U.S. Supreme Court holds sign code noting permit exceptions for political signs, temporary signs, and ideological signs is unconstitional

Reed v Town of Gilbert, 13-502 (U.S. June 18, 2015).

This is a sign code case in which the U.S. Supreme Court invalidated the Town’s code as being content based and could not survive strict scrutiny.

The Town of Gilbert (“Town”) has a sign code which prohibits the display of outdoor signs without a permit, but exempts 23 categories of signs, including “Ideological Signs,” “Political Signs,” and “Temporary Directional Signs,” defined as signs directing the public to a church or other “qualifying event”  but could only be up for 12 hours.  Good News Community Church (“Church”) held service in different locations, but would put up signs noting the church, time of service, and location. The signs would stay up for just over 24 hours.  The Town issued citations and the Church brought suit in response. The trial court and court of appeals held the signs were content neutral and denied the Church’s relief.

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. Based on this definition, the three categories at issue here are all content based as it is the subject matter of the message conveyed which triggers the different regulations. Providing a comparative example, the court noted “[i]f a sign informs its reader of the time and place a book club will discuss John Locke’s Two Treatises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke’s followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke’s theory of government.” Courts are to consider the facial neutrality prior to analyzing the justifications for any distinctions. Once designated as content-based, the offered reasons for the Town’s ordinance (aesthetics and traffic safety) are “hopelessly underinclusive” and therefore fail under strict scrutiny.

Justice Alito’s concurring opinion lists a large variety of areas still open to cities in order to perform content neutral regulations including structure, on vs off-premise, electronic v fixed, etc. Justice Breyer’s concurring opinion simply discussed why using strict scrutiny can be a problem sometimes, but is justified. Justice Kagan’s concurring opinion on the judgment essentially notes that because of the automatic application of strict scrutiny (which he disagrees with), many sign ordinances across the nation will probably be struck down. However, for this case, he thought the judgment was proper.

[Comment: See Tex. Loc. Gov’t Code Ann. § 216.903 (West 2003) – prohibiting regulations of political signs by cities and the implications of this opinion on the statute].

If you would like to read these opinions click here. THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, ALITO, and SOTOMAYOR, JJ., joined. ALITO, J., filed a concurring opinion, in which KENNEDY and SOTOMAYOR, JJ., joined. BREYER, J., filed an opinion concurring in the judgment. KAGAN, J., filed an opinion concurring in the judgment, in which GINSBURG and BREYER, JJ., joined