Sign Regulation After ReedHector de la Mora, Von Briesen & Roper SCDouglas Hoffer, Eau Claire Assistant City Attorney

Have you revised your sign code post Reed? “It is nearly certain that every sign code

in the United States has a provision that is now legally questionable after Reed.”

Daniel M. Olson “Sign Regulation and Reed v. Town of Gilbert,” the Municipality, November 2015

Town of Gilbert Sign Regulation

Reed sign – violated code

Reed permissible political signs

More political signs

More political signs

More political signs

1st Amendment Considerations Not all content protected Content based speech regulations are presumptively

unconstitutional Content based laws will be upheld only if they are the

least restrictive means of achieving a compelling state interest

Commercial speech generally implicates lower level of scrutiny

Content neutral speech regulation is subject to lesser (intermediate) scrutiny Law upheld provided it is narrowly tailored to serve a

significant governmental interest

Reed Summary Decision reaffirmed the principle that

content based regulations are subject to strict scrutiny and presumptively unconstitutional

Majority opinion resolved the circuit split by requiring both facial content neutrality and a neutral purpose AND determined that a regulation’s purpose is irrelevant if the regulation is not neutral on its face.

Reed Summary cont’d Categorical signs, such as directional

signs, real estate signs, political signs, etc. are content based where they are defined by aspects of the sign’s message.

Regulations purporting to be speaker based may be considered content based and subject to strict scrutiny.

Provisions Your Sign Code Should Include Strong Purpose Statement

Reference comprehensive plan purpose Reference relevant studies (traffic safety, blight

elimination, impact on property values, etc.) Reference relevant laws supporting

governmental purposes (statutes, case law, etc.)

Substitution Clause (allowing non-commercial substitution)

Severability Clause

Provisions Your Code Should Remove or Avoid Content based distinctions

Ex. Political signs, real estate signs, etc. Signs exempt from regulation or permitting

due to type of sign Different treatment for different types of

signs Different treatment based on content of sign

Provisions conflicting with Wis. Stat. § 12.04 (political signs).

Provisions Your Code Likely Can Include Alito Concurrence

Rules regulating size of signs Rules regulating location of signs Rules distinguishing between lighted and

unlighted signs Rules distinguishing between fixed and

electronic/rotating messages Rules distinguishing between sign

placement on private and public property

Provisions Your Code Likely Can Include Alito Concurrence Cont’d:

Rules distinguishing between sign placement on commercial and residential property

Rules distinguishing between on-premises and off-premises signs.

Rules restricting the total number of signs allowed per mile of roadway.

Rules imposing time restrictions on signs advertising a one-time event.

Additional Considerations Suspend enforcement of provisions that

conflict with Reed Communicate with your Code Enforcement

officials Consider using Zoning Code as primary

vehicle to regulate signs Zoning districts include specific parameters for

Alito Concurrence categories Consider prohibition on signs within Right-Of-

Way

Defending Your Sign Code Reed did not overrule any prior cases

See Agostini v. Felton (Implicit overruling is disfavored)

Many rules favor constitutionality Ordinances presumed constitutional (note 1st

amendment burden shifts) High burden to challenge constitutionality (beyond

reasonable doubt) Courts must construe ordinances to eliminate

constitutional infirmity Severability presumed

Recommended Reading IMLA model sign code (available online) Tribe, Laurence, Applying the First

Amendment to Regulations Distinguishing Between Off-premises and On-premises after Reed v. Town of Gilbert.

Connolly, Brian J. and Weinstein, Alan C., Sign Regulation After Reed: Suggestions for Coping with Legal Uncertainty. (available online).