Heed Reed: Goldwater Institute’s Guideposts for Amending City Sign Codes
City officials across the country are wondering: is my city code unconstitutional? That’s a good question to ask because Reed v. Town of Gilbert has changed the game.1 In that 2015 decision, the United States Supreme Court made it clear that restricting signs based on their content violates the right to free speech guaranteed by the First Amendment. Unfortunately, a quick look around the state shows that Arizona municipalities have either failed to revise their sign codes in accordance with Reed, or have failed to do so properly.
The purpose of this policy report is to provide Arizona cities and towns with a guide to revising their sign codes in ways that both respect the constitutional rights of Arizonans and avoid the possibility of costly litigation.
REED AND HOW THE COURTS NOW LOOK AT SIGN CODES
Reed involved an ordinance in Gilbert, Arizona, that, like other municipalities in the state, regulated outdoor signs in different ways “based on the type of information they convey.”2 Gilbert’s code prohibited outdoor signs without a permit but exempted 23 categories of signs from this requirement, including signs that were labeled as “Ideological Signs,” “Political Signs,” and—specifically at issue in the Reed case—“Temporary Directional Signs Relating to a Qualifying Event.” In other words, Gilbert’s code effectively singled out signs displayed by a church that advertised the time and location of their Sunday services and imposed stricter restrictions on them than on other signs.3 Because the code imposed “more stringent restrictions” on temporary directional signs than on other types of signs, citizens challenging the constitutionality of the restrictions argued that they were content-based regulations of speech that could not survive the “strict scrutiny” test applied in free speech cases.
Strict scrutiny is the most stringent standard of judicial review, and courts use it when determining whether a law violates freedom of speech, freedom of religion, or other “fundamental” constitutional rights.
The strict scrutiny test presumes strongly in favor of the citizen. Under this test, the government may not curtail a constitutional right any more than is necessary to serve an important government goal, and it must provide overwhelming evidence that the restriction directly serves that goal, without going further and interfering with people’s rights unnecessarily. For Gilbert’s sign code to satisfy strict scrutiny, therefore, the town would have had to prove that its differential treatment of signs “furthers a compelling interest and is narrowly tailored to achieve that interest.”4
The Supreme Court determined that Gilbert’s sign code did not satisfy strict scrutiny because it was under-inclusive, meaning that the ordinance did not go far enough to actually advance the purposes the town claimed to be seeking. The town said its code was meant to protect the aesthetic look of Gilbert and to promote traffic safety—but the 23 exemptions in the ordinance contradicted those purposes, since signs for ideological or political purposes presented as much of a a traffic hazard and harmed the aesthetics of the town just as much as signs promoting Sunday church services.
The Supreme Court also rejected the theory, previously adopted by the Ninth Circuit and some other courts, that cities may treat different types of communication differently, as long as they do not do so out of hostility toward the message. Even without such hostile intent, any differential treatment of speech based on the message or the topic discussed, is forbidden in all but the rarest cases: “Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.”5 Thus the town of Gilbert’s differential treatment of signs based upon the messages they conveyed failed the strict scrutiny test.6
Reed came only four years after the Supreme Court’s decision in Sorrell v. IMS Health Services,7 which struck down a Vermont law prohibiting the distribution of certain medical information for “marketing” purposes. The law allowed the information to be distributed, but not for people or companies engaged in advertising or selling medicine. The Court found this unconstitutional on the grounds that it limited speech “based on the content of speech and the identity of the speaker.” A “great deal of vital expression,” the justices noted, “results from an economic motive.” Any restriction on expression that is “directed at certain content” or that is “aimed at particular speakers” violates the First Amendment.8
In January 2016, the Fourth Circuit Court of Appeals clarified in the wake of the Reed decision that efforts to regulate commercial speech differently from other types of speech must survive the stringent test of strict scrutiny. In Central Radio Company v. City of Norfolk,9 that court struck down Norfolk, Virginia’s former sign code,10 which restricted the display of flags and emblems except for government or religious flags and emblems. The code also “exempted ‘works of art’ that ‘in no way identif[ied] or specifically relate[d] to a product or service,’” but prohibited “art that referenced a product or service.”11 The case came about because the owners of a radio repair shop threatened with eminent domain decided to emblazon their building with a sign criticizing the local government for attempting to take their property; the city then cited them for violating the sign code.12
In striking down Norfolk’s code, the Fourth Circuit relied in part on the distinction it made between art that conveys a commercial message and art that conveys a noncommercial message.13 The court found that the rules were not content-neutral, and found no compelling justification for restricting certain types of speech while allowing others. Even restrictions that distinguish between commercial and noncommercial messages were subject to the same stringent test applied in the Reed case.14 Thus although Norfolk, like Gilbert, argued that the restriction was justified by aesthetic and traffic-safety interests, the court concluded that these interests were insufficient to justify restricting speech. “Although interests in aesthetics and traffic safety maybe substantial government goals,” the Fourth Circuit wrote, “neither we nor the Supreme Court have ever held that they constitute compelling government interests.”15
Reed makes clear that city sign ordinances must treat signs alike, without regard to the messages they convey. A city may limit the sizes, colors, locations, and appearances of signs but may not allow one kind of sign while banning another, or permit large signs carrying political messages while requiring smaller signs for religious or commercial messages. Nor may a city impose identity- or motive- based restrictions on speech. Just as it may not ban a sign because of its message or its viewpoint, so it may not restrict signs based on the identity of the person speaking or that speaker’s motive.16 A sign ordinance, therefore, that prohibits the display of artwork when used for commercial purposes but permits it for noncommercial purposes, or that allows the display of a political or religious ag but requires a permit for any other kind of flag, is likely unconstitutional.
ARIZONA’S CONSTITUTION AND STATUTES OFFER EVEN MORE PROTECTION FOR FREE EXPRESSION
Federal constitutional rules are highly protective of free expression, but the Arizona Constitution and Arizona state law provide additional protections for free speech. These state law protections secure individual freedom—and limit local governments’ power to restrict speech—even more than the U.S. Constitution does.17
As Arizona municipalities continue to revise their sign codes in light of Reed, they should take the opportunity to incorporate changes in state law, as well.18
Section 16-1019 of the Arizona Revised Statutes prohibits municipalities and counties from removing any political sign “in a public right-of-way that is owned or controlled by that jurisdiction” so long as that sign is “not placed in a location that is hazardous to public safety, obstructs clear vision in the area or interferes with the requirements of the Americans with Disabilities Act.”19 Because this law distinguishes political speech from other forms of speech, Arizona Attorney General Mark Brnovich was recently asked whether it was constitutional in light of Reed. His official opinion was yes, on the grounds that this law establishes a content- based permission rather than a content-based burden: “Nothing in Section 16-1019 restricts speech or compels the regulation of signs,” the opinion declares. “Instead, it establishes the limits—under Arizona law—of what local governments may do as they limit or regulate 20 signs.”20 But Section 16-1019 mandates that political signs be allowed in public rights-of- way, and given Reed’s prohibition on content- based distinctions in regulations of expression, local governments must treat all other signs in the same manner as political signs. This means that the same permission given to political signs must be given to all other signs. Municipalities should allow, at all times, all signs that meet the physical qualifications of Section 16-1019.21
Another statute, Section 9-499.13(a), requires local governments to “allow the posting, display and use of sign walkers.” A “sign walker” is someone “who wears, holds or balances a sign,” typically for advertising on streets.22 When municipalities create sign ordinances, the law lets them impose “reasonable time, place and manner regulations relating to sign walkers,” but those regulations “may not restrict a sign walker from using a public sidewalk, walkway or pedestrian thoroughfare.”23 As the Arizona Court of Appeals has held, this law “prohibits outright bans on sign walkers and requires that rules regulating conduct on public thoroughfares be uniform as between sign walkers and all other individuals.”24 Most municipalities have complied with this law and have not imposed bans on sign walkers, but many sign codes around the state currently require sign walkers conveying commercial messages to obtain permits. Reed makes clear that this is unconstitutional. Imposing a permit requirement on people holding signs, which differentiates between them based on the content of the signs they hold, is a content-based restriction and cannot satisfy the demanding “strict scrutiny” standard. Such permit requirements should be taken off the books. Indeed, municipalities must be careful to ensure that any sort of permitting process for signs is neutral with respect to the content of the sign, the subject or viewpoint expressed, the identity of the speaker, and the speaker’s motive. Even a content-neutral permit requirement applying to all signs may be unconstitutional if it qualifies as a “prior restraint” on speech. A prior restraint is a requirement for government preapproval before speaking, and prior restraints have traditionally been considered almost per se violations of the First Amendment.25 If a permit scheme is stated in subjective or ambiguous terms, provides no definite timeline for the approval or denial of the permit, or fails to provide citizens with adequate judicial review in the event that the permit is denied, the permit requirement is likely to be deemed an unconstitutional prior restraint on speech.26 To be sure that there’s no constitutional violation, municipalities should avoid requiring permits for sign displays at all. A permitting process should be unnecessary anyway if a city has a clear, uncomplicated sign code that individuals and businesses can easily understand and follow.27
The Arizona Court of Appeals ruled in 2014 that Phoenix officials had acted unconstitutionally when they removed signs promoting handgun training services displayed on city bus stops.28 Because the bus stops were government-owned property, the city had more authority to determine what sorts of advertisements were displayed than would be the case if the signs had been placed on private property. Nevertheless, the court held that the city’s rules were too vague, particularly the requirement that signs be “adequately displayed.” Since it was unclear what qualified as “adequate,” the court found that city officials had “unbounded discretion…to determine whether a commercial advertisement is proposed and adequately displayed.”29 This was unconstitutional because it was too subjective and ambiguous.
CASE STUDY: REAL ESTATE SIGNS
Many Arizona cities have sign codes that distinguish between signs, and impose restrictions on one category but not the other. These are unconstitutional under Reed and Sorrell decisions. Consider one example: real estate signs in rights-of-way.
If a city prohibits real estate signs but allows other types of signs—such as political, ideological, or directional signs—in rights-of-way, the city has violated the First Amendment and Article II section 6 of the Arizona Constitution, as well as the Equal Protection guarantees of the federal Fourteenth Amendment, and Article II section 13 of the state Constitution. In practice, such a city code would forbid a commercial real estate owner from communicating to the public that commercial spaces are available for rent in that shopping center—but it would allow the owner to advertise other goods or services, or to display other noncommercial messages—in that same right-of-way. This is unconstitutionally discriminatory. A lopsided sign code that allows the shopping center’s owner to convey noncommercial information—displaying a political or religious sign, for instance—but does not allow the owner to disseminate commercial information, such as the fact that spaces are available for rent, would deprive the property owner of the equal protection of the laws and infringe upon the owner’s free speech rights.
A city cannot impose an across-the-board prohibition on signs in rights-of-way either. So long as a city allows, or is required by state law to allow, some signs in rights-of-way, the city cannot choose which signs it will permit and which it will prohibit in any manner that relates to the content of the message, the viewpoint expressed, or the identity or motive of the speaker.30 A city can restrict signs for content-neutral reasons, such as size and shape, but all restrictions on signs in rights- of-way should be content neutral, as well as neutral between commercial and noncommercial speakers, and between commercial advertisements on one hand and political, religious, or public service ads on the other. For example, if a municipality requires people to get permits before displaying real estate signs, it must require the same permit for other categories of signs of the same size and shape. A content-neutral permitting process, if carefully designed to respect the expressive rights of citizens, can satisfy constitutional standards. But as we noted previously, sign permitting should not be necessary at all. For example, cities may require all lighted signs or all electronic signs with rotating messages to obtain a permit. But they may not require a permit for all lighted real estate signs or electronic signs with rotating commercial messages.31
CONCLUSION
In light of Reed and changes in state law, local sign codes around the state must be revised. Doing so need not be difficult, so long as the guidelines set out in this report are followed. Following these guidelines will not only protect free speech, but will also lead to simpler sign codes that are easier to follow and enforce, and protect taxpayers from costly and time-consuming lawsuits.
IN SUMMARY
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If a sign code requires enforcement officers to read a sign to determine whether it violates the code, the code is probably content based and violates the First Amendment.
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Commercial messages cannot be treated differently than other types of messages.
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Signs must be allowed in public rights-of-way.
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Sign walkers cannot be restricted from holding up signs on public sidewalks.
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Sign codes must be easy to understand, and (a) clear standards that do not allow enforcement officials to pick when to enforce the restriction, (b) a definite time limit within which a permit will be granted or denied, and (c) an opportunity for meaningful judicial review in the event the permit application is denied. Cities should avoid permit requirements whenever possible.
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If a municipality determines that removing or allowing a particular sign is integral to traffic safety, it must provide clear evidence that justifies its determination.
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