On June 18, 2015, the Supreme Court of the United States rendered an important First Amendment decision regarding the constitutionality of restrictions on the posting of signs. In Reed v. Town of Gilbert, the Court held that restrictions based on the type of sign sought to be posted are content based restrictions and are subject to the highest level of review under the First Amendment.
The Town of Gilbert had enacted a sign ordinance which created several categories of signs, each with different rules and limitations based on the type of message conveyed by the sign. The plaintiff was a small church which sought to post signs advertising the time and location of its Sunday services, which varied from week to week as it had no building of its own. Because the signs related to specific events, the Town categorized them as “Temporary Directional Signs” and placed significantly more onerous limits on the posting of the signs than if they had fallen into one of the other categories. Because the Church signs exceeded these limitations, the Town cited and fined the Church multiple times and even confiscated some of the signs.
The Church commenced a law suit challenging the ordinance, and both the trial court and the United States Court of Appeals for the Ninth Circuit held that the ordinance was valid and not content based because the categories did not consider the specific message conveyed but merely the type of message. The Supreme Court found that distinction untenable under the First Amendment. The Court held that as long as a law in any way considers the content of the message, it is a content based law and is subject to the highest level of scrutiny. Therefore, the ordinance was stricken as an unconstitutional infringement on free speech.
Daniel L. Schmutter is member of Hartman & Winnicki, P.C. and practices in the firm’s Litigation Department. He can be contacted at dschmutter@hartmanwinnicki.com.