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As the nation heads into the tail end of the 2020 general election, municipalities will inevitably face challenges as they seek to regulate the seasonal proliferation of yard signs on residential property. While the matter may seem trifling, a seemingly benign yet content-based sign ordinance can result in significant legal exposure for municipalities that have not heeded recent Supreme Court decisions on content neutrality. 

In Reed v. Town of Gilbert, Ariz., 576 U.S. 155 (2015), the Supreme Court of the United States held that “[g]overnment regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” Because content-based laws are presumptively unconstitutional, sign ordinances that impose restrictions based “entirely on the communicative content of the sign” must satisfy strict scrutiny to pass muster under the First Amendment. 

As a result of Reed, municipalities with sign codes pre-dating 2015 should ensure that their current regulations satisfy the requirements of content neutrality. In short, this means that cities cannot regulate yard signs by implementing any rule, regulation, or ordinance that facially distinguishes between signs based on the topic discussed, the function or purpose of the sign, and most of all, the speaker’s viewpoint. 

In his concurring opinion in Reed, Justice Alito offered guidance to municipalities seeking to enforce content-neutral sign regulations, and examples include the following: 

• Rules regulating the size of signs [note: such rules cannot be “under inclusive” and should apply to all signs based on content-neutral criteria (i.e., whether the sign is in a residential or commercial zoning district). Under no circumstance should size restrictions be contingent on a sign’s topic, purpose, function, or viewpoint].
• Rules regulating the locations in which signs may be placed. These rules may distinguish between free-standing signs and those attached to buildings.
• Rules distinguishing between lighted and unlighted signs.
• Rules distinguishing between signs with fixed messages and electronic signs with messages that change.
• Rules that distinguish between the placement of signs on private and public property.
• Rules distinguishing between the placement of signs 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. Rules of this nature do not discriminate based on topic or subject and are akin to rules restricting the times within which oral speech or music is allowed.
• In addition to regulating signs put up by private actors, government entities may also erect their own signs consistent with the principles that allow governmental speech. For example, they may put up all manner of signs to promote safety, as well as directional signs and signs pointing out historic sites and scenic spots.

Municipalities looking to update or enforce their existing sign codes (or to implement new regulations altogether) should consult with experienced legal counsel to understand how to maintain content-neutrality consistent with the Supreme Court’s decision in Reed. BMD’s Governmental Liability Practice Group has experience defending cities in First Amendment challenges and has the resources to assist your community with drafting, updating, and implementing constitutionally compliant sign codes. For more information, please contact BMD Member Robert A. Hager, Esq. or Partner Daniel J. Rudary, Esq.