Cities can, should, and must revise their sign codes to comply with the Supreme Court’s ruling on Reed v. Town of Gilbert, Arizona. While it might not be easy, and all the fixes won’t make perfect sense, Reed provides cities an opportunity to ask themselves what they want their communities to look like and how they can get there creatively and legally.
By Lisa Soronen.
Sign lawyers (yes, they do exist) agree on one thing and disagree on another. They agree that many sign codes in the United States had problems before the U.S. Supreme Court decided Reed v. Town of Gilbert, Arizona last summer. They disagree on how big of a deal the Reed decision is and, more specifically, on how much Reed changed sign law. Regardless of who is right, post-Reed your city’s sign code is still in trouble.
The good news is that many of the problems are fixable even if the solutions aren’t perfect. The Supreme Court had been clear before Reed that content-based distinctions in sign codes could be unconstitutional. What the Court wasn’t clear about was what exactly content-based distinctions are and how often, practically speaking, they are likely to be unconstitutional. In Reed the Court adopted a broad definition of content-based and concluded that content-based distinctions will almost always be unconstitutional.
Gilbert’s Sign Code treated temporary directional signs less favorably (in terms of size, location, duration, etc.) than political signs and ideological signs. The Supreme Court held unanimously that Gilbert’s Sign Code violated the First Amendment because it made content-based distinctions that in Justice Kagan’s words would not even pass “the laugh test.”
To summarize the Court’s opinion in five words: sign codes must be content-neutral.
Even if this sounds straightforward, it is much easier to understand what problems might exist in your sign code — and how to fix them — using real world examples. According to sign lawyers (before and after Reed), two of the most common problematic provisions in sign codes are special rules for political signs and real estate signs.
Take, for example, a sign code which stipulates that, 30 days before an election and five days after an election, no permit is required for signs that are eight square feet or less that advocate for or oppose a particular candidate.
So why is this provision content-based? Well, only political messages are allowed on these signs. To manage the clutter of too many yard signs while avoiding controlling the content of speech on signs, many communities limit the square footage of signage in a yard. Instead of creating special rules for political signs, communities could allow any message on a certain square footage of signs which would, of course, include political messages.
But what about the fact that during silly season many people want to display multiple political signs which could exceed the normal sign allotment? One option would be to waive the square footage limitation for a time period that would just so happen to coincide with elections. But, of course, yard signs with any non-commercial message would have to be allowed during this sign free-for-all period — not just additional political signs.
Now let’s look at real estate signs. It is not uncommon for sign codes to say that one real estate sign of a particular size and duration is permitted on each lot. Why is this provision content-based? No other messages may be contained on such a sign.
What might be a solution that allows real estate signs? A sign code could say that, if a particular lot is for sale, one additional sign of a particular size and duration is allowed on the lot. This provision would regulate signs based on location and activity, not content. But again, the home owner could put any message on this additional sign — but presumably would put up a message about the property being for sale.
These two examples illustrate the sense and the absurdity of Reed. On one hand, in a democracy where all ideas and opinions are allowed it seems only fair that political messages don’t get special treatment. On the other hand, having special rules for real estate signs makes good practical sense and hardly seems designed to limit the marketplace of ideas.
Cities can, should, and must revise their sign codes to comply with Reed. While it might not be easy, and all the fixes won’t make perfect sense, Reed provides cities an opportunity to ask themselves what they want their communities to look like and how they can get there creatively and legally.
For further background on sign law, an overview of the Reed decision, and more solutions to problems with sign codes, listen to a recording of the SLLC/NLC webinar on Reed. The Fourth Edition of Street Graphics and the Law also contains suggestions on modifying sign codes to comply with Reed.