Regulating Speech in the Wake of Reed v. Town of Gilbert

It has been nearly two years since the U.S. Supreme Court, in Reed v. Town of Gilbert, invalidated a municipal sign ordinance that imposed different size, quantity, and length-of-display requirements on different types of temporary signs.  The Court reasoned that, because the sign ordinance classified signs into different categories on the basis of their messages—such as directional, political, and ideological signs—and subjected each category to different restrictions, the ordinance was unconstitutionally content based.  By many accounts, the Reed decision called into question the constitutionality of virtually every municipal sign ordinance in the country.  So, what has happened since then?

As anticipated, Reed set off a flurry of First Amendment litigation that obliged lower courts to draw the line distinguishing constitutional and unconstitutional sign regulation with greater precision—and, in some instances, to revisit their prior decisions.  The Fourth Circuit, for example, recently reconsidered a city code that applied to private and secular flags and emblems, but exempted governmental and religious flags and emblems.[1]  Five years prior, the court had upheld the validity of a sign ordinance with similar exemptions but, “[n]ow informed by the Supreme Court’s directive in Reed,” the court concluded that such an ordinance was unconstitutional.[2]

Post-Reed courts have also revisited decisions concerning anti-panhandling ordinances, now concluding that such ordinance are constitutionally problematic because they “target[ ] anyone seeking to engage in a specific type of speech, i.e., solicitation of donations.”[3]  In Cutting v. City of Portland, Maine, the First Circuit invalidated Portland’s panhandling ordinance, which provided that “[n]o person shall stand, sit, stay, drive or park on a median strip . . . except that pedestrians may use median strips only in the course of crossing from one side of the street to the other.”[4]  While the Court found the ordinance to be content neutral and subjected it to a less rigorous level of judicial scrutiny, the Court nonetheless noted that the ordinance imposed “serious burdens” on speech because it prohibited virtually all activity on median strips (areas deemed to be traditional venues for free speech) and concluded that it was “geographically over-inclusive with respect to the City’s concern that people lingering in all of [its] median strips—no matter which ones—pose a danger to those passing by.”[5] 

Reed has also stirred up the dust in areas of sign regulation that were thought to be settled.  A Tennessee district court, for instance, concluded that a state statute distinguishing between on-premises and off-premises signs was unconstitutional.[6]  This decision appears to be in the minority, however.  Indeed, the majority of courts that have considered commercial billboard bans post-Reed have concluded that Reed does not uproot precedent upholding on-premises/off-premises regulatory distinctions.[7]

Of course, some sign ordinances have survived First Amendment challenges following Reed.  In Peterson v. Village of Downers Grove, for example, a federal district court upheld a sign code placing type and quantity restrictions on wall signs, noting that the ordinance “is wholly indifferent to any specific message or viewpoint [and] applies to all signs, regardless of their message or content.”[8]

Perhaps less predictably, Reed has become a central force in shaping court decisions concerning governmental regulation of speech in contexts other than temporary signs.  Thus, Reed has been cited as the basis for invalidating a statute prohibiting politically-related robo-calls.[9]  It has been used to uphold a city ordinance regulating unattended donation collection boxes.[10]  And it has been key to deciding a challenge to a federal law that requires producers of sexually explicit materials to collect information demonstrating that their performers are not minors.[11]

There certainly seems to be no end in sight to free speech litigation following Reed.  In this litigious environment, municipal planners and officers should continue to tread carefully when drafting or implementing any ordinance provision that limits expression.  Surely, any sweeping ban on speech—whether vis-à-vis a sign ordinance or otherwise—is likely to have constitutional infirmities.  But even governmental regulations that appear not to touch on speech rights at all (think: exempting holiday decorations from permitting requirements, or licensing requirements for street performers) could trigger First Amendment concerns if the regulations unduly restrict free speech or treat certain speech preferentially.  To minimize litigation risk, ask you’re your ordinances completely ban any form of speech or expression?  Do they give preferential regulatory treatment to a message, a speaker, or a category of speech?  Do they exempt certain types of expression from permitting?  Do they encourage arbitrary enforcement?  If the answer is “yes” to any of these questions, seek out an expert to help you assess whether your regulatory regime passes constitutional muster.

 This article was originally published on June 26, 2017.

---

[1] Cent. Radio Co. Inc. v. City of Norfolk, Va., 811 F.3d 625, 633 (4th Cir. 2016).

[2] Id. at 634.

[3] Thayer v. City of Worcester, 144 F. Supp. 3d 218, at n.2 (D. Mass. 2015); see also, e.g., Homeless Helping Homeless, Inc., v. City of Tampa, Florida, 2016 WL 4162882 (M.D. Fla., Tampa Div., Aug. 5, 2016) (slip copy); McLaughlin v. City of Lowell, 140 F. Supp. 3d 177 (D. Mass. 2015); Norton v. City of Springfield, 806 F.3d 411 (7th Cir. 2015); Browne v. City of Grand Junction, 136 F. Supp. 3d 1276 (D. Colo.2015).

[4] Cutting v. City of Portland, Maine, 802 F.3d 79, 81-82 (1st Cir. 2015).

[5] Id. at 89.

[6] See Thomas v. Schroer, --- F. Supp. 3d ---, 2017 WL 1208672 (W.D. Tenn., Mar. 31, 2017) (holding the State of Tennessee Billboard Act an unconstitutional, content-based regulation of speech).                                                                                            

[7]  See, e.g.,  Geft Outdoor LLC v. Consol. City of Indianapolis & Cty. of Marion, Indiana, 187 F. Supp. 3d 1002, 1016 (S.D. Ind. 2016) (summarizing cases).

[8] Peterson v. Vill. of Downers Grove, 150 F. Supp. 3d 910, 919 (N.D. Ill. 2015).

[9] See Cahaly v. Larosa, 796 F.3d 399 (4th Cir. 2015) .

[10] See Recycle for Change v. City of Oakland, 856 F.3d 666 (9th Cir. 2017).

[11] See Free Speech Coalition, Inc., V. Attorney General United States, 825 F.3d 149 (2016).