On March 22, 2016, Dan Dalton and Larry Opalewski spoke at the Michigan Municipal League’s Capital Conference. The topic of the presentation was the Supreme Court’s recent decision in Reed v. Town of Gilbert and its impact on municipal sign ordinances. Patrick Sloan of McKenna Associates and Kenneth Peskin of the International Sign Association also spoke on sign regulation. In this blog, we will provide a brief overview of what was covered during the presentation. The presentation was also covered here.
Since the Supreme Court’s decision in Reed v. Town of Gilbert, all municipalities must review their code of ordinances. Since all content-based regulations will likely be struck down if challenged, these ordinances should be changed. Most municipalities have some content-based regulations on the books, but they are not always easy to identify. Even municipal attorneys can struggle to identify these issues if they are not experienced in this area of law. What follows is a list of key warning signs that an ordinance may need to be amended.
- Viewpoint-Based Regulations. These are the easiest problems to identify. A viewpoint-based ordinance treats speakers differently based on their views on a particular subject. For example, an ordinance allowing anti-abortions signs to be larger than pro-abortion signs would be viewpoint-based. A viewpoint-based regulation will almost never survive a lawsuit.
- Exemptions. Exemptions are common particularly in older codes. An exemption based on content or message will likely not survive a lawsuit. For example, an ordinance banning illuminated signs in general, but exempting gas stations will likely face strict scrutiny. Exemptions that do not require an evaluation of content are closer questions, but should still be avoided where possible.
- Topic-Based Regulations. Courts typically refer to these as content-based regulations, but it can be helpful to think of them as topic-based in order to distinguish them from viewpoint-based regulations. An example of this would be an ordinance banning signs discussing abortion. While the ordinance does not favor one view over another, it entirely prohibits discussion of a topic. Another example would be an ordinance that allows political signs to be larger than church signs. These ordinances will almost never survive a lawsuit.
- On-premises/Off-Premises Distinctions. Justice Alito’s concurring opinion stated that these distinctions would likely be safe post-Reed v. Town of Gilbert. However, a recent decision in the Sixth Circuit has found that these distinctions can be content-based and therefore subject to strict scrutiny. Employing these distinctions is now a question of risk. They may survive a lawsuit, but it is no longer a sure thing.
If you can spot problem ordinances in your code, it will go a long way to fixing those ordinances and potentially saving your municipality thousands of dollars in legal fees. Remember, a municipality that loses a constitutional challenge to an ordinance will likely be required to pay the plaintiff’s legal fees in addition to its own. When in doubt about an ordinance, contact a land use attorney.
The attorneys at Dalton & Tomich, PLC have extensive experience in land use and First Amendment issues both in Michigan and around the country. If you have questions about how Reed impacts your municipality’s sign ordinance or other regulations, please do not hesitate to contact us. We would be happy to speak with you.