Supreme Court wants strict content neutrality on municipal sign laws

The Supreme Court takes up a municipal sign law case for the first time in many years, holding that municipalities cannot treat signs differently on the basis of content, even if they did not specifically intend to favor or disfavor certain messages. (Having handled cases like this over the years, I had a keen interest in this case).

The case is Reed v. Town of Gilbert, decided on June 18. This Arizona town had a comprehensive sign law, like most towns. Campaign and social message signs enjoyed greater signage rights than directional signs. The plaintiff, a small church, needed those signs to let people know the location of their services. The directional signs could not be posted for the same time duration as the other signs. The church sued under the First Amendment, arguing that the sign law contained a content-based signage rights in violation. The Ninth Circuit rejected that argument, holding that the First Amendment was not breached because the Town did not intend to favor one class of signs over another.

The Supreme Court disagrees with the Ninth Circuit. Adopting an absolutist position on this issue, Justice Thomas says it does not matter what the Town specifically intended in classifying signs differently. We look at the sign law's effect on the placement of signs in determining whether the law violates the First Amendment. "The restrictions in the Sign Code that apply to any given sign ... depend entirely on the communicative content of the sign." Here is why it matters:

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. More to the point, the Church’s signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas. On its face, the Sign Code is a content-based regulation of speech.

Since the sign law regulates on the basis of content, the Town must show that it does so for a compelling reason. Otherwise the law is struck down. The Court says the Town "has offered only two governmental interests in support of the distinctions the Sign Code draws: preserving the Town’s aesthetic appeal and traffic safety." These will not cut it, as they are under-inclusive, meaning that this justification is not applied across-the-board to other signs that might also create eyesores and traffic distractions. The reasoning:

Starting with the preservation of aesthetics, temporary directional signs are “no greater an eyesore,” than ideological or political ones. Yet the Code allows unlimited proliferation of larger ideological signs while strictly limiting the number, size, and duration of smaller directional ones. The Town cannot claim that placing strict limits on temporary directional signs is necessary to beautify the Town while at the same time allowing unlimited numbers of other types of signs that create the same problem.

The Town similarly has not shown that limiting temporary directional signs is necessary to eliminate threats to traffic safety, but that limiting other types of signs is not.The Town has offered no reason to believe that directional signs pose a greater threat to safety than do ideological or political signs. If anything, a sharply worded ideologicalsign seems more likely to distract a driver than a sign directing the public to a nearby church meeting.