First Amendment Application to Sign Control

The Fourteenth Amendment makes the First Amendment’s freedom-of-speech provision applicable to states and their political subdivisions. While many sign codes begin as content neutral “time, place, and manner” regulations (or “police power” exercises), further analysis often reveals the ordinance violates First Amendment “free speech” guarantees. Even in cases where the subject ordinance is not per se unconstitutional, often the underlying reason for its enactment is the suppression or censorship of speech, which renders the code similarly unconstitutional.

While commercial speech is not yet entitled to as much First Amendment protection as political, religious or personal-opinion expression, the definite trend is to subject ordinances to increasing levels of scrutiny. The crucial question asked by the court is whether the regulation is “content-based.” If the regulation is, or appears to be, based on the content of the message displayed or conveyed, or the identity of the communicator, strict scrutiny is almost always triggered.

A brief review of seminal cases follows, beginning with Virginia State Board of Pharmacy, the first case that explicitly granted First Amendment protection to commercial speech.

CASE: Virginia State Bd. Of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 761-773 (1976)
HELD: The fact that the advertiser’s interest in a commercial communication is purely economic doesn’t disqualify him from protection under the First and Fourteenth Amendments. Both the individual consumer and society in generally may have strong interests in the free flow of commercial information.

The opinion further observed that time, place, and manner restrictions are permissible only if the restrictions:

  1. are justified without reference to the content of the speech,
  2. serve a significant government interest, and
  3. leave open ample alternative channels for communication of the information.

Comment: This is widely cited as the first case to give First Amendment protections to “pure” commercial speech.

CASE: Central Hudson Gas & Electric Corp. v. Public Service, 447 U.S. 557 (1980)
HELD: Regulations of non-misleading commercial speech regarding a lawful activity (1) must be supported by a substantial governmental interest, (2) must directly advance the governmental interest asserted, and (3) must be no more extensive than is necessary to serve that interest.

Comment: This is now the de-facto standard for analyzing most sign codes.

CASE: Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 516-517 (1981)
HELD: Plurality decision: The ordinance is unconstitutional because it distinguishes in several ways between permissible and impermissible signs at particular locations by reference to their content . . . these distinctions take the regulation out of the domain of [content neutral] time, place and manner restrictions.

Note: While a plurality on the Court agreed that avoiding visual clutter was a permissible exercise of police power to ban off-premise signs, the Court ruled 6-3 that the ordinance was unconstitutional because it failed the content-neutrality requirements of the First Amendment.

CASE: Bd. of Trustees of State Univ. of New York v. Fox, 492 U.S. 469 (1989)
HELD: The 3rd prong of the Central Hudson (see above) test, supra, is expanded to include the caution that the means chosen by the government to advance a proven substantial interest must be narrowly tailored to achieve the desired result.
CASE: City of Cincinnati v. Discovery Network, 507 US 410 @ 428-29 (1993)
HELD: A ban of lawful activity based on its commercial nature, while permitting similar noncommercial activities to continue, is a content-based regulation in violation of the First Amendment. The Court further found itself “unwilling to recognize Cincinnati’s bare assertions that the ‘low value’ of commercial speech was sufficient justification for its selective and categorical ban on news racks dispensing ‘commercial handbills’.”

Note: Although the Court agreed regulations to promote safe and attractive city streets and sidewalks generally were permissible under police powers, in this case, the regulation’s failure to pass the content-neutrality test, plus the fact that the ban removed only 63 commercial news racks while leaving in place approximately 2,000 noncommercial news racks, led the Court to reject completely the city’s contention that its regulation was a legitimate exercise of police powers; additionally, the regulation failed the requirement in Fox, supra, that it be narrowly tailored.

CASE: 44 Liquormart v. Rhode Island, 517 U.S. 484 (1996)
HELD: (An eight-part plurality opinion): The suppression of truthful commercial speech regarding a lawful activity will not be sanctioned when speech-neutral alternatives are available to further the government’s goal.

Note: In this case, Rhode Island attempted to prohibit the advertising of retail liquor prices except at the place of sale, arguing that the ban was a necessary extension of its interest in reducing alcohol consumption. In his opinion, Justice Stevens wrote,

In recent years, this Court has not approved a blanket ban on commercial speech unless the expression itself was flawed in some way, either because it was deceptive or related to unlawful activity … [t]he First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good. (@ 500.)

Comment: 44 Liquormart announces the Supreme Court’s intent to apply strict scrutiny, or something reasonably close to it, when judging the validity of content-based bans on commercial speech. In practical effect, this would equate the First Amendment status of commercial speech with that of noncommercial speech in cases involving a regulation that seeks to impose a content-based prohibition on communication.

CASE: Linmark Associates, Inc. v. Willingboro, 431 U.S. 85 (1977)
HELD: A local government may not prohibit the use of temporary, real- estate signs in residential areas because such restriction unduly limits the flow of information.

In analyzing the township’s justification and supporting evidence, the Court found no definite connection between the asserted governmental goal (avoiding signage “clutter”) and its selected regulatory means (a ban).

Comment: This case is significant because it reinforced the Court’s position that it would not only inquire into the substance of the government’s interest, but also analyze the substance of the government’s evidence in support of its regulation. While a government may regulate signs, it must also be able to convince the Court that its regulatory scheme is necessary to achieve a legitimate government interest or is not aimed at curtailing information.

CASE: City of Ladue v. Gilleo, 512 U.S. 43 (1994)
HELD: An ordinance violates the First Amendment if it totally forecloses a homeowner’s opportunity to display religious, political or personal messages on lawn signs located on their own property, and leaves no adequate substitute for such an important medium.

Comment: In striking down a city regulation that provided only 10 limited exceptions to its ban on residential signage, the Court acknowledged that residential signs have long been an important and distinct medium of expression. The Court reasoned that even assuming that the code was not content-based, it was still unconstitutional because it banned too much speech, and adequate substitutes for this type of communication (lawn signs) do not exist.

CASE: Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001)
HELD: The Central Hudson test is applicable to both indoor, on-premise and outdoor-advertising regulations. The state must show evidence that its regulations are not more extensive then necessary to advance its substantial (or even compelling) interest. A speech regulation cannot unduly impinge on the speaker’s ability to propose a commercial transaction and the adult listener’s opportunity to obtain information about products.

Comment: Parts of the strict-scrutiny analysis are being used more often in “Central Hudson” intermediate-scrutiny Supreme Court opinions. In Lorillard, the state statute was struck down even though the government interest was “compelling” and not just substantial. This is indicative of the trend to tighten judicial scrutiny of commercial-speech regulations.

CASE: Greater New Orleans Broadcasting Association, Inc. v. United States, 527 U.S. 173 (1999)
HELD: The power to regulate or even prohibit particular conduct doesn’t necessarily include the power to regulate or prohibit speech about that conduct. Regulations of commercial speech differentiating by ownership, where other non-speech methods are available, will not pass the “Central Hudson” judicial scrutiny test. In other words, if you want to ameliorate the negative effects of gambling with a content-based regulation, then regulate gambling itself — do not attempt to circumscribe gambling via its advertising.

If you want to legislate policy on gambling, go through the proper legislative procedures to do so, rather than regulating the activity through the commercial speech of the activity.

Comment: Because of the Supreme Court’s extensive caseloads, it is unusual for a case to receive certiorari review at all. This case received certiorari review twice. The first time, the Court vacated the lower court’s judgment that upheld the ordinance and remanded the case to be reviewed for a judicial decision in light of 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). When the 5th Circuit Appellate Court upheld the same regulation again, the Court granted a certiorari review a second time. With a seven-justice majority and a two-justice concurrence, the lower-court judgement was reversed, and the regulation was declared unconstitutional.

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: 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. (Emphasis added.)
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: 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.”

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.
COMMENT: Readers are encouraged to review the North Olmsted decision, as it offers a “master brief” for sign owners anywhere faced with severely restrictive sign regulations.
And readers should be aware that, in the First Amendment arena, the party seeking to uphold restriction on commercial speech has the burden of proving that the challenged governmental regulation advances a legitimate government interest in a direct and material way. (See, Rubin v. Coors Brewing Co, 514 U.S. 476 (1995).)
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.

More Posts

Posted in 1st Ammendment / Freedom of Speech, Content Neutrality (Reed v. Gilbert), Sign Codes, Small Business Administration, Supreme Court, Temporary Signs.