Although the case is outside the RLUIPA realm or even specific to religious-based speech, the Supreme Court’s decision last week in Reed v. Gilbert will undoubtedly impact RLUIPA Defense readers. We previously reported on the January 12 oral argument (here) and the Court’s grant of certiorari (here).

Why is Reed v. Gilbert important for municipalities? Putting aside SCOTUSblog’s observance that after Reed and Walker v. Texas Division, Sons of Confederate Veterans (post coming soon) “the meaning of the First Amendment, in general, became somewhat more confusing,” Reed has clearly changed how courts will view content neutrality. Further, Reed makes clear that view-point neutral regulation is not synonymous with content-neutral regulation.

Our previous posts provide a more complete overview of the facts of the case. Briefly, Good News Community Church (Good News) claimed that Gilbert’s sign ordinance made impermissible content-based distinctions between “Temporary Directional Signs, Ideological Signs, and Political Signs.”   Good News, which holds services at different locations from week to week, used signs directing congregants to each week’s chosen location. Gilbert categorized such signs as “Temporary Directional.” The Ninth Circuit disagreed with Good News, finding that the sign restrictions, including the distinctions among them, were content-neutral for purposes of free speech:

[T]he distinction between Temporary Directional Signs, Ideological Signs, and Political Signs are content-neutral. That is to say, each classification and its restrictions are based on objective factors relevant to Gilbert’s creation of the specific exemption from the permit requirement and do not otherwise consider the substance of the sign. . . . It makes no difference which candidate is supported, who sponsors the event, or what ideological perspective is asserted. Accordingly, as the speaker and event determinations are generally “content-neutral,” Gilbert’s different exemptions for different types of noncommercial speech are not prohibited by the Constitution.

The Supreme Court disagreed. The Court’s majority opinion, authored by Justice Thomas, started with the well-recognized principle: “Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and maybe justified only if the government proves that they are narrowly tailored to serve compelling state interests.”

The Court found that the ordinance is “content based on its face.” According to the Court, the ordinance regulates based on the message conveyed: Temporary Directional signs convey a message directing the public; Political Signs are designed to influence the outcome of an election; and Ideological Signs communicate a message or idea. By regulating the message, Gilbert regulated the “communicative content of the sign,” making the ordinance content based and subject to strict scrutiny review. Even though the ordinance may have a content-neutral justification, “[i]nnocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech.”

The Court went on to conclude that Gilbert’s purported reasons for the regulation, preserving the Town’s aesthetic appeal and traffic safety, were not adequate justifications to pass strict scrutiny review. Assuming these interests were “compelling,” the Court found the ordinance “hopelessly underinclusive” because the same restrictions were not placed on other types of signs. Thus, Gilbert failed to show that its ordinance was “narrowly tailored to further a compelling government interest.”

The Court concluded the majority opinion by noting that its decision does not limit a municipality’s ability to regulate signage, so long as the regulation is content neutral. For instance, “size, building materials, lighting, moving parts, and portability” may be regulated without reference to a sign’s message. Further, “on public property, the Town may go a long way toward entirely forbidding the posting of signs, so long as it does so in an evenhanded, content-neutral manner.”

Although the decision was unanimous, the Justices filed three separate concurring opinions. Justice Alito, joined by Justices Kennedy and Sotomayor added “a few words of further explanation.” Justice Alito stressed that municipalities are not powerless to enact sign regulation, and provided a non-inclusive list of content neutral criteria:

  • Rules regulating the locations in which signs may be placed;
  • Rules distinguishing between lighted and unlighted signs;
  • Rules distinguishing between signs with fixed messages and electronic signs with messages that change;
  • Rules that distinguish between the placement of signs on private and public property;
  • Rules distinguishing between the placement of signs 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; and
  • Rules imposing time restrictions on signs advertising a one-time event.

Justice Breyer provided a separate opinion urging that content-based discrimination “cannot and should not always trigger strict scrutiny.” (emphasis in original) Justice Breyer recognized that “[r]egulatory programs almost always require content discrimination” and provided several examples of content-based regulation where “a strong presumption against constitutionality has no place.”

Finally, Justice Kagan, joined by Justices Ginsburg and Breyer, provided a third concurrence. Justice Kagan, like Justice Breyer, questioned the reasonableness of applying strict scrutiny review to all types of content-based regulation:

“We can administer our content-regulation doctrine with a dose of common sense, so as to leave standing laws that in no way implicate its intended function.”

Concurring only in the judgment, Justice Kagan prophesized that courts will now be required to invalidate numerous “entirely reasonable” sign ordinances, making the Court “a veritable Supreme Board of Sign Review.”

 

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Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

Photo of John Peloso John Peloso

John Peloso, a partner in the firm’s Real Estate Litigation Group, is a trial lawyer who represents companies, municipalities, and individuals in a wide range of matters. At the administrative, trial, and appellate levels, John counsels clients and litigates real property disputes, including…

John Peloso, a partner in the firm’s Real Estate Litigation Group, is a trial lawyer who represents companies, municipalities, and individuals in a wide range of matters. At the administrative, trial, and appellate levels, John counsels clients and litigates real property disputes, including real estate, land use, environmental, and tax matters, including RLUIPA and eminent domain matters.

In the area of real estate litigation, John represents institutional, municipal, and individual clients in disputes involving title, zoning, wetlands, land use, RLUIPA, eminent domain, and other real property rights. He also represents clients in all aspects of commercial lease and other real estate transactional disputes. In the area of real property tax litigation, he represents institutional and individual clients in proceedings at the regulatory, administrative, and trial levels. In this regard, he has dealt with specialized issues involving among other things, the valuation of high-tech software, wireless communications equipment, contingency fee tax audits, special use properties, and the impact of environmental conditions on the valuation of real property.

Prior to joining Robinson+Cole, John was a member of the litigation department at White & Case LLP in New York City, where he concentrated his practice in complex commercial, property and securities litigation.

Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.