that is expected to be resolved by the Reed decision, which will likely be released in June. In upholding the Norfolk sign code, the Fourth Circuit opinion in Central Radio applied logic similar to the Ninth Circuit’s challenged Reed decision. The Central Radio cert petition requests that the Supreme Court require the Fourth Circuit to revisit its decision following the release of the Reed opinion, or in the event that the split goes unresolved following Reed, to resolve the circuit split in favor of the plaintiff. No brief in opposition to the petition has been filed by the City of Norfolk.

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.