A recent Supreme Court case (Reed et al. v. Town of Gilbert Arizona) further defined the application of the First Amendment protection of free speech and the regulation of signage. In this case, the town requires permits for all signs except those on its exempt list. The Supreme Court Opinion focuses on three of these exempt signs: ideological signs, political signs and temporary directional signs. Ideological signs were the least restricted of these signs (only regulated to a 20 square foot maximum size); Political signs were limited to the time period near an election and a 32 square foot maximum; and temporary directional signs were limited to a maximum of six square feet, four signs per property, could only be placed 12 hours before an event, and had to be removed one hour after the event. This challenge began with a church being cited for placing signs early and removing them late. The church claimed that the regulations were violating their First Amendment right to free speech.
During the court proceedings and subsequent appeals, the town was unable to justify their regulations based on aesthetics or public safety. The non-content regulatory mechanisms (size, location, material, lighting, etc.) were not being applied evenhandedly nor logically. The example given in the Supreme Court Opinion was “If 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”. This illustrates that the content of the sign is used to determine which regulations were applicable.
This ruling leaves communities with the ability regulate the physical aspects of the sign (size, location, material, lighting, etc.) but not the message, content, or idea being communicated by the sign. This can make it very difficult for communities to maintain the intent of their sign ordinance while removing all content related references. For example, how do you allow a “yard sale” sign without calling it, or even mentioning, yard sale?
While I agree that signs should be protected as free speech, as a planner this ruling is making my job very difficult. Perhaps there will be a legal challenge and we will get better defined guidelines on how we must apply this ruling. Please share your thoughts or examples of how you were able to make your ordinance work.