Your sign ordinance may be unconstitutional

By Matt Lonnerstater

sign_montageDoes your local sign ordinance contain regulations for “real estate signs,” “garage sale signs” or “political signs”? Well, then, it’s time to amend your sign ordinance!  In the 2015 Supreme Court case, Reed v. Town of Gilbert, the court rendered a far-reaching decision that will require significant modifications to many local sign ordinances. While the details of the case are complex, the overarching premise of the decision is fairly simple: A sign regulation that makes any distinction based on sign content is unconstitutional.

Sign regulations that are content-based on their face will come under strict scrutiny in the court system.  Per the Reed majority opinion, a sign standard is content-based if the regulation, “applies to a particular sign because of the topics discussed or the idea or message expressed.”  In other words, if one has to read a sign to determine the applicable sign regulation, the sign ordinance is unconstitutional. While Reed v. Town of Gilbert analyzed and rendered an opinion on noncommercial signs, the decision is far-reaching and applies to commercial signage as well.

Prior to Reed, many sign ordinances contained (and many still contain) a long list of signs exempted from the permitting process and/or identified separate categories of regulations based on the content of the sign. For example, many codes exempt political signs, election signs, real estate signs, and construction signs, among others. The Reed decision essentially signifies that only the physical characteristics of the sign itself, not the content, may be regulated to uphold a government interest. In a sense, the Reed decision is a call for all municipalities to strip down the complexity of their sign ordinances.

Justice Thomas specified that a content-based regulation is presumed to be unconstitutional and will be invalidated unless the government can prove that the regulation is, “narrowly tailored to serve a compelling government interest (strict scrutiny).” Therefore, municipalities should evaluate their sign regulations to ensure that a standard is absolutely necessary to uphold the intent of the sign ordinance. Consider the following example: If one of the overarching goals of a sign ordinance is to eliminate sign clutter to improve traffic safety and aesthetics, does it necessarily matter if the sign states, “Open House” or “Vote for John Johnson?”  The Supreme Court says “no.” The content of the sign doesn’t impact traffic safety; rather, it’s the “time, place and manner” characteristics (such as LED features, height, and sign proliferation) that create potential traffic safety issues. Therefore, real estate and elections signs must be treated and defined equally.

Municipalities should review their sign ordinances to search for content-based regulations. The following terms are clear indicators of content-based standards, and should be significantly modified or removed from ordinances:

  • Political/election signs
  • Real estate signs
  • Directional/identification signs
  • Garage sale signs
  • Instructional signs
  • Construction signs
  • Nameplate signs
  • Home occupation signs
  • Gas station signs
  • Grand opening signs

Many common sign regulations create distinctions between various types of temporary signs. From a content-neutral standpoint, a potential remedy is to cluster these signs into uniform “temporary signage” categories and regulate based on zoning district. For example, all real estate, open house, temporary sale, one-time event signs, etc. can be regulated as “residential district temporary signs” or “business district temporary signs.”  These temporary sign categories can then be regulated by size, location, materials, and display time. Instead of establishing distinct standards based on content, municipalities can then offer differing standards based on property location/size/frontage, the intensity of the adjacent road and/or the number of buildings on the property.  With this approach, however, it is vital to include clear definitions for temporary signage (and other important terms) within the ordinance. As many of these signs have the same physical characteristics, temporary signage can be defined based on their material and size (i.e. constructed of cardboard, less than six square feet in area).

While many sign ordinances must be stripped down to ensure that they comply with the Reed decision, local governments still have ample content-neutral, “time, place or manner” options available to resolve problems with safety and aesthetics. For example, sign ordinances can still regulate for the following:

Sign type (building, window, freestanding, feather flag, monument)

  • Size
  • Building materials
  • Location
  • Lighting
  • Moving parts
  • Portability

With guidance from attorneys and planners, municipalities should start an audit of their sign ordinances right away, highlighting any potential existing content-based standards. While adopting new content-neutral regulations may take time, local governments should, in the meantime, suspend enforcement of clear content-based standards (especially enforcement of temporary sign regulations). Although Reed limits the complexity of sign regulations, with well-drafted, content-neutral sign ordinances, communities can still actively regulate for signs and uphold the general intent of their sign ordinance.