By Emily Jessup; Staff Member (Vol. 15)
Imagine you’re driving around town, when something catches your eye. You slow down, and look. There, right in front of you, spray painted in giant letters on the side of a house is this: “SCREWED BY THE TOWN OF CARY.” Huh? Why hasn’t the Town done anything about this? Well, they tried to do something and consequently, the Town of Cary found themselves in Court battling over whether their sign ordinance, which prohibited signs of that size, violated the First Amendment. Although the Town’s ordinance was eventually upheld as a reasonable restriction on speech, and thus not contrary to the First Amendment, the case went all the way to the Fourth Circuit Court of Appeals for a final decision.
This case highlights the potential for litigation where sign ordinances appear to intrude on speech rights. Prior to June, 2015, ordinances were generally found to be reasonable so long as they served a significant government interest, were narrowly tailored to that interest, left open alternative channels of communication, and were content neutral. However, in deciding Reed v. Town of Gilbert, Ariz., the Supreme Court flipped the script on governments around the country. The Supreme Court found in a 9-0 decision that the sign ordinances enacted by the Town of Gilbert violated the First Amendment as content-based restrictions on speech. The unanimous finding is misleading because four separate opinions were issued, which reflected divided views on the First Amendment analysis of content-neutrality. In this case, a small church with no permanent home challenged the Town of Gilbert’s sign code after they were cited several times for exceeding the time limits allowed for temporary directional signs. The District Court denied the Church a preliminary injunction, and the Ninth Circuit affirmed, concluding the code was content neutral. The Supreme Court granted cert and reversed the lower courts decisions.
The majority opinion delivered by Justice Thomas, and joined by Justices Roberts, Kennedy, Scalia, Alito, and Sotomayor, held that the Town of Gilbert’s Code imposed more stringent restrictions on “temporary directional” signs than other categories of signs. The majority found the categories of signs in the town’s sign code to be content based by stating “[t]he restrictions in the Sign Code . . . depend entirely on the communicative content of the sign” the sign ordinance is “[o]n its face . . . a content-based regulation of speech.” The Court held that “[g]overnment regulation of speech is content based if a law applies to a particular speech because of the topic discussed or the idea or message expressed.” Because the ordinance regulated signs differently based on their “category” (e.g., the code allowed ideological signs to be thirty-two sq. ft., but limited temporary directional signs to six sq ft.), the code was a content-based regulation in violation of the freedom of speech.
The Court appeared to recognize how demanding a standard for regulations they had established claiming the decision will not prevent effective sign laws because “a sign ordinance narrowly tailored to the challenges of protecting the safety of pedestrians, drivers, and passengers … well might survive.”
The concurrence authored by Justice Alito, and joined by Justices Kennedy and Sotomayor, is offered as “words of further explanation” to the majority opinion. This opinion offers a list of sign regulations it says would not be content-based such as rules regulating the size and location of signs; distinguishing between lighted and unlighted, restricting total number of signs allowed per mile of roadway, or time restrictions on signs advertising a one-time event. The opinion states, “[p]roperly understood, today’s decision will not prevent cities from regulating signs in a way that fully protects public safety and serves legitimate esthetic [sic] objectives.”
A concurrence in the judgment, authored by Justice Kagan and joined by Justices Breyer and Ginsburg critiques the broadness of the majority’s opinion noting many sign ordinances which impose regulations on some signs while exempting others are “now in jeopardy” “[g]iven the Court’s analysis.” Justice Kagan suggests an alternative analysis that allows the administration of “our content-regulation doctrine with a dose of common sense, so as to leave standing laws that in no way implicate its intended function.” Her analysis advises that when the marketplace is not in jeopardy and the government is not regulating signs based on favoritism, a lower standard of review may be appropriate.
A concurrence in the judgment, authored by Justice Breyer, is written to supplement Justice Kagan’s opinion. This opinion rejects the black and white approach taken by the majority: “content discrimination . . . cannot and should not always trigger strict scrutiny.” The better approach, according to Justice Breyer, is to use content discrimination analysis as “a supplement to a more basic analysis.” Breyer proposes to “treat content discrimination as a strong reason weighing against the constitutionality of a rule where . . . viewpoint discrimination, is threatened, but elsewhere treat it as a rule of thumb, finding it a helpful, but not determinative legal tool, in an appropriate case, to determine the strength of a justification.” This approach permits “the government to regulate speech in numerous instances where the voters have authorized the government to regulate.”
Each opinion comes to the same conclusion (that the Town of Gilbert’s sign ordinances violated the First Amendment), however their differences in reasoning leave the analysis for government regulations of speech unsettled. The majority opinion sweeps broadly, imposing a black and white approach to content neutrality—if you have to read the sign to know what regulations apply to it, the regulations are content-based—while the concurring opinions appear to try to limit the wide reach of the majority’s opinion through examples of valid regulations and suggestions of alternate analyses.
Though the majority opinion in this case clearly lays out their preferred analysis to determine content neutrality, courts around the country are left to grapple with the separate approaches and opinions presented in Reed, keeping the door open for further signage and speech litigation.