In our last post, we spoke about Reed v Town of Gilbert, 192 L. Ed. 2d 236, 135 S Ct 2218 (2015), generally, making the point that it was an unfortunate case to reach that high level, and secondly that sign regulations based on the content of the sign must always be judged strictly. This “strict scrutiny” is a judicial test which requires that any regulation which restricts freedom of speech demonstrate some compelling governmental interest which justifies the restriction and also requires that the restriction be narrowly tailored so as to avoid overregulation. Today, let's review that test and its implications.
As a practical matter, if the courts apply the “strict scrutiny” constitutional test, the regulation is almost certainly going to be held unconstitutional. Very few regulations can demonstrate the required “compelling governmental interest” and even if that could be shown, those are not usually very well tailored.
It’s hard to blame the city for its manner of regulation: most cities use similar types of categories to regulate signs. And as the city argued before the Supreme Court, and as the lower two courts concluded, the city had no intent to discriminate based on sign content, and in fact, within each category, ideological, political, and directional signs, the city didn’t care what type of politics, ideology, or even was referenced by the sign.
However, from the standpoint of the Supreme Court, the fact that there were distinctions drawn between the types of signs themselves, which had to be based on the content in the signs, meant that the regulation was not content neutral, that distinguished between signs based on content, and such distinctions violated the First Amendment unless there was compelling reason for those distinctions.
It is therefore important for local governments, after the decision in this case, to eliminate or at least reduce the number of different classifications of signs, particularly noncommercial signs. In fact, perhaps local governments are better served by simply restricting the number and size of signs in general based on location without reference to any type of classification. Whether it is a real estate sign, construction sign, a temporary event sign, or political sign, perhaps allowing a number of signs with a certain total amount of square feet is a better solution to the problem.
Think about this from another angle. The court ended its strict scrutiny analysis by assuming that the town had a compelling governmental interest. It did not review that because it was easier to conclude that the regulations were not narrowly tailored: that is by allowing a different timeframe for political, ideological and directional signs, and allowing different square feet for each of those different classifications, is easy to conclude that the regulations are not narrowly drawn. Because if the governmental interest at stake is aesthetics or traffic safety, all three types of signs would have had the same impact and therefore should of been restricted in the same or a closely similar manner. Because they were not, the city failed in the most basic way. I suspect that most local governments across the state of Tennessee also fail in a similar manner.
In the next post, we’ll talk a little bit more about issues which remain to be decided after Reed. For one thing, does this important decision herald a break in constitutional protection for the distinction