In Reed v. Town of Gilbert, 576 U.S. __ (2015), the United States Supreme Court held unconstitutional a sign ordinance differentiating between ideological, political and temporary directional signs. The Town of Gilbert, Arizona’s sign ordinance restricted the display of outdoor signs without a permit. The ordinance included exemptions for various categories of signs, each of which had separate limitations. For example, the ordinance defined “Temporary Directional Signs,” as those “intended to direct pedestrians, motorists, and other passersby to a ‘qualifying event,’” and limited posting of Temporary Directional Signs to 12 hours before the event and no more than1 hour after. Due to financial constraints, the Good News Community Church did not maintain a building and instead held its services at various locations around Gilbert. To advertise the location of services, church members displayed Temporary Directional Signs. However, the Town issued citations to the church for failing to timely remove the signs. After negotiations between the church and the Town were unsuccessful, Clyde Reed, the pastor of the church, sued the town alleging the sign ordinance violated the right to free speech under the First and Fourteenth Amendments.
The District Court and United States Court of Appeals for the Ninth Circuit ruled in favor of the Town. The Ninth Circuit determined the sign categories outlined in the ordinance were content-neutral in that the distinctions between signs were based on objective factors and not the substance of the messages. Specifically, the Town’s ordinance was not adopted because of the Town’s disagreement with the message of the signs and the Town’s interest in regulating the signs was not related to their substance.
The Supreme Court reversed, noting an ordinance is content-based when it targets a specific subject matter, regardless of whether it restricts a particular viewpoint and even if its limitations apply only to particular speakers or events. Because the ordinance treated those signs providing directions to an event such as a church service differently than signs conveying other ideas, it is a content-based ordinance subject to strict scrutiny review. Under strict scrutiny, the justifications of the Town in enacting the ordinance are irrelevant. Further, the Court rejected the Town’s argument that the ordinance was narrowly tailored to preserve the Town’s aesthetic appeal and traffic safety as the content of the signs have no bearing on these issues. While the Court struck down this ordinance as unconstitutional, the Court did provide guidance to municipalities in drafting sign ordinances: Sign ordinances should be content-neutral, but may properly restrict “size, building materials, lighting, moving parts and portability.” Indeed, municipalities may preclude display of signs altogether on public property as long as the determination is content-neutral.
Overall, the Court’s decision provides helpful clarity to municipalities looking to establish enforceable sign ordinances and reminds municipalities of the very high threshold in play when strict scrutiny applies to analysis of an ordinance.