Archive for August, 2015

Reed v. Town of Gilbert – First Amendment Case May Void Many Local Municipal Sign Ordinances

Thursday, August 20th, 2015

You may have missed this in the news, probably because there was almost no news coverage of it. In Reed v. the Town of Gilbert, the Supreme Court declared a municipal sign ordinance unconstitutional because it violates the First Amendment. By way of background, in case you’re thinking the “town” of Gilbert is some small out of the way place, it is basically suburban Phoenix, it has a population of over 200,000, and one of the highest median incomes of any municipality in Arizona.

Also by way of background, for those of you who have never read the First Amendment, it’s not too long – here’s your chance: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

This language has been widely litigated and ended up in many, many Supreme Court Cases. In this case, the Supreme Court held unanimously that Gilbert’s ordinance, which has different rules and exceptions for certain categories of signs, violates the First Amendment. Specifically in this case, Gilbert’s Sign Code had restrictions on temporary directional signs that were not applicable to political signs and ideological signs. In this case, a small church in Gilbert would put up signs giving people directions to its Sunday service. The church had no permanent building, and so services would often be in different locations from week to week. In Gilbert, a person could put a politician’s campaign sign up for longer periods than a person could put up a directional sign. The Supreme Court said that this violated the First Amendment.

When it comes to local municipal sign ordinances, the general rule is that sign codes should be content-neutral. How that gets interpreted by courts is complicated. One very rigid test is if you must read the sign in order to tell whether it complies with your sign law, that sign law is content-based. However, that rigid test is not “black letter law” – there are a number of exceptions to this kind of strict interpretation, for example distinctions tied to obscenity, defamation, libel and slander. A classic example is that your right to free speech does not give you the right to yell “fire” in a crowded theater. In addition, there is a previous Supreme Court decision allowing a distinction between commercial and non-commercial speech. Of course, one does need to read the sign to know if it is commercial, or slander, etc.

In a complete reversal on what has been traditionally understood regarding exceptions for political speech (primarily election campaign signs), content-based exceptions to prohibitions, or variations in treatment of signs, can invalidate the prohibition itself. For example, an example I suspect will be found in many local sign ordinances, having an exception allowing or favoring political signs may invalidate an ordinance.

Local governments should probably have their sign ordinance reviewed by their municipal attorney.

Municipal officials should strive to remain impartial, avoid bias.

Wednesday, August 19th, 2015

A board member’s telegraphing his or her decision before hearing the matter is often fatal to a municipal decision.

As a general rule of thumb, it is always wise for municipal boards and councils to remain impartial and unbiased. This is especially true when the state statute in question explicitly requires impartial decision making, such as when deciding on “laying out, altering, or discontinuing a highway…” See § 82.11(2)(a).

In the recent case of Thomas R. Jorns v. Town Board of Jacksonport, the Jorns owned a landlocked parcel. They had tried to purchase an easement, but were unable to do so. So they applied to the Town, as they are allowed to do under Chapter 82 of the statutes, to lay out a highway. At the hearing, two of the board members made comments that indicated they were not impartial and had already decided the matter prior to the hearing. The court overturned the Town Board decision and remanded for a new hearing.

Of course, on a three person board, if two of the board members must recuse themselves, that leaves only one person. Unfortunately, towns sometimes face this situation, and the statutes generally do not address this lack of quorum. Fortunately for the Jorns and the town, in this case the statute does address the lack of quorum, and provides for several alternatives. Towns are required to have a written policy which addresses such a circumstance, and if they don’t the clerk may act. See 82.11(2)(b).