2. Have you revised your sign code
post Reed?
“It is nearly certain that every sign code in the
United States has a provision that is now
legally questionable after Reed.”
Daniel M. Olson “Sign Regulation and Reed v. Town of
Gilbert,” the Municipality, November 2015
9. 1st Amendment Considerations
Not all content protected
Content based speech regulations are presumptively
unconstitutional
Content based laws will be upheld only if they are the
least restrictive means of achieving a compelling state
interest
Commercial speech generally implicates lower level of
scrutiny
Content neutral speech regulation is subject to lesser
(intermediate) scrutiny
Law upheld provided it is narrowly tailored to serve a
significant governmental interest
10. Reed Summary
Decision reaffirmed the principle that content
based regulations are subject to strict scrutiny
and presumptively unconstitutional
Majority opinion resolved the circuit split by
requiring both facial content neutrality and a
neutral purpose AND determined that a
regulation’s purpose is irrelevant if the
regulation is not neutral on its face.
11. Reed Summary cont’d
Categorical signs, such as directional signs,
real estate signs, political signs, etc. are
content based where they are defined by
aspects of the sign’s message.
Regulations purporting to be speaker based
may be considered content based and subject
to strict scrutiny.
12. Provisions Your Sign Code
Should Include
Strong Purpose Statement
Reference comprehensive plan purpose
Reference relevant studies (traffic safety, blight
elimination, impact on property values, etc.)
Reference relevant laws supporting governmental
purposes (statutes, case law, etc.)
Substitution Clause (allowing non-commercial
substitution)
Severability Clause
13. Provisions Your Code Should
Remove or Avoid
Content based distinctions
Ex. Political signs, real estate signs, etc.
Signs exempt from regulation or permitting due to
type of sign
Different treatment for different types of signs
Different treatment based on content of sign
Provisions conflicting with Wis. Stat. § 12.04
(political signs).
14. Provisions Your Code Likely Can
Include
Alito Concurrence
Rules regulating size of signs
Rules regulating location of signs
Rules distinguishing between lighted and
unlighted signs
Rules distinguishing between fixed and
electronic/rotating messages
Rules distinguishing between sign placement
on private and public property
15. Provisions Your Code Likely Can
Include
Alito Concurrence Cont’d:
Rules distinguishing between sign placement
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.
16. Additional Considerations
Suspend enforcement of provisions that conflict
with Reed
Communicate with your Code Enforcement officials
Consider using Zoning Code as primary vehicle to
regulate signs
Zoning districts include specific parameters for Alito
Concurrence categories
Consider prohibition on signs within Right-Of-Way
17. Defending Your Sign Code
Reed did not overrule any prior cases
See Agostini v. Felton (Implicit overruling is
disfavored)
Many rules favor constitutionality
Ordinances presumed constitutional (note 1st
amendment burden shifts)
High burden to challenge constitutionality (beyond
reasonable doubt)
Courts must construe ordinances to eliminate
constitutional infirmity
Severability presumed
18. Recommended Reading
IMLA model sign code (available online)
Tribe, Laurence, Applying the First
Amendment to Regulations Distinguishing
Between Off-premises and On-premises after
Reed v. Town of Gilbert.
Connolly, Brian J. and Weinstein, Alan C.,
Sign Regulation After Reed: Suggestions for
Coping with Legal Uncertainty. (available
online).
