Over the past year, cities and towns across the country have struggled to combat the unsightly clutter created by temporary signs after the U.S. Supreme Court effectively struck down thousands of local sign ordinances as unconstitutional.
In Reed v. Town of Gilbert, the justices determined that the First Amendment bars local rules that treat noncommercial signs differently, based on what they say.
But because many cities and towns, including dozens in North Carolina, have adopted separate regulations for political signs, ideological signs and other temporary signs, municipal leaders have been forced to draft new rules in order to comply with the decision in Reed.
Here in Charlotte, it will be some time before sign-posters will have any level of certainty about what the rules are. The city has several sign ordinances which could be read as being content-based.
City Attorney Jason Kay said Charlotte plans to address the issue in the new zoning code that city officials are drafting, with an anticipated completion date of January 2018.
“This issue alone is incredibly complex, and it’s just one of many complex issues the new zoning code will have to address,” Kay said. “The timeline is fairly elongated.”
The Reed decision also means that the General Assembly will have to reassess a state law that allows political signs to be posted along state highways during election season. That provision of N.C. General Statute 136-32 is clearly content-based because it treats political signs differently than any other noncommercial signs.
Adding to the complexity is the fact that the Reed opinion raised more questions than it answered.
While the June 18, 2015, decision was unanimous, Justice Samuel Alito and Justice Elena Kagan filed separate concurring opinions that laid out different legal analyses for why content-based rules for noncommercial signs are unconstitutional. Each of those concurring opinions was joined by two justices, resulting in what is essentially a three-three-three split decision.
Legal experts say that makes it difficult to determine exactly what types of rules will pass constitutional muster.
“It’s just so fluid right now,” said William Marshall, who teaches First Amendment law at the University of North Carolina’s School of Law. “If even the brilliant legal scholars on the Supreme Court can’t come to agreement on which rules will survive, it makes it hard for those trying to interpret the decision to know what to do.”
Turn here for confusion
The underlying dispute in Reed grew out of the way in which the town of Gilbert, Arizona, applied its sign code to “temporary directional signs” posted by a local church.
Good News Community Church does not have a permanent location. So each Saturday, church leaders post signs bearing the time and location of the next service. The signs are removed each Sunday about noon.
However, town officials determined that the church violated Gilbert’s sign code because the period the signs were posted exceeded the rules for temporary directional signs.
Under the town’s sign code, those kinds of signs may be displayed no more than 12 hours before the “qualifying event” and one hour after. Meanwhile, “ideological signs” had no placement or time restrictions, and “political signs” were allowed to be displayed only during an election season.
The sign code has different size restrictions for all three categories.
After receiving a citation for running afoul of the sign code, the church sued the city, claiming the code abridged its free-speech rights.
The case went all the way to the U.S. Supreme Court, which ruled in favor of the church.
Justice Clarence Thomas’ majority opinion held that, “The Sign Code, a paradigmatic example of content-based discrimination, singles out specific subject matter for differential treatment, even if it does not target viewpoints within that subject matter.”
Therefore, the majority said, municipal governments must demonstrate a “compelling interest” before they can implement content-based rules for noncommercial signs, and those rules must be narrowly tailored to achieve that interest. Thomas’ opinion also held that content-based sign ordinances are subject to “strict scrutiny” — the most stringent standard of judicial review in the United States. That said, Thomas listed several categories of content-based regulations that may survive the strict-scrutiny test. He pointed to ordinances designed to protect the safety of pedestrians and drivers, signs directing traffic and street numbers on private houses.
Signs of uncertainty
While Thomas’ majority opinion made it clear which types of sign regulations are not permitted, it did little to clarify which rules will be acceptable under the Reed standard.
The two concurring opinions demonstrate just how thorny the issue is.
The opinion written by Alito appears to show that some of the justices were concerned that Thomas’ opinion could be interpreted by lower courts as prohibiting many more categories of signs.
To head off potential problems, Alito said the Reed decision still allows content-neutral regulations that are based on things like a sign’s size and location. Also OK, Alito said, are rules that distinguish between lighted and unlighted signs, fixed message and electronic signs, those posted on public property versus residential property or commercial property, and the number of signs allowed per mile of highway.
Alito was joined by Justice Anthony Kennedy and Justice Sonia Sotomayor.
But Alito’s attempt to provide local governments with some guidance may actually create new problems.
Two categories deemed permissible by Alito appear to conflict with the majority opinion in Reed.
Alito said local governments should be allowed to distinguish between on-premises and off-premises signs, as well as signs advertising one-time events.
However, Kagan’s concurring opinion noted that those two criteria were exactly the kind of rules at issue in Reed.
Kagan, joined by Justice Stephen Breyer and Justice Ruth Bader Ginsburg, went on to say the majority’s standard was overly rigid because many content-based ordinances are “entirely reasonable.”
Under the majority’s reasoning, Kagan said, towns would have to demonstrate a compelling interest before they could post signs “informing passersby where George Washington slept.”
As sign-ordinance challenges mount, Kagan said, the Supreme Court “may soon find itself a veritable Supreme Board of Sign Review.”
The Supreme Court’s decision in Reed may also open the door for challenges to rules distinguishing commercial and noncommercial signage.
For decades, commercial speech has been subject to a version of “intermediate scrutiny,” meaning any restrictions must further an important government interest by means that are substantially related to that interest.
But Adam Lovelady, a land-use professor at UNC’s School of Government, said Alito’s concurrence could undermine the distinction between commercial and noncommercial.
Alito said regulating signs based on the type of property where they are placed — commercial or residential — would be valid. Lovelady said it could be argued that Reed also subjects commercial speech to the same strict scrutiny that applies to noncommercial speech.
Several federal lawsuits have already sought to test whether Reed affects commercial speech.
Opinions handed down last year in California, Illinois and Utah all determined that Reed does not concern commercial speech.
But at least one court has cited Reed when ruling that restrictions on commercial speech should be subject to strict scrutiny. In Thomas v. Schroer, the District Court for the Western District of Tennessee said a sign code distinguishing between off-premises and on-premises signs was content based, even though Alito determined the off-premises/on-premises distinction was content neutral.
Finding their way
Amid all of this uncertainty, city officials in Charlotte say they aren’t sure how to regulate signs without setting off a flurry of lawsuits. Until the new zoning code is written, the rules are ambiguous at best.
“From the standpoint of a signage regulator, no one is really troubled by the content. It’s the clutter we’re trying to cut down on,” said Kay.
That clutter is only going to increase as the November election approaches. But one of the city’s tools for limiting the number of signs has also been called into question.
General Statute 136-32 exempts political signs from being regulated, so long as they are placed along state highways no sooner than 30 days before an election and no later than 10 days after.
It used to be that Charlotte officials could use the state law to crack down on non-political signs along state highways. But in the wake of Reed, it’s not clear that any signs can be restricted.
So far, state lawmakers have given no indication that they will revise General Statute 136-32 any time soon.
In the meantime, many cities and towns in North Carolina have brought in consultants to help draft new content-neutral sign ordinances.
Erin Burris of Benchmark Planning in Charlotte said her firm has developed a regulatory framework that regulates signs based on how they’re built, rather than what they say.
Under Benchmark’s approach, “stick-in-ground” signs are regulated differently than banners with two posts. Longer term signs for construction projects or real estate listings have their own regulatory category, as do A-frame signs. The rules for each category can be customized to fit the needs of individual municipalities.
Burris has advised Bermuda Run, Clinton, Forest City and Grant Quarry on their sign ordinances.
“We tell our clients that if you have to read it to regulate it, your regulation is unconstitutional,” Burris said. “This is something that every town and every city is having to deal with.”