Content-Neutral Sign Codes
After Austin and Reed September 9, 2022
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This is the property of ISA and cannot be republished without ISA’s permission. “Sign Regulation is one of the more vexing tasks that a local government addresses on a routine basis.”* The challenge when regulating signs is to balance: • Traffic safety • Aesthetics • Economic development • Business and institutional needs • Neighborhood groups • Myriad of legal issues – esp. Reed v. Town of Gilbert (2015) *PAS QuickNotes No. 18
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Sign Regulations and the First Amendment
1976: U.S. Supreme Court grants First Amendment protection to commercial speech
Very important to have a statement of purpose establishing community’s interests that justify the regulation (i.e., aesthetics or traffic safety)
Commercial speech regulations are reviewed under intermediate scrutiny
- Florida Constitution requires protection of scenic beauty
Sign Regulations and the First Amendment
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Direct, content-based regulation of political or ideological speech is strictly scrutinized and rarely upheld.
This is the property of ISA and cannot be republished without ISA’s permission. Pedro!VoteFor 20 sfSignDirectionalIdeologicalPoliticalTemporaryRelatingtoaQualifyingEvent 32 sf Where? How long? Anywhere As long as you want Where? How long? Residential (16 sf) NR / public / ROW (32) 60 before primary 15 after general Where? How long? Private or public land 4 at a time 12 hours before 1 hour after 6 sf Save Pedro!Whales!theVoteFor 16 sf MeetingChurch7pm Reed v. Town of Gilbert (US 2015)
This is the property of ISA and cannot be republished without ISA’s permission. Administration and Enforcement “Business Sign” “Monument Sign” Read the sign Structure, location, size, materials, design
This is the property of ISA and cannot be republished without ISA’s permission. • Idea Expressed / Viewpoint (“Vote for Sam”) • Topic or Message (“Political Signs”) Distinguishes on basis of • Cannot be justified without reference to Faciallycontentneutral but Obvious Subtle Subject matter Function or Purpose Vote for Pedro “Election Sign” What is “Content-Based”? BLAH BLAH BLAH “Pole Sign”
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Seven years after Reed v. Town of Gilbert, many communities still haven’t reviewed and revised their sign codes to make them more content-neutral
Post-Reed US Supreme Court
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City
of Austin v. Reagan Nat'l Advertising (2022)
What’s the difference?
• Nonconforming provisions that do not allow expansion or intensification, including conversion to digital
Reagan National Advertising
• Conceded that the majority of its signs were commercial.
• No substitution clause
Austin Regulation
City of Austin v. Reagan Nat'l Advertising (U.S. 2022)
• Definition of off-premise sign that is not tied to commercial speech
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• Argued “need to read test” for content-based review: one must look at the content of an off-premise sign and the identity of the speaker to determine whether it relates to the premises on which it is located.
• Past prohibition of off-premise signs
• Sought to convert nonconforming billboards to digital and was denied.
Conflict between Federal Circuit Courts:
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2022)
City of Austin v. Reagan Nat'l Advertising (U.S.
Sixth and Fifth Circuit –Reed changed the law. Must “read the sign” to see how it should be regulated. Distinction between on-premise and off-premise is contentbased.
Third, Ninth and DC Circuit –Reed concurrence approved and longstanding precedent not overruled
• Medium determines the test? Off-premise sign regulation is “agnostic as to content” and is thus subject to intermediate scrutiny.
City of Austin v. Reagan Nat'l Advertising (U.S. 2022)
• Sotomayor majority (Breyer and Alito concur in result)
Decision issued on April 21, 2022
• Decades of state and federal jurisprudence consistently upholding off-premise sign regulation, a practice stretching back over a hundred years that greatly expanded with the advent of the federal Highway Beautification Act in the 1960s.
• Austin regulation is facially constitutional.
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City of Austin v. Reagan Nat'l Advertising (U.S. 2022)
Sotomayor: Need to read is “too extreme an interpretation of this Court’s precedent.”
Breyer (leaving the court): Analysis is too tight, passionate disagreement with the Court’s current formalistic First Amendment framework, expressed in his solo Reed concurrence. Crusader for common sense.
• Respect for separation of powers. Empathy for the challenge of regulating in a manner that will satisfy the court.
• “The City’s off-premises distinction requires an examination of speech only in service of drawing neutral, location-based lines. It is agnostic as to content. Thus, absent a content-based purpose or justification, the City’s distinction is content neutral and does not warrant the application of strict scrutiny.”
• Austin is facially constitutional under the appropriate overbreadth test that “a law restricting speech is unconstitutional if a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep,” particularly since most of the speech at issue is likely to be commercial speech subject to lesser scrutiny.
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• The distinction between on-and off-premises signs is based solely on location, and that is why such a classification is not content-based.
• Even if the message on a billboard were written in a secret code, an observer would have no trouble determining whether it had been digitized, so the distinction is not based on content, topic, or subject matter.
• Concerns over potential impact on noncommercial speech. As applied in some situations, strict scrutiny should apply. (Substitution?)
Alito: Analysis is too loose
City of Austin v. Reagan Nat'l Advertising (U.S. 2022)
• Notably missing from all opinions –any reference to a substitution clause. Having one would solve the concerns for mistreatment of noncommercial speech.
• Drafting, drafting, drafting - Majority attempts to break away from Reed formalism.
City of Austin v. Reagan Nat'l Advertising (U.S. 2022)
• But four justices are still gunning for your drafting missteps. Alito recognizes Austin revised its off-premise definition to make it apply to commercial speech. He offered an interpretation of how the wording might be unsuccessful in limiting the scope of off-premise signs to commercial signs.
• Thomas emphasized that categories that normally might not turn on the communicative content of signs cannot be excluded from the contentbased analysis, because they could be drafted to turn on content.
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Putting it Into Practice
This is the property of ISA and cannot be republished without ISA’s permission. Classic Principles for Sign Regulation Procedures are Critical • Ambiguity and vagueness in your sign code can leave your community open to legal challenges • Have non-discretionary standards to avoid selective enforcement • Tailor regulation to the problem you want addressed, stay away from overbroad regulation • Tight deadlines every step of the process • Clear path to judicial appeal if sought
This is the property of ISA and cannot be republished without ISA’s permission. Classic Principles for Sign Regulation Be Flexible • Zoning strategies and desired outcomes need to be tailored to the circumstances • Many (most?) sign codes don’t meet current law, don’t borrow When in Doubt • Act promptly • Be as clear, unambiguous and non-discretionary as possible • Avoid overbreadth and under-inclusiveness • Always focus on the land use impact or other neutral justification for sign regulation, not the content or the speaker
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speech
Classic Principles for Sign Regulation sign code should have a substitution clause sign code a clause signs as commercial
• Always treat and define off-premise
severability
• Every
• Every
should have
After Reed and Austin
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Three (3) broad sign categories based on their physical characteristics. These typically include:
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Freestanding signs Attached signs Incidental signs
Tips to Comply with Reed
This is the property of ISA and cannot be republished without ISA’s permission. • Art is speech • Restrict text not the message • Consider mural subcategories • based on physical design • Consider a review process Artwork and Murals
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Off-Premise Distinctions Should Never Regulate Non-Commercial Messages.
REMAND to 5th Circuit on September 12, 2022
Reed’s “Need to Read” Test Does Not Apply to Off-Premise Sign Regulations.
• Austin’s ban on digital billboards while allowing digital on-premise will be reviewed under intermediate scrutiny and found content-neutral: LIKELY
Limiting Off-Premise Regulations to Commercial Messages is Subject to Intermediate Scrutiny.
• Austin’s ban on digital billboards while allowing digital on-premise will be reviewed under intermediate scrutiny and FAIL because they could not make the case that it furthers a substantial government interest: LESS LIKELY
On-Premise vs. Off-Premise Signs
Resources &
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Code Assistance • ISA provides complimentary sign code help • Resources available www.signresearch.orgat:
This is the property of ISA and cannot be republished without ISA’s permission. Contact Us David InternationalHickey Sign David.hickey@signs.orgAssociation Susan mwhite@planningandlaw.comMarkSTrevarthen@wshTrevarthen-law.comWhite
