Earlier this year, an individual and two businesses (“Plaintiffs”) brought suit to challenge the Town of Canandaigua’s local sign ordinance. The complaint, which was filed in the United States District Court for the Western District of New York on June 28, claims that the Town’s local sign law violates Plaintiffs’ rights under the First and Fourteenth Amendments, and seeks an injunction, damages, and attorneys fees.
The dispute arose in May, when Town officials sent letters to property owners threatening to impose penalties, fines, and other punishments if they did not remove outdoor advertising signs from their properties. The Town claimed that the Lamar advertising signs on the local business’s property violated the Town’s sign ordinance, which (with limited exceptions) only permitted signs that advertise a business or service that is available on the premises where the sign is located rather than off-premises.
Sign laws can raise tricky issues because they must balance community concerns and zoning goals against protections for freedom of speech. Cases like these can be so complicated that entire seminars are sometimes dedicated to discussing these issues.
In January of 2018, Mindy L. Zoghlin, Esq. (the Principal Attorney at The Zoghlin Group) presented a Continuing Legal Education seminar (a “CLE”) on the subject of sign laws at the New York State Bar Association’s Annual Meeting. In her presentation, Mindy Zoghlin discussed a significant United States Supreme Court case — Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015) (“Reed”) — which addressed a municipality’s authority to regulate signs.
In Reed, the Supreme Court struck down the Town of Gilbert’s sign ordinance, which required permits for all outdoor signs, and which exempted certain signs from the permit requirement if they fell into specific categories. The majority in Reed essentially held that if someone must read a sign to understand what sign rule applies (or how a sign rule applies), then the law is “content-based,” and therefore subject to the highest level of judicial review known as “strict scrutiny.”
Under strict scrutiny, a government regulation (in this case a sign ordinance) will only be upheld if the government establishes that the law furthers a “compelling governmental interest” and is narrowly tailored to achieve that interest. In practice, when courts evaluate a law using strict scrutiny, the law usually ends up being struck down. As the old adage in the legal community goes: “strict scrutiny is strict in theory, but fatal in fact.”
By contrast, Justice Alito’s concurrence in Reed suggested that sign ordinances could lawfully distinguish between signs that advertise goods or services available on-premises from those that advertise goods and services available off-premises. Under Justice Alito’s reasoning, such distinctions are not necessarily “content-based,” but may instead be “content-neutral,” and would therefore be subject to a lower level of judicial review known as “intermediate scrutiny.”
Under intermediate scrutiny, a government regulation will only be upheld if it furthers an important government interest and does so by means that are substantially related to that interest.
Because the facts of Reed involved only private speech rather than commercial speech, lower courts have since held that the majority opinion in Reed does not require the application of strict scrutiny to laws regulating commercial speech (rather than private speech). Instead, many courts have held that, as Justice Alito’s concurrence in Reed suggested, and as the Supreme Court previously held in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980) (“Central Hudson”), intermediate scrutiny applies to regulations on commercial speech. Accordingly, whether a sign law survives a legal challenge depends, at least in part, both on whether it treats signs differently based on their content, and whether it regulates private signs or commercial signs.
While the rules may seem complicated, and the differences minor, the consequences of enacting an improper sign law can be significant. Plaintiffs challenging unconstitutional government action often seek attorneys’ fees, which can turn a seemingly small sign violation into an expensive lawsuit. The possibility of recovering attorneys’ fees also makes such cases more palatable to plaintiffs because recovery of such expenses by successful plaintiffs reduces the cost of challenging unconstitutional laws.
Accordingly, if your municipality is considering a local sign law, it should first seek advice from a land-use attorney who understands the constitutional limitations on such laws. Likewise, if local government officials try to force you to remove a sign from your home or business, you may have the right to challenge them. In either case, before you enact such a law, enforce it, defy it, or challenge it, make sure you talk to an experienced attorney who can help.
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