political signs - PowerPoint Presentation

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political signs

Christina Estes-WertherGeneral CounselLeague of Arizona Cities and Towns

AMCA Summer 2016 Conference

Wednesday, July 27, 2016Slide3

Reed v. town of Gilbert, 135

S. Ct. 2218 (2015)

United States Supreme Court case

Decided June 2015

Unanimous vote

Significant impact on sign codes across the nation

Gilbert’s Code

The Town of Gilbert’s sign code required a permit for the display of outdoor signs, except for those signs that fell under one of the exempted categories.

For example, political signs, ideological signs or temporary directional signs (relating to a qualifying event) did not require permits if all the criteria was met.Slide4

Reed

v. town of Gilbert, 135 S. Ct. 2218 (2015)

Facts of the Case

Petitioners, Good News Community Church (“Church”) and Pastor Clyde Reed posted temporary signs on Saturday mornings bearing the Church name and the time and location of the next service and removed the signs midday the next day.

Gilbert categorized these signs as “Temporary Directional Signs” because they were intending to direct pedestrians and vehicles to a specific qualifying event.

The Town cited the Church for exceeding the time limits for displaying the signs and for failing to include an event date on the signs.

The Church did not dispute these violations but filed a complaint in U.S. District Court that Gilbert was abridging their freedom of speech.Slide5

Reed v. town of Gilbert, 135 S. Ct. 2218 (2015)

Court Process

The District Court denied the Church’s motion for a preliminary injunction and the Ninth Circuit affirmed the ruling in favor of the Town.

The Ninth Circuit concluded that Gilbert’s code was content-neutral (the regulation applies to all speech regardless of the viewpoint and subject matter) and Gilbert was able to satisfy the intermediate scrutiny for content-neutral regulation.

The Church appealed and the case was heard by the U.S. Supreme Court.Slide6

Reed v. town of Gilbert, 135 S. Ct. 2218 (2015)

Decision

On June 18, 2015, the U.S. Supreme Court reversed the Ninth Circuit’s decision.

The Court found that Gilbert’s sign code is “facially content-based” meaning that on its face Gilbert regulates speech based on the subject matter because Gilbert used the content of the sign to determine whether the sign was exempted.

Essentially, the Court found that the Church’s sign was regulated according to the message it was conveying. Slide7

Reed v. town of Gilbert, 135 S. Ct. 2218 (2015)

Gilbert’s Arguments

The regulation was not based on any disagreement with the message conveyed on the Church’s sign so it was not content-based.

The Court stated that it was irrelevant whether Gilbert agreed or disagreed with the content of the sign when regulating it, finding that a “benign motive” was not relevant when examining whether the regulation is content-based.Slide8

Reed v. town of Gilbert, 135 S. Ct. 2218 (2015)

Gilbert’s Arguments

The sign regulation was content-neutral because all temporary directional signs were treated similarly, regardless of the particular viewpoint.

The Court asserted that the regulation singles out specific subject matter for differential treatment, even if it does not target viewpoints within the subject matter.

An Ideological Sign can be up to 20 square feet and have no placement or time restrictions;

A Political Sign can be up to 32 square feet and may only be displayed during an election season; and

A Temporary Directional Sign, such as the Church’s sign, is limited to six square feet and could only be displayed no more than 12 hours before the qualifying event and 1 hour after. Slide9

Reed v. town of Gilbert, 135 S. Ct. 2218 (2015)

Gilbert’s Arguments

The regulation was speaker or event-based and therefore was not content-based.

The Court disagreed and reiterated that speech regulation is content-based if the law applies to a particular speech because of the topic discussed or the idea or message expressed. Slide10

Reed v. town of Gilbert

Decision

Because the court found the regulation to be content-based discrimination, it was subject to the highest standard – strict scrutiny.

The Court found that Gilbert’s regulation failed the strict scrutiny test because it could not provide evidence that its

regulation furthered a compelling governmental interest and is narrowly tailored to that interest

.

The Court dismissed Gilbert’s assertions that the regulation is necessary for aesthetic appeal and traffic safety because Gilbert’s Sign Code allowed unlimited display of larger Ideological Signs and was unable to demonstrate that Temporary Directional Signs posed a greater threat to safety than any other signs.

The Court reversed the judgment of the Ninth Circuit Court of Appeals. Slide11

Reed v. town of Gilbert, 135 S. Ct. 2218 (2015)

Concurring Opinions – Justice Alito (joined by Justices Kennedy and Sotomayor)

Government can regulate signs in a manner that would not be content-based and provided the following examples of

content-neutral

regulation:

Size of signs;

Location of signs such as free standing signs or those attached to buildings;

Lighted and unlighted signs;

Fixed messages and electronic signs with messages that change;

Distinguishing placement of signs on private and public property;

Distinguishing on-premises and off-premises signs;

Restricting the total number of signs allowed per roadway;

Imposing time restrictions on signs advertising a one-time event ; and

Signs erected by private actors and government entities.Slide12

Reed v. town of Gilbert, 135 S. Ct. 2218 (2015)

Concurring Opinions – Justice Kagan (joined by Justices Breyer and Ginsburg)

Many illuminated signs, certain safety-related signs and historic site markers may be in jeopardy if the regulation is focused on a specific subject matter (content-based) and there is not a compelling governmental interest under strict scrutiny.

Would have applied intermediate scrutiny to this case.

States that communities may have to repeal the sign exemptions or remove all sign restrictions.Slide13

Reed v. town of Gilbert, 135 S. Ct. 2218 (2015)

Concurring Opinions – Justice Breyer (joined by Justice Kagan)

Agreed with judgment but contended that many content-based distinctions, outside of sign codes, do no have strict scrutiny applied.

Concerned that the court’s application will affect other areas that regulate speech such as prescription drug labeling or securities regulations.

Other areas have been affected by this ruling…Slide14

Issues Affected by

Reed

Panhandling

The Seventh Circuit Court found that Springfield's

Municipal Code

was content discrimination because it prohibits an

oral request for an

immediate

donation of money but does not include signs requesting money or oral pleas to send money later

.

Norton v. City of Springfield, Ill.,

806 F.3d 411, 412 (7th Cir. 2015)

cert. denied

, 136 S. Ct. 1173 (

2016)

The Court found that the new anti-panhandling

ordinance that prohibited panhandling for an immediate donation within five feet of the solicited

person was content-based because

the ordinance continues to prohibit speech that requests an immediate donation but allows other type of speech and the city was unable to meet its burden of strict scrutiny.

Norton v. City of Springfield

, 15-3276, 2015 WL 8023461, at *1 (C.D. Ill. Dec. 4,

2015)

The

Court found that ordinance was content-based since it regulated a particular type of speech

and while

the City has a legitimate interest in promoting the safety and convenience of its citizens on public sidewalks and

streets, the

City’s ordinance is not the least restrictive means available to protect the public and therefore, did not satisfy strict scrutiny.

Thayer v. City of Worcester

, CV 13-40057-TSH, 2015 WL 6872450, at *11 (D. Mass. Nov. 9,

2015)

The

Court found that the City's definition of panhandling

was content-based because it targets only the

solicitation of immediate charitable

donations

and promoting tourism is

not a compelling state interest and it cannot

survive

strict scrutiny under the First Amendment

.

McLaughlin

v. City of Lowell

, 14-10270-DPW,

2015

WL 6453144, at *4 (D. Mass. Oct. 23, 2015)Slide15

Issues Affected by

Reed

Photographs

of Ballots

The District Court held that the statute

prohibiting

voters from taking and disclosing digital or photographic copies of their completed ballots

was content-based

because it restricts speech on the basis of whether the ballot was marked or unmarked ballots

.

Rideout v. Gardner

, 123 F. Supp. 3d 218 (D.N.H. 2015)

Political

Speech

Ohio's

political false-statements laws that only govern speech about political candidates

are unconstitutional because

they are not narrowly tailored in their (1) timing, (2) lack of a screening process for frivolous complaints, (3) application to non-material statements, (4) application to commercial intermediaries, and (5) over-inclusiveness and under-inclusiveness.

Susan

B. Anthony List v. Driehaus

, 814 F.3d 466, 473 (6th Cir. 2016)

The

Court held that the statute

restricting false statements in campaigns was

content-based regulation of political speech, and, thus, was presumptively invalid.

Com

. v. Lucas

, 472 Mass. 387, 34 N.E.3d 1242 (2015)

Robocalls

The Court found that

South

Carolina's anti-robocall

statute is

a content-based regulation that does not survive strict scrutiny because the statute

applies

to calls with a consumer or political message but does not

apply

to calls made for any other purpose.

Cahaly

v. Larosa

, 796 F.3d 399, 402 (4th Cir. 2015)Slide16

Impact of

Reed

What does this mean for city and town sign codes?

This was a significant decision and city and town attorneys have been reviewing the sign codes.

Remember that any categorization based on the content or the face of the message may be content-based discrimination under the First Amendment.

If you have to read it to classify it, it’s content-based.

Sign code revisions will follow as more case law is being developed and draft ordinances are being published.Slide17

Arizona’s Political sign law

A.R.S.

§

16-1019 (A), (B)

It is a Class 2 misdemeanor if 45 days before a primary election until 7 days after the general election, any

person

knowingly:

Removes, alters, defaces or covers any political sign of any candidate for public office; or

Removes, alters or defaces any political mailers, handouts, flyers or other hand-delivered printed mailers.

Candidates may remove, alter, or cover their own signs or the signs may be removed by the owner of the private property if no permission was given by the owner or if the sign is placed in violation of state law or county, city or town ordinance or regulation.Slide18

Arizona’s Political sign law

A.R.S.

§

16-1019 (C)

A city or town is prohibited from removing, altering, defacing or covering any political sign if the sign:

Is placed in a public right-of-way that is owned or controlled by that jurisdiction;

Supports or opposes a candidate for public office or it supports or opposes a ballot measure;

Is not placed in a location that is hazardous to public safety, obstructs clear vision in the area or interferes with the requirements of the Americans with Disabilities Act.

Has a maximum area of 16 square feet, if the sign is located in an area zoned for residential use, or a maximum area of 32 square feet if the sign is located in any other area.

Contains the name and telephone number or website address of the candidate or campaign committee contact person

.Slide19

Arizona’s Political sign law

A.R.S.

§

16-1019 (D),(H)

The removal restrictions on cities and towns is only from 60 days before a primary election and ending 15 days after the general election. If a sign is for a candidate in a primary election who does not advance to the general election, the period ends 15 days after the primary election.

If a sign is placed outside of this allowable time frame (i.e. 90 days before a primary election), the city or town may notify the candidate that the sign is placed in violation and after 24 hours, the city or town may remove the sign. The city or town must contact the candidate or campaign committee and retain the sign for at least 10 business days to allows the candidate or campaign committee to retrieve the sign without penalty.

Recent Informal Attorney General Opinion, I16-006/R16-014

Disputed the assertion by some candidates that signs can be placed as early as 60 days before early voting begins.

Stated that the “plain meaning” of primary election means 60 days

before a primary

election

in A.R.S. §

16-201.Slide20

Arizona’s Political sign law

A.R.S.

§

16-1019 (D),(E),(G),(I)

The city or town may immediately relocate the sign if it deems that the placement of a political sign constitutes an emergency.

The candidate or campaign committee must be notified by the city or town within 24 hours after the relocation.

A city, town or county employee acting within the scope of the employee's employment is not liable for an injury caused by the failure to remove a sign if there was an emergency situation under subsection D unless the employee intended to cause injury or was grossly negligent.

A city, town or county may prohibit the installation of a sign on any structure owned by the jurisdiction.

The restriction on removing signs does not apply to state highways or routes, or overpasses over those state highways or routes. This means signs on state highways can be removed (likely by ADOT).Slide21

Arizona’s Political sign law

A.R.S.

§

16-1019 (F)

A city or town can remove political signs in a commercial tourism, commercial resort and hotel sign free zones as those zones are designated by municipalities.

The total area of those zones shall not be larger than three square miles, and each zone shall be identified as a specific contiguous area where, by resolution of the municipal governing body, the municipality has determined that based on a predominance of commercial tourism, resort and hotel uses within the zone the placement of political signs within the rights-of-way in the zone will detract from the scenic and aesthetic appeal of the area within the zone and deter its appeal to tourists.

Not more than two zones may be identified within a municipality.Slide22

Application of

Reed to Arizona’s Political sign law

How does Reed apply to Arizona’s political sign law?

A.R.S. § 16-1019

protects political signs from removal by individuals and government entities while other signs are not afforded the same protection. Is it content-based discrimination? Do you have to read the sign to know whether a sign is subject to A.R.S.

§ 16-1019

?

Municipalities sought an opinion from the Attorney General - requested by Sen. Kavanagh.

Two questions:

What legal impact does the recent United States Supreme Court ruling in 

Good News Presbyterian Church v. Town of Gilbert

 have on Arizona Statutes regulating political campaign signs? 

In particular, does the Supreme Court ruling require an amendment to Section 16-1019, Arizona Revised Statutes, in order to comply with the Court’s mandate?Slide23

Application of

Reed to Arizona’s Political sign law

ATTORNEY GENERAL OPINION I15-011

The Attorney General stated the Supreme Court’s decision does not directly impact any Arizona statutes regulating political campaign signs. 

It does not require an amendment to Section 16-1019 because nothing in that statute restricts speech. “Instead, it establishes the limits—under Arizona law—of what local governments may do as 

they

 limit or regulate signs.”

“A municipality desiring to enact rules specifically targeting political signs in violation of 

Reed

 cannot rely on Section 16-1019(F) to inoculate such rules against a First Amendment challenge. ”Slide24

Application of

Reed to Arizona’s Political sign law

Cities and towns must comply with

Reed

and not restrict speech based on content yet must also comply with

A.R.S. § 16-1019,

which grants protection to a particular type of speech: political signs.

If a city is forced to allow political signs during this time period, must they allow other types of signs such as ideological signs or directional signs? If not, is the city discriminating based on content by allowing political signs to remain but other signs are removed?

In order to avoid a court challenge: treat all speech the same.Slide25

Next steps

A.R.S

. §

16-1019

http://www.azleg.gov/FormatDocument.asp?inDoc=/

ars/16/01019.htm&Title=16&DocType=ARS

Recent

Informal

Attorney General

Opinion, I16-006/R16-014

https

://www.azag.gov/sgo-opinions/timeframe-application-ars-%

C2%A7-16-1019h-regarding-political-signs

ATTORNEY GENERAL OPINION I15-011

https

://www.azag.gov/sgo-opinions/whether-ars-%

C2%A7-16-1019-requires-amendment

Talk to your city or town attorney

Best resource about the status of your sign code

How to address political sign issues in your city or town

Do

policies

need to be updated?

Report any issues or complaintsSlide26

Questions?Slide27