Tennessee Billboard Law Ruled Unconstitutional

A 45-year-old, outdoor-advertising act in Tennessee has been declared unconstitutional by a Memphis district judge, because of content-neutrality issues. An April 3, 2017 article in U. S. Today states, “U.S. District Judge Jon P. McCalla said the 1972 law ‘does not survive First Amendment scrutiny’ because it bans some forms of commercial and non-commercial speech based on content.” McCalla cited the 2015 Reed v. Gilbert SCOTUS decision in his ruling.

The article also states, “Thomas’ suit attracted allies among limited-government groups such as The Beacon Center of Tennessee, which say that billboard laws, by allowing regulatory exemptions for certain types of messages, impose undue ‘content-based’ regulation of speech.”

To read the entire article, go to: http://www.commercialappeal.com/story/news/courts/2017/04/03/memphis-judge-throws-out-state-billboard-act/99984504/

FASI Board Member Alan Weinstein To Speak Twice at American Planning Association’s 2017 National Planning Conference

Alan Weinstein, an acknowledged expert on planning, who holds a joint faculty appointment at Cleveland State University’s Cleveland-Marshall College of Law and Maxine Goodman Levin College of Urban Affairs, and also serves as director of the colleges’ Law & Public Policy Program, will speak at two separate sessions at the 2017 American Planning Association’s National Planning Conference in May. Weinstein also serves on the Board of Directors of the Foundation for the Advancement of the Sign Industry (FASI) and the Academic Advisory Council for Signage Research and Education (AACSRE).   

First, he will join Philip Garvey and Jennie Blanchard (from the Larson Transportation Institute at Penn State University) to present “A Guide to National Sign-Illumination Standards,” which is based on Penn State research. The APA website states, “Learn about new, first-of-their-kind national sign-illumination standards.”

Next, he will join two people who spoke with him at last year’s APA national conference when they again address the monumental SCOTUS decision of Reed vs. City of Gilbert which was unanimously determined in 2016. Weinstein will be joined by James Carpentier, the Manager of State & Local Government Affairs for the International Sign Association (ISA), who will moderate the session, and Wendy Moeller, a board member of The Signage Foundation. The session is titled “What Do We Do Post-Reed?” and the APA website states “The U.S. Supreme Court’s 2015 ruling in Reed vs. Town of Gilbert created numerous sign-regulation issues for communities. Learn about the impact of the landmark case from experts who will review the decision, examine how subsequent federal and state court decisions have applied it, investigate how several jurisdictions have responded to it, and discuss common concerns with regard to it.”

To read Professor Weinstein’s report on the 2016 APA session on Reed vs. City of Gilbert, go to http://www.fasi.org/news/2016/7/26/reed-v-gilbert-session-at-apa-convention-attract-500-people?rq=weinstein.

Reed v. Gilbert Session at APA Convention Attracts 500 People

The following article was written by FASI Board Member Alan Weinstein, who participated in the American Planning Association session.

The American Planning Association (APA) recently announced attendance figures for sessions at its annual National Conference held this past April in Phoenix, Arizona.  The session that focused on the Supreme Court’s June 2015 ruling on sign regulations, Reed v. Town of Gilbert, AZ.  organized by ISA’s James Carpentier, ranked #4 in attendance out of 170 sessions, and drew nearly 500 attendees.

James worked with the APA Arizona Chapter Host Committee to have the session proposal submitted on behalf of the Host Committee, which helped to ensure the session would be accepted.  The session, which James moderated, featured four speakers:

  • Mark White Esq., Principal in White & Smith, LLC, a law firm in Lee’s Summit, Missouri;

  • Wendy Moeller, Principal in Compass Point Planning, a planning consulting firm in Blue Ash, Ohio;

  • Professor Alan C. Weinstein, a member of the FASI Board, holds a joint appointment in the Cleveland-Marshall College of Law and Maxine Goodman Levin College of Urban Affairs at Cleveland State University in Cleveland, Ohio;

  • and Karen Melby, Senior Planner for the City of Sparks, Nevada.

White led off the session with a review of the factual background of the Reed case and an analysis of the legal rules established by the case. He focused on Justice Thomas’ majority opinion that established that any regulation which, on its face, requires that government consider the content of a sign in order to determine its regulatory treatment, is content-based.

Next, Weinstein, who also serves on the Board of the Academic Advisory Council for Signage Research & Education, discussed how courts have been applying the Reed decision in challenges to sign regulations. Professor Weinstein noted that, after Reed, some courts have struck down, as content-based, regulations that had been found to be content-neutral before Reed.  He also noted that no court had yet applied Reed to regulations of commercial signs and, while most courts had ruled that Reed did not apply to regulations that distinguished between on-site and off-site signs, one federal district court had found such a regulation to be content-based under Reed.

Moeller, who also serves as a Trustee for The Signage Foundation, next discussed how local governments can revise their regulation of temporary, non-commercial signs to come into compliance with Reed. This is precisely the type of sign at issue in Reed, so, unquestionably, the case calls into doubt any content-based regulation of such signs. Moeller’s advice on this issue can be found in a recent APA publication she co-authored with Professor Weinstein: “Practice: Temporary Signs,” in the February 2016 issue of Zoning Practice.

The final speaker, Melby, discussed how the City of Sparks, Nevada, had recently adopted a content-neutral sign code. Her remarks focused not only on what the code contained, but also on the process the city had used to bring stakeholders together to reach consensus on the content-neutral approach.

What has Senator Orrin Hatch Said about Signage?

In 1998, the former Signage Foundation for Communication Excellence presented its National Sign Users’ Conference on Sign Regulation and Marketing, in conjunction with the International Sign Association and its Sign Expo ’98 tradeshow. The keynote speaker at the conference was Senator Orrin Hatch (R-UT). The following are some highlights from his address.

“My topic today is the state of the law, particularly Constitutional law, as it applies to commercial communication. The term. of course, includes signs, billboards and the like, legitimate forms of communication. I believe government regulation has become burdensome, often times unconstitutional.

Advertising has been part of our culture since colonial times. Defense of political and commercial speech was recognized by the common law. It has been recognized since day one in this country. In America, the printed word was given greater protection than it was in mother England. Indeed, respect for the printed word was so great that printers were often considered heroes of the Revolutionary War and the new Republic. Witness Ben Franklin, for example.

At the time, legislatures could only prohibit advertising that was fraudulent or misleading. It was not until 1975, in the Bigelow v. Virginia case, and in 1976, in Virginia Board of Pharmacy v. Virginia Consumer Council Inc., that the Supreme Court held that the First Amendment protected truthful and non-misleading commercial messages. The public has an interest in receiving accurate commercial information, and the government has little or no correlative interest in censoring the content of the message.

The Supreme Court recognized a state may regulate commercial advertising more freely than political speech. It may also impose a content-neutral set of restrictions on the time, place or manner of speech. But it may not completely ban the speech.

The content-neutral restrictions often are used merely as an excuse. Other sign codes delegate almost unfettered discretion to bureaucrats. In challenging these restrictions, apply the commercial-speech test of Central Hudson Gas & Electric Corp. v. Public Service Commission in 1980. Here, the government bears the burden of justifying a restriction on commercial speech. The four-part test requires:

  • Is the speech a lawful activity and not misleading?
  • Is the asserted governmental interest substantial?
  • Does the restriction directly advance that interest?
  • Is the restriction narrowly tailored to advance that interest?

In Forty-Four Liquor Mart Inc. v. Rhode Island, in 1996, the Supreme Court increased the protection by subjecting the restrictions to a more strict review. It struck down a prohibition on advertising the price of alcoholic beverages.

Besides First Amendment implications, regulation of sign advertisements raises Fifth Amendment property-rights concerns. Our founders knew from the beginning of the creation of the Republic the importance of property rights. It’s one reason why we have our tremendous wealth and free-market system. Our founders feared that the government they helped form might use its power to abuse the people it was designed to protect.

John Adams, the second president said, “The moment the idea is admitted into a society, that property is not as sacred as the law of God, and as there is not force of law and public justice to protect it, anarchy and tyranny commenced.”

The Father of the Constitution, James Madison, in his celebrated essay on property, wrote that the very purpose of government is to protect private property. That’s why the last clause of the Fifth Amendment was added to the Bill of Rights. Known as the “Takings Clause,” it states, “Nor shall private property be taken for pubic use without due process of law, nor shall private property be taken for public use without just compensation.”

With the growth of government at all levels — federal, state and local — private property has become increasingly under attack. Too often, localities abuse zoning powers by restricting sign advertising on so-called “aesthetic” grounds. Too often, localities misuse the nuisance doctrine to prohibit otherwise legal advertising.

in the 1992 Lucas v. South Carolina Coastal Council Supreme Court case, it struck down zoning regulations that would have forbid the building of a beachfront home. The court said the locality must factually demonstrate that the use of the private property is engendering some concrete danger. Mere aesthetics may not be enough.

FASI Board Member Prof. Alan Weinstein Addresses APA Conference about Reed v. Gilbert

Law professor Alan Weinstein, a board member of the newly formed Foundation for the Advancement of the Sign Industry, was one of three people associated with sign-industry groups who spoke at a session on sign regulation at the American Planning Association annual conference, April 4, in Phoenix, Arizona. Speakers at  the session, entitled “Regulating Signs after Reed v. Town of Gilbert,” also included Wendy Moeller, AICP, a board member of the The Signage Foundation, and James Carpentier, the Director of State & Local Government Affairs for the International Sign Association.

Weinstein holds a joint faculty appointment at Cleveland State University’s Cleveland-Marshall College of Law and Maxine Goodman Levin College of Urban Affairs, and also serves as director of the colleges’ Law & Public Policy Program. A recognized expert on planning law, he has written more than 80 articles/books on this subject. http://www.nxtbook.com/nxtbooks/STMG/sott_201508/index.php#/66 includes his observations on Reed v. Gilbert’s ramifications, and he also wrote an article about this for The Signage Foundation (SFI), http://www.thesignagefoundation.org/Portals/0/SFI%20Analysis_State%20of%20Sign%20Codes%20After%20Reed.pdf

Weinstein twice presented at the National Signage Research & Education Conference (NSREC) at the University of Cincinnati. NSREC is presented annually by SFI. Weinstein also serves on the Board of Directors of the Academic Advisory Council for Signage Research & Education (AACSRE), a group of 17 universities with a common interest in sign-related research.  

Is Your Sign Code Content Neutral? Reed v. Gilbert Warns that it Should Be.

Quite often, sign codes are primarily governed by their definitions. Many of the definitions are about types of signs: temporary, projecting, banners, fascia, freestanding, pole-mounted, etc. Quite often, however, signs are defined by their contentpolitical, real estate, commercial, yard sale, etc. If a sign is blank, you can still tell what kind of sign it is by the first grouping. However, for the second group of signs, you can only tell which type of sign it is by reading it.

This presents a problem if one group is given preferential treatment over another group. This concept is called content neutrality, and courts historically have been inconsistent in their rulings. However, that all changed on June 18, 2015, when the Supreme Court of the United States (SCOTUS) ruled unanimously in favor of content neutrality in Reed vs. Gilbert. Based on that ruling, a vast majority of existing sign codes, if challenged, would be ruled unconstitutional.

Clyde Reed’s church in Gilbert, AZ didn’t have a permanent home, so it needed to announce its location and topic each week on a sign. The Gilbert sign code deemed it a “temporary directional sign” and limited its size to 6 sq. ft., and a duration of 12 hours before the service, and one hour afterward. In contrast, “political signs” could be 32 sq. ft., and their duration was only limited to the election season.  A third category – “ideological signs” – which was a catch-all category, could be 20 sq. ft., with no time or placement restrictions.

For a city to enact content-based restrictions, it must employ “strict scrutiny,” which means it must demonstrate a “compelling interest,” and show that the restrictions are “narrowly tailored” to serve that interest.

Reed was originally cited for exceeding the time limits with his signs. He filed against these rulings and, amazingly, multiple appellate courts upheld the Gilbert sign code.

Justice Clarence Thomas, in delivering the opinion of the Court,  succinctly stated, “We hold that these provisions are content-based regulations of speech that cannot survive strict scrutiny. . . The Town’s Sign Code is content based on its face . . . The restrictions in the Sign Code that apply to any given sign thus depend entirely on the communicative content of the sign. . .”

In another landmark SCOTUS case in 1999, North Olmsted Chamber of Commerce v. City of North Olmsted, the city’s 1991 sign code was found to not be content neutral, along with the sign code en toto (entirely), so all of the sign code’s prohibitions were thrown out. An overview of that court case also appears in this website’s Sign Code section.

Read More: Here & Here.

SGIA Journal’s January/February Issue Features FASI Article on the Reed v. Gilbert Aftermath

Wade Swormstedt, the Executive Director for FASI, wrote an article for the SGIA Journal’s January/February 2017 issue entitled “Content Neutrality and Signs: The Reed v. Gilbert decision and the aftermath.” Although the actual article is only available online to subscribers, the basic copy is presented here.

On June 18, 2015, the Supreme Court of the United States (SCOTUS) unanimously agreed that a Gilbert, Arizona sign code violated the First Amendment freedom-of-speech rights of Rev. Clyde Reed and his Good News Community Church. The decision potentially made virtually all U.S. sign codes unconstitutional because of the concept of “content neutrality,” which concerns the regulation on signs based on what they say. Reed v. Town of Gilbert is undoubtedly the most important sign-related court case of the past 35 years.

The background

Rev. Reed’s church held its Sunday services at different facilities, so it needed temporary signs each week to announce the location and time of its service. The signs would be posted on Saturday and removed on Sunday. The Town of Gilbert cited him for exceeding the time limits in 2005. Reed filed suit, based on freedom-of-speech issues.

Between 2005 and the SCOTUS decision, of course, several of Reed’s appeals were turned down. A group called Alliance Defending Freedom took up Reed’s cause. (A more complete report on the entire sequence of events, in addition to some commentary from Cleveland State University law professor Alan Weinstein, was published in the August 2015 issue of Signs of the Times magazine. It can be read online in a digital edition at http://www.nxtbook.com/nxtbooks/STMG/sott_201508/index.php#/64.)

SCOTUS Justice Clarence Thomas noted the town exempted 23 categories of signs from needing permits. Three of these categories were Ideological Signs, Political Signs and Temporary Directional Signs Relating to a Qualifying Event (which characterizes Reed’s signs). Ideological signs could be a maximum of 20 square feet, with no time limits. Political signs could be 16 square feet (on residential property) or 32 square feet (otherwise) with a time limit of 60 days prior and 15 days after an election. The temporary directional signs were limited to 6 square feet with a 13-hour time limit (12 hours before and 1 hour after the event).

Verbatim excerpts from the Thomas opinion are as follows:

“On its face, the Sign Code is a content-based regulation of speech. We thus have no need to consider the government’s justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny.” (The 1980 Central Hudson SCOTUS case established the “strict scrutiny” requirement that states governmental restrictions are permissible if the governmental interest is “substantial,” if the restriction “directly advances” the governmental interest, and if the restriction is no more extensive than necessary.)

Thomas continued, “The restrictions in the Sign Code that apply to any given sign thus depend entirely (emphasis added) on the communicative content of the sign.”

What this means for sign codes

In other words, SCOTUS clearly showed that signs can’t be regulated differently, based on their content. Quite often, the definitions in a sign code are more important than the regulations themselves. Typically, these definitions are fraught with discrimination. A red flag should arise when any sign code has dissimilar regulations for such things as political signs, real-estate signs, religious-organization signs, etc. The ONLY way to distinguish these signs is the CONTENT; thus, dissimilar regulations favor one type of speech over another.

In contrast, a sign code that stipulates different regulations for banners, projecting signs, freestanding signs, etc. IS content neutral, because the message on the sign isn’t a factor.  As SCOTUS Justice Samuel Alito cautioned, in a concurring opinion, “This does not mean, however, that municipalities are powerless to enact and enforce reasonable sign regulations.”

Additionally, most sign codes violate the content-neutral concept much more for temporary signs than for permanent signs. Additionally, while temporary signs are already difficult to regulate, the more restrictive the regulations for permanent signage, the more likely that people will resort to using more temporary signs, which exacerbates the temporary-sign conundrum.

Planners’ reactions

Expectedly, the Reed decision immediately caught the attention of city planners — the people who write local sign codes. The American Planning Association (APA), which has more than 35,000 members, held its annual National Planning Conference in April 2016. Planners deal with myriad civic issues, so signs are typically a very minor, yet often perplexing, concern. The annual APA conference typically offers more than 150 sessions, and only 1-3 are related to signs.

However, the 2016 conference’s April 4, 10:30 am session, entitled “Regulating Signs after Reed v. Town of Gilbert,” attracted more than 500 people and ranked #4 out of the 170 sessions, reported Professor Weinstein, who was one of the four speakers in the session. James Carpentier, who serves as the manager of state and local government affairs for the International Sign Association, was instrumental in having the session placed on the docket. He served as the moderator of the session.

Another speaker, Wendy Moeller, formerly served as president of the Ohio chapter of the APA. Last year, Moeller conducted a survey of cities nationwide and produced a report called Best Practices in Regulating Temporary Signs. (Her full report, as well as an executive summary of it, can be found on The Signage Foundation website (www.thesignagefoundation.org).) In the aftermath of Reed, Moeller revised the study and co-authored, with Professor Weinstein, “Practice: Temporary Signs,” in the February 2016 issue of Zoning Practice.

Writing sign codes presents numerous obstacles for city planners, because the vast majority never received any collegiate instruction related to signage. Thus, planners typically seek existing sign codes, at least as a starting point, to write their own codes. But, as a subset of overall sign codes, the regulation of temporary signs is even more challenging, thus Moeller’s research provides some guidance in two ways.

Court reactions

In its May 2016 online edition, the Harvard Law Review, in an article entitled “Free Speech Doctrine After Reed v. Town of Gilbert, wrote, “In Thomas v. Schroer,79×79. 116 F. Supp. 3d 869 (W.D. Tenn. 2015). the District Court for the Western District of Tennessee found that a sign code distinguishing between off-premises and on-premises signs was content based.” HLR continues by saying the federal government is worried enough about Reed that it filed an amicus curiae (“friend of the court”) brief with regard to the Federal Highway Administration’s Highway Beautification Act (HBA), which has governed billboards within 660 feet of the federal highway since 1965 in various iterations. Such briefs offer related perspective to a case in which the provider isn’t directly involved. HLR said a challenge to the HBA is “inevitable.”

In Springfield, Illinois, a prohibition of pan-handling signs had been upheld. After Reed, the decision was overturned by the same court. HLR wrote, “Rather than limiting the amount of protected speech subject to government regulation, Reed requires legislatures to regulate all speech in order to regulate any speech.” In other words, cities may subsequently be more restrictive of ALL signs in order to not be too restrictive on a few.

Soon after the decision, an August 15, 2015 New York Times article stated, “The court struck down a South Carolina law that barred robocalls on political and commercial topics but not on others. Last week, a federal judge in New Hampshire relied on Reed to strike down a law that made it illegal to take a picture of a completed election ballot and show it to others.”

End users’ reactions

In the shadow of Gilbert, the city of Chandler was sued in August 2016 by the Goldwater Institute, which is currently representing five businesses, including three shopping centers. Although the suit stemmed from a dispute about setback and property lines, it blossomed into a broad-based, legal challenge holding that Chandler’s sign code is “impermissibly vague” and alleging that it “imposes an unconstitutional prior restraint and is unequally and arbitrarily applied.” It specifically references Reed v. Gilbert and says Chandler’s sign code imposes different rules based on signs’ “communicative content.”

The Goldwater Institute website explains: “The City of Chandler—right next door to Gilbert— imposes different rules for signs based on what they say, and who is saying it, in direct contradiction to the Supreme Court’s Town of Gilbert ruling. Chandler’s sign code forbids some signs, requires permits for others, and allows still others without any permit—all depending on what signs say. The code divides signs up into 11 different categories based on the messages they convey, and imposes different size and location requirements to the different categories. Thus no permit is required for “political signs,” “grand opening signs,” or “residential real estate” signs, but a permit is required for “development signs,” “subdivision direction signs,” and “non-residential real estate signs.”

Meanwhile, in nearby Tucson, the 1985 sign code will probably be significantly revamped early in 2017. Changes in definitions based on content neutrality are likely to occur, but the triumvirate of Dark Skies, the Sierra Club and Scenic Arizona are resisting any changes. In the interim, a sign company trying to retrofit a legal, nonconforming, fluorescent sign with an electronic message center (EMC) is being denied. EMCs are allowed in the sign code.

Less than a month after the Reed decision, three counties in the metro Atlanta area – Cherokee, Forsyth and Hall –ad opted moratoriums so they could re-examine their sign codes. Similarly, in Garfield Heights, OH, the Supreme Court reversed a pre-Reed decision that had sided with the city, concerning the removal of a sign, placed on a lawn, that criticized a local councilwoman. In Norfolk, VA, Central Radio Co. revised its suit against the city, which had demanded that Central Radio remove a sign that criticized the city for enacting eminent domain and taking its property.

The general aftermath

Robert Niles, writing for Bloomberg BNA’s The United States Law Week (April 18, 2016 edition), said, although Reed could conceivably be interpreted to mean that strict scrutiny (which stems from Central Hudson) would apply to all speech, lower courts were still making a distinction between commercial and non-commercial speech, and applying intermediate scrutiny to commercial speech.

He writes: Nowhere in Reed does the court suggest that it intended to upset commercial speech doctrine: Reed doesn’t discuss Central Hudson or other of the court’s commercial speech cases.”

Niles continues: “Though Reed will certainly have substantial impact on free speech doctrine in challenges to regulations of non-commercial speech, the first wave of lower-court decisions suggests that reports of the death of government regulatory power in the face of First Amendment challenge after Reed were greatly exaggerated.”

In other words, cities, although reticent at first, will continue to write sign codes with whatever level of restriction they prefer, but they will have to be more careful. Instead of defining signs by content, they will probably define them by physical characteristics. This doesn’t, in any way, infringe free speech.

Again, the general fear for the sign industry is that cities, worried about being inconsistent, will simply place restrictions on ALL signs.

Summary

The Goldwater Institute has produced an article called “Heed Reed,” with a subtitle of “Guideposts for Amending City Sign Code’s.” The 2600-word document can be obtained from the institute. Here are its summary suggestions for establishing sign codes post-Reed.

“In light of Reed and changes in state law, local sign codes around the state must be revised. Doing so need not be difficult, so long as the guidelines set out in this report are followed. Following these guidelines will not only protect free speech, but will also lead to simpler sign codes that are easier to follow and enforce, and protect taxpayers from costly and time-consuming lawsuits.

·         If a sign code requires enforcement officers to read a sign to determine whether it violates the code, the code is probably content based and violates the First Amendment.

·         Commercial messages cannot be treated differently than other types of messages.

·         Signs must be allowed in public rights-of-way.

·         Sign walkers cannot be restricted from holding up signs on public sidewalks.

·         Sign codes must be easy to understand, and (a) clear standards that do not allow enforcement officials to pick when to enforce the restriction, (b) a definite time limit within which a permit will be granted or denied, and (c) an opportunity for meaningful judicial review in the event the permit application is denied. Cities should avoid permit requirements whenever possible.

·         If a municipality determines that removing or allowing a particular sign is integral to traffic safety, it must provide clear evidence that justifies its determination.”