What Does the Sign Say? Sign Regulation, Legal Issues and the First Amendment

All signs are subject to some form of regulation while at the same time carrying some form of First Amendment protection.  Due to those protections afforded by the First Amendment, government regulation of signs is subject to a heightened scrutiny.  This can often lead to disputes and litigation which we all know can be expensive and risky, while sometimes necessary or inevitable.  And for all parties involved – businesses, property owners or regulating agencies/local governments – most sign regulations have some aspect that are likely questionable in the eyes of the First Amendment of the U.S. Constitution. This blog article explores how sign regulation has been impacted by Reed v Town of Gilbert, shares carefully curated case law, and explains the Central Hudson Test.

Read how Reed v Town of Gilbert and various case law has impacted sign regulation for businesses, how the Central Hudson Test is applied to sign pollution

Sign Regulation In Florida

Generally speaking, local sign ordinances are created in an effort to combat what is now known as “sign pollution”.  This is an attempt to improve the aesthetic beautification of a given area and to improve traffic sight-lines or other such interferences with vision and access.  But as we will see, even the most well-intended regulations can be frought with legal risks.

The stated intent of any sign regulation should be purposefully tailored and based on facts and evidence and should be specifically incorporated into a municipal or county comprehensive plan.  Even more so, sign regulation should be crafted such that its scope and reach is the minimum amount required to balance the needs of property owners and businesses with that of public and community interests.  Not unlike most local ordinances that require public compliance, sign regulations should only go so far as that to which the given agency has the capacity (resources) and willingness to enforce.  In other words, the bigger and sharper the teeth of an ordinance are, the less likely it is that the agency staff are going to enforce.

Every local ordinance should articulate a clear and concise intent and purpose.  Sign regulation should have similar language, but must also be 100% content-neutral.  Otherwise, it will be subject to challenge following Reed v. Town of Gilbert. (https://www.oyez.org/cases/2014/13-502). The content-neutrality of a sign regulation will be further discussed below, but the general meaning is that a “one-size fits all” approach to sign regulation simply does not work.

Legal Issues

Sign regulation begins and ends with the First Amendment of the U.S. Constitution.  But that is not all.  The Fifth Amendment (Takings Clause), the Fourteenth Amendment (Due Process and Equal Protection), state constitutions, the Federal Highway Beautification Act of 1965, state highway billboard or advertising acts, state planning requirements, and, of course, local zoning codes all play a part of sign regulation.

The legal issues involving the First Amendment are far-reaching and multi-faceted.  The most impactful in the world of sign regulation is the concept of content neutrality, followed by “time, place and manner”, commercial versus non-commercial speech, vagueness and overbreadth, and other various components including exemptions and exceptions, location (on-site/off-site), permitting schemes and prior restraints.

The cases involving sign regulation and the First Amendment stretch from the 1970’s to the Reed case and address all of the legal issues mentioned above.  A key selection of important cases are:

Content Neutrality

Clearly, content neutrality examines the subject matter while “viewpoint neutrality” focuses on the point of view.  Many local governments struggle with these concepts in crafting their sign regulations.  The long line of cases examining these concepts gives credence to the struggle local regulating agencies have had over the years in dealing with these First Amendment principles.

Simply stated, a ban on all signage is content and viewpoint neutral.  While a ban on a particular kind of sign, say all political signs, is NOT content neutral, but IS viewpoint neutral.  Following, a ban on all signs that criticize the government, for instance, are neither content neutral, nor viewpoint neutral.

Strict Scrutiny v. Intermediate Scrutiny

The implication of a sign regulation that is “content-based” is that it will be subject to strict scrutiny, which requires a compelling governmental interest, the least restrictive means possible, and a narrow tailoring of purpose.  As the cases show, this is a very difficult burden to demonstrate.

A sign regulation that is “content-neutral” on the other hand will be subject to intermediate scrutiny.  This requires the presence of an important governmental interest completely unrelated to the suppression of speech, a means substantially related to the subject of the regulation, a narrow tailoring (like content-based), and the presence of ample alternatives for communication.  Regulation of commercial speech are subject to the content-neutral intermediate scrutiny test.

Likelihood of Success

Obviously, if a sign regulation is content-based, the likelihood that the local government will prevail in defending challenge based on First Amendment protected speech is very low.  The courts have consistently held that content-based regulations impact fundamental constitutional rights and/or protected classes.  The cases also demonstrate that a content-based regulation must be “narrowly tailored” and the compelling governmental interest requirement is NOT satisfied by a content-based regulation that attempts to address traffic safety and/or community aesthetics.

For content-neutral sign regulations, such as those applying specifically to commercial speech, the courts have found that the regulation must “directly advance” the governmental interest and not reach beyond that which is necessary to serve said interest.  Depending on the exact language used, content-neutral sign regulations that attempt to address traffic safety or community aesthetics may survive challenge.  A defense of such sign regulations will most certainly focus on the “substantial” nature of the governmental interest.

Commercial Speech

Commercial speech is treated differently than non-commercial speech in the eyes of the law, and thus, in almost every standing sign regulation.  While content-neutrality is not required, the standard is almost as demanding.  Pursuant to what is known as the Central Hudson Test, (https://www.oyez.org/cases/1979/79-565), signs containing commercial speech may be regulated.  The threshold prong of the Central Hudson Test asks, does the speech concern lawful activity and is it non-misleading?  If the answer to these two questions is “yes”, the regulating agency must then:

  • Demonstrate a substantial interest
  • Craft the regulation so that it directly and materially advances the substantial interest
  • Narrowly tailor the regulation

This is what is known as intermediate scrutiny because the regulating agency only has to demonstrate a substantial interest, rather than the more burdensome or difficult compelling interest (which then triggers a strict scrutiny analysis).  Further, the sign regulation does not have to be the least speech-restrictive means.  While the Central Hudson Test remains the standard for examining commercial speech regulations, it has been specifically criticized by both Justice Clarence Thomas and the late Justice Antonin Scalia.

Reed v Town of Gilbert

In 2015, the U.S. Supreme Court addressed a challenge to the Town of Gilbert’s sign ordinance which contained some 23 exceptions and definitions for various types of signage.  Justice Thomas was clear in his writing that any distinctions between forms or types of non-commercial speech are content-based.  Of particular note, Justice Thomas wrote:

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.

Justice Thomas went on to state that a court must consider whether a regulation of speech “on its face” distinguishes the speaker’s message.  If this is so, the strict scrutiny analysis most definitely applies, including an examination of the “narrowly tailored” requirement.

In Reed, this meant that the town’s sign regulation failed to demonstrate that limiting temporary event signs compared to other event signs for the purpose of reducing aesthetics or visual clutter was narrowly tailored.

Justice Alito agreed with Justice Thomas’ analysis but went on to give a non-comprehensive list of examples of content-neutral sign regulations, including:

  • Size
  • Location – including public v. private property and/or commercial v. residential property
  • Lighted/unlighted
  • Fixed messages/scrolling-changing messages
  • Total number of signs per street mile
  • Time limitations for advertising of one-time events
  • On-premises v. off-premises

Using Reed As A Guideline To Analyze Sign Pollution

Whether you are a business owner, planning consultant, developer, or agency official or employee, the impacts of First Amendment protections as most recently set forth by Reed are critical to your operation.  Further, the trend of free-speech protections when it comes to sign regulations seems to be ever-increasing and most certainly more particular and specialized.

For tenants and business owners, those factors, along with the fact that most existing sign regulations are likely out-of-date or contain some challengeable element mean that knowledgeable guidance in this ever-changing arena can be invaluable.

For local governments attempting to amend their existing sign ordinances or create new ones, stay tuned for What Does the Sign Say?, Part II where model regulatory schemes will be explored.


For more on this topic, consider the below Harvard Law Review article which contains additional information:

https://harvardlawreview.org/2016/05/free-speech-after-reed-v-town-of-gilbert/

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