Fourteenth Amendment Application to Sign Control

Fourteenth Amendment Application to Sign Control

Under the Fourteenth Amendment, applicable to the states and their subdivisions, a state or local-government regulation may not deprive any person of life, liberty or property without due process of law, nor deprive a person of equal protection of the laws.

  1. Due process. A fundamental requirement of due process is that a statute or ordinance must clearly delineate the conduct it proscribes. Analysis in this area focuses on the government’s means and purpose, and whether the government’s method rationally furthers legitimate ends. The protection granted by this clause applies to both procedural due process — the procedures followed that led to the deprivation, and substantive due process — and the governmental action itself.
    CASE: KEV, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986)(citing Grayned v. City of Rockford, 408 U.S. 108)
    HELD: A statute must be sufficiently clear to allow persons of “ordinary intelligence” a reasonable opportunity to know what is prohibited. Statutes insufficiently clear lack necessary due process and are void for vagueness for three reasons:

      1. To avoid punishing people for conduct they could not have known was illegal;
      2. To avoid subjective, arbitrary or discriminatory enforcement of the laws; and
      3. To avoid any chilling affect of the exercise of First Amendment freedoms, because when First Amendment freedoms are at stake, an even greater degree of specificity and clarity of law is required.
    COMMENT: Judicial standards for determining violations of substantive due process and equal protection are frequently interchangeable and equivalent.
  2. Equal Protection. This concept is fundamentally defined to mean that no person or class of persons shall be denied the same protection of law that is enjoyed by other persons or classes in like circumstance.

There are three standards of review for a denial of an equal-protection claim:

    1. The “rational relationship” test, which is the usual standard applied to most land-use regulations;
    2. The “intermediate scrutiny” test, which is applied to so-called “quasi-suspect” classifications, such as gender, and regulations on expression that are not content-based, and
    3. The “strict scrutiny” test, which is invoked when a suspected classification exists in the law (i.e., race, religion, national origin), or when a fundamental interest is affected, including content-based regulations on expression. It is when regulations trigger either of the latter two tests that on-premise business signs have been granted some relief.
CASE: North Olmsted Chamber of Commerce v. City of North Olmsted, 86 F.Supp2d 744 (N.D. Ohio 2000)
HELD: Equal protection is violated where a law distinguishes between and classifies speakers in a manner that affects fundamental rights protected by the First Amendment.

Note: As one example of the city’s conduct in this case, the city, citing “safety and aesthetic” reasons, banned certain freestanding pole signs, mostly on-premise business signs, while exempting others, notably public signs of similar construction. At p. 779, the court states, “It is beyond reason to think that the signs of public or semi-public entities are inherently safer or more aesthetically pleasing than the signs of business entities, or that the sign of a local service organization is safer or more beautiful than that of a private or international organization.”

Comment: Judicial standards for determining violations of substantive due process and equal protection are frequently interchangeable and equivalent.

CASE: Revisiting North Olmsted, supra
HELD: The federal district court in North Olmsted, in a well-reasoned and written opinion, discussed and addressed all of the issues raised above. Then, in a sweeping decision, the court held that the city’s ordinance constituted an impermissible and unconstitutional restriction on noncommercial speech for the following reasons:

    1. The selective prohibition on pole signs created an impermissible content-based distinction;
    2. The equal-protection clause was violated because speech was allowed to some speakers, but not to others;
    3. The permitting scheme gave unfettered discretion to the permitting official, constituting an impermissible system of prior restraint;
    4. The content-based regulation affected both commercial and noncommercial speech, whether reviewed under strict or intermediate scrutiny, and was therefore invalid in its entirety.

Because the city had violated the plaintiffs’ civil rights under section 1983 of the Civil Rights Act, the city was ordered to pay plaintiffs’ attorneys’ fees of approximately $200,000.

Prior-restraint issues
The interplay between the First and Fourteenth Amendments and police power often gives rise to corollary issues. One such issue may be defined as a prior restraint. Generally, a prior restraint occurs when the right to do something is contingent upon the prior discretionary approval of a government official. In signage-related issues, the question of prior restraint will appear during the application process to acquire a sign permit. In this process, the prior-restraint issue is always potentially present, for the right to communicate through signage is universally dependent upon obtaining requisite permits.

CASE: Southwestern Promotions Ltd. v. Conrad, 420 U.S. 546 (1975)
HELD: A system of prior restraints exists when speech is conditioned upon the prior approval of public officials that may work to inhibit or suppress communication before it reaches the public. While prior restraints are not necessarily unconstitutional per se, any such system . . . bears a heavy presumption against its constitutional validity.
CASE: FW/PBS v. Dallas, 493 U.S. 215, 225-26 (1990)
HELD: Two evils will not be tolerated in any system of prior restraint:

    1. A scheme that places unbridled discretion in the hands of a government official or agency, the result of which may be censorship; and
    2. A scheme that fails to place time limits on the time within which the decision maker must issue the license or permit.
CASE: Forsyth County v. The Nationalist Movement, 505 U.S. 123, 130 (1992)
(citing United States v. Grace, 461 U.S. 171, 177 (1983))
HELD: Any permit scheme that controls time, location or manner of speech must not be based on the content of speech, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication. (Emphases added.)
CASE: Desert Outdoor Advertising, Inc. v. City of Moreno Valley, 103 F. 3d 814 (9th Cir. 1996)
HELD: An impermissible prior restraint exists when an ordinance gives the permitting official discretion to approve or deny a sign permit when the only standards controlling the exercise of his discretionary power are “[the sign] will not have a harmful effect upon the health or welfare of the general public . . . [and] will not be detrimental to the aesthetic quality of the community.”

Photo by Schu

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, Amoritzation, Content Neutrality (Reed v. Gilbert), Sign Codes, Small Business Administration, Supreme Court.