On June 18, 2015, the United States Supreme Court changed sign regulation throughout the country and limited the ability of state and local governments to create classifications of speech that are subject to different standards and limitations. Government regulation of speech is complicated, but the bedrock of the First Amendment is the limitation it places on a government’s ability to determine, restrict, or prohibit the content of speech. Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. This standard is known as strict scrutiny, and if strict scrutiny is involved, the government usually loses.
For decades, state and local governments have used classifications of speech, e.g., political, religious, commercial, ideological, etc., to treat the signs containing the different speech classifications differently. Those distinctions based on classification had been upheld by lower courts for years if limitations on those classifications were non-discriminatory within the classification. In other words, government could place limitations on political speech as long as it did not favor one political message over another.
In issuing its opinion in Reed v. Town of Gilbert, Ariz., 13-502, 2015 WL 2473374, at *1 (U.S. 2015), the Supreme Court recognized what has been obvious. Distinguishing between classifications of speech is content regulation, because by placing less restrictive regulations on religious speech than on political speech, for example, a government is favoring religious ideas over political ideas.
You may be wondering what all of this means for your business or organization. If your business or organization has a sign that expresses its message, that message was likely limited or restricted by your county or city. Look around your community, do other businesses, organizations, churches, or individuals have more prominent or larger signs or were they allowed to express their message in a manner that was not afforded to your business or organization? If so, those differences were likely predicated on a classification distinction, which is now presumptively unconstitutional. If your business or organization wants to erect a sign displaying its message, or change the size, lighting, appearance or location of an existing sign, perhaps the time is now to inquire with legal counsel about doing so.