In Reed v. Town of Gilbert, the U.S. Supreme Court held unanimously that Gilbert, Arizona’s sign code, which treated various categories of temporary signs differently based on the information they convey, violated the First Amendment.
As the Court detailed in its majority opinion, Gilbert’s sign code restrictions on temporary directional signs regarding size, location and duration amounted to a content-based restriction of speech. Central to the Court’s opinion was the fact that temporary directional signs such as those used by the plaintiff, Pastor Reed, to direct parishioners to his church were treated less favorably than political signs and ideological signs.
Content-based laws are only constitutional if they pass strict scrutiny—if they are narrowly tailored to serve a compelling government interest. Despite arguments that Gilbert’s sign categories are based on function, the Court concluded they are based on content and, as such, must pass strict scrutiny.
Gilbert’s sign code failed strict scrutiny because its purposes—preserving aesthetic and traffic safety—were "hopelessly underinclusive," according to the Court. Temporary directional signs are "no greater an eyesore" and pose no greater threat to public safety than ideological or political signs that were not subject to the same restrictions.
As municipal attorneys study the decision, there appears to be a prevailing expectation that the Court’s decision would require many local governments to make modifications to existing sign laws, explained Tigerron Wells, the Association’s government affairs liaison. It may have broader implications than just the temporary sign restrictions that were the focus in Reed. Nevertheless, there also appeared to be consensus that the case should not be interpreted to overrule prior sign-related Court precedent.
Municipal officials should examine their existing sign laws in light of this case but not take extreme intermediate steps such as instituting an across-the-board moratorium on temporary signs. Such a move could temporarily solve one problem only to expose the municipality to other First Amendment claims.
This is an issue that will continue to receive much attention and legal thought in the coming months. The South Carolina Municipal Attorneys Association will discuss the issue during its annual meeting on December 4.