Political Signs in the Front Yard

 An interesting byproduct of the seemingly always intense political discussion of the last several years here in the United States, is the posting of political signs supporting one or the other candidate, and using profane language to attack the opposition. I’ve attached an example with some of the more extreme language blocked out.

As you can imagine, these kinds of signs provoke heated responses from neighbors and passersby. In Roselle Park, New Jersey, the signs were in a residential front yard, not too far from a public school. Evidently the mayor received a number of phone calls and the codes official wound up writing a citation. The owner of the property lost in Municipal Court, but on appeal to Superior Court in New Jersey, the decision was reversed.

You may recall the profane language on a T-shirt in a courtroom in California, quite a few years ago, in Cohen v California, 403 US 15 (1971). In that case the United States Supreme Court found that the use of the profane language was within the protection of the First Amendment and the conviction was reversed.

Relying on that Supreme Court precedent, the Superior Court New Jersey also reversed the decision from the Municipal Court against the property owner. The use of the profane language was within the protections afforded by the First Amendment to the Federal Constitution.

There have been several these cases across the country, including one right here in Tennessee, in Munford. In that case, the minutes will attorney advised the city that the use of the language was protected and that there was no violation of the city codes. It’s good to see local counsel here in Tennessee getting it right!

Reagan National Advertising v City of Austin, 2020 U.S. App. LEXIS 27276 (5th Cir. Aug. 25, 2020)

This interesting case is yet another development arising out of the Supreme Court decision in Reed v Town of Gilbert, 576 US 155 (2015). Two companies, both Reagan and Lamar Sign, sued the city when applications submitted to digitize off-premise signs were denied. Plaintiffs argued that the Sign Code distinction between on-premise and off-premise signs was a violation of the First Amendment. The lower court found in favor of the city, but the Fifth Circuit reversed, concluding that the distinction was content based, subject to strict scrutiny, and that there was no compelling governmental interest sufficient to justify the regulation.

The city Sign Code provided for the continuation of nonconforming off-premise signs but sign owners were not permitted to “change the method or technology used to convey a message” on an off-premise non-conforming sign. At the same time, the Sign Code permitted on-premise signs to be “electronically controlled changeable copy signs.” As a result, on-premise nondigital signs can be digitized, but off-premise nondigital signs cannot be. The stated purpose of the Sign Code was to protect the aesthetic value of the city and to protect public safety.

The trial court denied plaintiff’s request for declaratory judgment, concluded that the Sign Code was content neutral and satisfied intermediate scrutiny.

The first interesting aspect of this case has to do with the city’s argument that the case was moot because the city adopted new sign provisions after the lawsuit was filed. Plaintiffs argued that they filed their applications prior to the amendments and that under Texas state law, their applications for permits must be reviewed based on the regulations in effect at the time their applications were filed. See for example, Texas Local Government Code Annotated §245002 (a) (1). See also Reagan National Advertising of Austin v City of Cedar Park, 387 F Supp 3d 703, 706 n. 3 (WD Texas 2019) (“Texas law requires the permit applications be evaluated under the law as it existed at the time they were submitted, rather than under the new, revised sign code.”). The Fifth Circuit agreed with the plaintiffs.

Notice the distinction here between Texas and Tennessee law. It appears that under Tennessee law, although it’s not entirely clear, that there is no protection based simply on the application to the city for a permit; rather, the Tennessee Vested Property Rights Act, Tenn. Code Ann. § 13-4-310, only protects from and after the time that a development plan has been approved (not applied for) or that a building permit has been issued. So if the regulations change during the pendency of an application, theoretically the applicant must comply with the new regulations under Tennessee law.

The next issue before the court was whether the Sign Code was content-based or content neutral. Naturally, if the regulations are content neutral, then the intermediate level of scrutiny applicable to commercial speech would apply; otherwise, strict scrutiny would apply to any content-based regulation.

The court first discussed the Supreme Court decision in Reed and noted that while the Reed decision did not purport to be creating new law, the federal courts have generally recognized that Reed announced a "sea change" in the traditional test for content neutrality. The court cited a number of other circuit opinions, including the Sixth Circuit: Wagoner v City of Garfield Heights, 675 F Appx 599 (6th Cir. 2017), and perhaps more interestingly, Thomas v. Bright, 937 F.3d 721, 737 (6th Cir. 2019), cert. denied, 2020 U.S. LEXIS 3558, 2020 WL 3865256 (July 9, 2020) which held that Tennessee's Billboard Regulation and Control Act of 1972, Tenn. Code Ann. §§ 54-21-101, et seq., "is not narrowly tailored to further a compelling interest and thus is an unconstitutional restriction on non-commercial speech." As many of you are aware, this decision and frankly the lower court decision which preceded it, seemed startling. Concluding that the entire regulatory scheme for controlling outdoor advertising signs was unconstitutional seemed, at least at the time, something of a stretch.

The court concluded that the Supreme Court decision in Reed meant that if a law is content based on its face, then it is subject to strict scrutiny regardless of the government’s content-neutral justification. See Reed, 576 US at 165. One difficulty with this approach is that Justice Alito in Reed concurred and specifically noted that regulations distinguishing between on-premise and off-premise signs should not be considered content-based. The Fifth Circuit, looking to the Sixth Circuit, observed that a restriction distinguishing between on-and off-premise signs could be content-neutral. A regulation that defines off-premise as any sign within 500 feet of a building is content-neutral. But if the off premise/on-premise distinction hinges on the content of the message, it is not a content-neutral restriction.

Thus, the Austin Sign Code must be evaluated under the clear rules set forth by the Reed majority. That makes the rest of the case fairly simple. The Sign Code determines on- versus off-premise by reading the sign and asking if it advertises a business, activity, product, or service not located on the site where the sign is installed. If the product or service is located on the same site than the sign is on-premise; otherwise it is off-premise.

In the Thomas v Bright case, the Sixth Circuit considered an almost identical question. Of course, the Sixth Circuit concluded that state officials were making content-based decisions in order to determine whether the outdoor advertising sign was on-premise or off-premise and invalidated the Tennessee Billboard Regulation and Control Act of 1972. A fairly monumental conclusion.

The Fifth Circuit mentioned that other circuits have reached different conclusions including the DC Circuit in Act Now to Stop War v District of Columbia, 846 F. 3d 391, 404 (DC Circuit 2017). In that case, the DC court reasoned that making a “cursory examination” of sign to determine whether it’s on- or off-premise did not render the statute or regulation content-based.

The Fifth Circuit disagreed. First, the court maintained that there are many cursory examinations which would simply fail. For example, suppose the regulation prevented a political sign for Candidate A, but permitted signs for Candidate B. Surely that would only take a cursory examination but also most assuredly, it would be facially unconstitutional. The court went on to examine this concept a little further, selecting several hypotheticals:

● Digital sign in front yard that says: “Sally makes quilts here and sells them at 3200 Main Street”

● Digital sign in the front yard that says “we love hamburgers” and contains the logo and address to a Whataburger location 2 miles away

● How can one determine whether a digital billboard that says “God loves you” is on- or off- premise?

You get the general idea. The court next considered whether the commercial speech exception applied under the circumstances of this case and concluded that it did not. The court essentially held just because most billboards display commercial messages does not mean that the sign regulation does not apply with equal force to both commercial and noncommercial messages. For example, recall that the Sixth Circuit decision involved billboards which were for the most part displaying noncommercial messages.

Finally, the purported justifications for the Sign Code provisions, protecting the aesthetic values and public safety, simply don’t hold up under the strict scrutiny test. There is no proof or argument that one type of sign was a greater eyesore than the other; furthermore, there was no proof that an off-premise digital sign posed a greater risk to public safety than in on-premise digital sign. As a result the relevant provisions of the Sign Code were declared unconstitutional as violative of the First Amendment.

I’d encourage you to read especially the Sixth Circuit decision in Thomas as well as this Fifth Circuit decision. They are quite interesting. Even more important is attempting to determine what impact this has on local land use planning regulations. Most zoning sign regulations have some dependence on the on- versus off-site distinction. In light of these cases, are those sign regulations still valid?

My thanks to my old friend, Sam Edwards, who told me about this very interesting case. 

 

Tennessee Billboard Act declared unconstitutional

In an extremely interesting billboard case recently decided by the US District Court for the Western District of Tennessee, the Tennessee Billboard Regulation and Control Act of 1972, Tenn. Code Ann. §54-21-101 et seq., was held unconstitutional. Actually, the Billboard Act certainly seemed to be a fit candidate for constitutional scrutiny, particularly after the recent US Supreme Court decision in Reed v Town of Gilbert, 135 S Ct 2218 (2015). I had occasion several years ago to get involved in a billboard case and was frankly stunned to learn that the Sixth Circuit had upheld the on/off premises distinction in the context of noncommercial speech. So for example, if the Billboard owner wanted to announce his or her support for American veterans, for example, unless the property on which the billboard was established operated some veterans relief organization, it was not an on premise sign and prohibited. Thus, noncommercial speech faced a significantly greater burden than commercial speech. Thomas v Schroer, 2017 WL 1208672.

While this state of affairs was difficult to understand before the Reed decision in 2015, once that decision was handed down, it became clear that any regulation which required categorization of a sign by reading the sign was subject to strict scrutiny under the First Amendment, and as a result, was likely to be determined to be unconstitutional. Nevertheless, the state regulations concerning billboards here in Tennessee were never changed.

In this case, Thomas displayed an image of the American flag, and at different times content referencing the holiday season along with the American flag. Because he never obtained a permit for the sign, the state sought to have the sign removed: it did not in fact comply with the state regulations anyway. The court applied strict scrutiny because the regulations had an impact on the plaintiffs noncommercial speech. In effect, if the sign is deemed to be on premise, then it need not comply with the locational requirements otherwise established. But since its difficult to establish noncommercial speech as on premise, the rule actually discriminates against noncommercial speech, which should be given more favorable treatment, not less.

Having concluded that the Billboard Act was subject to survive strict scrutiny, the court then looked at the reasons advanced by the state as compelling in order to justify the regulations. These reasons included safety, recreational value of public travel, tourism, economic development, scenic beauty and the investment in public highways. Perhaps understandably, the District Court found none of these as being a compelling state interest. Furthermore, the Billboard Act was not narrowly tailored to advance the state’s compelling interest, even if it had any.

The court also concluded that the act was both overinclusive and underinclusive. It is overinclusive because the Billboard Act is content based inasmuch as the application of the exemptions hinges on the content of the sign. While the state wants to limit highly distracting signs which might have an impact on traffic safety, the net effect of the state act leaves an off premise sign of enormous size regulated in the same manner as a small on premise sign.

The court also concluded that the act was underinclusive in that there is no rationale as to why signs displaying non-premise related content would mar the aesthetics in such a way as to merit arbitrary restrictions such as permits and tags. In essence, the act would permit large ostentatious on premise signs closely placed together while restricting small, muted off premise signs. As the court indicated, “aesthetics are not measured by how relevant the signs content is to the on premise activity.”

This is an extremely interesting case which almost certainly will go on up to the Sixth Circuit. It will be interesting to see what happens on appeal.

Central Radio v Norfolk: More on Signs

After completing the entry yesterday, I noticed that the 4th Circuit Court of Appeals had addressed a noncommercial sign in the context of Reed v Town of Gilbert. In this case, a media company whose property was the subject of condemnation actions placed a 375 square feet sign on a 6 lane major highway, painted or attached to a building it owned. The sign protested the use of eminent domain procedures.

The city cited the company for an illegal sign. The company sued based on the holding in Reed v Town of Gilbert. The Norfolk sign ordinance excepted government and religious flags and banners but regulated flags or banners which referenced products or services. The court quickly concluded that this was content regulation forbidden by Reed, leaving only the question as to whether there was a compelling governmental interest. The court thought not, but was even clearer that the method chosen was not the least restrictive means:

With respect to the City's stated interest in preserving aesthetic appeal, for example, the flag of a private or secular organization was no greater an eyesore than the flag of a government or religion, and works of art that referenced a product or service did not necessarily detract from the City's physical appearance any more than other works of art. Yet, the sign code allowed the unlimited proliferation of governmental and religious flags, as well as works of art that met the City's dubious criterion, while sharply restricting the number and size of flags and art bearing other messages.

The court found in favor of Central Radio.

Central Radio Co. Inc. v City of Norfolk, 2016 WL 360775 (4th Cir. January 19, 2016)

Reed v Town of Gilbert: Suggestions

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.

Reed v Town of Gilbert

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.

Reed v Town of Gilbert

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

Reed v Town of Gilbert

I don’t often discuss sign cases in this blog. The whole area of zoning, land use planning, the First Amendment and signs is quite complicated and I’m never sure that people really want to dig too deeply into it. However, I’ve been asked to do a short seminar on Reed v Town of Gilbert, 192 L. Ed. 2d 236, 135 S Ct 2218 (2015), and perhaps some discussion of this important case is worthwhile.

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.

Zoning, Political Signs, and the First Amendment

There was an interesting article in the Tennessean yesterday indicating that a candidate in the upcoming city elections is suing the city based on an ordinance, which evidently allows only a maximum of 1 yard signs per political candidate in an election. The suit argues that this is a violation of the First Amendment to the federal Constitution.

In fact, the United States Supreme Court has already decided a similar case. In City of Ladue v Gilleo, 512 U.S. 43 (1994),  the United States Supreme Court was presented with a yard sign protesting the war in the Gulf which the city indicated was prohibited under the terms of its sign ordinance. After obtaining a temporary injunction in the District Court, Ms. Gilleo put a similar sign in an upstairs window. The city repealed its original sign ordinance, enacted a new one which broadly prohibited all residential signs, except for residential identification signs (no greater than 1 square foot) and signs advertising the property for sale or lease.

The Supreme Court of the United States had little trouble in finding the ordinance totally unconstitutional. The court found that yard signs and window signs were cheap, simple, and efficient forms of communication, historically permitted across the United States, and for which there was no reasonable substitute. The ordinance was struck down as unconstitutional.

Given the result of the Gilleo case, the Spring Hill zoning ordinance may be constitutionally infirm. In this instance, the regulation is directly aimed at political speech, certainly one of the highest forms of free speech. Political campaigns are by their very nature temporary, and placement of the signs on such a temporary basis also augurs against the constitutionality of limitations on such political speech. The Supreme Court decision in Gilleo would certainly appear to favor the challenger here.