Signs

Gary Taylor, AICP, Iowa State University

Reed v.

Town of Gilbert, AZ

SCOTUS, June 18, 2015

Reed v. Town of Gilbert

• Facts– The sign code for the Town of Gilbert, Arizona,

prohibited the display of outdoor signs without a permit.

– But Town exempted 23 categories of signs from that requirement.

Reed v. Town of Gilbert• Case focused on three types of

exempt signs– Ideological Signs– Political Signs– Temporary Directional Signs Related

to a Qualifying Event.

• Each were regulated differently regarding size, time and location to display.

Reed v. Town of Gilbert• Facts– Good News Community Church,

wanted to advertise the time and location of Sunday church services.

– The church owned no building and held services in different during the year.

– The Church began placing 15 to 20 signs around the Town early in the day on Saturday to announce the time and location of the upcoming service. The signs were removed around midday on Sunday.

Reed v. Town of Gilbert

• Facts– The Town cited the Church for violating the

Town’s sign code. – The Church sued arguing that the Sign Code

abridged their freedom of speech in violation of the US Constitution.

Reed v. Town of Gilbert• Decision– In a rare unanimous decision, SCOTUS struck down the

Town’s sign code as a violation of the Freedom of Speech guaranteed by the 1st Amendment.• Justice Thomas wrote the opinion for the Court.• Justice Alito wrote a concurring opinion and was joined by Justices

Kennedy and Sotomayor.• Justices Kagan and Breyer also wrote separate concurring opinions.

Reed v. Town of Gilbert• Decision– City argued that because the sign code did not favor one

viewpoint over another (did not favor, for example, Democratic political signs over Republican political signs) the regulations were not “content-based”

– However, majority opinion found the regulations content based because they focused on the message (a “qualifying event,” an ideological matter, an election) to trigger different regulations for each category.

Reed v. Town of Gilbert• Decision

–While government discrimination among viewpoints is a more blatant form of content discrimination, it is also discriminatory when government limits, or prohibits altogether public discussion of an entire topic, even if there is no improper motive or intent on the part of the government.

Reed v. Town of Gilbert• Decision– As content-based regulations of speech, the

regulations were subject to strict scrutiny by the Court:• “Content-based laws--those that target speech based on

its communicative content--are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.”

Strict Scrutiny

• An article in the New York Times discussing Reed v. Gilbert described the legal concept of strict scrutiny in the following way: – “Strict scrutiny requires the government to prove

that the challenged law is ‘narrowly tailored to serve compelling state interests.’ You can stare at those words as long as you like, but here is what you need to know: Strict scrutiny, like a Civil War stomach wound, is generally fatal.”

Reed v. Town of Gilbert

• Decision– As a result of the decision, sign codes similar to

the Town of Gilbert’s that distinguish between signs based on their subject matter will be considered to be content-based – generally, a fatal stomach wound. • These laws, wrote Thomas, likely will be struck down

“regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.”

Traffic safety a compelling interest?

• Goals of traffic safety or aesthetics, “while significant, have never been held to be ‘compelling’ government interests.’”

– Neighborhood Enterprises v. City of St Louis, (8th Cir. 2011)

but• Signage that “may be essential, both for

vehicles and pedestrians, to guide traffic or to identify hazards and ensure safety” might survive strict scrutiny.

– Reed v. Gilbert, (majority opinion)

Reed v. Town of Gilbert

• Concurrences– Justice Alito concluded that: “Properly

understood, today’s decision will not prevent cities from regulating signs in a way that fully protects public safety and serves legitimate esthetic objectives.”

Reed v. Town of Gilbert

• Concurrences– Justice Kagan warned, however, that “unless

courts water down strict scrutiny to something unrecognizable…our communities will have to either repeal the exemptions that allow for helpful signs on streets and sidewalks, or else lift their sign restrictions altogether and resign themselves to the resulting clutter.”

SNAP, Inc.v.

Jennifer Joyce, Circuit Attorney for the City of St. Louis, et al.

8th Cir, March 9, 2015

SNAP, Inc. v. Joyce8th Cir., March 9, 2015

• MO House of Worship Protection Act defines a crime disrupting a house of worship as when a person, “intentionally and unreasonably disturbs, interrupts, or disquiets any house of worship by using profane discourse, rude or indecent behavior, or making noise either within the house of worship or so near it as to disturb the order and solemnity of the worship services.”

SNAP, Inc. v. Joyce8th Cir., March 9, 2015

• SNAP (Survivors Network of those Abused by Priests) and Call to Action are non-profits who regularly have people outside of Catholic Churches to pray and advocate for changes within the Church. Nobody has been arrested as a result of this legislation.

• These groups claim 1st and 14th Amendment violations.

SNAP, Inc. v. Joyce8th Cir., March 9, 2015

• 8th Circuit focused on “profane discourse, rude or indecent behavior” language of statute.

• It found this legislation constituted content-based restriction of speech, thus requiring strict scrutiny. (stomach wound).

SNAP, Inc. v. Joyce8th Cir., March 9, 2015

• “Governments might “seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.”

• “Audience disapproval or general concern about disturbance of the peace does not justify regulation of expression….The government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Don Norton, et al.v.

City of Springfield, IL7th Circuit, August 7, 2015

Norton v. Springfield7th Cir., August 7, 2015

• The City adopted an ordinance banning panhandling in the downtown district.

• Oral requests for donations on the spot were banned, but signs or oral requests to send money later were not.

• Plaintiffs called this content discrimination.– Initially decided in favor of the city– Reconsideration requested. 7th Circuit held off

until after Reed v. Gilbert was issued by SCOTUS.

Norton v. Springfield7th Cir., August 7, 2015

• On reconsideration– “The majority opinion [in Reed] effectively

abolishes any distinction between content regulation and subject-matter regulation. Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification.” (stomach wound).

– Topical censorship is still censorship. Few regulations will survive this rigorous standard.

Iowa Code 68A.406

• Regulating political campaign signs– Where can/cannot be placed (by use of property).– Where can/cannot be located (on such property).– What must be included, based on size of sign.

• Is this still legal?

OK, Smart Man, what do we do?

Reed v. Town of Gilbert

• Simple practice tip:

– If enforcement officer must read message of the sign to determine how sign is treated under your sign code, you are likely at risk for a stomach wound.

Reed v. Town of Gilbert

• Concurrence– Justice Alito’s concurring opinion lists sign regulations

that he believes would not be content based: 1. Rules regulating the size of signs; 2. Rules regulating the locations in which signs may be placed;3. Rules distinguishing between free-standing signs and those

attached to buildings; 4. Rules distinguishing between lighted and unlighted signs; 5. Rules distinguishing between signs with fixed messages and

electronic signs with messages that change; 6. Rules that distinguish between the placement of signs on

private and public property;

Reed v. Town of Gilbert

• Concurrence7. Rules distinguishing between the placement of signs on

commercial and residential property; 8. Rules distinguishing between on-premises and off-premises

signs; (?)9. Rules restricting the total number of signs allowed per mile

of roadway; 10. Rules imposing time restrictions on signs advertising a one-

time event. 11. Government entities may also erect their own signs

consistent with the principles that allow governmental speech.

Questions implied, but unanswered

• Doesn’t differentiation between on- and off-premises signs rely on the message being displayed? (Alito at odds with majority?).

• 3 post-Reed California district court cases have said Reed does not concern off-site billboards.

• Doesn’t distinction between commercial and non-commercial speech regulation rely on the message being conveyed?

Questions implied, but unanswered

• Doesn’t regulation of adult entertainment businesses rely on the ‘message’ being conveyed?– So much established caselaw that Court probably

unlikely to open Pandora’s Box.

8914 Lake City Way NESeattle, Washington

Discussion