Content-Based Sign Codes Unconstitutional

By Tiger Wells, Municipal Association's Government Affairs Liaison

A recent case decided by the U.S  Supreme Court speaks to First Amendment violations related to temporary signage. In Reed v. Town of Gilbert, the Court held unanimously that Gilbert, Arizona’s sign code, which treated various categories of temporary signs differently based on the information they convey, violates the First Amendment.

According to the Court, Gilbert’s sign code treated temporary directional signs, such as those used by Pastor Reed to direct parishioners to his church, less favorably (in terms of size, location, duration, etc.) than political signs and ideological signs.

Content-based laws are only constitutional if they pass strict scrutiny—that is, if they are narrowly tailored to serve a compelling government interest.

Despite arguments that Gilbert’s sign categories are based on function, the Court concluded they are based on content.

Gilbert’s sign code failed strict scrutiny because its purposes —preserving aesthetic and traffic safety—were “hopelessly underinclusive,” according to the Court. Temporary directional signs are “no greater an eyesore” and pose no greater threat to public safety than ideological or political signs.

During a recent webinar discussion of Reed v. Town of Gilbert, hosted by the National League of Cities, there appeared to be a prevailing expectation that the Court’s decision would require many local governments to make modifications to existing sign laws. Nevertheless, there also appeared to be consensus among the speakers that the case should not be interpreted to overrule prior sign-related Court precedent.

While the speakers encouraged municipalities to examine their existing sign laws in light of Reed, they also cautioned against taking extreme intermediate steps such as instituting an across-the-board moratorium on temporary signs. Such a move could temporarily solve one problem only to expose the municipality to other First Amendment claims.