On January 12, 2015, FMG partner Philip Savrin, accompanied by Dana Maine and Bill Buechner, presented argument before the Supreme Court of the United States in favor of the validity of sign ordinance provisions enacted by the Town of Gilbert, Arizona. At issue in Reed v. Gilbert is whether a provision in the ordinance that regulates directions to temporary events abridges speech in violation of the First Amendment. Although the case is focused on particular provisions in Gilbert’s ordinance, the broader issue to be decided by the Supreme Court is the extent to which local governments can regulate speech within the norms of the First Amendment.
In a landmark decision in 1981, the Supreme Court ruled that the First Amendment’s protections apply to signs, setting the stage for subsequent rulings on the appropriate constitutional test. At its core, the freedom of speech clause of the First Amendment protects the right of American citizens to express ideas and beliefs without government oversight. To safeguard this right, regulations cannot survive if they serve to suppress unpopular ideas or manipulate the “marketplace of ideas.” At the same time, the government can have legitimate regulatory goals, such as aesthetics and safety, that do not violate the First Amendment even if they have the effect of restricting the form of speech that is allowed. The legal standard that has evolved is that regulations based on the content of signs – what they say – is presumptively unconstitutional, whereas signs that are not related to content are subject to a test – called “intermediate scrutiny” – that balances the right of the public to speak against the legitimate goals of governance.
The directional signs provision that is at issue in the Reed case lies at the crossroads of the constitutional test that has been formulated by the Supreme Court. In a literal sense, the regulation is based on what the sign says, which could be considered “content” such that it is presumptively unconstitutional. On the other hand, the regulation is based as well on the function of the sign, which is to guide travelers along a route from point A to point B. Nothing about the regulation impacts the First Amendment’s prohibition against suppressing ideas or beliefs, as the restrictions on size, location and duration of directional signs apply equally no matter who the speaker is or what the topic may be. As a practical matter, therefore, the restrictions do not suppress “ideas or beliefs” that the First Amendment is intended to protect. Moreover, because signs are by definition forms of speech, applying a rigid “content” test to find ordinances presumptively unconstitutional would put many common distinctions such as commercial or offsite signs beyond the reach of government regulation.
For these reasons, FMG lawyers asked the Supreme Court to create a nuanced and practical test that allows for regulation of signs based on their function and not just their content. No matter how the Supreme Court rules, however, its ruling will have a lasting impact on sign ordinances in particular and speech regulations in general. A decision is expected in the Spring.