Last week, we reported on the potential impact of Reed v. Gilbert, the sign regulation case that has municipalities across the nation concerned about the enforceability of local sign ordinances. This week, we’re happy to provide the guest commentary of Brian J. Connolly,[*] a regular contributor to Rocky Mountain Real Estate Law Blog, who reported on the Reed case here. Brian’s observations about the case include:
- While Justice Alito’s concurrence suggests several potential avenues of sign regulation that he believes are content neutral, it is unclear whether the authors of the majority opinion (and even the Breyer and Kagan concurrences) agree, and it may therefore be difficult for a local government lawyer to defend, say, a distinction between onsite and offsite signage, or a temporary event sign regulation, before a lower federal court or a state court.
- The majority opinion does not cite to any of the majority opinions in the abortion clinic cases (including last term’s decision in McCullen v. Coakley, where Chief Justice Roberts espoused a different view of content neutrality than the Court adopted in Reed), nor does it cite to some standard sign law precedents such as Metromedia and Ladue. (See RLUIPA Defense’s report on McCullen v. Coakley here.) The “secondary effects” cases relating to the regulation of adult business also go unmentioned. I do not believe the Court was trying to sneakily overrule any of these cases, but it’s tough to square the Reed majority opinion with some of the holdings in these prior cases, and it remains to be seen whether Reed was truly intended to cut back at any of these earlier decisions.
- The Reed decision does not mention the distinction between noncommercial and commercial speech. Older cases, including Metromedia, held that commercial speech gets less First Amendment protection than noncommercial speech. In the 30-plus years since Metromedia, however, commercial speech has received increasing protection. The 2011 case of Sorrell v. IMS Health reviewed commercial speech regulations under a time, place, and manner noncommercial speech analysis. Does all of this mean that the commercial speech doctrine is dead? Probably not. But one has to question whether the Court’s approach in Reed, the heavy citation to Sorrell in the Reed majority, and failure to mention the commercial speech doctrine suggests a gradual phasing-out or weakening of the commercial speech doctrine.
- With this decision, local governments need to be thinking about updating their sign codes now instead of waiting for a legal challenge to force the update. While all hope is not lost—local governments will still be able to regulate signs, and there are very clearly content neutral approaches that will work post-Reed—the outcome of this case certainly represents a challenge to “business as usual” in sign regulation. Moreover, because the overbreadth doctrine opens doors for broad challenges to sign codes, and indeed, sign owners and others will be looking at sign codes nationwide to identify possible challenges, local governments should get ahead of the game to draft their sign codes in ways to comport as closely as possible to Reed’s Many local sign codes contain questionably content-based distinctions, so local governments would be wise to consult lawyers familiar with First Amendment sign regulation law as they consider how to approach updates to their regulations.
To learn more about Reed v. Town of Gilbert and how it impacts local governments, landowners and other sign owners, tune in to one of two upcoming webinars on the case, each of which will include some of the nation’s leading thinkers and practitioners on First Amendment and sign regulation issues.
- On July 16 at 1:00 p.m. EST, the American Bar Association Section of State and Local Government will host a webinar discussing the impact of Reed for lawyers who practice in First Amendment-related areas of law.
- On July 21 at 1:00 p.m. EST, the Planning and Law Division of the American Planning Association will host a webinar discussing how Reed will affect planners and local governments.
Registration for both events is expected to open shortly, so be sure to check out the web pages of each of these groups.
[*] This is a guest commentary from Brian J. Connolly of Otten, Johnson, Robinson, Neff + Ragonetti who is not affiliated with Robinson + Cole, LLP, and RLUIPA-Defense.com is not responsible for the content of this post.