U.S. Supreme Court decision puts sign ordinances in jeopardy

On June 18, 2015, the U.S. Supreme Court ruled in Reed v. Town of Gilbert that sign ordinances imposing differing restrictions on signs that convey different kinds of messages are content-based regulations of speech that violate the First Amendment.

The ordinance being challenged prohibited outdoor signs anywhere within the Town of Gilbert, Arizona without a permit, but exempted 23 categories of signs and applied different restrictions based on the type of sign, including ideological signs and political signs. The opinion was written by Justice Clarence Thomas. Justice Thomas wrote that treating signs differently based on the type of information they convey is a content-based restriction of speech that does not survive strict scrutiny. “A regulation that targets a sign because it conveys an idea about a specific event is no less content based than a regulation that targets a sign because it conveys some other idea.”

Two separate concurring opinions were written, one by Justice Samuel A. Alito Jr. joined by Justices Sonia Sotomayor and Anthony M. Kennedy, and one by Justice Elena Kagan joined by Justices Stephen G. Breyer and Ruth Bader Ginsburg. Justice Kagan concurred in the judgment but disagreed with the majority’s strict-scrutiny analysis. As Justice Kagan predicts, this decision will have serious implications, placing many sign regulations in jeopardy, at every level of government whether municipal, state or federal. A common example is the federal highway beautification law which bars many types of signs along interstate highways, but allows signs for scenic and historical attractions. Maine towns and state agencies will need to carefully review their sign regulations for compliance with the new rule of strict scrutiny.