MML #1: Cities Reviewing Sign Ordinances in Wake of Supreme Court Ruling

MML #1: Cities Reviewing Sign Ordinances in Wake of Supreme Court Ruling
(Crystal A. Proxmire, March 22, 2016)
Lansing, MI – The Town of Gilbert, Arizona stuck to their guns on a signage ordinance and now communities across the country are taking a good hard look at their signage ordinances. The June 2015 decision in Reed vs. Town of Gilbert was the topic of a workshop at the 2016 Michigan Municipal League’s Capital Conference on Tuesday.
The case was relatively simple. Good News Presbyterian Church is a church without an established building. Congregants would meet at various locations including schools and other churches. Gilbert had an ordinance permitting event signage for 12 hours before an event and one hour after. Officials cited the church for not complying.
Pastor Clyde Reed sued on First Amendment grounds, claiming that Gilbert was infringing on his right to free speech.
The Supreme Court Unanimously agreed that Gilbert was in the wrong (a legal battle that cost the municipality over a million dollars). The opinions were split, however, as to the level of scrutiny that should be applied.
“Content-based laws… are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests,” the decision stated.
The Reed decision has already been used in other legal battles over signage and speech. In Cahaly v. Larosa a ban on robocalls in South Carolina was over turned. In Norton v. City of Springfield the Reed decision was used to protect the speech of panhandlers, noting that the government could not regulate conversations. And in Thomas v. Schroer a dispute over a billboard at a commercial business expressing non-commercial speech led the courts to use Reed to show that non-commercial speech could not be more regulated than commercial speech.
Reed was about non-commercial speech, specifically event signs. But experts at the MML Conference urged local officials to consider all sign ordinances.
“The important rule to remember is: if you need to read the message on the sign to determine how that sign is regulated, the ordinance is content-based,” said Larry Opalewski, an attorney with Dalton and Tomich.
The Reed decision also means that all content-based distinction is subject to strict scrutiny, meaning that the government must demonstrate compelling state interest to have an exception.
Opalewski joined with Daniel Dalton of the same law firm, Patrick Sloan of McKenna Associates and Director of Industry Programs at the International Sign Association Kenneth Peskin to share situations where the Reed case could be a factor for local governments.
On-Site v. Off-Site. “Onsite versus offsite is a very risky situation,” Opalewski said. The difference could mean if there is a billboard at McDonald’s, can the city force them to only display an ad for the fast food chain? What about if McDonald’s wanted to lease that space to another company, or to use it to advertise an event or support a candidate? Constitutionally there should be no difference.
Political Signs. Yard signs should not be regulated as “political signs,” since yard signs can have any message. More constitutionally-sound ordinances would call these “temporary signs.” Some communities only allow “temporary signs” during a certain timeframe, coinciding with Election Day. However, because there are multiple Election Days through the year and it can get to be time-intensive for staff, a good alternative is to allow people the option to display temporary signs for no more than a limited number of days per year.
Real Estate Signs. Real Estate signs also are temporary signs. “Whatever you allow for real estate agents you must allow for non-commercial and other commercial purposes,” Dalton said. This applies to signs that go on yards as well as directional signs for open house. He explained that the ordinance should work the same whether the sign is for a real estate open house, a yard sale, a sale at a business, a church event or a political rally.
Many communities have verbiage that dictates “only when the property is listed for sale or lease.” In additional to limiting speech and not being content-neutral, there are gray areas. For example, what if a property is for sale and is on the market for months or even years? Should the municipality regulate that? Also, what about apartment complexes that may be full but still want to accept applications?
Farm Stand Signs. Farm stand signs should have the same regulation as other temporary signs. An ideal ordinance would not differentiate between a farm stand sign or other temporary signs. Some communities may require a temporary land use permit to be pulled, however because all entities must treated the same having a permit process for some speech but not others could open the door to a lawsuit.
Permanent Directional Signs. Entrance and exit signs are sometimes regulated by local ordinance. These would be drive through signage for fast food, ATMs, pharmacies and other businesses, as well as basic signs that can guide drives in and out of parking lots. “Some ordinances allow directional signs, but prohibit commercial messages,”   Dalton said. An example would be the entrance sign to a bank parking lot. In a regulated circumstance, the sign could say “enter” or have an arrow, but would be barred from having the bank’s logo or branding. “This is problematic because you have to read the sign to tell what it is,” he said. Even more specifically, he urged against calling them directional signs at all. “For ‘content neutrality’ you should not call them ‘directional signs’ because that requires reading.”
Gasoline Sale Signs. Many communities have ordinances specific to gas station signage. Dalton recommended making ordinances neutral as far as business type. Government cannot favor one type of business over another, and having specific ordinances could do that.
Barber Pole. A surprising number of cities have ordinances regulating “barber poles.” Again this is an example of where one business type is getting preferential treatment over other types of speech. If a community has barber poles to regulate, it would be more equitable to call them “rotating signs” and to allow any kind of business to have one. “How is a barber pole different than other universal symbols? Why would a barber pole get different treatment or more space than other businesses?” asked Peskin.
Movie Theater. Ordinances about marquees are similar to those for the barber pole. It may be prudent to call movie theater marquees “wall signs” or “awning signs” to keep the regulations fair to all businesses.
Lighted, Flashing, Animated Electronic Displays. One inequity in ordinances often comes in allowing lighted signs for nonprofits or government buildings but not for businesses. This is a situation of regulating based on content.
“Electronic signs on public space but not private is problematic,” Peskin said. He gave an example of a college near his home. The University has LED signs to welcome people to the campus. Part of that sign has a bright, digital logo for AT&T. “Is it fair that the University has a logo for AT&T, but he AT&T store in town can’t have one?”
WHAT CAN MUNICIPALITIES DO?
Peskin outlined ten post-Reed regulatory principles for municipalities to consider.
~1~ Avoid content-based enforcement and do a review of ordinances and the permitting process. Simply-put: stop enforcing ordinances that are not content-neutral. Peskin cautioned against taking this too far though. “Some cities put moratorium on new signs, and this is problematic for businesses. It can also be considered ‘restraint,” he said. “You can do a moratorium on enforcement but don’t prevent businesses from putting up signs. When communities say they will do something in 90 days there is no way it is getting done before day 88, and sometimes it takes longer,” Peskin said. He said forcing businesses to use a temporary banner for months makes no sense.
~2~Ensure as much content-neutrality as possible.
~3~Use a substitution clause to make sure commercial and non-commercial speech types are protected. A good example is Lakeville, MN which states “signs containing noncommercial speech are permitted anywhere that advertising or business signs are permitted, subject to the same regulations applicable to such signs.”
~4~Include a severability clause. “A sign ordinance should contain a severability clause stating that if a section of the code of the sign ordinance is found unlawful it can be removed without cancelling other parts of the ordinance,” Peskin said.
~5~Minimize categories for temporary signs. It is possible to keep the sign ordinance simple. This prevents potential lawsuits and helps staff keep their processes simple for enforcement.
~6~Minimize categories for “other signs” and permanent signs. Examples of “other” signs can include things like historical markers and store hours. These do not all need their own ordinance provisions if general rules are given.
~7~State the purpose and rationale in detail at the start of the code. Peskin suggests adding specific language to identify why the city is making such ordinances. Spokanne, WA, for example, has “to ensure that the constitutionally guaranteed right of free speech is protected” in the ordinance itself to demonstrate the ordinance’s intent. If a provision is challenged, the court can require a rationale, so cities should include it.
Also, municipalities sometimes give “safety” as a reason for ordinance provisions. “If you make claims about safety, you need to back them up with reputable studies,” Peskin said.
~8~Clearly define all critical words and phrases. Also, Peskin encourages communities to be consistent in their ordinance language. “When you define the same things 7 different ways, it does not clarify things,” he said.
~9~Minimize exemptions. Peskin gave the example of the barber pole again to explain this. Is there any reason why barbers should have different rights than other types of businesses?
~10~Simplify the regulatory scheme. “Look at an overall approach and simplify,” Peskin said. He urged municipalities to think about why they have rules they day, and to keep in mind that “innocuous justifications” favoring one type of sign over another “are no longer a defense for inequitable treatment.”
HOW TO REGULATE FAIRLY
Although content cannot be judged, there are other avenues that communities can take. Signage can be regulated based on traffic safety, aesthetics, economic policies, business and institutional needs, size, lighting, moving arts, portability, and location/zoning. Regulations can also vary for public and private property. Signs can also be prohibited if they are unsafe, if they mimic traffic control signs, if they are attached to trees and poles, and if they are on benches or street furniture.
“It is very likely that your community is applying your regulations unevenly,” Peskin said. “Everyone needs work on this.”
He recommended starting with the idea of “signs as constitutionally protected free speech.” And of course the fundamental rule “If you need to read the message on the sign to determine how the sign is regulated, the ordinance is content-based.”
FOR MORE HELP
For more information on post-Reed signage ordinances, check out this presentation: http://www.planningmi.org/downloads/mapmckasignshandout100515.pdf.
This story is part of a series on the MML Capital Conference that took place March 22-23 in Lansing.   For other MML-related stories see: https://oaklandcounty115.com/?s=mml
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