By: Phil Savrin
The Supreme Court issued a number of landmark decisions at the end of its recent term, including upholding a key portion of the Affordable Care Act and requiring states to allow same-sex marriage. These decisions overshadowed some less-known but important cases in their own rights. One such case is Reed v. Town of Gilbert, in which the Supreme Court struck down a local ordinance that regulated the size, location and duration of signs that directed members of the public to temporary events. The decision will have an immediate impact on the ability of local governments to regulate signage. In fact, the Supreme Court already has remanded three sign ordinance cases to circuit courts for further consideration in light of Reed. The decision also may have a residual impact on First Amendment rights in a larger context.
In striking down the regulation, the justices in the majority noted that the ordinance provided different size, location and duration limits based on the type of sign. For example, different provisions applied to signs that expressed ideas (“ideological signs”) or promoted candidates for office (“political signs”). Justice Thomas, writing for the majority, rejected the Town’s explanation that directional signs serve a different function and therefore can be regulated differently. He opted, instead, for a bright line rule that forbids local governments from distinguishing based on the content of signs unless a compelling interest can be shown. Here, the regulation was content-based because it conveyed “the message of directing the public” to an event. He acknowledged that “[t]his type of ordinance may seem like a perfectly rational way to regulate signs, but a clear and firm rule governing content neutrality is an essential means of protecting the freedom of speech, even if laws that might seem entirely reasonable will sometimes be struck down because of their content-based nature.”
Although a majority of the justices joined the opinion, six justices wrote separate opinions that seek to temper the harshness of Justice Thomas’ reasoning. In a concurring opinion, Justice Alito -- joined by Justices Kennedy and Sotomayor – added that the content-test does not preclude “reasonable sign regulations,” and to that end, enumerated categories of signs that these justices would find not to be content-based.
The two remaining opinions, authored by Justice Breyer and by Justice Kagan (the latter joined by Justices Ginsburg and Breyer as well) read like strong dissents even though they both reached the same result. For his part, Justice Breyer agreed with our argument that a content-based inquiry should not automatically trigger strict scrutiny. He is uncomfortable with the inflexible test applied by the majority and advocated for an inquiry that balances the intrusion on the First Amendment with the need for the regulation. He eschewed the mechanical test applied by Justice Thomas as interfering unnecessarily with legislative wisdom. But the harshest criticism came from Justice Kagan, who made her mark prior to joining the Supreme Court as a First Amendment scholar. She noted that many jurisdictions utilize categories such as the ones used by the Town of Gilbert, and that “thousands” of signs ordinances are now vulnerable to being deemed unconstitutional. She believes the majority’s decision intrudes on “reasonable” regulation, which will tempt governments to ban all signs , and casts a wide prohibition on regulations that will force jurisdictions “to either repeal the exemptions that allow for helpful signs on streets and sidewalks, or else lift their sign restrictions altogether and resign themselves to the resulting clutter.” Instead, she prefers a common sense approach to the content test that would leave reasonable laws standing.
Given the discord in the opinions, some commentators believe that Justice Alito’s list of “non-content” signs will be accepted by the lower courts to avoid the harsh results of Justice Thomas’ test, but only time will tell if that is the case. Indeed, the United States filed a brief asking the Supreme Court to apply a lower level of scrutiny, based on the federal Highway Beautification Act that allows only certain types of signs that could now be deemed unconstitutional. The decision is thus a rebuke to not only the scope of local legislation but to the federal government’s exercise of its powers as well. And, because the decision is grounded in First Amendment protections, it could be cited to strike down laws that limit speech in other contexts such as around abortion clinics and adult entertainment facilities. But this much is clear: all governments that have sign ordinances should carefully review the provisions to ensure that the “reasonable” regulations will remain constitutional under the broad rule announced by the Supreme Court.
The Town of Gilbert was represented before the Supreme Court by FMG Attorneys Philip Savrin, Dana Maine and Bill Buechner.