As you can tell from the several previous blog posts, Reed v Town of Gilbert seems to leave a lot of open questions in its wake. So what are the best ways to protect the city against potential legal liability given the uncertainty in this area?
First, it is very important to have a severability clause not only in the zoning ordinance itself, but it is also probably worthwhile to include a clause in the section of your zoning ordinance which regulates signs. Just in case one section of the sign provisions is unlawful for some reason, doesn't mean that it should take down the entire system of sign regulation within the local government.
Second, and also a significant suggestion which has been around for many years, add a substitution clause to your sign regulations which would have the effect of allowing the substitution of a noncommercial message to replace commercial text on any sign. The basic idea is to allow the substitution of a noncommercial message in a situation where the sign regulations inadvertently allow a commercial sign to be larger, more numerous, or in some other way advantageous than the noncommercial. The substitution clause would allow a noncommercial message to be substituted on those signs and avoid giving a priority to commercial messages, which is clearly unconstitutional.
Third, careful review of exceptions to the sign regulations is of increased importance after Reed. To the extent that exceptions can be substantially reduced, that will also have the effect of substantially reducing litigation risk. In addition, defining numerous categories of signs, such as political signs, religious signs, real estate signs and so forth also increases risk; to the extent that those categories can be removed or at least reduced, particularly in light of the decision in Reed, the sign regulations will be less susceptible of attack.
Fourth, on the other hand, certain exceptions may be helpful. In the area of noncommercial speech, if the local government wishes sign applicants to obtain permits, the First Amendment requires adequate procedural safeguards including clear criteria to determine whether to issue the permit, and quick availability of review. An exception to the permitting process for noncommercial messages might be less prone to litigation.
Remember, that there are many valid ways to regulate signs without consideration of the message at all. Those clearly include:
- Size
- location
- lighted versus unlighted
- Static display versus electronic
- public versus private property
- commercial versus residential
I'm sure that a large number of local governments are hard at work rewriting sign regulations right now. If you work for a local government which has not yet begun this type of review, it is certainly worthwhile to examine your sign regulations, discuss them with legal counsel, and try to avoid First Amendment difficulties before they arise.
By the way, if you are interested in further reading, a very interesting article by Prof. Alan Weinstein and Brian Connolly is available on the Internet entitled "Sign Regulation after Reed: Suggestions for Coping with Legal Uncertainty." The authors suggest approaching sign regulations as an exercise in risk management: to the extent that the local government is risk averse, less regulation, fewer definitional categories and exceptions should be entertained; if the local government is willing to accept more risk, more aggressive policies can be pursued but with a conscious awareness that this is an evolving area of constitutional law and litigation is indeed expensive.
