First Amendment “Content-based” Sign Analyses Get a Little Trickier

The law regarding sign regulations is a murky, fact specific and dynamic area and the latest Ninth Circuit decision, Reed v. Town of Gilbert, Arizona (Reed II), 2013 U.S. App. LEXIS 2715 (9^thCir. 2013), does not disappoint.  On a previous appeal in the same case, Reed v. Town of Gilbert, Arizona (Reed I), 587 F.3d 966 (9^thCir. 2009), the Court of Appeal upheld the Town’s sign ordinance against a variety of constitutional challenges raised by plaintiffs Clyde Reed and the Good News Community Church, but remanded for the district court to consider whether the ordinance’s treatment of different categories of non-commercial speech was an improper content-based restriction.  The Court warned that municipalities may distinguish between the relative value of different categories of commercial speech, but do not have the same latitude with regard to non-commercial speech, citing Metromedia v. City of San Diego, 453 U.S. 490 (1981).

On remand, the district court held the ordinance’s treatment of non-commercial speech was content-neutral and the Ninth Circuit agreed.  The Court found that the regulation’s distinctions between classifications of different types of non-commercial signs, such as ideological, political and temporary directional signs, was content neutral because it did not require consideration of the content of the sign.  In using this test, the Court seemingly departed from its earlier opinion in Reed I and other cases addressing this issue which had held that such distinctions were not allowable among different types of non-commercial speech.  A key difference in this case from the cases cited in Reed I that may account for the more nuanced approach and rejection of the broad holding of those cases is that here, unlike the prior cases, the Court found that the Town’s distinctions between non-commercial uses was not based on preferences for some non-commercial messages over others. 

This decision reiterates the complexity and evolving nature of the law in the area of sign regulation.  Careful analysis of the specific facts of each situation and a strong knowledge of the dynamic jurisprudence in this area is critically important to determining whether a regulation is likely to be upheld against a constitutional challenge.