Freedom of Speech and City Regulation: Signs of the Times

With all the discussion surrounding the “take a knee” protests at the NFL recently, there have been a lot of references to the First Amendment right to freedom of speech. However, the First Amendment is not implicated by these protests; and, in my experience, people are quick to proclaim First Amendment protection in many situations where the protection does not actually apply. You see, the First Amendment does not mean that you can say, without consequence, whatever you want, whenever and wherever you want; it means that the government may not regulate your speech without attempting to advance a compelling governmental interest in doing so. Where no government regulation is involved, the First Amendment is generally inapplicable.

While the First Amendment is not involved in the football arena, there is another arena where the First Amendment has been making forward progress: sign regulation. I know, I know, I just pulled a bait-and-switch, but at least I gave you a football pun. Seriously though, the United States Supreme Court has recently made a sweeping change to the regulation of signs. But first, a season recap:

In the early days of sign regulation, signs were primarily viewed as a mere use of a person’s property, and governmental entities (we’ll use Cities because they do the Detroit Lion’s share of sign regulation) only had to justify their sign regulations with health and safety concerns. Incidentally, billboards are the most heavily regulated type of sign, so perhaps it would be helpful to imagine billboards for the remainder of this article. Early sign regulation ordinances often recited findings such as that signs posed traffic hazards, either because drivers were distracted while reading them or because the signposts themselves were collision hazards. Other common findings were that children are attracted to signs to play on and potentially get hurt, which finding likely proliferated after the airing of a particular episode of “Leave it to Beaver” in which The Beaver climbs into a giant soup bowl on a billboard and gets trapped. Some ordinances even claimed that highway bandits would lurk behind signs and ambush commuters.

Billboards as Legal Signposts

Eventually, esthetics were upheld as a proper basis for sign regulation, and ordinances soon began regulating things such as size and shape without having to tie those regulations to some sort of threat to health or safety. Under these somewhat lenient justifications for regulating land use, cities had a sign regulation heyday until an outdoor advertising company sued the City of San Diego over their sign regulations, claiming that their First Amendment rights were being violated. In the landmark decision of Metromedia, Inc. v. City of San Diego, the United States Supreme Court differentiated commercial speech from noncommercial speech, and determined that the former could be regulated more strictly than the latter. In short, the City of San Diego generally permitted only “on-premise” signs, which were essentially commercial signs advertising goods or services available on the property where the sign is located. Non-commercial signs and commercial signs advertising “off-premise” goods and services were generally prohibited. The Supreme Court held that commercial speech could be limited to “on-premise,” but that non-commercial speech could not. After Metromedia, cities had to be much more careful about the type of speech they were regulating, and the justifications therefor. A sort of mantra evolved that “time, place, and manner” regulations were generally permissible, but that “content-based” regulations had to be justified under the scrutiny required under the First Amendment. Because the degree of regulation varied with the type of speech, such as the commercial versus non-commercial distinction made in Metromedia, it was generally understood that the category or type of speech could be regulated without the regulation being considered “content-based.” This was the sign regulation playbook for many seasons until just recently, when a figurative flag was thrown on a field in the Town of Gilbert, Arizona.

In Reed v. Town of Gilbert, Arizona, the United States Supreme Court essentially held that a sign regulation is “content-based,” thus requiring the regulation to be narrowly tailored to serve a compelling governmental interest, if the sign must be read to enforce the regulation. The Town of Gilbert had regulated different categories of signs differently, using essentially the different categories or “tiers” of speech that had become associated with different permissible degrees of regulation in the body of law developing around the First Amendment, including Metromedia. However, the Supreme Court held that even categorical determinations were “content-based,” and declared such regulations of the Town of Gilbert unconstitutional.

Interestingly, the Supreme Court did not overturn or distinguish Metromedia, and so a somewhat philosophical question remains as to how one could determine whether a sign is commercial or non-commercial and whether a sign is on-premise or off-premise without reading the sign. In fact, in his concurring opinion, Justice Alito specifically lists rules distinguishing between on-premises and off-premises signs as among those rules that would not be content based. However, because Justice Alito’s list is not stated in the majority opinion, it is uncertain as to whether and to what extent such rules would actually be upheld under Reed.

So, while the First Amendment does not prohibit the NFL or individual team franchises from regulating players’ actions constituting speech, such as kneeling during the National Anthem, regardless of whether those actions occur on-premise or off-premise, if a governmental entity were to attempt to regulate such behavior, or perhaps a depiction of it on a sign, it would certainly be subject to scrutiny under the First Amendment. While no episode of “Leave it to Beaver” is likely to be a sufficient muse for the justification to overcome such scrutiny, I’m sure some people would rather watch that than another NFL game.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.