Defensible Regulations For Effective And Context-Sensitive Signage (Reed vs. Town of Gilbert SCOTUS Decision)
Jeffrey N. Katims, AICP, CNU-A
Managing Principal, the Mellgren Planning Group
Fort Lauderdale, FL
Kathryn M. Mehaffey, Esq.
Partner, Weiss Serota Helfman Cole & Bierman, P.L.
Fort Lauderdale, FL
Florida American Planning Association
2018 Annual Conference
First Amendment and Sign
Regulation
Protected Speech,
Expressive Conduct
Lower Level
Protection
Not Protected
Flag desecration
Racist/sexist comments
Political
Religious
Social commentary
“I Hate Trump”
Blasphemy/heresy
Commercial Speech
Erotic or Adult
Entertainment that
does not meet the
legal definition of
“obscene”
Defamation
Obscenity or child
pornography
Perjury
Fighting words
Criminal conspiracies
Threatening life of President
or VP
Violent or destructive acts
Deceptive commercial
speech
Types of Speech
Ideological / “Noncommercial Speech”
Types of Speech
Commercial Speech
Protected at “lower level”
Information unrelated to “any direct contribution to the interchange of ideas.”Virginia State Bd of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976) (Stewart, J., concurring).”
Understanding the Why
Litigating the Sign Case
Typical Land Use Case – City Usually WinsSee, e.g., Haves v. City of Miami, 52 F.3d 918 (11th Cir. 1995).
De novo review: After-the-fact justification
allowed.
Rational basis: Is the regulation rationally related
to a legitimate governmental interest?
Fairly debatable standard: If it’s a tie, the
government wins
Presumed constitutional
Understanding the Why
Litigating the Sign Case
Signs - City May Likely to Lose (Reed changed things)
See, e.g., Tipp City v. Dakin, 929 N.E.2d 484 (Ohio App. 2 Dist. 2010)
Not presumed constitutional
Generally, no greater regulation than necessary to advance a substantial governmental interest
If content based – narrowly tailored to achieve a compelling governmental interest
REQUIRES detailed statement of intent (and record)
Establish the governmental interest
Establish that the regulation advances the interest
MUST BE DONE AT ADOPTION – cannot be after the fact
Understanding the Why
Litigating the Sign Case
Federal court - Civil rights case
Fees$$$$$
Money damages also possible
Burden of proof is on the government
Sign regulation is a source of considerable
legal risk – be careful!
Understanding the Why
Litigating the Sign Case
General cases – deference to government’s
discretion and policy choices
BUT First Amendment cases:
No deference given to the local government
discretion
Using discretion creates real legal risk
Issues in Regulating Signs
Content Neutral Regulation is required
Rule is not based on message –
Example: Regulate “temporary signs”, not “political signs” or “campaign signs”
Viewpoint Neutral Regulation is required
Rule applies to all speakers equally and does not vary by message
“narrow, objective rules,” not tied to message, that are consistently enforced
Issues in Regulating Signs
Prior Restraint – a government action that prohibits speech or other expression before it can take place
Deadlines for City for each step in process
Sign permit review should be administrative
Sign variance procedure must also comply with prior restraint requirements
15
A sign permit application submitted
10 days – City completeness review
5 days - additional completeness review for resubmittal
Process continues until determined “Complete” of
applicant requests “As Is” review
30 days after compete application received – City
approve or deny (in writing) permit
30 days from denial to file appeal to City Council
Council must consider and decide appeal at next meeting
at least 25 days after receiving appeal notice
Denial – relief from Circuit Court
Issues in Regulating Signs
- The Permitting Process
Issues in Regulating Signs
No governmental review of message content
Rule has no relationship to message content
Focus: regulate time, place and manner
Sign programs – rarely litigated
Issues in Regulating Signs
No “one-size-fits-all” solution exists
Desired outcome dictates customized strategies
Most codes have legal issues, so borrowing can be problematic
Governing law is very fact-sensitive, evolving and unpredictable
Regulate the Medium (Non-communicative aspects), not the Message (communicative aspects)
Medium v. Message
THE MEDIUM IS NOT THE MESSAGE
MANTRA
We regulate
the medium, not the message
TPM Rules
Apply without regard to message
Size
Height
Setback
Illumination
Separation
Location
Display method
Form/sign type
Reed v. Town of Gilbert – a brief synopsis
Before Reed, predominant test for whether a law
was content-neutral
The flexible test: Ward v. Rock Against Racism
– a law is content neutral unless -
It restricts speech because of the ideas it
conveyed; or
It restricts speech because the government
disapproves the message.
Reed v. Town of Gilbert – a brief synopsis
Plaintiffs were a small church without a
permanent facility, its pastor, and its
members
Weekly display of temporary directional
signs to guide people to their services
Town of Gilbert is a suburb of Phoenix, with
a population of almost 250,000
Two Primary Regulatory Distinctions
Size of permitted signs
Duration of display
Maximum sign sizes in Town of Gilbert
Political signs (nonresidential zone) (32 sq. ft.)
Qualifying Event signs (6 sq. ft.)
Ideological signs (20 sq. ft.)
Nonpolitical, non-ideological, non-commercial
“qualifying event” signs:
12 hours before - 1 hour after the event
Political temporary signs:
60 days before - 15 days after elections
Town of Gilbert – Sign Duration
Town of Gilbert – Sign Size
“Qualifying Event” signs
“Political” signs
Majority Opinion – Justice Thomas
“Government regulation of speech
is content based if a law applies
to particular speech because of the
topic discussed or the idea or
message expressed.”
Maximum sign sizes in Town of Gilbert
Political signs (nonresidential zone) (32 sq. ft.)
Qualifying Event signs (6 sq. ft.)
Ideological signs (20 sq. ft.)
NEW RULE
If you have to look at what the
sign says in order to determine
what regulations apply, the
regulations are content based
The concurrence of Justice Alito
Preserved TPM regulations size based on any content-neutral criteria
location
Distinguishing between placement of signs :
on public and private property;
on commercial and residential property
on-premises and off-premises
Grand Opening Sign
What is it?
Classification/Function
Political Sign
Menu Board Sign
Construction/Contractor Sign
Grand Opening Sign
Special Event Sign
Garage Sale Sign
Real Estate Sign
Movie Theater Sign
Model Home Sign
Development Sign
Directory Sign
Wayfinding Sign
Identification Sign
What it Means…
Reed forces us to evaluate and change our
mindset
Cannot regulate by purpose or function
A new “safe” regulation can still be
problematic if it is based in a content-based
definition.
Ex - Sign, banner. A temporary sign, having characters,
letters or illustrations, if any, applied to cloth, paper,
plastic, or fabric of any kind, with only such material for
backing. such as used to announce open houses, grand
openings or special announcements.
The HOW
Legislative Intent
Governmental Purpose
Severance
Pull all government speech out of sign code
Approval process – tight timeframes for
applicant AND City
Eliminate or limit permit exceptions
Definitions
The HOW
Signs in the right of way – all or nothing
Prohibited signs - get rid of exceptions
Temporary signs
Substitution
Must allow non-commercial signage –
everywhere – to the same extent you allow
commercial speech – 32 sq.ft. temporary sign
with an active building permit? 32 sq.ft. non-
commercial signage
Uniform Treatment between temporary commercial
signs and temporary noncommercial signs is KEY
Exemptions to a general prohibition are often not
content-neutral.
De-regulate temporary commercial signage with
caution.
Commercial speech cannot be favored over
noncommercial speech (before and after Reed)
If you open the door for greater temporary
commercial signage (such as Temporary Sign During
an Active Building Permit), then to avoid favoring
commercial over noncommercial speech you must
open the door at least as wide for noncommercial
signage
Temporary signs after Reed
Non-commercial signage
Cannot be less than what is permitted in similar
temporary commercial signage categories
Sign Budget
Allotment of certain square footage (any number)
Up to a total of 12 sq.ft. with no individual sign exceeding 3
sq.ft.
Allotment of number of signs (with size limits)
Extra signage?
90 days enough?
Year round “Free Expression” Sign
Temporary or permanent?
Temporary signs after Reed
How do you deal with election season??
Remove content language from regulations AND
definitions
Sign identifying property which is available for
sale, lease or rent
Sign sizes no larger than non-commercial allotments
Linmark does not preserve other types of real
estate signs (open house, sold, waterfront, etc.)
In addition to the real estate sign, one temporary sign, no larger than
four square feet, may be erected on a property which is open for
inspection. Such sign shall be posted only while the property is open
for inspection and shall be removed at the completion of the
inspection hours, and during non-supervised hours.
One additional sign, not to exceed 2 sq.ft. may be attached to the
face of the real estate sign upon execution of a contract for sale,
lease or rent until closing has been completed.
Temporary signs after Reed
Real Estate Signs - Linmark
What is it – now?
Temporary sign during
period of active building
permit.
Only during active building
permit but not to exceed a
period of one year
Temporary sign upon
issuance of a new Business
Tax Receipt.
14 day period during first 60
days after issuance of BTR.
Problem - Before Reed: an exemption for “drive-in” or
“menu” sign
Concrete solution: regulate signs based on activity or
physical characteristic on the site, not sign content
After Reed: allow an extra sign for a lot that
includes a drive-through window(X sq. ft., Y height,
and within six feet of a drive-through service lane),
Troubleshooting Examples
Problem: how should a community legalize address signs?
Concrete solution: exempt an extra sign, of that size and location
“Every parcel shall be entitled to one sign <36 sq. inches in
surface area to be placed in any of the following locations:
On the front of every building, residence, or structure;
On each side of an authorized United States Postal Service
mailbox;
On one post which measures no more than 48 inches in height
and 4 inches in width.”
Treat as compelled speech? – and compel it outside of the sign code
Troubleshooting Examples
Stadiums, Gas Stations, Theme Parks, Multi-Tenant Centers
Different From Regulating by Zoning District
Speaker-Based Regulation? Per Thomas Opinion, Not Automatically
Invalid BUT treat ALL similarly situated speakers the same!
Regulation by Land Use
A government’s control over its own property is the exercise
of proprietary power rather than regulatory power.
Governments generally have broad discretion in their
proprietary realm.
Governments generally have more regulatory authority in
limited public forums. (see ex. Northeastern Pa. Freethought Soc’y v.
Cnty. of Lackawanna Transit Sys., 2018 WL 3344910 (M.D. Pa. Jul. 9, 2018))
Implication:
Sign codes should be strictly defined to apply to private
speech on private property – exempt local government
from sign code
Do not allow private speech of any kind to be placed on
public property
Traffic control devices
Government Speech
and Other Issues
Simplify - content neutral does not necessarily mean a
more permissive or complicated sign code
Provide substitution clause
Provide clear severance language
Provide prior restraint application procedures
Reduce permitting exceptions
Eliminate ALL exceptions in the prohibited sign list
Minimize discretionary review (including aesthetics)
during sign permit review
To Do List:
Reduce the number of sign categories
Consider deregulation of some signage categories AND a
flat ban on others
Both extremes are more likely to withstand constitutional
scrutiny after Reed than a nuanced regulatory scheme with a
different regulation for each type of sign
Convert to other procedures – Flags Special Events
To Do List:
Thomas and Alito both allow for regulation of the size,
shape, location, illumination, and other physical attributes
of signs, so long as distinctions are not drawn on content
Advantage of master sign plan – usually approved at time of
site plan, before anyone is seeking a sign permit and is
unrelated to particular message. Can incorporate into
overall aesthetic review, and need not worry about prior
restraint timeframes.
Businesses may assert protection under Lanham Act, but it
is limited to the actual registered mark and not associated
attributes. Cannot require alteration of a mark.
Florida Statute – 553.79(20) – Trademarks, Logos, Gasoline
Prices
Special Notes