In our last post, we talked a little bit more about the use of the strict scrutiny test in the Reed v Town of Gilbert decision. Today, let’s talk a little bit about some of the issues which may remain after the Reed decision.
First and foremost, is the issue concerning the continuing validity of the distinction between on premise and off premise regulations. The Reed decision itself only applied to temporary noncommercial signs. It did not discuss the regulation of on-site versus off-site signs. Justice Alito however in his concurring opinion, specifically indicated that that type of regulation was still appropriate. However there is no discussion of why or in what context. And of course, it was only a concurring opinion, not the opinion of the majority (although, spoke for three members of the court, leaving only three in the majority opinion).
The difficulty is the Reed analysis itself: in order to distinguish between an on premise versus an off premise sign, one must read the content of the sign. Does it relate to the goods or services provided on site or not? Thus, given the definition and the mode of analysis in the majority opinion, on-site versus off-site regulation seems to be drawn into question.
On the other hand, most people see this type of regulation as content neutral because it simply regulates where a sign can be located. Certainly, on-site versus off-site regulations have been around for as long as sign regulations have existed. They are part and parcel of every zoning sign ordinance.
It is furthermore important to remember, that the Supreme Court concluded in Metromedia Inc. V San Diego, 453 US 490 (1981), that on-site versus off-site regulations were appropriate in the context of commercial signs. In that case, the Supreme Court recognized that most noncommercial messages have no locational basis; for example, “Stop the Vietnam War!” Is really not an on site or an off-site concept. Therefore, Metromedia provided that commercial signs could not be favored over noncommercial.
It seems to me that most courts will certainly continue treating the on-site versus off-site distinction in the context of commercial signage as a valid locational restriction. However, it is certainly worth pointing out, that a District Court here in Tennessee has already suggested otherwise. Thomas v Schroer, 116 F. Supp. 3d 869 (WD Tenn. 2015). This opinion ordered injunctive relief and the court may ultimately change its mind. But there are at least in some judges who may take a different view of the on-site versus off-site regulation of commercial messages.
Another issue after the Reed decision concerns regulations of signed by classifications. Real estate signs, construction signs, directional signs, grand opening signs, are all basically defined by reference to the content of the signs themselves. There may not be a way around these issues, although several authors have suggested potential workarounds. Perhaps it is simply easier to omit the definitions, and simply regulate based on the number, location, and size of the signs.
Another problem after Reed is the vast array of exemptions in most sign ordinances. Those exemptions are normally based on definitions keyed to the content of the signs. Once again this is prohibited by the Reed decision itself. Even such nondescript and constitutionally insignificant signs as real estate signs and building name signs may run into significant difficulty. Once again, regulation simply by number and square feet, without reference to function or content may be most appropriate.
In the next post we will talk a little bit about some ways in which the local government can protect itself against challenges to the constitutionality of its sign provisions.