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Legal Brief: The Regulation of Temporary Signs after Reed

By Jerry Zarley

Municipal zoning codes have often set out restrictions on the display of temporary signs for various categories such as garage sales, real estate and special events.1 Signs present "distinctive problems that are subject to municipalities’ police powers. Unlike oral speech, signs take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation."2 However, the U.S. Supreme Court’s decision last year in Reed v. Town of Gilbert,3 which held that the right to free speech under the First Amendment prohibits the regulation of temporary signs based on topics or categories unless the regulations can pass strict scrutiny, now changes the scope of municipal sign regulation.

 Reed v. Town of Gilbert

In Reed, the Town of Gilbert, Arizona, had a comprehensive sign code that prohibited the display of outdoor signs without a permit. The code exempted, in relevant part, three categories of signs from its permit requirement: (1) "Ideological Signs," (2) "Political Signs," and (3) "Temporary Directional Signs." Each sign category had its own set of regulations and restrictions.

Petitioners, a church and its pastor, whose Sunday church services were held at various temporary locations in and near the town, posted signs early each Saturday bearing the church name with the time and location of the next service, and church members removed the signs around mid-day Sunday. The church was cited for exceeding the time limits for displaying temporary directional signs under the town ordinances and for failing to include an event date on the signs. Unable to reach an accommodation with the town, petitioners filed suit, claiming that the town’s sign code abridged their freedom of speech. The district court denied their motion for a preliminary injunction, and the Ninth Circuit affirmed, ultimately concluding that the code’s sign categories were content neutral and that the code satisfied the intermediate scrutiny accorded to content-neutral regulations of speech.

The United States Supreme Court reversed, finding that the town’s sign code violated the First Amendment. In contrast to the Ninth Circuit’s decision, the Supreme Court determined that the sign code was facially content based because the code defined the three categories of signs on the basis of their messages and then subjected each category to different restrictions. In addition, the code’s content-based restrictions did not survive strict scrutiny because the differential treatment between the categories did not serve the compelling governmental interests in aesthetics and traffic safety, and therefore, was not narrowly tailored to serve those interests.

Constitutional Considerations of Temporary Sign Ordinances

Unless there is a legitimate compelling reason (as opposed to an important or a significant reason), the regulation of signs must be content neutral. Content-neutral regulations of signs are typically referred to as "time, place and manner restrictions." These regulations do not govern what message is being communicated; rather, they govern how the message is communicated. Courts apply a three-part test to determine the constitutionality of a content-neutral regulation: (1) the restriction must serve a significant or important public interest; (2) the restriction must be narrowly tailored to advance the identified public interest; and (3) the restriction must leave ample alternatives for the speaker to deliver his or her message to the public.4 This analysis is known as "intermediate scrutiny." Federal courts have held that communities have a significant or important interest concerning traffic safety, aesthetics, public safety, order, cleanliness and administrative convenience.5

Traditionally, unless the regulation of temporary signs was clearly content based (i.e., regulation of a sign’s particular message), the regulation of temporary signs was examined under intermediate scrutiny. Before Reed, the regulation of all signs under each category was considered content neutral subject only to intermediate scrutiny because the regulation was not imposed upon the specific content of the sign, but on all such signs. Hence, sign ordinances were allowed to regulate, for example, the time, place and manner of how all garage sale signs or all temporary directional signs were treated. As a result, many municipalities regulated the duration that each of these categories of signs was allowed to be displayed, and each with different time limits.

Following Reed, however, such ordinances are subject to strict scrutiny because, according to the Supreme Court, simply categorizing signs for the purpose of regulating them is a content-based regulation in and of itself as it is the content of the sign that places it in a particular category. Content-based regulations are subject to strict scrutiny – a level of scrutiny rarely achievable for temporary sign ordinances.

To survive strict scrutiny, the municipality must show that the regulation (1) serves a compelling governmental interest; and (2) is narrowly tailored to achieve that interest.6 For example, the U.S. Supreme Court upheld a Tennessee statute that restricted the display or distribution of campaign materials, including political campaign signs, within 100 feet of the entrance of a polling place. According to the Court, the state has a compelling interest to prevent voter intimidation and election fraud, and the state’s "campaign free zone" was necessary and narrowly tailored to serve that compelling interest.7 This case is a rare example where a sign regulation has survived strict-scrutiny analysis.

Conclusion

Unless temporary sign ordinances have distance limitations from an election polling place or some other legitimate compelling purpose, all temporary signs must be regulated the same. Pursuant to Reed, the regulations cannot distinguish among the categories or topics of temporary signs, as doing so is a violation of the First Amendment. In order to withstand a constitutional challenge to their own sign codes, municipal officials in Illinois should review their ordinances to ensure there are no longer categorical distinctions based on the content of temporary signs.

1 Since the enactment of Public Act 96-904, effective January 1, 2011, Illinois municipalities, both home rule and non-home rule, are prohibited from regulating political campaign signs on residential property. 65 ILCS 5/11-13-1(12).
2 City of Ladue v. Gilleo, 512 U.S. 43, 48 (1994).
3 135 S.Ct. 2218 (2015).
Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 805 (1984); Ward v. Rock Against Racism, 491 U.S. 781 (1989).
5 City of Ladue v. Gilleo, 512 U.S. 43 (1994); Baldwin v. Redwood City, 540 F.2d 1360 (9th Cir. 1976).
6 Cary v. Brown, 447 U.S. 445, 461 (1980).
7 Burson v. Freedman, 504 U.S. 191 (1992).


Jessica DeWalt is the League’s Assistant Counsel. Contact Jess at (217) 525-1220 or jdewalt@iml.org