Where the First Amendment and Land Use Meet: Planet Aid v. City of St. Johns

Generally speaking, land use regulations and zoning laws arise from practical and aesthetic concerns and considerations, and are driven by state and local law. However, sometimes a community’s desire to regulate a seemingly minor issue can implicate our most fundamental rights under the Constitution. Last month, we discussed the Supreme Court’s decision in Reed v. Town of Gilbert, which involved an analysis of the First Amendment’s applicability to local sign ordinances. Finding that restricting signage based on the content of the sign was impermissible under the First Amendment, the Supreme Court struck down Gilbert’s ordinance. Commentators have since described this as the “sleeper case” of the Supreme Court’s term, representing a substantial shift in First Amendment jurisprudence. The case has since been used to justify striking down local and state bans on political “robocalls” and panhandling, and could possibly extend to call in to question laws aimed at consumer protection and securities law. Indeed, Reed and the reaches of the First Amendment are currently in the forefront of controversies involving everything from soda labelling, to the rights of topless performers operating in Times Square.

However, the Supreme Court has not been the only Court to recently address the Constitutional implications of land use regulation. In April, prior the Supreme Court’s decision in Reed, the Sixth Circuit Court of Appeals (which includes Kentucky) reviewed an ordinance banning charitable donation bins as a public nuisance. Planet Aid, a nonprofit charity, placed outdoor donation bins on private property around the town of St. Johns, Michigan in an effort to solicit clothing donations. Believing that the bins constituted a nuisance, in that clutter and trash often collected around them, the City of St. Johns removed Planet Aid’s donation bins. Later, the city enacted an ordinance banning these unattended charitable bins. The Sixth Circuit, applying the same strict scrutiny standard subsequently applied in Reed, found that this ban of unattended charitable donation bins appears to be an impermissible content-based regulation of First Amendment-protected speech, and affirmed the District Court’s grant of a preliminary injunction.

Vertical image of the the first page of the US Bill or Rights on the American flagConsider that again for a moment: the Sixth Circuit has held that the mere presence of a standalone, outdoor, unattended donation bin implicates our rights of free speech and expression.

However, this conclusion is not as extreme as it may seem at first glance. The notion of charitable solicitations as speech is not new to First Amendment jurisprudence; as the Sixth Circuit pointed out in favor of upholding the injunction, it has a long history of protected status. In the Court’s view, even unattended donation bins inherently solicit and advocate for charitable causes, and thus are a form of speech. The court likened such bins to a person standing by the side of the road and holding a sign. The ordinance, the Court found, impermissibly attempted to regulate the content of its speech, as the ban applied only to charitable donation bins and not all varieties collection bins. Thus, bins with a charitable purpose were prohibited, where other bins, like recycling bins, would be free from restriction.

With hindsight, we can now see that the decision in Planet Aid tracks the same content-regulation rationale the Supreme Court espoused some two months later in Reed. These decisions should have state and local governments scrambling to review their regulations for potentially serious Constitutional defects. Cases like Reed and Planet Aid will likely have wide-ranging impacts on any variety of land use restrictions. Few laws survive “strict scrutiny” judicial review, and it appears that any regulation of any component of expression that regulates based on content will now be subject to that level of review. As such, even seemingly mundane land use restrictions must now be evaluated as potential infringements on some our most basic rights. The attorneys at McBrayer can assist local governments in reviewing their regulations for compliance with the brave new world of Reed and Planet Aid, working to bring regulations within acceptable Constitutional limits.

Jacob C. WalbournJacob 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 jwalbourn@mmlk.com or (859) 231-8780, ext. 102.

The Newest Sign for Some Sign Ordinances: Stop

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.

a photo image of a business man's hand with a stop sign ** Note: Slight graininess, best at smaller sizes

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.”[1] 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,”[2] 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.”[3]

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. WalbournJacob 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 jwalbourn@mmlk.com or (859) 231-8780, ext. 102.

[1] Reed v. Town of Gilbert, 576 U.S.___(2015) at 6.

[2] Id. at 2 (Alito, J. concurring).

[3] Id. at 6 (Kagan, J. concurring).