5. Memo re Sign Ordinance Reed v Town of Gilbert
ECKBERG LAMMERS
MEMORANDUM
To:
Kristina Handt, City Administrator
From: Nicholas J. Vivian, Ben M. Klocke
Date: August 24, 2015
Re: Reed v. Town of Gilbert, Sign Ordinance Analysis
Case Summary
As requested, we have reviewed the recent United States Supreme Court municipal sign
ordinance case: Reed v. Town of Gilbert, Arizona, 135 S.Ct. 2218 (2015). In Reed, a church and
its pastor were cited under the Sign Code for the Town of Gilbert after placing temporary signs
with details of and directions to church services. The Court held that the Town’s Code facially
discriminated based on the content of speech, was subject to strict scrutiny, was not narrowly
tailored to further a compelling governmental interests, and violated the church and pastor’s First
Amendment right to free speech.
The sign ordinance for the Town of Gilbert (Town Code) enumerated various categories of signs
based on the type of information the signs contained, and then subjected each category to
different restrictions. Specifically, the Town Code had 23 categories of signs, including
“Ideological Signs,” Political Signs,” and “Directional Signs,” each with increasing levels of
restriction (in that order). For example, while Political Signs could be maintained during a
temporary period leading up to an election, Temporary Directional Signs could only be up 12
hours before and one hour after a qualifying event.
The church and its pastor were twice cited for violating the Code for maintaining Temporary
Direction Signs outside of the permissible time period. The pastor and the church sued the
Town, alleging the Town Code violated their First Amendment rights. Both the lower court and
the 9th Circuit Court of Appeals determined that the Town’s Code was content neutral because
the Town “did not adopt its regulation of speech [based on] disagree[ment] with the message
conveyed and its justifications were “unrelated to the content of the sign.”
The Supreme Court disagreed with the lower courts, and held that the Town’s Code was facially
content-based, subject to strict scrutiny, and violated the church and pastor’s First Amendment
right to free speech. The Court recognized that government viewpoint-based regulation of
speech is more egregious than generic content-based regulation, but ruled that the First
Amendment’s hostility toward speech regulation should nonetheless be extended to all content-
based speech regulation. In applying strict scrutiny to the Town’s Code, the Court held tha t the
Town Code failed to be narrowly tailored to the purposes of preserving town aesthetics and
traffic safety (assuming for the sake of argument that either was even a compelling governmental
purpose).
The Court expressly acknowledged that a sign ordinance may be able to survive strict scrutiny,
but the burden is on a municipality to prove that any such content-based differentiation is
narrowly tailored to further a compelling governmental purpose. Specifically, the court stated
that “a sign ordinance narrowly tailored to the challenges of protecting the safety of pedestrians,
drivers, and passengers—such as warning signs marking hazards on private property, signs
directing traffic, or street numbers associated with private houses—well might survive strict
scrutiny.”
Prohibited Sign Ordinances
In light of Reed, municipalities may not (without a compelling governmental purpose)
enact/enforce sign ordinances that differentiate based on the topic or content of the sign.
Accordingly, Scandia generally may not have restrictions that are specific to a topic or category
of speech or topic, including the following non-exclusive list of topics:
1. Real estate sales signs;
2. Political signs;
3. Signs providing directions to a one-time event;
4. Garage/law sale signs;
5. Community event signs;
6. Advertising signs;
7. Warning Signs (unless narrowly tailored to further a compelling governmental purposes);
and
8. Historic event signs.
Restrictions on signs should be limited to matters that have nothing to do with a sign’s message:
for example, size, building materials, lighting, moving parts, and movability. The following is a
non-exclusive list of permissible restrictions/regulations:
1. Rules regulating the size of signs. These rules may distinguish among signs based on any
content-neutral criteria, including any relevant criteria listed below.
2. Rules regulating the locations in which signs may be placed. These rules may distinguish
between freestanding signs and those attached to buildings.
3. Rules distinguishing between lighted and unlighted signs.
4. Rules distinguishing between signs with fixed messages and electronic signs with
messages that change.
5. Rules that distinguish between the placement of signs on private and public property.
6. Rules distinguishing between the placement of signs on commercial and residential
property.
7. Rules distinguishing between on-premises and off-premises signs.
8. Rules restricting the total number of signs allowed per mile of roadway.
9. Rules imposing time restrictions on signs advertising a one-time event.
As currently enacted, and as proposed to be revised, Scandia’s sign ordinance will need
substantial overhaul to comply with Reed.