I’ll probably take a few days to discuss several of the important themes. And like almost all First Amendment sign cases, it is difficult to know for sure where the Supreme Court is headed. So, with that caveat, let’s start with perhaps the first two most important points.
First, and this is possibly easier to see in hindsight then at the time that the actual decisions concerning litigation were made, the circumstances presented here were not ideal from the local government standpoint. There are at least three different types of tests to determine the validity of regulations which might impact First Amendment interests. As Justice Kagan mentioned in her concurring opinion,
The Town of Gilbert’s defense of it sign ordinance – most notably, the law’s distinctions between directional signs and others – does not pass strict scrutiny, or intermediate scrutiny, or even the laugh test.Given that sentiment, this case ultimately opened the door and allowed an opportunity for the Court to roam around these sign regulations and employ the strictest test in First Amendment jurisprudence. Looking back, it would have been far better if this case had never reached of the US Supreme Court.
Secondly, it is clear, based both on the majority opinion, and on Justice Alito’s concurring opinion, that the majority of the court found that distinctions in the regulations based on noncommercial sign content which might under most circumstances seem innocent, rendered the sign regulations unconstitutional because of the worst conclusion: that the town was regulating based on the content of the signs themselves.
The opinion focuses on three different types of signs, political signs, ideological signs, and temporary directional signs. A political sign, under the towns definitions were temporary signs designed to influence the outcome of the election. Ideological signs were signs which were basically other types of noncommercial signs. And temporary directional signs were intended to direct pedestrians and motorists to some particular event.
The trouble was, that each different sign was allowed for a different time frame as far as its display, and different sizes were permitted depending on the type of sign. Thus, as Justice Thomas pointed out, if John Locke was running for political office, he could post a sign to promote his election, but that sign would be treated differently from a sign expressing one of Locke's principles of democratic government, and would further be different from a sign giving notice of the time and place of a book club which would discuss one of John Locke’s books. The only way to distinguish between the signs was to read the sign and determine its content. As the court pointed out this is the very thing that is prohibited by the First Amendment.
The types of distinctions between noncommercial signs at issue in Reed v Town of Gilbert appear in almost all local governmental sign regulations. Local signs are almost always exempted, for at least some time frame around the election; directional signs are almost always controlled in some way; and frequently noncommercial ideological signs are not referenced at all and in some cases are treated less favorably than other types of commercial speech. This of course inverts the importance of the two types of speech: noncommercial, particularly ideological speech should be treated with greater respect then commercial messages.
In any event, it seems to me that the case unfortunately got to this high level, and secondly was not a very apt case for decision.
In the next post, will discuss in greater detail the holding, and what it might portend for the future. Sometime thereafter, it may be worthwhile to consider how local governments can best react to the decision.
Certainly, if you work in or around a local government codes enforcement department or planning department, and your city has not yet reviewed it sign regulations in the context of this important Supreme Court case, you would be well advised to review the local sign regulations and make some decisions about how they should be changed in order to make them consistent (as much as possible) with this case.