It’s a Sign - time to look again!



            The U.S. Supreme Court unanimously ruled today in Reed v. Town of Gilbert, Arizona, that the Town of Gilbert‘s (the “Town”) sign code violates the First Amendment. The Town’s code regulates temporary signs similarly to many local jurisdictions, providing guidelines and restrictions based on the type of sign – or “category.” Most relevantly, the Town’s sign code identifies “Ideological Signs”, “Political Signs”, and “Temporary Directional Signs” and treats them each differently.

Good News Community Church met weekly in different local venues, using temporary directional signs each weekend. Signs were placed early every Saturday morning and removed midday Sunday, the next day, in contradiction to the requirement that the signs be placed 12 hours prior to the event and removed 1 hour after the event. After being cited for durational violations and failure to identify the date of the event, the small church filed suit, losing at both the trial and appellate court levels. The church appealed to the U.S. Supreme Court who today, reversed the lower court decisions. Member Susan Trevarthen, representing the American Planning Association, co-authored an amicus curiae brief in the case to the US Supreme Court with Lisa Soronen of the State & Local Legal Center in Washington, DC, California attorney Randal Morrison of Sabine & Morrison, and William D. Brinton, general counsel for Citizens for a Scenic Florida and attorney with Rogers Towers, PA .

In finding Gilbert’s sign distinctions unconstitutional, the Supreme Court found that “the restrictions in the Sign Code that apply to any given sign … depend entirely on the communicative content” and therefore applied the “strict-scrutiny” standard – requiring that the regulations be narrowly tailored to serve a compelling government interest.   The Court acknowledged the government interest in both aesthetics and traffic safety but found that in distinguishing between and treating the sign types differently, the Town’s regulations were “hopelessly underinclusive”.

While the Supreme Court did not overrule any of its prior decisions, with a 9-0 decision and 6 Justices concurring in the opinion of the court, there was a clear statement that local governments need to evaluate what sign regulation looks like. Justice Alito (joined by Justice Kennedy and Justice Sotomayor), Justice Breyer and Justice Kagan (joined by Justice Ginsberg and Justice Breyer) all issued concurring opinions that seem to indicate that a majority agree that there may be some categories of sign distinctions and traditional regulatory concepts which might still be acceptable. Justice Alito went out of his way to attempt to limit the implications of the Thomas opinion, providing a non-comprehensive list of various categories of sign regulation that are still constitutional, such as regulations that distinguish between off-premise and on-premise speech, between digital signs and static signs, between signs on commercial property and signs on residential property, and  between signs on public property (which are governed by the doctrine of governmental speech) and signs on private property. 

The decision is a major development in sign law and regulators and attorneys will be evaluating the decision and its impacts in legislative chambers and the courtroom for some time to come. Now is the time for local governments to review their codes under the new guidance issued today, before they are forced to review their code with a judge.  

Categories: Municipal Litigation
Tags: Kathryn M. MehaffeySusan L. Trevarthen