Foster Swift Municipal Law News
January 30, 2014
Sign, sign, everywhere a sign
Blockin’ out the scenery, breakin’ my mind
Do this, don’t do that, can’t you read the sign?
“Congress shall make no law … abridging the freedom of speech.”1 That’s straightforward and uncomplicated, right? Wrong! How straightforward can it be when speech, in the form of signs, causes traffic hazards, diminishes property values, or becomes a nuisance riddled with graffiti? For these, and many more reasons, the courts have upheld municipal ordinances that regulate the size, type and placement of signs, citing the legitimate governmental concerns of aesthetic, blight and traffic safety.
Although commercial speech was once excluded from the coverage of the First Amendment, it now enjoys constitutional protection and is protected from “unwarranted governmental regulation.”2 However, “…state and local governments have freer rein to regulate commercial speech than political or expressive speech.”3 Because of this distinction, the court in Central Hudson Gas and Electric Corp. v Public Service Commission of New York developed a four-part test to determine if a regulation on commercial speech is constitutional. It provides: (1) the speech must concern lawful activity and must not be misleading; (2) the regulation must seek to implement a substantial government interest; (3) the regulation must directly advance the asserted governmental interest; and (4) the regulation must reach no farther than necessary to accomplish the given objective. The Central Hudson Court considered a regulation that completely banned an electric utility from advertisements that promoted the use of electricity. Applying its own four-part test, it held that the regulation violated the First Amendment.
Non-Commercial or Expressive Speech
When regulating non-commercial or expressive speech, the courts’ primary determination is whether the regulated speech is content-based or content-neutral. The Michigan Court of Appeals explained:
The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government’s purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others. Government regulation of expressive activity is content neutral so long as it is justified without reference to the content of the regulated speech.4
There have been a number of Michigan cases over the years that analyzed the distinction between content-based or content-neutral sign regulations. For example, in Gannett Outdoor Co of Michigan v Troy,5 the court held that the City of Troy’s sign ordinance regulating billboards without regard to their content was content-neutral and lawful. The Michigan Court of Appeals explained that the ordinance “reflects no bias, censorship or preference for a particular viewpoint over another. Sign regulation in Troy is not based on the city’s assessment of the desirability of the ideas expressed on proposed signs.”6 It is well settled in Michigan that if regulation of non-commercial or expressive speech signs is content-neutral, then some time, place and manner restrictions will be permitted.
If, however, a non-commercial or expressive speech sign regulation is found to be content-based (i.e. dependent on the content of the speech itself, such as political signs or election signs), it will be reviewed under a strict scrutiny standard, which means the regulations must be found necessary to further compelling governmental interests and must be the least restrictive means to advance those interests.7
Historically, no sign regulation that treats political signs in a more restrictive manner than other temporary signs has been upheld. Thus, for example, ordinances that place limitations on political signs but not for other temporary signs such as “for sale,” “for lease,” or “garage sale” signs have routinely been invalidated as unconstitutional. A U.S. District Court found invalid a political sign regulation limiting the number of days the sign can be erected before an election to thirty days, limiting the number of days the sign can remain after an election to ten days, and limiting the number of signs on any parcel to two.8 The Court explained that the regulations were “clearly content-based because they only applied to signs containing content which was political,”9 and concluded that the “two sign limit and the 30 day limit were not narrowly tailored to the degree required of strict scrutiny.”10 Although the Court did not specifically invalidate the regulation that limited the number of days the sign can remain after an election, such a regulation would likely also be held invalid for the same reasons. Additionally, limiting the number of signs to one “per candidate, per issue, and per opinion” on a piece of property has been found unconstitutional.11
In summary, there are no clear guidelines for municipalities to follow to ensure sign regulations are upheld. Municipalities have consistently struggled combating the “everywhere a sign” notion and, in the end, may be forced to pay a price for it. With political signs, for example, if a regulation is held to unconstitutionally deprive citizens of their civil rights, the municipality could be assessed the complainant’s attorney fees and costs incurred in challenging the regulation. Therefore, some municipalities have begun amending their sign ordinances and regulations to become more content-neutral, meaning applying the same regulations to the same types of signs, thereby making it more likely to withstand constitutional scrutiny.
Do you have questions regarding your municipality’s signage? Contact Lisa Hamameh at 248.539.9906 or firstname.lastname@example.org. Lisa primarily practices municipal law, zoning and land use, liquor licensing law and condominium and homeowners’ association law.
1US Const Amend I
2Central Hudson Gas and Electric Corp. v Public Service Commission of New York, 447 US 557, 561; 100 S Ct 2343; 65 L Ed 2d 341 (1980).
3Risner v City of Wyoming, 147 Mich App 430, 433; 383 NW2d 226 (1985)
4Outdoor Systems, Inc. v City of Clawson, 262 Mich App at 722 (2004) (citations omitted).
5Gannett Outdoor Company of Michigan v City of Troy, 156 Mich App 126; 409 NW 2d 719 (1986)
7Burson v Freeman, 504 US 191; 112 S Ct 1846; 119 L Ed 2d 5 (1992).
8Fehribach v City of Troy, supra.
9Id at 645
10Id at 646
11Id (see also Dimas v City of Warren, 939 F Supp 554, 557 (E.D. Mich 1996)