A Look Back at Reed v. Town of Gilbert
| Jurisdiction | United States,Federal |
| Publication year | 2018 |
| Citation | Vol. 69 No. 4 |
A Look Back at Reed v. Town of Gilbert
Newton M. Galloway
Steven L. Jones
[Page 987]
Three years have passed since the Supreme Court of the United States invalidated the Sign Code enacted by the Town of Gilbert, Arizona (the Town), and virtually every other sign ordinance enacted by local governments across the country.1 Reed v. Town of Gilbert2 arose when the Town determined that temporary signs advertising the place and time of the transient Sunday services conducted by the Good News Community Church (the Church), led by Pastor Clyde Reed, violated its Sign Code. The Church was cited for Sign Code violations, and the Church challenged the Sign Code on constitutional grounds in the United States District Court for the District of Arizona. The district court upheld the constitutionality of the Town's Sign Code on summary judgment, and the United States Court of Appeals for the Ninth Circuit affirmed.3 The Supreme Court granted certiorari.4 Overruling the lower courts, the
[Page 988]
Supreme Court subjected the Town's Sign Code to strict scrutiny analysis and held that it violated the First Amendment of the United States Constitution5 as an unconstitutional regulation of speech content.6 Instantly, every jurisdiction that had passed a sign ordinance learned that its regulations must pass constitutional muster under strict scrutiny analysis and that any sign regulation could be interpreted as content-based on its face.7
After Reed, many sign ordinances are still in effect yet contain unchallenged, potentially unconstitutional content-based regulations. Even though Reed purports to establish a simple rule that content-based sign regulations violate the First Amendment, the line between an "entirely reasonable"8 sign regulation and one that is constitutionally infirm after being subjected to strict scrutiny constitutional analysis has yet to be drawn. As Justice Kagan poignantly noted in her concurrence:
The consequence of [the majority opinion]—unless courts water down strict scrutiny [for First Amendment sign challenges] to something unrecognizable—is that our communities will find themselves in an unenviable bind: They will have to either repeal the exemptions that allow for helpful signs on streets and sidewalks, or else lift their sign restrictions altogether and resign themselves to the resulting clutter.9
On the other hand, "entirely reasonable" sign ordinances may need to give way. As Justice Thomas espoused, "a clear and firm rule governing content neutrality is an essential means of protecting the freedom of speech, even if laws that might seem 'entirely reasonable' will sometimes be 'struck down because of their content-based nature.'"10 Thus, the constitutionality of sign regulations under the jurisprudence of the United States Court of Appeals for the Eleventh Circuit will not be settled until the contours of Reed's sweeping rule are refined in cases with the right factual circumstances and litigants.
[Page 989]
Constitutional challenges to sign ordinances based on alleged unconstitutional content regulation in Georgia and the Eleventh Circuit precede Reed by more than twenty years. Union City Board of Zoning Appeals v. Justice Outdoor Displays, Inc.,11 the premier Georgia case involving a constitutional challenge to a sign ordinance based on content regulation, involved a sign ordinance that distinguished between "on-premise" and "off-premise" signs.12 An "on-premise" sign was typically a sign which advertises "a product, service, [or] person . . . located or obtainable on . . . the lot where such sign is located."13 Conversely, an "off-premise" sign was defined as a sign which advertises "a product, service, [or] person . . . located or obtainable elsewhere other than the lot where such sign is located."14 The restriction limited "on-premise" signs to commercial messages concerning the goods or services offered at the site of the particular business.15 This content-based distinction sparked the constitutional challenge.16
In its opinion in Union City, the Georgia Supreme Court noted that, in Messer v. City of Douglasville,17 the Eleventh Circuit upheld the constitutionality of an ordinance that distinguished between "on-premise" and "off-premise" content, determining that the "on-premise/off-premise distinction is viewpoint neutral and, 'regulates signs not based on the viewpoint of the speaker, but based on the location of the signs.'"18 However, the Georgia Supreme Court instead followed the Supreme Court of the United States' holding in Metromedia, Inc. v. City of San Diego,19 affirming the trial court's holding that the "prohibition against the display of noncommercial messages in places where commercial signs are permitted violate[s] the First Amendment of the United States Constitution and the Free Speech Clause of the Georgia Constitution."20 Subsequently, in Fulton County v. Galberaith,21 the Georgia Supreme Court similarly held that a provision of the Fulton County sign
[Page 990]
ordinance, which prohibited off-premise signs in commercially-zoned areas, violated the First Amendment.22
Simultaneously, the Eleventh Circuit and federal district courts in Alabama, Florida, and Georgia became embroiled in sign ordinance test cases brought by three companies-Granite State Outdoor Advertising, Inc. (Granite State), KH Outdoor, LLC (KH) and Tanner Advertising Group, LLC (Tanner) (collectively, Advertisers). The exact relationship between these companies is unclear, but they shared counsel and plainly cooperated in litigation to challenge sign ordinances in all three states.23 Their target jurisdictions had enacted sign regulations that limited the location and size of billboards and restricted billboard content to commercial speech. The Advertisers submitted multiple sign permit applications in each jurisdiction, anticipating their denial. Once the permits were denied, the contrived challenge to the constitutionality of content-based sign regulation was postured, and an immediate challenge to permit denial on constitutional grounds was filed with the applicable federal district court.24
The Advertisers' legal challenges to sign ordinances foreshadowed Reed. Unrelated to the Advertisers, the United States District Court for the Northern District of Georgia held in Lamar Advertising Co. v. City of Douglasville25 that Douglasville's sign ordinance was unconstitutional under First Amendment strict scrutiny analysis because it was content-based and granted unbridled discretion to approve sign permits.26 However, the Eleventh Circuit seemed less strict in cases involving the Advertisers, focusing on standing and procedural limitations while avoiding the facial constitutional attacks on the regulating ordinances. In Granite State Outdoor Advertising, Inc. v. City of Clearwater,27 the court held that it was proper to deny a permit for an oversized sign under a sign ordinance that was content-neutral.28 In Granite State Outdoor
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Advertising, Inc. v. City of Fort Lauderdale,29 Granite State Outdoor Advertising, Inc. v. Cobb County,30 and Granite State Outdoor Advertising, Inc. v. City of Roswell,31 Granite State lacked standing to challenge alleged prior restraints on speech in the ordinances, which did not impact the permit applications.32
On the other hand, the Advertisers succeeded in KH Outdoor, LLC v. City of Trussville,33 challenging an ordinance that restricted the content of billboards to commercial speech and their location to property adjoining interstate highways.34 The Eleventh Circuit applied strict scrutiny analysis and held that the Trussville ordinance was an unconstitutional content-based speech regulation under the First Amendment.35 The City of Trussville was enjoined from denying KH all eleven permits for which it applied.36 In Coffey v. Fayette County,37 the Georgia Supreme Court held that the Georgia Constitution provided "even broader protection than the First Amendment . . . requir[ing the] government to adopt the least restrictive means of achieving its [legislative] goals."38 The Coffey litigation included several appeals to Georgia's appellate courts. Where they were unsuccessful, the Advertisers usually petitioned for Supreme Court review. However, the Supreme Court denied each application for certiorari.39 Had certiorari been granted to the Advertisers' appeals, the Supreme Court would have confronted challenges to sign regulations on the same grounds presented in Reed.
Justice Thomas's opinion in Reed proffers a pure strict scrutiny analysis by which all sign ordinances that can conceivably be facially
[Page 992]
content-based will be judged. All of the justices, concurring in at least the judgment, reached the conclusion that, because the Town's Sign Code on its face regulated "signs based on the type of information they convey" and imposed "different restrictions" based thereon, it was unconstitutionally underinclusive.40 The problem evident in the multiple separate opinions filed is that the justices appear to have very different ideas of what constitutes a proper regulation.
The Church, in Reed, lacked a set location at which to hold their services. Therefore, it deployed twenty or less temporary signs bearing the Church's name and the time and location of its next service. Typically, the Church placed the signs in the public right-of-way from Saturday morning until Sunday afternoon. Under the Sign Code, the Town required a permit to display an outdoor sign unless it fell within one of twenty-three categories of exceptions. The rules and regulations applicable to each sign varied with the categories.41 The Church's signs constituted "Temporary Directional Signs Relating to a Qualifying Event" (Temporary Directional Sign), which were permitted...
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