Foster Swift Municipal Law News
November 24, 2015
Earlier this year, the United States Supreme Court reaffirmed the prohibition on content-based speech restrictions in Reed v Town of Gilbert. In the process this case muddied the already murky waters for municipal regulation of signs.
Municipalities are authorized to adopt ordinances for the protection of the public’s health, safety and general welfare, provided the ordinances serve a public purpose and are reasonable.1 The Michigan Supreme Court articulated a test in determining the reasonableness of municipal ordinances: “[t]he test for determining whether an ordinance is reasonable requires us to assess the existence of a rational relationship between the exercise of police power and the public health, safety, morals, or general welfare in a particular manner in a given case.”2 However, regulations that impair an individual’s First Amendment right to free speech require stricter analysis.
Courts have generally upheld municipal ordinances that regulate the size, type, and placement of signs citing the legitimate governmental concerns of aesthetic, blight, and traffic safety. The U.S. Supreme Court, for example, found that a municipality’s legitimate governmental interest in preserving aesthetics was, alone, sufficient to prohibit off-premises signs. A few years later, the Supreme Court held those same aesthetic considerations justified a municipality’s prohibition of signs on public property. Almost a decade later, the Michigan Supreme Court upheld the City of Rochester Hill’s ban on home occupation signs, citing the “city’s interest in preserving the character of its residential neighborhoods.” In 2004, the Michigan Court of Appeals upheld the City of Clawson’s ban of off-premises billboards relying on aesthetics and traffic hazards.
However, the First Amendment to the U.S. Constitution, made applicable to the States through the Fourteenth Amendment, provides: “Congress shall make no law … abridging the freedom of speech.” So what makes one type of speech restriction legal, and another prohibited?
Recently, the U.S. Supreme Court considered this issue in the case of Reed v Town of Gilbert.3 In this case, the Town of Gilbert, Arizona adopted an ordinance involving the display of outdoor signs. The ordinance did not allow outdoor signs to be displayed without a permit, but contained an exemption for 23 different types of signs. The relevant exemptions included: (i) Ideological Signs “communicating a message or ideas for noncommercial purposes,” (ii) Political Signs including any “temporary sign designed to influence the outcome of an election called by a public body” and (iii) Temporary Directional Signs Relating to a Qualifying Event” including signs “intended to direct pedestrians, motorists, and other passersby to a ‘qualifying event.’” Qualifying events include an “assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar non-profit organization.” Each type of sign was regulated differently under the ordinance, including different restrictions on size and areas where they could be placed.
Pastor Clyde Reed and Good News Community Church placed signs around town indicating the location of Sunday church services. The ordinance enforcement officer cited the church for violation of the ordinance’s time limits regarding sign placement as well as the ordinance’s requirements for including the date of the event on the signs.
The church sued the Town of Gilbert, challenging the sign ordinance as unconstitutional. The district court ruled against the church and granted the town’s motion for summary judgment, and the U.S. Court of Appeals for the Ninth Circuit affirmed. The church then appealed to the Supreme Court. The issue that the Supreme Court considered is whether the ordinance regulations were content based (e.g. regulations that target speech based on its communicative content), subject to the higher “strict scrutiny” standard, or content neutral (e.g. regulations of time, place and manner), subject to the less stringent, “intermediate scrutiny,” and, more broadly, how courts should determine whether a restriction is content based or content neutral.
The Supreme Court held that the sign ordinance’s restrictions were content-based regulations of speech that did not survive strict scrutiny. It found the sign ordinance to be “content based on its face” because “[t]he restrictions in the Sign Code that apply to any given sign . . . depend entirely on the communicative content of the sign.” Accordingly, “the Church’s signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas.”
Justice Clarence Thomas, writing for a unanimous Court (Justices Breyer and Kagan filed concurring opinions), explained in detail why the “communicative content of the sign” matters:
If a sign informs its reader of the time and place a book club will discuss John Locke’s Two Treatises of Government [which would make it a “qualifying event sign”], that sign will be treated differently from a sign expressing the view that one should vote for one of Locke’s followers in an upcoming election [a “political sign”], and both signs will be treated differently from a sign expressing an ideological view rooted in Locke’s theory of government [an “ideological sign”].
Further, the Court explained that a law that is content-based on its face - such as the Gilbert ordinance - is subject to strict scrutiny notwithstanding the government’s benign motives, content neutral justifications, or absence of “animus toward the ideas contained” in the speech being regulated.
The Court acknowledged that some narrow content-based exceptions might pass the strict scrutiny test if they are “narrowly tailored to the challenges of protecting the safety of pedestrians, drivers, and passengers.”
While the impact of the Court’s decision will become more clear over time, the Court’s expansive view of the types of laws that will now be subject to strict scrutiny is almost certain to lead to more First Amendment litigation. Municipalities should be prepared for these challenges regarding existing ordinances and should consult with their legal counsel when considering amending ordinances in light of the Court’s opinion.
1See, MCL §41.181 for general law townships; MCL §42.15 for charter townships; MCL §67.1 for general law villages; and MCL §117.3 for home rule cities.
2Square Lake Hills Condo Ass’n v Bloomfield Twp, 437 Mich 310, 318; 471 NW2d 321 (1991) (citations omitted).
3___U.S.___, 135 S Ct 2218, 192 L Ed 2d 236 (2015).