Partner Susan Trevarthen, representing the American Planning Association, recently co-authored an amicus curiae brief to the US Supreme Court with Lisa Soronen of the State & Local Legal Center in Washington, DC, California attorney Randal Morrison of Sabine & Morrison, and William D. Brinton, general counsel for Citizens for a Scenic Florida and attorney with Rogers Towers, PA . The case, Reed v. Town of Gilbert, Arizona, squarely addresses the issue of how the courts will judge the content neutrality of local government sign regulations under the First Amendment. Such regulations are widely used and are important to advancing substantial governmental interests such as traffic safety and aesthetics.
Clyde Reed, pastor of Good News Community Church, rented space at an elementary school in Gilbert, Arizona, and placed signs in the area announcing the time and location of Good News’ services. The town has a Sign Code that, like nearly all other sign codes in the country, restricts the size, number, duration, and location of certain defined types of signs. After Good News received a code enforcement notice from Gilbert that it violated the Sign Code, Good News sued Gilbert claiming the Sign Code violated the Free Speech Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.
The district court found that the Sign Code was constitutional because it was content-neutral and was reasonable in light of the important government interests Gilbert was protecting (aesthetics, traffic safety). The U.S. Court of Appeals for the Ninth Circuit agreed and held that, even though a Gilbert official would have to read the sign to determine what provisions of the Sign Code applied, the restrictions were not based on the content of the signs, did not censor speech or favor certain viewpoints over others, and the Sign Code left open other channels of communication for Reed.
The case now goes before the US Supreme Court.
The question the judges will be considering: Is an ordinance restricting the size, number, duration, and location of temporary directional signs violate the First Amendment? Reed argues that it does because strict scrutiny should apply to the challenged sign regulation, as held by certain circuit courts of appeal, and further argues that the challenged regulation does not survive strict scrutiny review. Strict scrutiny means that only governmental interests that are compelling and absolutely necessary could justify the Town’s regulation of the temporary directional sign type used by Reed. Regulations rarely survive strict scrutiny, which applies to governmental actions such as those that discriminate among different viewpoints or censor ideological speech.
Prior decisions from the US Supreme Court and from many circuit courts require only intermediate scrutiny of typical sign regulations; they allow the government to justify the regulation by showing that it advances important, substantial and significant governmental interests. Gilbert and the parties who joined together in the amicus brief (American Planning Association, National League of Cities, International Municipal Lawyers Association, US Conference of Mayors, National Association of Counties, International City/County Management Association, and Scenic America, Inc.) argue that the current law is proper.
Susan adds, “We further argue that adoption of the strict scrutiny test has the potential to invalidate nearly all sign codes in the country, and would thereby imperil the important traffic safety and aesthetic purposes underlying local government sign regulation.” Stay tuned. Oral argument is Jan. 12, 2015, and a decision is likely to be made by June. Depending on what the Court decides, cities may need to act quickly to consider significant changes to their sign regulations.
