Reed and Its Aftermath - PowerPoint Presentation

Slide1

Reed and Its Aftermath

Arizona City Attorneys Association Conference

May 20, 2016

M. Hamblin, Gilbert Town AttorneySlide2

Gilbert Town CodeTown Code 4.402(P) (2008) Temporary Directional Signs Relating to a Qualifying Event. No permit required for signs intended to direct pedestrians, motorists and other passersby to a qualifying event.“Qualifying event” – “assembly, activity sponsored by a religious, charitable, community service, education, or similar non-profit organization.”

Up to 6 feet in height, 6 feet square

12 hours before event, 1 hour after

Can’t be in right-of-way

2Slide3

BackgroundIn 2007, 40 person church leases space from

elementary

school.

Begins placing many temporary signs along

major streets

with directional

arrows.

3Slide4

Background (cont’d)Signs still in right-of-way by Tuesday. Code enforcement removes, asks church to pick up signs.3/07 Church files suit represented by Alliance Defending Freedom.Town stipulates to temporary injunction.

4Slide5

Background (cont’d)Town holds public hearings. Amendments in January 2008, expanding size, time of display.Church files suit:Free Speech

Free Exercise

Equal Protection

AZ’s Free Exercise of Religion Act § 41-1493.01

5Slide6

Background (cont’d)“Our signs should be treated just like political signs in right-of-way.”

Political Signs –

up to 16 square

feet on property

zoned residential,

32 square feet

on non-residential

use, undeveloped Town property, Town R-O-W. Remove 10 days after election.

6Slide7

Background (cont’d)Ideological Sign – “a sign communicating a message or ideas for a non-commercial purpose.”No greater than 20 square feet.Permitted in all zoning districts, but not

in R-O-W.

No durational limits.

9/08 District

Court denies (Bolton)

7Slide8

First Visit to 9th Circuit11/09 Ninth Circuit rules 3-0 in Town’s favor

(

Reed v. Town of Gilbert,

587 F.3d 966 (9th Cir. 2009)

The “If you have to read it, it is content based” Theory.

9th Circuit rejects

theory

Content Neutral, passes intermediate testRemands back to District Court to determine if Gilbert impermissibly discriminates among certain forms of non-commercial speech

By this time, Good News is leasing from elementary

school

in Chandler, which does not allow off site, temporary directional signs

.

8Slide9

On Remand2/11 Judge Bolton rules in Town’s favor on all four claims. Church appeals.4/11 A.R.S. § 16-1019 Municipalities cannot remove political signs from R-O-W 60 days before election.

10/11 Gilbert amends sign code:

1. Non-profits can place temporary signs in R-O-W.

2. Signs must relate to a Gilbert event.

9Slide10

Second Visit to 9th Circuit2/13 Reed v. Town of Gilbert, 707 F.3d 1057 (9

th

Cir. 2013) Code constitutional because Town’s different treatment of sign types is not content based. Restrictions tailored to serve significant interests.

“Each exemption is based on objective criteria and none draws distinctions based on content.”

10Slide11

Before the U.S. Supreme CourtPetition: “Does Gilbert’s mere assertion of a lack of discriminatory motive render it facially content-based sign code content-neutral and justify the code’s differential treatment of Petitioners’ religious signs?”

Content based v. Content Neutral

strict scrutiny intermediate scrutiny

11Slide12

What is content based?Absolutist: If you have to read it to see if the regulation applies, it is content based.

Response: “All signs are content based. Subject to strict scrutiny and now banned?

So any city that allows “for sale signs” or “historical markers” must allow all signs?

9

th

Cir. – under this absolutist view, every sign except a blank sign would be content based.

Practical: “Distinction between the various types of signs [must] reflect a meaningful preference for one type of speech over another.”

Response: You

are confusing content based vs. viewpoint

based.

12Slide13

Reed – the first U.S. Supreme Court case to address local sign regulations since City of Ladue v. Gilleo (512 U.S. 43) in 1994.

People have a right to express political views where they live at all times.

Right can be contracted away (HOA rules)

13Slide14

Circuits Split on the extent government may distinguish speech/signs based on category:9th

Reed II

G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064 (9th Cir. 2006)(code is content neutral where it does not favor speech based on idea expressed)

Desert Outdoor Adver., Inc. v. City of Oakland

, 506 F.3d 798 (9th Cir. 2007)(upholds code with content based distinctions)

3rd Melrose, Inc. v. City of Pittsburgh, 613 F.3d 380 (3d Cir. 2010),

cert denied

(a consideration of a sign’s content does not by itself make a regulation content-based)

Rappa v. New Castle County

, 18 F.3d 1043 (3d Cir. 1994)(regulation may contain content-based exceptions if the content exempted is significantly related to the category)

4

th

Brown v. Town of Cary

, 706 F.3d 294 (4

th

Cir. 2013)(“Screwed by Town of Cary” OK to regulate based on content as long as not based on message conveyed)

Wag More Dogs, Ltd. Liability Corp. v. Cozart

, 680 F.3d 359 (4

th

Cir. 2012)(not content based to look at it to determine if it is a business sign or non-business related mural)

14Slide15

Circuit Split (cont’d)6th H.D.V. Greektown, LLC v. City of Detroit, 568 F.3d 609 (6th

Cir. 2009)(Nothing in the record indicated that the distinctions between various categories of signs reflected a preference for one type of speech over another)

7

th A.C.L.U. of Illinois v. Alvarez

, 679

F

.3d 583 (7th Cir. 2012), cert. denied (Rejects argument that sign is content based because one must read it to see if law applies)

All these courts held that sign codes differentiating between sign categories or function were not content based.

15Slide16

Compare:8th Neighborhood Enters., Inc. v. City of St. Louis, 644 F.3d 728 (8

th

Cir. 2011)(strikes down ordinance where message conveyed determines whether speech is subject to code)

11th Solantic, LLC v. City of Neptune Beach

, 410 F.3d 1250 (11

th

Cir. 2005)(exemptions based on content struck down)“If the enforcement officer must read the message to enforce the code, the code is content based.”

16Slide17

Not only were the Circuits inconsistent but the Supreme Court was:Police Dept. of Chicago v. Mosely, 408 U.S. 92 (1972) ordinance prohibited all picketing near schools except “peaceful labor picketing” struck downMetromedia, Inc. v. City of San Diego

, 453 U.S. 490 (1981) ordinance distinguished between forms of non-commercial speech of billboards stuck down

Members of City Council of L.A. v. Taxpayers for Vincent

, 466 U.S. 789 (1984)(ordinance prohibiting all temporary signs on public property permissible, an exception for political signs may not be content neutral)

Contrasted with:

Ward v. Rock Against Racism

, 491 U.S. 781 (1989) The principal enquiry in determining content neutrality,. . . i

s whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government’s purpose is the controlling consideration.

17Slide18

Cases addressing governmental regulation of protests near abortion clinicsHill v. Colorado, 530 U.S. 703 (2000) Court upheld statute which made it unlawful within regulated area to knowingly approach within eight feet of another person to pass a leaflet, handbill, hold a sign or protest, educate or counsel. Court specifically notes officers need to review the content to see if law applies.

McCullen v. Coakley

, 134 S. Ct. 2518 (2014) Court invalidates Massachusetts law prohibiting expressive activities near abortion clinics, after it was held content neutral – and the Court repeated the

Ward

test.

18Slide19

Majority opinion in Reed:(Thomas, joined by Roberts, Scalia, Kennedy, Alito, Sotomayor)

Court chooses absolutist approach

A sign regulation that “on its face” considers the message on a sign to determine how it will be regulated is content based (135 S. Ct. at 2227)

And they went further (Justice Thomas):

Must be neutral: 1. On its face

2. In its purpose

The

Reed II

majority : Skipped the first step

and conflated content neutrality and viewpoint neutrality

Essentially: we agree Gilbert was viewpoint neutral, but must also be content neutral.

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Therefore strict scrutiny applies

Do the Town’s distinctions

serve a compelling governmental interest?

Traffic. Aesthetics.

Assuming they are compelling,

the Town’s distinctions are

under inclusive and thus

not narrowly tailored.“The Town cannot claim that

placing strict limits on

temporary directional signs

is necessary to beautify the

Town while at the same time allowing unlimited numbers of other types of signs [political] that create the same problem.”

(135 S. Ct. at 2231)

20Slide21

Concurrence (Alito, joined by Justices Kennedy and Sotomayor) These forms of sign regulations are permitted:

1. Rules regulating sign size

2. Rules regulating location

3

. Rules distinguishing between lighted and

unlighted signs 4. Rules distinguishing between constant

and

changing

message signs

5

. Rules distinguishing between placement

on public

and private property

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Concurrence(Alito, joined by Justices Kennedy and Sotomayor) (cont’d)

6

. Rules distinguishing between placement on commercial and residential property

*

7. Rules distinguishing between on premise

and off premise 8

. Rules restricting total number of signs

allowed per

mile of roadway.

*9. Rules imposing time restrictions on

signs

advertising a

one-time event.

*Don’t you have to read these signs to see if they apply?

Yes, as Justice Kagan noted in her concurring opinion

.

Government entities may also erect their own signs

22Slide23

Concurrency (Breyer, joined by Kagan)Concur in the Judgment, but are critical of the absolutist approach. Many content based distinctions should not have strict scrutiny applied to them.

Warned courts will

have to start “watering down”

strict scrutiny.

This will adversely affect:

federal securities regulations

prescription drug labeling, etc. which all regulate speech based on its content.

23Slide24

Justice Breyer could have also addedPanhandling Norton v. City of Springfield, Ill, 806 F.3d 441 (2015)Robocalls Cahaly v. Larosa, 796 F.3d 399 (4

th

Cir. 2015)

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Concurrence (Justice Kagan, joined by Justices Breyer and Ginsburg)Would have applied intermediate scrutiny – which requires government to demonstrate that speech regulation is narrowly tailored to achieve a significant (as opposed to compelling) governmental interest.

Many sign code content base regulations do not implicate core 1

st

A. concerns that justify strict scrutiny.

Gilbert’s ordinance would not have passed intermediate scrutiny because though its interests may be significant (traffic safety and aesthetics), they were not narrowly tailored. (political signs can be up for months and plaintiff’s only for a few hours and one is just as ugly and obstructive as the next.)

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Reed SummaryMajority applies mechanical approachMajority resolves split in circuits

Purpose is irrelevant if sign not neutral on face

Hundreds of lower court decisions relying on

Ward and

Hill

now invalidated

Categorical signs are content based and subject to strict scrutiny

26Slide27

The AftermathAre all categorical sign regulations unconstitutional?Real Estate Signs:

Standard definition: “signs that identify or advertise the sale, lease, etc.”

Alternative definition: “a temporary sign placed on property which is actively marketed for sale” (Arguably defined not by content of the sign but status of the property).

Construction

sign

Directional sign

Grand Opening sign

27Slide28

Aftermath (cont’d)Begin with the definition of “sign” Many codes define a sign in ways that distinguish between message content or who is displaying the message.

Many codes do something like:

“Signs” do not include the following:

Flags of nations, states, cities fraternal organizations

Time and temperature devices

National, state, religious, fraternal civic symbols or crests.

Neighborhood Enters., Inc. v. City of St. Louis

, 644 F.3d 728 (8

th

Cir. 2011

)

The

definition of sign was

content based

because the message determines whether the speech is subject to the restriction.

After

Reed

, this is unconstitutional

28Slide29

Aftermath (cont’d)The on-premise / off-premise distinctionJustice Thomas’ majority opinion does not mention, but it fails the announced test.

Justice Alito’s concurrence states it is still valid

Is

the distinction made on the basis of content

or

Is it simply a content neutral regulation of a sign’s location

(The distinction was approved in Metromedia

, 453 U.S. at 511-12)

29Slide30

In Metromedia, Court recognized the problem of banning all off premise signage because non-commercial speech does not have a location.

Result:

on

premise-off premise distinction only available for commercial signs

Justice Alito likely would say on premise – off premise does not govern content only location

Supported by Rule that prior U.S. Supreme Court decisions should not be overruled by implication.

Agostini v. Felton

, 521 U.S. 203 (1997

)

Reed

did not expressly overrule

Metromedia

, so the on site-off site distinction for commercial messages should still be good law.

(New case on

Metromedia’s

facts – likely to be upheld 6-3)

30Slide31

Since Reed, four lower federal courts have decided four cases regarding off premises billboardsThree “

Reed

applies to non-commercial,

Metromedia still valid”One appears to ignore Alito’s concurrence.

31Slide32

Regulation of Commercial SpeechReed majority cites extensively to

Sorrell v. IMS Health

, 131 S. Ct. 2653 (2011)

Pharmaceutical companies challenge Vermont statute restricting sale or disclosure or use of pharmacy records to reveal prescribing practices of physicians.

Vermont

: “this safeguards medical privacy preventing “data mining” selling prescription data

to

drug companies who would tailor their advertising campaigns to individual physicians.

Drug

companies sued claiming speech in aid of marketing is 1st A. protected

6-3 unconstitutional – The dissenters

are the

same justices (Breyer, Ginsburg, Kagan) who rejected the “on its face” standard in

Reed

.

32Slide33

Regulation of Commercial Speech (cont’d)Before Sorrell, accepted that commercial speech regulations were not required to be content neutral.But though Thomas sites

Sorrell

, his opinion never suggests that strict scrutiny which now applies for non-commercial speech regulation, also applies to commercial speech.

Justice Kennedy’s Sorrell opinion notes that commercial speech may require content based regulations and that commercial speech can be regulated to a greater extent than non-commercial speech.

Therefore, it appears, that

Reed

does not require that the content based regulations of commercial signs are subject to strict scrutiny.

Perhaps some form of intermediate scrutiny.

33Slide34

Regulation of Adult BusinessesAdult entertainment business regulations distinguish those businesses from others by looking at content, and regulate them because of concerns of secondary effects – increased crime, neighborhood deterioration.

The secondary effects doctrine is at odds with

Reed

majorities “on its face” rule.One analysis states Court will not be anxious to revisit Alameda Books

, 535 U.S. 425 (2002) which approved of secondary effects doctrine. Given what justices have said in

Alameda

, McCullen, Sorrell

and Reed probably lacks the 4 votes needed to review Alameda.

34Slide35

Speaker based regulationsReed II in 9th Cir. – Gilbert was not regulating content but validly distinguishing between speakers. The Town’s Qualifying Event sign was defined such that permitted certain non-profit organizations to display them.

Reed

Court disagreed the Town’s code was speaker based, and that speaker based laws are constitutionally permissible. Strict scrutiny is required when a speaker preference reflects content preference: “a law limiting the content of newspapers would not escape strict scrutiny because it was speaker based.”

Turner Broadcasting

, 512 U.S. at 634 Court unanimously upheld a 1992 law requiring cable providers to include local broadcast stations. Appellants argued that law favored one set of speakers (broadcasters) over another. Holding: Strict scrutiny applies only when the law “reflect the Government’s preference for the substance of what the favored speaker has to say.” Back to the

Ward

test.

35Slide36

Speaker Based Regulations (cont’d)After Reed not likely Court will allow speaker based regulation for facially content based laws.Application to Local Sign Codes:

Sign size, height, and type allowances vary according to zoning district. Regulation of speech on the basis of land use is a type of speaker based regulation.

Land use categories: single family residential, retail, restaurant, etc.

No good answers.

36Slide37

Application of Strict Scrutiny37

Aesthetics and Traffic Safety have not been compelling interests

S

ubstantial but not compelling. Many Circuits.But Reed

calls this into question:

A sign ordinance that is narrowly tailored to allow certain signs that “may be essential, for both vehicles and pedestrians, to guide traffic or to identify hazards and ensure safety” well might survive strict scrutiny.Slide38

Application of Strict Scrutiny (cont’d)But content neutral doesn’t mean you are home free:A content neutral ban on all signs posted on public property is subject ( to some form of) intermediate scrutiny.

Members of City Council of Los Angeles v. Taxpayers for Vincent

, 466 U.S. 789 (1984)

Government must demonstrate that a regulation serves a substantial governmental purpose unrelated to the suppression of speech, is narrowly tailored to achieve that purpose, and leaves ample alternative avenues of communication

.

Must have a governmental purpose in a preamble of sorts

38Slide39

But wait…. both strict and intermediate scrutiny required narrow tailoring!

Not quite, intermediate scrutiny requires narrow tailoring

Strict scrutiny requires least restrictive imaginable that still achieves regulatory objective

Plaintiff need merely have a hypothetical less restrictive equally effective alternative regulation to make a

prima facie

case.

39Slide40

How strict the scrutiny?Provisions that a majority of federal courts had concluded were content neutral are not, and now subject to strict scrutinyJustice Kagan: Strict scrutiny will have to be watered down until unrecognizable or communities will have to repeal the exemptions for helpful signs or lift restrictions and resign themselves to clutter.

Justice Beyer: Many government activities involve speech regulation that involves content discrimination, to apply strict scrutiny will require judicial management of ordinary government regulatory activity.

40Slide41

Traffic and pedestrian safety concerns, when supported by technical / scientific studies will likely in the future found to be compelling.Aesthetics never will.

41Slide42

Sign Codes and Managing RiskProbably all local sign codes now have unconstitutional provisions.A 100% content neutral sign code may be politically impossible.How much risk can your elected officials tolerate?

42Slide43

Sign Codes and Managing Risk (cont’d)Regulatory objectives vs. risk tolerance Avoid regulation of signs not visible from the public right-of-way

Avoid regulation of problems that do not exist

43Slide44

Sign Codes and Managing Risk (cont’d)Thorough review looking for content bias, you will find it.Even if you cannot fix it in the short term, if you know your problems you can better coach your enforcement staff.

Specific areas of problems

Exception

from permits

How are the excepted signs defined

Narrow Tailoring

Stated goal is traffic safety and eliminating clutter but you allow real estate signs

In

Reed

, the Court says, “Gilbert you say clutter, but your political signs are 5 times bigger

Any discretion must be

bridled.

See

:

Lamar v. Twin Falls

,

981 P.2d 1156 (ID 1999)

44Slide45

Sign Codes and Managing Risk (cont’d)Reduce or eliminate sign categoriesGilbert had lots of categories: political, ideological, directional, weekend real estate….

The more categories you have, the more problems you have and the more you will fail narrow tailoring

Eliminate content based definitions: political signs, religious signs = heightened public sensitivity

Probably

suspend enforcement of regulations based on content based

distinctions.

Moratoria

on the issuance of sign permits – probably

an

unconstitutional prior

restraint

45Slide46

Sign Codes and Managing Risk (cont’d)Have a purpose statement

Spell

your interests out – traffic safety and aesthetics have been upheld for intermediate scrutiny

.

Blight Prevention

Economic Development

Design Creativity

Protection of Property values

Prevention of clutter

Scenic View protection

Encouragement of free

speech

Use empirical

studies

to back up purposes where

possible

Traffic Study

Comprehensive Planning

46Slide47

Sign Codes and Managing Risk (cont’d)Must have a substitution clause

Expressly allows non-commercial copy to replace the message on any permitted or exempt sign

Severability

Clause – if the whole code is

struck,

the billboards go up and now stay up or 30

years

Distinguish temporary from permanent signs

Time limits on temporary signs

“Notwithstanding any other code provision, each parcel of real property shall be allowed, without a permit on additional 32 feet of temporary non-commercial signage, not to exceed 4 signs at one time, for a period not to exceed ninety days per calendar year

.”

Satisfies

Reed

but an enforcement headache

47Slide48

Sign Codes and Managing Risk (cont’d)Redefine your former sign categories

Riskier but possible: redefine all the former categories

Riskier because of more subtle

bias

Plaintiff may argue

this is a ruse – though facially neutral, the intent was for real estate sign, thus strict scrutiny.

48

Old

New

Construction Sign

A temporary

sign placed on parcel where construction activities are being performed

Real

Estate Sign

A temporary sign placed on parcel

on the market

Grand Opening Sign

A temporary sign on a parcel not to exceed 30 days following the sale, lease, change of useSlide49

Sign Codes and Managing Risk (cont’d)Enforcement

Consider your council’s appetite for

enforcement

Selective Enforcement results in liability

La Trieste Restaurant and Cabaret, Inc. v. Village of Port Chester

, 40 F.3d 587 (2d Cir. 1994)

Online registration systems my ease enforcement headaches.

49Slide50

But in Arizona we have A.R.S. § 16-1019 . . .City or County shall not remove any political sign ifIt is in the right-of-way

Supports or opposes a candidate or ballot measure

Not placed in hazardous location

Max of 32 square feet

Contains contact in

Not on government owned structure

60

days before primary until 15 days after general

(

mid June to Mid November)

50Slide51

But in Arizona we have A.R.S. § 16-1019 . . . (cont’d)Tourism Zone exceptionAG opinion (No. I15-11) 16-1019 is not unconstitutional

“Arizona State statutes referencing political signs to not restrict speech.” No, they just restrict municipal and county ability to restrict non-commercial speech for 5 months every two years.

Can’t leave the political sign up for the 5 months and take down the religious signs. Can’t have enforcement preference

among

non-commercial signs (Metromedia).

51Slide52

SourcesAlan C. Weinstein, Brian J. Connolly, Sign Regulation after Reed: Suggestions for Coping with Legal Uncertainty, Cleveland-Marshall College of Law Legal Studies Paper No. 15-285 (Sept. 2015) http://ssrn.com/abstract=2660404

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