Free Speech, Signs, and the City

The passing of Supreme Court Justice Antonin Scalia has been dissected for its potential impact on litigious issues from campaign finance to abortion.  Yet one surely settled issue is the court’s June 2015 ruling on the limits of control a government may use to regulate signs.  In a 9-0 decision, the Supreme Court found that the small town of Gilbert, Arizona exceeded its authority when it applied a basic and common ordinance to the directional signs of Good News Presbyterian Church.  The repercussions of the Reed v. Gilbert case for city planners are still being felt and—at best—are not fully understood.

Context Good News Presbyterian Church operated like many congregations do that lack permanent facilities; each week, the church would deploy small directional event-like signs with arrows showing worshippers where to go.  Under the town’s sign ordinance, these signs were categorized as events and were subject to certain size and time restrictions.  Other signs that displayed political issues or advertised home-owners associations were granted larger sizes and longer duration. The town of Gilbert thought its regulations were constitutional, because they were both content neutral (e.g. you can talk about whales) and viewpoint neutral (e.g. you can advocate saving the whales). Creating categories for differing sign messages was a reasonable method to regulate signs in the face of larger public interests like traffic safety.

The Supreme Court thought otherwise. It struck down the town’s sign ordinance on the grounds that it infringed upon the church’s constitutional free speech rights by basing the categories and exceptions on what the sign said. The court opined that by having different standards for different speakers, the town was expressing a preference for certain speech. Sign regulations now had to pass a harder test, “strict scrutiny,” requiring that governments prove that their regulations were finely tailored and essential to the intended outcome. This ruling was a win for free speech advocates. The majority opinion described an initial list of permissible sign regulations including: lighting, size, changing text, and location.  But the decision also left considerable ambiguity as to the applicability of this new test to commercial speech.

The Roberts Court, 2010. Photo Credit: Steve Petteway, Collection of the Supreme Court of the United States.

Following the Reed v. Gilbert ruling, groups such as the American Planning Association (APA) and the International Sign Association called for for regulatory clarity and showed intent to produce educational materials for towns to take corrective action.  During one APA chapter webinar, a guest speaker recommended town officials:

  • remove references to categories based on content
  • add a severability clause so that in the event of legal action, the larger ordinance would stand.  

Given the breadth of categorical-based sign ordinances, towns are in the process of reviewing their ordinances for compliance, while—I fear—others may be unaware of the conflict at all and vulnerable to legal action.

The months immediately after the Reed v. Gilbert decision provided yet another turn in sign regulations.  With the new requirement of strict scrutiny, federal courts struck down city panhandling ordinances in Massachusetts and Illinois. The Supreme Court’s ruling was interpreted to overturn ordinances that restricted types of speech (i.e. requesting financial support). A desire to prevent the uncomfortableness of being asked for money was not sufficient to bar how individuals could use public spaces.

Tension between free speech and the police powers of the state have always been present, and it appears that free speech is winning.  Ordinances have many potential purposes such as encouraging aesthetic continuity, compatibility of use, and pedestrian and vehicle safety.  But this ruling has curtailed city planners’ popular and simple tool for controlling the aesthetics and use of public space. Municipalities must now clearly justify their attempts to control not what is said, but rather where and in what manner. It is a responsibility that was the planning profession should not take lightly.  

How else will the Reed v. Gilbert decision be interpreted in the urban realm?  The answer will depend on the actions of municipalities, their planners, and their city attorneys as they revisit decades odd ordinances to reflect the the messy, confrontational, but ultimately beneficial, process of citizenship.

Joe Seymour is a first year Masters Candidate at the UNC Department of City and Regional Planning with interests in land use and transportation. He’s not a lawyer, but sometimes plays one on TV.

Featured image: Panhandling sign in Savannah, Georgia. Photo Credit: Quinn Dombrowski, all rights reserved.