In municipalities throughout South Carolina, elections are taking place this November. Election cycles bring with them election signs, and that means that many local governments are getting questions and complaints about those signs. These might come from the candidates themselves or their supporters, looking to place political signs, or they might come from the wider community of residents who have concerns about the visual clutter along their roadways.
Municipalities need to take special care, however, in how they respond to these concerns, as issues of political speech have constitutional considerations. The question of political signage in particular is informed by the 2015 U.S. Supreme Court case Reed v. Town of Gilbert.
Reed v. Town of Gilbert
The Town of Gilbert, Arizona, joined other municipalities which would historically set special rules for political signs in their zoning ordinances.
In Gilbert’s case, the town code allowed “the placement of political signs up to 16 square feet on residential property and up to 32 square feet on nonresidential property, undeveloped municipal property, and rights-of-way,” which “may be displayed up to 60 days before a primary election and up to 15 days following a general election.”
In the 2015 ruling, however, the U.S. Supreme Court found that applying special rules to “political signs,” — or indeed to any other category of sign, based on its content — is in most cases a violation of the First Amendment.
Gilbert’s sign ordinance created distinctions between ideological signs, political signs and temporary directional signs. The Court noted that determining which rules apply to a given sign depended on what message the sign conveyed, creating a content-based rule which is subject to strict scrutiny under the First Amendment.
Under the Reed decision, the law states that if a sign ordinance would require someone to read a particular sign to know what rule applies, then the ordinance probably violates the First Amendment, with only limited exceptions.
Can local governments regulate political signs?
Current case law makes the answer to this question very unclear. Generally, local governments can apply regulations based on content-neutral features.
This could cover a number of areas:
- Size, shape and height
- Font color and font size
- The amount of area featuring sign copy
- Illumination
- Number of signs allowed per parcel or by linear distance
- Length of time posted
- Materials
- Orientation and setback from the roadway
- Visual impact on motorists, including sightlines and obstruction
Addressing the Reed decision
Following Reed, many jurisdictions amended their sign codes to establish content-neutral rules applying to all temporary signs.
- Time – Reed seems to allow local sign ordinances to provide that all temporary signs have durational limits, based on the event or condition to which they relate. For example, local governments might allow all temporary signs of a given size — regardless of content — for a fixed period before and after a specific date, like a special event or an election.
- Location – Local governments can also regulate temporary signs based on location. A local ordinance could prohibit the placement of any temporary sign, regardless of message, within the public rights-of-way, on trees, on utility poles, or in certain designated zoning districts. Another possibility would be to allow each distinct parcel within the community to display temporary signs for a maximum number of days during a year.
The implications of Reed on a municipality’s signage regulation ability means that cities and towns should proceed carefully on matters of political signage. The South Carolina General Assembly has even seen legislation filed that would restrict the ability of local governments to regulate signage. For those local governments who engage in the complex matter of drafting or revising a sign ordinance, it is imperative that they engage their attorneys in the process.