U.S. Supreme Court Watch Sign anarchy Aftermath of Supreme Court decision opens Pandora's Box of sign code problems

By Hank Stephenson

The Daily Record Newswire

PHOENIX, AZ - As the political season begins in earnest and campaign signs start to pepper roads around the state, a recent U.S. Supreme Court decision is complicating cities' abilities to regulate other kinds of signs.

The 2015 Supreme Court decision in Reed v. Town of Gilbert leaves cities in a difficult position: State law says cities must allow political signs on the public right-of-way for roughly five months surrounding an election. But the Supreme Court says if cities allow political signs on street corners, they must allow other types of signs, too.

The window during which cities must allow political signs on the public right-of-way opens on July 1. When that window opens, so does a Pandora's Box of sign code problems.

In light of the Reed case, some cities plan to stop removing almost any sign placed in the public right-of-way during that period.

John Baker, a Minnesota-based attorney who works on sign code laws around the country, said the ruling is leading to "noncommercial speech anarchy."

But some cities are interpreting that anarchy as also extending to commercial signs.

The city of Phoenix is being extra cautious in enforcing its sign code in the wake of the ruling, and isn't even taking down commercial signs during the political season. That will mean leaving up about 18,000 signs along the roadsides that otherwise would have been taken down signs advertising everything from yard sales, weight loss programs, and offers to buy "ugly houses."

The city has two full-time employees who take down about 3,600 of those signs a month, or about 42,000 per year. But starting July 1, those two employees will be reassigned to graffiti duty until Nov. 23, when cities can once again remove political signs under state law.

The city will still remove signs in the public right-of-way if they are larger than 36 square feet, block traffic or present a safety hazard. But as long as the signs follow the same lenient rules imposed on political signs, they can remain on the roadsides during the political season.

"Content based'' regulations

Clyde Reed, pastor at Good News Community Church, filed the groundbreaking lawsuit after his church had been ticketed by the town of Gilbert for not removing a sign advertising its services within one hour after the services concluded. Reed sued, arguing the city sign code violated his First Amendment right to free speech because it had imposed tougher regulations on the church signs than on political candidate signs, who were allowed to leave their signs up for months at a time.

The court agreed. In a unanimous ruling, the court essentially stated that governments cannot impose "content based" regulations on signs, which are a form of free speech.

The takeaway point from that case, experts say, is that if you have to read a sign to know if it's in violation of a city sign code, that city sign code is probably unconstitutional, like Gilbert's code.

The problem is, most cities' sign codes look a lot like Gilbert's.

In Arizona and across the country, cities, towns and counties are struggling with how to write a sign code that doesn't reference what the sign is for whether it is a political sign, a business sign, a real estate sign, a restaurant menu sign, a construction sign or a garage sale sign.

Experts say the best way to deal with the ruling is to draft sign codes that classify by physical attributes of the signs, rather than the words the signs contain.

But as they struggle to re-write their codes, many cities are choosing not to regulate signs at all during this year's political season.

Seeking a model ordinance

Ken Strobeck, executive director of the League of Arizona Cities and Towns, said nearly every city in Arizona that has a sign code will have to revise its code in the wake of Reed v. Gilbert but nobody has figured out a good model code for the new rules.

"Our attorney and a group of city attorneys have been trying for months to put together a model ordinance that harmonizes all this, and it doesn't sound complicated, but it really is," Strobeck said.

He said many cities have been interpreting the law differently from each other, with some applying the ruling only to non-commercial speech and some applying it to all kinds of signs, including those that are simply advertisements for businesses.

Strobeck said in his view, Reed doesn't necessarily apply to commercial speech.

Some cities, such as Gilbert, are reading the law that way. But others, such as Phoenix, disagree.

Jared Blanchard, an attorney with the Goldwater Institute, recently penned a policy paper for the institute titled "Heed Reed" that stated: "A quick look around the state shows that Arizona municipalities have either failed to revise their sign codes in accordance with Reed, or have failed to do so properly."

He argued the ruling actually applies to commercial speech as well. In order to know if the sign's speech is commercial or non-commercial, a person would have to read that sign, which is exactly what the court found problematic, he said.

And while the case didn't specifically speak to commercial versus non-commercial speech, Blanchard noted there have been other cases in the 4th Circuit Court of Appeals that seemed to apply the same logic to commercial speech.

But Jack Vincent, Gilbert's assistant town attorney, argued that the case only applied to non-commercial speech, so the city can still regulate roadside signs advertising businesses.

"As far as we see, the court didn't do anything to change the distinction between commercial and noncommercial speech. Non-commercial speech still has greater protections than commercial speech," he said.

Not so simple

Further complicating the issue is the state law requiring cities to allow "political signs" in the public right-of-way beginning 60 days before the primary election and ending 15 days after the general election. This year, that means from July 1 to Nov. 23.

Attorney General Mark Brnovich recently issued an opinion on the question of whether that law is unconstitutional in light of the Reed case. He concluded, in short, that it isn't because the law allows signs rather than restricts them.

Blanchard, the attorney for Goldwater Institute, agreed.

"I don't think it's unconstitutional because it's a command for cities and towns and they can be complied with in a constitutional manner so long as cities and towns also allow everyone to speak in that forum equally," he said.

But others say it's not quite that simple.

Mark White, an attorney who specializes in sign codes and has helped re-write several municipal sign codes following Reed v. Gilbert, said most states have similar laws restricting what communities can do to regulate political signs, and their constitutionality hasn't been tested in court yet.

"But it's somewhat discriminatory because if I have a sign like the Presbyterian Church in Gilbert had, (state law) doesn't protect that sign. And therefore the state has violated my constitutional rights by not offering me the same protection that's offered to political signs. That's exactly what happened in Reed," he said.

White said the Legislature has a duty to clarify the law for cities and towns in the wake of the ruling, and if lawmakers don't do that, "they're leaving local governments in Arizona in a very, very difficult position."

Strobeck, from the League of Arizona Cities and Towns, said his organization won't be pushing the Legislature to clarify the state law and is instead focusing on helping cities and towns deal with their own sign codes.

'Mitt bit my sushi'

During the 2012 presidential election, public relations guru Jason Rose turned heads of passing motorists when he founded a federal Political Action Committee and, with a cry of free speech, dotted Valley streets with advertisements for a local sushi restaurant in the guise A-political campaign signs.

Phoenix officials declared Rose had "found a loophole" allowing the signs in the public right of way such as city-owned land, along sidewalks and on street corners.

Because the signs were paid for by the restaurant's PAC and contained slogans mentioning the presidential candidates such as "Mitt bit my sushi" and "Obama cares about our sushi" the signs were ostensibly political speech, and not advertisements for a business, which are banned from the public right of way under Phoenix city code.

But this year, companies wouldn't need the guise of a political PAC to place advertisements in the public right of way.

Rose said he no longer represents the sushi restaurant, and didn't plan to put up similar "political" signs this year.

But he didn't realize the Reed case would open up the public right of way to commercial signs. And now he said he may check with his clients to see if they're interested in putting up advertisements, even though the public hates roadside signs.

"A bunch of wise ass marketers like myself are going to take advantage of that. And the public doesn't like road signs to begin with, they tolerate it as part of democracy," he said.

Published: Thu, Jul 07, 2016


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