Is Your Sign Code Content Neutral? Reed v. Gilbert Warns it Should Be

Quite often, sign codes are primarily governed by their definitions. Many of the definitions are about types of signs: temporary, projecting, banners, fascia, freestanding, pole-mounted, etc. Quite often, however, signs are defined by their contentpolitical, real estate, commercial, yard sale, etc. If a sign is blank, you can still tell what kind of sign it is by the first grouping. However, for the second group of signs, you can only tell which type of sign it is by reading it.

This presents a problem if one group is given preferential treatment over another one. This concept is called content neutrality, and courts historically have been inconsistent in their rulings. However, that all changed on June 18, 2015, when the Supreme Court of the United States (SCOTUS) ruled unanimously in favor of content neutrality in Reed vs. Gilbert. Based on that ruling, a vast majority of existing sign codes, if challenged, would be ruled unconstitutional.

Clyde Reed’s church in Gilbert, AZ didn’t have a permanent home, so it needed to announce its location and topic each week on a sign. The Gilbert sign code deemed it a “temporary directional sign” and limited its size to 6 sq. ft., and a duration of 12 hours before the service, and one hour afterward. In contrast, “political signs” could be 32 sq. ft., and their duration was only limited to the election season.  A third category – “ideological signs” – which was a catch-all category, could be 20 sq. ft., with no time or placement restrictions.

For a city to enact content-based restrictions, it must employ “strict scrutiny,” which means it must demonstrate a “compelling interest,” and show that the restrictions are “narrowly tailored” to serve that interest.

Reed was originally cited for exceeding the time limits with his signs. He filed against these rulings and, amazingly, multiple appellate courts upheld the Gilbert sign code.

Justice Clarence Thomas, in delivering the SCOTUS opinion,  succinctly stated, “We hold that these provisions are content-based regulations of speech that cannot survive strict scrutiny. . . The Town’s Sign Code is content based on its face . . . The restrictions in the Sign Code that apply to any given sign thus depend entirely on the communicative content of the sign. . .”

In another landmark SCOTUS case in 1999, North Olmsted Chamber of Commerce v. City of North Olmsted, portions of the city’s 1991 sign code was found to not be content neutral, along with the sign code en toto (entirely), so all of the sign code’s prohibitions were thrown out. An overview of that court case also appears in this website’s Sign Code section. Read More: Here & Here.

Wade Swormstedt

Wade Swormstedt

Wade is Executive Director of the Foundation for the Advancement of the Sign Industry. Formerly he was Editor and Publisher of Signs of the Times magazine.

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Posted in 1st Ammendment / Freedom of Speech, Content Neutrality (Reed v. Gilbert), Most Popular, Sign Codes, Sign Questions Answered, Supreme Court, Temporary Signs and tagged , , , , , , , , .

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