by John E. Motylinski (Fall 2015)

Many municipalities have ordinances that regulate the type, location, size, place, time, and manner in which certain signs may be displayed. These ordinances give municipalities the ability to forge their civic identity, reduce visual clutter, and ensure that motorists are not distracted while on the road.

But can a municipality attach different restrictions to signs based on their subject matter (e.g., “political campaign signs” versus “local event signs”) without violating the First Amendment? Up until recently, the answer was yes – federal courts routinely relied on a loophole that allowed them to find that such ordinances were not unconstitutionally content-based. However, the United States Supreme Court’s recent decision in Reed v. Town of Gilbert, Arizona, 135 S. Ct. 2218 (June 18, 2015), has closed that loophole. Accordingly, it is now doubtful that an ordinance that distinguishes between different subject matters would survive a constitutional challenge.

The Law Prior to Reed:  The “Subject Matter Loophole”

To understand the significance of Reed, it is necessary to review how the law operated prior to the case’s decision. Broadly speaking, the First Amendment prohibits state and federal governments from enacting laws abridging freedom of speech. As such, the government may not restrict speech because of its message, its ideas, or its content. Indeed, when a law restricts speech because of its content (“content-based laws”), the regulation is presumptively unconstitutional and can only be justified if the government overcomes strict scrutiny. Strict scrutiny is the most exacting type of judicial review, as it requires the government to show that its regulation is narrowly tailored to serve a compelling state interest. Laws subjected to strict scrutiny are often struck down.

In contrast to content-based regulations, content-neutral laws merely define the time, place, and manner restrictions. Importantly, these regulations do not depend on a message’s content. For example, an ordinance banning signs over eighty square feet would likely be deemed content-neutral because it would apply to every sign equally and without regard to content. Content-neutral laws are generally subject to a lower standard of review and more commonly upheld.

While these two categories of regulation seem neat and tidy, federal courts have had tremendous difficulty in uniformly categorizing challenged laws as content-based or content-neutral. Much of this confusion stems from Ward v. Rock Against Racism, 491 U.S. 781 (1989), where the U.S. Supreme Court seemingly held that there were only two types of content-based regulations: (1) the kind that restricts speech because of the idea it conveys; and (2) the kind that restricts speech because the government disapproves of its message. The implication was that everything else was content-neutral and, therefore, subject to a more deferential standard of review.

After the Ward case, many federal courts believed that the U.S. Supreme Court had created a “subject matter loophole” and began focusing solely on whether the government’s motive in enacting the at-issue law was malevolent or vengeful. As a result, these courts began classifying speech regulations that restricted entire subject matters as content-neutral – even though (as many parties had argued) a communication’s subject matter is a reflection of its content.

Over time, this theory became so ingrained in federal First Amendment jurisprudence that it became permissible to treat “real estate signs,” “landscaping signs,” and “moving signs” all differently. The case, however, upended this practice.

Closing the Subject Matter Loophole

The United States Supreme Court closed the subject matter loophole by holding that laws based on a sign’s subject matter are content-based and thus subject to strict scrutiny. In Reed the Town of Gilbert enacted a comprehensive sign code that placed differing restrictions on signs based on their subject matter.

One part of the sign code treated “ideological signs” (defined as any sign communicating a message or idea for noncommercial purposes) most favorably. However, another provision in the sign code treated “temporary directional signs” far less favorably. Indeed, temporary directional signs were only allowed to be six square feet in size and could not be displayed for more than twelve hours before the advertised event.

The Good News Community Church, the plaintiff in Reed, commonly placed temporary directional signs in order to advertise its meetings. Church members would typically post the signs early on Saturday and remove them around midday on Sunday. As a result, the Town of Gilbert fined the church for exceeding the time limits placed on temporary directional signs. The church sued Gilbert on the basis that the sign code violated the First Amendment.

In a rare unanimous opinion, the Supreme Court found that Gilbert’s sign code was unconstitutional. The U.S. Court found Gilbert’s sign code to be “content based on its face” because the sign code treated signs differently based upon the message they contained. Accordingly, Gilbert could not differentiate between different subject matters of speech without overcoming strict scrutiny, as subject matter classifications are inherently content-based. Because Gilbert failed to offer a compelling justification for its sign code, the Supreme Court struck the law down.

The First Wave of Post – Reed Cases

The implications of Reed will be colossal for local governments, and we have already begun to see its effects. For example, the Seventh Circuit has had to completely reverse course on a similar case it decided last year. In Norton v. City of Springfield Illinois, 768 F.3d 713 (2014), the City of Springfield enacted an anti-panhandling ordinance that prohibited oral requests for the immediate donation of money in the City’s historic downtown district. On review by the Seventh Circuit, the court found that this ordinance was permissible because it regulated the subject matter of speech and not the content of speech. In effect, Springfield was allowed to ban the phrase “give me money now,” because it did not express disapproval of the underlying message -a textbook application of the subject matter loophole. Accordingly, the Seventh Circuit found in favor of Springfield and its ordinance in its decision issued September 25, 2014.

After Reed was decided, the Seventh Circuit was forced to overturn its decision. In its written opinion issued August 7, 2015, the court first noted that “Reed understands content discrimination differently” than it did. (612 Fed. Appx. 386 (Mem) (August 7, 2015)) The court acknowledged that Reed had closed the subject matter loophole and had “effectively abolishe[d] any distinction between content regulation and subject-matter regulation.”

Therefore, the court held that laws that distinguish one kind of speech from another – such as Springfield’s anti-panhandling regulation – are not content-neutral and must undergo strict scrutiny. Because the City of Springfield offered no justification for its anti-panhandling law, the Seventh Circuit struck it down.

The Implications of Reed for Municipalities

The lessons of Reed v. Town of Gilbert and Norton v. Springfield are that local governments should be very careful when fashioning sign ordinances. Unlike before, localities now cannot rely on the subject matter loophole and discriminate against signs on the basis of their subject matter. As a concrete example, municipalities can no longer treat “garage sale signs” more or less favorably than “political campaign signs” without first overcoming strict scrutiny – an uphill battle with a low likelihood of success.

Following Reed, it is imperative that local governments craft and revise their signage restrictions to be content-neutral. This will require the removal of any trace of a subject matter classification. If a local government fails to comply, it may well face the wrath of Reed in the near future.