Omar Bennett
The regulation of signs is a contentious issue that has been the subject of numerous court cases, with the constitutionality of such regulations often being called into question. The First Amendment, which protects freedom of speech, is a key consideration in these cases, and courts have long ruled that the government cannot regulate the content of signs without violating this right. The Fourteenth Amendment also plays a role, as it incorporates the First Amendment, protecting free speech from intrusion by state and local governments. This has significant implications for local governments, with many jurisdictions reviewing and changing their sign regulations to ensure they are content-neutral and do not infringe on constitutional rights. The Supreme Court has played a pivotal role in shaping sign regulation, with cases such as Reed v. Town of Gilbert setting important precedents and prompting local governments to re-evaluate their ordinances. These cases highlight the delicate balance between regulating signs for health, safety, and aesthetic purposes while also upholding the constitutional right to free speech.
| Characteristics | Values |
|---|---|
| Court | Supreme Court, Ninth Circuit Court of Appeals |
| Case | Reed v. Town of Gilbert, Ballen v. Redmond, G.K Ltd. Travel v. City of Lake Oswego, Sanders v. City of Seattle, Kitsap County v. Mattress Outlet, City of Austin v. Reagan National Advertising, Members of City Council v. Taxpayers for Vincent |
| Year | 2015, 2006, 2007, 2005, 2022 |
| Location | Arizona, Redmond, Lake Oswego, Seattle, Kitsap County, Austin |
| Ruling | Regulations that categorise signs based on the type of information they convey are content-based regulations of speech and are not allowed under the First Amendment |
| Regulation type | Content-based, content-neutral |
| Regulation focus | Physical and non-content-based attributes, size, type, placement, commercial and non-commercial speech |
| Regulation purpose | Traffic safety, aesthetics, visual blight, travel safety |
| First Amendment | Protects the right of free speech against intrusion by state and local governments |
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What You'll Learn
The First Amendment and freedom of speech
The First Amendment to the US Constitution, ratified on December 15, 1791, is primarily recognized for its protection of freedom of speech, religion, the press, and the right to assemble and petition the government. The text of the amendment reads:
> "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
The freedom of speech clause of the First Amendment has been interpreted by the Supreme Court to mean that no branch or section of the federal, state, or local governments can infringe upon American citizens' right to free speech. However, private organizations, such as businesses, colleges, and religious groups, are not bound by this constitutional obligation.
The First Amendment's protection of free speech has been a pivotal tenet of American democracy, with a long history of Supreme Court rulings interpreting and applying this right. For example, in West Virginia Board of Education v. Barnette (1943), the Supreme Court upheld the right of students not to salute the flag, recognizing that they do not "shed their constitutional rights at the schoolhouse gate." Similarly, in Tinker v. Des Moines (1969), the Court affirmed the right of students to wear black armbands to school to protest a war.
The First Amendment has also been extended to protect more recent and advanced forms of communication, including radio, film, television, video games, and the internet. However, it is important to note that the right to free speech is not absolute and does have limitations. For instance, commercial advertising, defamation, obscenity, and interpersonal threats to life and limb generally fall outside the scope of First Amendment protection.
In the context of sign regulation, the First Amendment plays a crucial role in constraining local governments' ability to regulate signs based on their content. Courts have consistently ruled that the government cannot regulate the content of signs without violating the right to free speech. This was exemplified in the case of Reed v. Town of Gilbert (2015), where the Supreme Court held that regulations categorizing signs based on the type of information they convey (e.g., temporary, political, and ideological) and applying different standards to each category are content-based regulations of speech, which are not permitted under the First Amendment.
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Content-based vs content-neutral regulations
The First Amendment provides that "Congress shall make no law...abridging the freedom of speech". The Fourteenth Amendment "incorporates" the First Amendment, protecting the right of free speech against intrusion by state and local governments. As signs are a medium for conveying "speech", local regulation of signs is constrained by the First Amendment.
Content-based regulations are subject to strict scrutiny and are generally deemed presumptively unconstitutional. They are laws that regulate the content of speech and apply differently based on the message conveyed. For instance, in Reed v. Town of Gilbert, the Supreme Court ruled that regulations that categorize signs based on the type of information they convey (e.g. temporary, political, and ideological) and then apply different standards to each category are content-based regulations of speech and are not allowed under the First Amendment.
Content-neutral regulations, on the other hand, are not found unconstitutional so long as they are justified without reference to the content of the regulated speech, serve a significant governmental interest, and leave open ample alternative channels for communication. They are also called "time, place, and manner restrictions" as they seek to regulate the circumstances under which speech may take place rather than limit a particular type of speech. For example, in G.K. Ltd. Travel v. City of Lake Oswego, the Ninth Circuit Court of Appeals held that the city's restriction on plaintiffs' pole sign was not content-based and that the city's interest in regulating pole signs for travel safety and aesthetics was significant.
It is important to note that the distinction between content-neutral and content-based speech regulations has become less clear and practical over time, with some arguing that it is no longer worth the fuss. However, the distinction remains of central importance in First Amendment doctrine and continues to guide court decisions.
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Local government's role in sign regulation
The role of local governments in sign regulation is complex and has been the subject of various court cases, including Reed v. Town of Gilbert (2015), in which the United States Supreme Court ruled that regulations that categorise signs based on the type of information they convey (e.g. temporary, political, and ideological) and then apply different standards to each category are content-based regulations of speech and are not allowed under the First Amendment. This case set a precedent for local governments to review and likely change their sign regulations to ensure compliance with constitutional rights, particularly the right to free speech.
Local governments must be cautious when drafting and enforcing sign regulations to avoid infringing on an individual's right to free expression. Sign codes should be content-neutral, focusing on advancing a public interest related to health, safety, or welfare rather than the specific message conveyed. This means that regulations should not differentiate between signs based on their content, such as political or ideological messages, as this could be deemed unconstitutional.
To reduce the risk of adverse lawsuits, local governments should carefully review their sign regulations with legal experts to determine if any regulations are content-based. If a regulation can be implemented without considering the message of the sign, it is considered content-neutral. However, governments must also ensure that the underlying purposes of the regulations are compelling and related to a legitimate public interest. For example, regulations may prohibit the placement of temporary signs on public property or rights-of-way without a special permit to maintain aesthetics and traffic safety.
Local governments have demonstrated creativity in regulating temporary signs to withstand constitutional challenges. For instance, regulations may allow all non-commercial temporary signs, including political signs, in specific areas while prohibiting them in others, such as medians, traffic circles, or areas causing safety concerns. Additionally, local governments can regulate the size and height of signs, ensuring they comply with normal limitations.
In conclusion, the role of local governments in sign regulation is complex and constantly evolving. While they have the authority to regulate signs within their jurisdictions, they must do so in a content-neutral manner that respects individuals' constitutional rights, particularly the right to free speech. Local governments must carefully draft and enforce sign regulations, considering public interest and constitutional constraints, to avoid legal challenges and ensure compliance with court interpretations of the First Amendment.
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The impact of sign regulations on communities
Sign regulations have a significant impact on communities, and the debate around signage is not a new one. The American Planning Association noted that aesthetics and sign control were highly discussed topics in the 1950s and 1960s. Today, sign regulations continue to be a critical issue for local governments and communities alike.
One of the primary impacts of sign regulations on communities is the preservation of the unique character and ambiance of a town. Excessive signage can lead to sign clutter, overshadowing the town's architecture, natural features, and historic sites. Sign control measures help maintain the community's character and protect its scenic views. This is especially important for communities that rely on tourism, as a well-controlled and aesthetically pleasing streetscape can attract visitors seeking unique and authentic experiences.
Sign regulations also play a role in promoting effective communication and enhancing the local economy. Well-designed and appropriately placed signs act as "silent salespersons," helping businesses reach different audiences and providing necessary information to consumers. Signs that are overly large, poorly lit, or placed without consideration for their surroundings can hinder communication and negatively impact businesses and the overall community.
Additionally, sign regulations have implications for free speech and expression within communities. Courts have ruled that regulations that categorize signs based on the type of information they convey (such as temporary, political, or ideological signs) and apply different standards to each category are content-based regulations that may violate the First Amendment. Local governments must carefully review their sign regulations to ensure they do not infringe on constitutionally protected speech.
Furthermore, sign regulations can impact specific groups, such as deaf communities, who rely on sign language for communication. Legal recognition of sign languages can empower deaf individuals and provide them with enforceable rights. Projects like the EU-funded LRSL initiative aim to study the impact of sign language recognition on deaf communities and establish a roadmap for future efforts.
In conclusion, sign regulations have a significant impact on communities in various ways. They help maintain the unique character and aesthetics of a town, promote effective communication and economic growth, protect free speech rights, and can empower specific groups, such as deaf individuals, by recognizing their preferred language. Local governments must carefully consider the implications of their sign regulations to ensure they balance the needs of the community while upholding constitutional rights.
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Court rulings on sign regulation
Courts have long ruled that the government cannot regulate the content of signs as it could violate the right to free speech, as provided by the First Amendment. When a regulation is challenged based on its free speech content, the Court applies the strict scrutiny test, which means the regulation must be for a compelling governmental interest and the regulation must be narrowly tailored to serve the governmental interest.
In the case of Reed v. Town of Gilbert (2015), the Supreme Court ruled that regulations that categorize signs based on the type of information they convey (e.g. temporary, political, and ideological) and then apply different standards to each category are content-based regulations of speech and are not allowed under the First Amendment. The Town of Gilbert failed to prove to the Supreme Court that the underlying governmental purposes of traffic safety and aesthetics are compelling enough to justify content-based restrictions.
In Ballen v. Redmond (2006), the Ninth Circuit Court of Appeals ruled that Redmond's portable sign regulation that banned some commercial signs but not others (e.g. real estate signs) was an impermissible restriction on commercial speech and thus, unconstitutional.
In G.K Ltd. Travel v. City of Lake Oswego (2006), the Ninth Circuit Court of Appeals held that the city's restriction on plaintiffs' pole sign was not content-based and that the city's interest in preventing visual blight and ensuring travel safety was significant.
In Sanders v. City of Seattle (2007), the court ruled that an easement granted to the city for pedestrian access to a monorail station was not a public forum. The oral policy, which required war protestors using the easement to hold stick-mounted signs, was a reasonable regulation on speech under the First Amendment.
In Kitsap County v. Mattress Outlet (2005), the court held that Kitsap County's sign ordinance, which prohibited the use of raincoat-clad workers as offsite advertisements, was an unconstitutional restriction of commercial speech.
In Shurtleff v. City of Boston (2022), the U.S. Supreme Court ruled that the City of Boston violated the plaintiff's First Amendment rights by refusing to fly a religious flag outside city hall while allowing other groups to fly flags at the request of the public.
In City of Austin v. Reagan National Advertising (2022), the U.S. Supreme Court held that the city's off-premises sign regulations were content-neutral and thus, subject to intermediate scrutiny, a more deferential standard of review for local governments.
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Frequently asked questions
The main issue with sign regulation is the conflict between local governments' need to regulate signs and the constitutional right to free speech.
Sign regulations that categorise signs based on the type of information they convey and then apply different standards to each category can be seen as content-based regulations of speech and may violate the First Amendment.
In Reed v. Town of Gilbert (2015), the U.S. Supreme Court ruled that a town sign code that treats various categories of signs differently based on their messages violates the First Amendment.
Local governments must carefully review their sign regulations with legal counsel to ensure they are content-neutral and do not infringe on free speech rights. Governments must also ensure that any underlying purposes for the regulations are compelling.
