Content Neutral Sign Regulation After Reed v. Town of Gilbert · Content Neutral Sign Regulation...

Content Neutral Sign Regulation After Reed v. Town of Gilbert

Brian Connolly Otten Johnson Robinson Neff + Ragonetti, P.C. Denver, Colorado John Baker Greene Espel PLLP Minneapolis, Minnesota

APA National Conference · Seattle, Washington · April 20, 2015

Content Neutral Sign Regulation / Reed v. Gilbert · April 20, 2015 2

Program Outline

•  The First Amendment, Sign Regula8on, and Understanding Content Neutrality (if it can be done…)

•  Overview of Reed v. Town of Gilbert •  Oral Argument and Prac8cal Outcome Analysis •  Ques8ons and Answers


The Legal Framework for Sign Regula8on

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances.”


First Amendment and Sign Regula8on

•  The First Amendment applies to every sign

•  Government regula8on of signs loses the normal presump8on of cons8tu8onality and is subject to heightened scru7ny

•  Sign li8ga8on is common, expensive, and risky

•  Most sign ordinances contain at least a few provisions of ques8onable cons8tu8onality


First Amendment Concepts

What we’re discussing today…

• Viewpoint or content (or message) neutrality

• Time, place or manner regula8ons

What applies, but what we’re not discussing today…

• Bans and excep8ons

• Permits and prior restraints

• Vagueness and Overbreadth

• Commercial vs. non-‐commercial speech

• Off-‐site vs. on-‐site signs


Time, Place and Manner Regula8ons

•  Maximum size/height

•  Maximum number per –  lot/building –  support structure

•  Specify loca8ons –  prohibi8ons –  corner lots –  setbacks/spacing

•  Regulate –  lighting –  flashing/animation –  neon – materials/colors

Note: Regulating color may be a problem when applied to federally-registered trademarks.


Content and Viewpoint Neutrality “Iden8fica8on signs may include the principal type of goods sold or services rendered; however, the lis8ng of numerous goods or services, prices, sale items, and telephone numbers shall not be permi[ed.”

What about this sign?

CLASSIC CHRYSLER CERTIFIED FIVE STAR DEALER

SERVICE OPEN SATURDAYS

555-1234

Credit: Alan Weinstein


Content and Viewpoint Neutrality “The numerical limits on signs in this district do not apply to signs rela8ng to a specific event of a nonprofit organiza7on, so long as those signs contain no commercial speech.”

If the law is enforced against this sign based on the “Target Corp.” logo, would it make the law content-‐based?


Content and Viewpoint Neutrality

“Signs containing a poli7cal message are permi[ed in residen8al zoning districts.” As enforced against this sign, is this

provision viewpoint neutral?

Content neutral?

What if another regula8on allowed ideological signs in this se^ng?


Content and Viewpoint Neutrality

“Directional signs indicating only the direction of pedestrian and vehicular circulation routes on the lot on which the sign is located.”

Are these signs legal under that provision?

Credit: Alan Weinstein


Understanding Content Neutrality

Key cases: •  Mosley •  Metromedia (signs) •  Hill v. Colorado •  McCullen v. Coakley


Content Neutrality: The Cases

Police Dept. of City of Chicago v. Mosley, 408 U.S. 92 (1972)

•  Chicago ordinance prohibited picke8ng of schools, but excepted “peaceful picke8ng of any school involved in a labor dispute.”

•  Ordinance found uncons8tu8onal •  But although Mosley has guided the content neutrality doctrine since 1972, Mosley was not a sign case



The one sign code case: Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) The ordinance: •  Ban on all off-‐premise adver8sing signs •  Excep8ons to the ban: on-‐premises signs and certain other types of signs (poli8cal signs, real estate signs, religious signs, etc.)

•  Substan8al City interests: traffic safety and city aesthe8cs



Metromedia, cont. • Commercial off-‐site billboards can be banned, but government cannot favor commercial over noncommercial speech • Regula8ons of noncommercial speech must be content neutral: “With respect to noncommercial speech, the city may not choose the appropriate subjects for public discourse: ‘To allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for poli7cal truth.’”



Hill v. Colorado, 530 U.S. 703 (2000) • State law prohibited a person from “knowingly approach[ing]” an unwilling listener within 100 feet of a health care facility “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, educa8on, or counseling.” • Found cons8tu8onal • Government’s purpose was to allow unobstructed passage along sidewalks and access to health care facili8es


Content Neutrality: The Cases McCullen v. Coakley, 573 U.S. ___, 134 S. Ct. 2518 (2014) • Massachuse[s law imposed a fixed 35-‐foot buffer zone around entrances to reproduc8ve health care facili8es, with four exemp8ons • Unanimous Court held law uncons8tu8onal • Majority held that the law was content neutral, but not narrowly tailored under intermediate scru8ny –enforcement of typical traffic, crowd control, and criminal laws and individual injunc8ons and prosecu8ons could serve government’s interests, with less burden on leafle^ng and personal counseling ac8vi8es protected by First Amendment


Content Neutrality: The Cases McCullen v. Coakley, 573 U.S. ___, 134 S. Ct. 2518 (2014) •  Content neutrality analysis: no content-‐based dis8nc8ons on

face of law. Viola8on depends not on what they say, but on where they say it, even though law only applied to abor8on clinics

•  Four jus8ces found the law content-‐based and viewpoint-‐based, and subject to strict scru8ny –  Content neutrality discussion focused on applica8on to abor8on clinics only, and calls for overruling of Hill

–  Narrow tailoring discussion and dissent ques8oned legisla8ve record focusing on issues at only one clinic in one city, and failing to show issues statewide


Content Neutrality

•  A regula8on that is content-‐based will be subject to strict scruBny: compelling governmental interest, least restric8ve means, and narrow tailoring

•  A regula8on that is content-‐neutral will be subject to intermediate scruBny: significant/important governmental interest unrelated to suppression of speech, substan8ally related means, narrow tailoring, and ample alterna8ve channels for communica8on

•  Regula8ons of commercial speech are subject to the Central Hudson intermediate scru8ny test


Content vs. Viewpoint Neutrality

•  Content looks at subject ma[er

•  By contrast, viewpoint looks at point of view…

Consider the following general prohibi8on and exemp8ons:

ProhibiBon: “No flag shall be displayed.”

Exemp8on 1: “Flags of governmental enBBes.”

Exemp8on 2: “American flags.”


Content vs. Viewpoint Neutrality •  Prohibi8on: content and viewpoint neutral

–  Anyone who wants to fly a flag is prohibited from doing so •  Exemp8on 1: certainly content based (and maybe viewpoint

based—depending on your viewpoint!) –  Flags that can be flown: USA, Iceland, Colorado –  Flags that can’t be flown: Tea Party, Greenpeace, Na8on of Islam

•  Exemp8on 2: content based and viewpoint based –  Flags that can be flown: USA –  Flags that can’t be flown: Everything Else


Content Neutrality: Divergent Views

•  Three views of content-‐neutrality – Literal, absolu7st or “need to read” approach – Func7onal, accommoda7onist, category-‐based approach

– Context-‐sensi7ve approach


Literal Approach •  If a local enforcement officer is required to read the message on a

sign to enforce the provisions of the sign code, the sign code fails the content neutrality test

•  Example: Solan&c, LLC v. City of Neptune Beach, 410 F.3d 1250 (11th Cir. 2005) –  Code exempted from permi^ng “[f]lags and insignia of any government, religious, charitable, fraternal, or other organiza8on”; “[s]igns erected by, on behalf of, or pursuant to authoriza8on of a governmental body”; “[m]emorial signs or tablets”; “[w]orks of art that do not cons8tute adver8sing”; “[r]eligious displays”; temporary “[e]lec8on or poli8cal campaign related signs.”

–  Found to be content based and unconsBtuBonal based in part on these exempBons


Func8onal Approach •  Regulatory dis8nc8ons between func8onal categories of signs (sign

types) are permissible, so long as the government ra8onale for the dis8nc8ons is based on the func8on of the sign rather than discrimina8on based on its content or viewpoint

•  Example: HDV-‐Greektown, LLC v. City of Detroit, 568 F.3d 609 (6th Cir. 2009) –  Code height restric8ons varied based on whether a sign was an “adver8sing sign,” a “business sign,” a “construc8on sign,” a “real estate sign,” or a “poli8cal sign.”

–  Found to be content neutral and consBtuBonal: “There is simply nothing in the record to indicate that the dis7nc7ons between the various types of signs reflect a meaningful preference for one type of speech over another.”

•  A third way: the context-‐sensi8ve approach


Reed v. Town of Gilbert

Source: azcentral.com


Gilbert Sign Code

•  § 4.402.A requires all signs to be permi[ed, unless excepted by § 4.402.D

•  § 4.402.D contained 23 excep8ons to permi^ng requirement, including:

•  “Poli8cal signs” •  “Ideological signs” •  “Temporary direc8onal signs rela8ng to a qualifying event”


Gilbert Sign Code •  PoliBcal signs: “A temporary sign which supports candidates

for office or urges ac8on on any other ma[er on the ballot of primary, general or special elec8ons rela8ng to any na8onal, state or local elec8on.” –  Up to 16 square feet on residen8al property, 32 square feet on nonresiden8al property, up to 6 feet in height

– Must be removed 10 days awer elec8on •  Ideological signs: “Sign communica8ng a message or ideas for

non-‐commercial purposes” (that is not also another sign type) –  Up to 20 square feet, 6 feet in height


Gilbert Sign Code •  Temporary direcBonal signs: Temporary sign “intended to

direct pedestrians, motorists and other passersby to a ‘qualifying event.’” Qualifying event is an event sponsored or hosted by religious, charitable, community service, educa8onal, or other nonprofit organiza8on. –  6 feet in height, 6 square feet in area, 4 signs per property – May be placed 12 hours before event, must be removed 1 hour awer


Gilbert Sign Code

Homeowners Assn signs

Political signs (nonresidential zone)

Qualifying Event signs

Ideological signs


Gilbert Sign Code

•  2008 amendments to Town sign code – Removed “religious assembly” temporary event signs


Factual Background •  Reed is pastor of Good News Presbyterian Church, which rents property at various community facili8es in Gilbert

•  Good News posts temporary signs around Gilbert to direct people to services, rather than iden8fying its presence on the signs available to the property and controlled by its landlords

•  Gilbert code enforcement staff issued no8ce of viola8on in 2005, awer church’s signs were posted outside of display 8me provided by the temporary religious event sign provisions


Procedural History •  Reed and Good News Church filed suit against Town in 2007

in federal district court •  Facial and as-‐applied challenges to the Gilbert sign code

under the Free Speech and Free Exercise clauses of the First Amendment to the Federal Cons8tu8on, the Equal Protec8on Clause of the Fourteenth Amendment, and related state-‐law provisions

•  September 2008: Reed’s mo8on for preliminary injunc8on denied

•  Ninth Circuit affirmed denial of mo8on for preliminary injunc8on, remanded for further proceedings on the ques8on of whether the code impermissibly dis8nguished between forms of noncommercial speech


Procedural History •  February 2011: Town granted summary judgment on basis

that Town’s purpose in enac8ng sign regula8ons was unrelated to the content of the regulated speech

•  Ninth Circuit affirmed –  “[T]he fact that an enforcement official had to read a sign did not mean that an ordinance is content-‐based.”

–  Dis8nc8ons were based on the purpose of the sign and not adopted out of the government’s disagreement with the messages of any of the exempt signs

•  Supreme Court granted cert


Reed v. Town of Gilbert Analysis •  Overall impressions •  Issues that the jus8ces focused on •  Indica8ons toward which way the jus8ces are leaning •  Prac8cal outcomes

–  If the Court decides in favor of Reed? –  If the Court decides in favor of the Town? –  A possible middle ground?


Ques8ons and Answers

Brian Connolly (303) 575-7589 / [email protected]

John Baker (612) 373-8344 / [email protected]

Content Neutral Sign Regulation After Reed v. Town of Gilbert · Content Neutral Sign Regulation...

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