Sign ordinances and regulations are a fixture of city and county zoning and land use regulations, designed to prevent unattractive clutter from obstructing the public view. In creating these regulations, however, local governments run the risk of infringing some of the most basic constitutional rights. Signs inherently include a component of speech, and regulation of the former may unintentionally interfere with the latter. The town of Gilbert, Arizona, learned this lesson the hard way in the recent U.S. Supreme Court decision of Reed v. Town of Gilbert.
Gilbert enacted a comprehensive sign code that governed the display of virtually all varieties of outdoor signs. This code divided the signs into several categories, such as “Temporary Directional Signs Relating to a Qualifying Event,” “Ideological Signs,” and “Political Signs.” A local community church lacked a permanent meeting space, so they would post signs on Saturday morning and remove them around noon on Sundays to direct the public to the location of their services for any given week. The town’s Sign Code compliance manager cited the church twice for exceeding the time limits (twelve hours) for displaying temporary directional signs. The church tried to ask the city for an accommodation, but was unsuccessful. The church was told that there would be no leniency under the code.
The Supreme Court, in a unanimous decision, held that the Gilbert’s sign ordinance was an impermissible content-based regulation of speech and did not survive strict scrutiny review. The court said that, “Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” The sign ordinance in effect in Gilbert literally created distinctions among signs based almost entirely of the content of the signs, creating separate rules for different classes of content. Any restrictions on signs depended entirely on the communicative content of the signs themselves, a step the court said went too far. It made no difference to the court that the sign code itself did not discriminate among viewpoints or that there was no evidence of differential treatment between differing viewpoints or discriminatory application of the code. The sign code in Gilbert made content distinctions on its face, and was therefore a violation of the First Amendment.
The actual impact of Reed is subject to substantial debate, even among the Supreme Court Justices themselves. While all the Justices agreed that Gilbert’s regulations went too far, the appropriate standard or review was a hotly debated topic. Justice Alito believes that the Court’s application of strict scrutiny review “will not prevent cities from regulating signs in a way that fully protects public safety and… legitimate esthetic objectives,” but Justice Kagan theorizes that because of the harsh standard applied, the Supreme Court “may soon find itself a veritable Supreme Board of Sign Review.”
What is clear from Reed is that any government entity with a sign code, ordinance, regulation or the like should study its outcome very carefully. Distinctions based upon the communicative content of the sign are now clearly impermissible after this case, and local governments would be well advised to review their sign regulations with a fine-toothed comb. The attorneys at McBrayer can assist with that process, keeping all land use ordinances, even sign regulations, compliant with changing areas of the law.
Jacob C. Walbourn is an associate in McBrayer’s Lexington office. Mr. Walbourn focuses his area of practice on planning and zoning law handling a wide variety of land use matters for clients in the private sector. His responsibilities include attending Planning Commission and Board of Adjustment hearings and working with developers, business owners, and government agencies on land use applications, zoning ordinance text amendments, comprehensive plan updates and other land use issues. He can be reached at firstname.lastname@example.org or (859) 231-8780, ext. 102.
 Reed v. Town of Gilbert, 576 U.S.___(2015) at 6.
 Id. at 2 (Alito, J. concurring).
 Id. at 6 (Kagan, J. concurring).