I. Summary
On June 18, 2015[1] the United States Supreme Court held that an Arizona city’s sign ordinance that categorized signs into types with different sets of applicable regulations amounted to a content based restriction on speech that was not justified by the city’s interest in aesthetics and traffic safety. The ordinance included various restrictions on the size, location, and duration that political, directional, and ideological signs could be displayed within the city. The Supreme Court reversed the lower courts that incorrectly ruled the ordinance was content neutral because the ordinance did not consider the expressive content or substance of a sign.
II. Discussion
A. Factual and Procedural Background
The Town of Gilbert, Arizona (“Town”) enacted a sign ordinance that prohibited the display of outdoor signs without a permit, but exempts 23 categories of signs from this prohibition. Once such category is labeled “Ideological Signs” which includes any “sign communicating a message or ideas for noncommercial purposes” that does not qualify within another category. Another exempt category is labeled “Political Signs” that includes any “temporary sign designed to influence the outcome of an election.” A third exempt category is labeled “Temporary Directional Signs Relating to a Qualifying Event” that includes temporary signs “intended to direct pedestrians, motorists and other passerby to a qualifying event.” The ordinance treats ideological signs most favorably, allowing them to be up to 20 square feet in area and to be placed in all zoning districts of the Town. Political Signs and Temporary Directional Signs, however, are subject to more restrictive dimensional, durational and locational regulations.
Good News Community Church, and its pastor Clyde Reed (“Church”) placed 15-20 Temporary Directional Signs in locations throughout the Town directing the public to the Church’s upcoming worship services. The Town cited the Church for displaying these signs in excess the durational limit allowed and for failing to include the event date on the signs. The Church filed suit against the Town in federal court, alleging the ordinance violated the First Amendment, and the district court ruled in favor of the Town. The Ninth Circuit affirmed, finding that the ordinance did not regulate speech on the basis of expressive content. The Ninth Circuit reasoned that because the Town did not adopt the ordinance because it disagreed with the messages conveyed, and because the Town’s interests in regulating temporary signs are unrelated to the content of the sign, that the ordinance was content neutral. For this reason, the Ninth Circuit applied a lower level of scrutiny to the ordinance and found the restrictions on speech were justified by valid government interests.
B. The Ordinance’s Sign Categories are Content Based Restrictions that were not Narrowly Tailored to serve a Compelling Government Interest
Upon granting review, the US Supreme Court reversed the Ninth Circuit, finding the ordinance was a content-based restriction on speech that was not narrowly tailored to serve a compelling government interest. The Supreme Court found that because the ordinance “on its face” drew a distinction based on the message a sign conveys, the ordinance was subject to strict scrutiny and could only be justified if it was narrowly tailored to serve a compelling government interest. The ordinance clearly regulated speech based on the subject matter of the sign, even while refraining from targeting specific viewpoints within that subject matter. To illustrate, the Supreme Court noted that under the ordinance, “ideological messages are given more favorable treatment than messages concerning a political candidate, which are themselves given more favorable treatment than messages announcing an assembly of like-minded individuals.”
Justice Thomas, writing for the Court, reasoned that “[i]nnocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech.” So, while the ordinance did not purport to regulate any particular message through its sign ordinance, because the ordinance treated various categories of messages differently “on its face,” the ordinance was subject to strict scrutiny and could only be upheld if it was narrowly tailored to further a compelling government interest. The Supreme Court further found that the ordinance was not narrowly tailored to serve the Town’s interest in aesthetics and traffic safety.
III. Conclusion
In a separate concurrence, Justice Alito offered some examples to municipalities in how a facially content-neutral sign ordinance might be crafted: size restrictions based on location; restrictions based on lighted or unlighted signs; restrictions based on signs with fixed or changing messages; restrictions based on whether the sign is displayed on public/private/commercial/residential property; rules distinguishing between on-premises and off-premises signs; restrictions on the total number of signs allowed per mile of roadway and rules imposing time restrictions on signs advertising one-time events. In light of this decision, cities should carefully review their sign ordinances and revise any regulations that apply based on the content of the sign even if the ordinance does not regulate the particular message or viewpoint expressed therein.
The above information is for general use and is not legal advice. This J&M Legal Alert is not intended to create, and receipt of it does not constitute an attorney – client relationship.Should you have any questions or require further clarification of the above, please contact Keith F. Collins at (714) 446-1400 or kfc@jones-mayer.com.