modern constitutional challenges in sign regulation

Modern Constitutional Challenges in

Sign Regulation

APA National Conference · Los Angeles, California · March 16, 2012

Brian Connolly, University of Michigan Law School

Randal Morrison, Sabine & Morrison

Alan Weinstein, Cleveland State University / Cleveland-Marshall College of Law

© Brian Connolly, Randal Morrison, and Alan Weinstein 2012

MODERN CONSTITUTIONAL CHALLENGES IN S IGN REGULATION 2

Constitutional Issues in Sign Regulation

First Amendment

Takings

Due Process

Equal Protection

First Amendment Basics


“Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom

of speech, or of the press; or the right of the

people peaceably to assemble, and to petition

the Government for a redress of grievances.”

First Amendment


First Amendment

Land uses that raise First Amendment issues

• Religious facilities

• News racks and news stands

• Adults-only uses

• Signs and billboards


• Every First Amendment freedom can be

invoked by a sign

• Government regulation of signs loses the

normal presumption of constitutionality and is

subject to heightened scrutiny

• Sign litigation is common, expensive, and

risky

• Most sign ordinances contain at least a few

provisions of questionable constitutionality

First Amendment


Police Dept of City of Chicago v. Mosley, 408 U.S. 92 (1972)

Key First Amendment Cases


Police Dept of City of Chicago v. Mosley, 408 U.S. 92 (1972)




• Government cannot regulate speech on the basis of content

• But some categories of speech have limited First Amendment protection, based on carve-outs... – Defamation

– Deceptive commercial practices

– Criminal conspiracies

– Threats and“fighting words”

– Incitement to riot or destruction

– Obscenity


Commercial speech doctrine

• First Amendment protection in 1976—Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976)

• Central Hudson test for constitutionality of a commercial speech restriction—Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557 (1980)

– Speech must be lawful and non-misleading

– Governmental interest must be substantial

– Regulation must directly advance the governmental interest

– Regulation must go no further than necessary



Metromedia, Inc. v. City of San Diego, 453 U.S.

490 (1981)

The ordinance:

• Ban on all advertising signs

• Exceptions to the ban: on-premises signs and

certain other types of signs (political signs,

real estate signs, religious signs, etc.)

• City interests: traffic safety and city

appearance


MODERN CONSTITUTIONAL CHALLENGES IN S IGN REGULATION 1 2


Making sense of Metromedia



• Substantial interests: traffic safety and

community aesthetics




• Substantial interests: traffic safety and community aesthetics

• Commercial off-site billboards can be banned




• Substantial interests: traffic safety and community aesthetics


• Cannot favor commercial over noncommercial speech




• Substantial interests: traffic safety and

community aesthetics


• Cannot favor commercial over noncommercial

speech

• Regulations of noncommercial speech must

be content neutral


Major Constitutional Concepts


Major Constitutional Concepts

• Content (or message)

neutrality

• Time, place or manner

regulations

• Commercial vs. non-

commercial speech

• Off-site vs. on-site

signs

• Bans and exceptions

• Over/Underinclusive

• Permits and prior

restraints

• Vagueness and

Overbreadth

• Amortization (5th

Amendment)


Content Neutrality

“Content-neutral” regulations

make no distinctions based on

the content of speech; i.e., the

message on a sign

“Content-neutral” regulations

are based entirely on the

“structural” attributes of signs:

size, height, form, location,

number, orientation, lighting,

etc.

First Amendment Concepts


Content neutral vs. viewpoint neutral

• Content neutrality looks at subject matter

• Viewpoint neutrality looks at point of view

– A ban on all signs is content neutral and

viewpoint neutral

– A ban on all political signs is not content neutral

but is viewpoint neutral

– A ban on signs that criticize government is not

content neutral or viewpoint neutral

Content Neutrality


Defining signs based on their content

real estate signs

construction signs

“identification” signs

political signs

nameplate signs

price signs

home occupation signs

“directional” signs

Content Neutrality


Example of a “content-based” provision

“Identification signs may include the principal type of goods sold or services rendered;

however, the listing of numerous goods or services, prices, sale items, and telephone

numbers shall not be permitted.”

What about this sign?

CLASSIC CHRYSLER CERTIFIED FIVE STAR DEALER

SERVICE OPEN SATURDAYS

555-1234

Content Neutrality


Example of a “content-based” provision

“Directional signs indicating only the direction of pedestrian

and vehicular circulation routes on the lot on which the sign is

located.”

Are these signs legal under that provision?

Content Neutrality


What are “time, place or manner” sign regulations?

• Maximum size/height

• Maximum number per

– lot/building

– support structure

• Specify locations

– prohibitions

– corner lots

– setbacks/spacing

• Regulate

– lighting

– flashing/animation

– neon

– materials/colors

Note: Regulating color may be

seen as content regulation and

can be a problem when applied to

federally-registered trademarks

Time, Place, and Manner Regulations


Design review

• Good: can produce more attractive signs

• Bad: can be arbitrary and delay permitting

• Doing it right

– what do you want and why?

– where/when should it apply?

– use clear and objective standards

– minimize room for discretion

Time, Place, and Manner Regulations


• On–site signs identify the use, or advertise products or services offered, at the location where the sign is displayed

• Off-site signs identify a use, or advertise products or services offered, somewhere other than the location where the sign is displayed

On-Site and Off-Site Signs


• “ . . . at the location where the sign is displayed vs.

somewhere other than the location where the sign is

displayed.”

• Works great for commercial messages

But are these messages on-site or off-site?



• Accessory signs vs. non-

accessory signs may be

more accurate

• Billboard structure is

economically independent

• Sign company leases land

to erect structure to

sell general advertising



• Court has upheld some total bans

– Commercial billboards in Metromedia

– Signs posted on public property in Vincent

• …but has struck down others

– Real estate lawn signs in Linmark

– Personal lawn signs in Ladue

Bans and Exemptions


• Exemptions to a general prohibition are always problematic

– Exempting time/temperature from ban on changeable copy signs

– Exempting “grand opening” signs from ban on inflatable signs

– Exempting real estate signs from ban on portable and temporary signs

Bans and Exemptions


• Burden is on government to justify the

exemption. Must show…

– why the exemption does not interfere with

achieving the basic goal of the ban or

regulation

– how the exemption relates to the regulatory

interest the city seeks to advance

Bans and Exemptions


• Exemptions illustrate underinclusiveness

– Why are some signs prohibited while similar signs are allowed?

City of Cincinnati v. Discovery Network, 507 U.S. 410 (1993)

• Banned 62 commercial newsracks out of 1500

• Could not show a “reasonable fit” between that ban and city’s interests in safety and aesthetics

Over- and Underinclusiveness


• Overinclusive regulation restricts a

significant amount of speech that doesn't

implicate the government interest

• Basic idea is that if government can serve

the interest while burdening less speech, it

should

Over- and Underinclusiveness


Anytime someone must get a permit before

they can “speak” there’s a potential prior

restraint

Not a big issue for sign permits if…

– Content-neutral regulation

– Strict limits on discretion

– Reasonable timeframe for decision

Permitting and Prior Restraint


Vagueness

• A sign code should

specify what is/isn’t

regulated and how

• If it doesn’t, it may be

void for vagueness

Overbreadth

• A sign code that

restricts “too much”

may be struck down

as overbroad

• Claim has often been

brought by billboard

companies

– Standing issues

Vagueness and Overbreadth


Amortization

• Three questions:

1. Can you do it?

2. Do you have to pay for it?

3. Should you do it?

• #1 and # 2 depend on state law

• #3 is a policy choice

– Achieving goals

– Fairness

Fifth Amendment—Takings Clause

Definition Problems in Sign Regulation



Definitions vs. Rules

• A rule is based on a definition

• Ideal: keep definitions pure, do not attempt to state rules within definitions

• But . . . some definitions will include size, height, angles

• Strive for consistency with other city codes

– Visibility triangle

– Building code definition of “structure”


Definition Issue #1: SIGN

• The definition of “SIGN” determines the

regulatory scope of the ordinance

• If it is not a sign, you can’t regulate it in

the sign ordinance

– But perhaps another section of city code

• Most codes define “sign” too broadly



Defining “SIGN”

• Start with a general definition – Visual image, intended to be

communicative, placed on public display and visible from any portion of the public right of way

• Most traditional definitions are okay as a starting point

• Consider listing exclusions – things we don’t consider to be signs


Is It a Sign?


Candidates for exclusion…

• Public Art

– Only if sponsored by gov’t, on public property?

• Gravestones, headstones; foundation / cornerstones

• Fireworks, search lights (search & rescue)

• Holiday, cultural decorations (Size limit? Time limit? “In season” requirement?)

– Some challengers say this is content based reg

• Artistic murals - what is art?

– “Wag More Dogs” case

– Most store murals are thematically linked



Sign or not?

• Banners towed behind aircraft

– FAA pre-emption? (200 foot rule)

• Visuals on taxis and public transport vehicles?

– City have jurisdiction?

• ATMs, vending machines

• Architectural features

– Signature architecture (distinct shape of bldgs)

– Color stripes (blue background on Best Buy)



Sign or not?

• Kiddie balloons, party jumps, inflatable gymnasia

• Balloons used as advertising

• Interior graphics

• Manufacturer’s marks, merchandise on display

• Bells, stained glass windows, carved doors

• Official / gov’t flags – risky!

• Personal appearance and apparel–t-shirts

– Tattoos, branded clothing, masks, disguises, wigs



Commercial vs. noncommercial definitions

• Commercial – Use the language from the big court cases

– Message primarily concerns proposed

economic transaction or

– The economic interests of the message

sponsor and/or the viewing audience

• Noncommercial – Debate or commentary on topics of public

interest and concern

– Example, not limitation: politics, religion,

philosophy, science, art, social

commentary

– The onsite/off-site distinction does not

apply to non-commercial messages or

signs

– Query: include Stop Signs, Beware of Dog?



General Advertising

• Enterprise of advertising or promoting

other businesses or causes using methods

of advertising

• In contrast to self-promotion or on-site

• Also known as “advertising for hire”

• Works for fixed position or mobile



BILLBOARD

• Traditional definition: off-site sign

• Does “off-site” apply only to commercial, or also to non-commercial speech? – Where is the location of an idea?

• How to allow some off-site (real estate for sale) and still have special rules for billboards (usually, a ban on new structures, or limit on locations)



Better way to define BILLBOARD

• Permanent structure in fixed location

• Meets any one or more of these criteria:

– Routinely used for general advertising for hire

– Used for display of off-site commercial messages

– Sign is a separate economic unit, not an accessory

or auxiliary to major use on the land

– Message display area is made available to

sponsors other than the owner



Mobile billboards

• Wheeled device (motorized or not?)

• Meets any of the criteria for billboard

• What if used only for noncommercial messages? SHARK case

• Taxis, delivery trucks, pedicabs in tourist area

• Sign trucks – purpose is to display advertising

– Worsens congestion, using public roads for purpose other than transportation



Digital displays

• Included within “flashing, blinking, intermittent light”? “color changes”? – Court decisions not consistent

• If you want special rules for digitals, define them as a distinct class – Uses LED, CCD, plasma, functionally

similar

– Series of images, still or full motion

– Programmable, changeable

• Also known as “electronic message sign,” “message center,” CEVMS



Commercial mascots

• Person or animal dressed or decorated in

commercial insignia

• On public display for purposes of attention

getting and commercial advertising

• Sign spinners, sign twirlers, sign clowns,

“human sandwich board” etc.


Making Content-Neutral Regulations Work


• Different views of content-neutrality

– Strict literal approach

– No-censorship approach

• Message substitution clause

• What’s in the code

• How to do it

Making Content-Neutral Regulations Work


Different views of content-neutrality

Strict literal approach

• Do you have to look at the

message to determine

whether the rule applies?

• If so, it is content-based.

– real estate signs

– directional signs

– Identification signs

– instructional signs

– construction signs

No-censorship approach

• Is the government trying to

regulate or censor content?

– local government needs

some leeway in navigating

through First Amendment

law

– a limited number of content-

based provisions that are not

intended to censor or restrict

speech is acceptable


Message Substitution Clause

“The owner of any sign which is otherwise allowed by this sign

ordinance may substitute non-commercial copy in lieu of any

other commercial or non-commercial copy. This substitution

of copy may be made without any additional approval or

permitting. The purpose of this provision is to prevent any

inadvertent favoring of commercial speech over non-

commercial speech, or favoring of any particular non-

commercial message over any other non-commercial

message. This provision prevails over any more specific

provision to the contrary.”


Sign Code Contents

• regulatory purposes

• definitions

• standards for measuring sign areas/heights

• regulations for: – sign placement

– height/area

– setback/spacing/ density

– type/time of lighting

• enforcement

• regulations for: – billboards, etc.

– temporary/portable signs

– window/awning signs

• prohibited signs

• non-conforming signs

• administration – permitting provisions

– variances

– appeals


Regulatory Purposes

• Free speech

• Community aesthetic quality

• Communication of information

• Creative and visually attractive signage

• Reduce distraction and confusion

• Protect property values

• Traffic safety

• Prompt administrative review

• Flexibility for sign owners


A. To allow businesses, institutions, and

individuals to exercise their right to free

speech by displaying an image on a sign,

and to allow audiences to receive such

information.

B. To promote and maintain visually

attractive, residential, retail, commercial,

historic open space and industrial districts.

C. To provide for reasonable and appropriate

communication and identification for on-

premise signs in commercial districts in

order to foster successful businesses.

D. To provide for reasonable and

appropriate communication for on-premise

signs within industrial districts.

E. To encourage the use of creative and

visually attractive signs.

F. To ensure that signs are located and

designed to reduce sign distraction and

confusion that may be contributing factors in

traffic congestion and accidents, and

maintain a safe and orderly pedestrian and

vehicular environment.

G. To protect property values.

H. To promote the public health, safety and

welfare by avoiding conflicts between signs

and traffic control devices, avoiding traffic

hazards, and reducing visual distractions

and obstructions.

I. To protect and preserve the aesthetic

quality and physical appearance of the

Township.

Regulatory Purposes


Defining signs based on their structure

freestanding signs

pole

monument

temporary vs. permanent signs

portable signs

“snipe” signs

“blade” signs

building signs roof wall window marquee/awning projecting and

suspended

“A-frame” signs

“wind-signs”

Acceptable Regulatory Factors


Acceptable Regulatory Factors

• maximum size/height

• maximum number per

– lot/building

– support structure

• specify locations

– prohibitions

– corner lots

– setbacks/spacing

• regulate

– lighting

– flashing/animation

– neon

– materials/colors

Note: Regulating color may be

seen as content regulation and

can be a problem when applied to

federally-registered trademarks.

“Time, place, and manner” regulations


Measurement Standards

• Area, height, etc.

• Specify for all sign structures/types

– building-mounted: wall, window, awning, roof

– free-standing: monument and pole

– temporary and portable

• Be aware of effect of measurement

standards


multiple geometric

shapes

single geometric shape – area reduced by 66%

– letter height reduced by 40%

Measurement Standards


Regulate for…

• billboards, etc.

• temporary/portable signs

• prohibited signs

• non-conforming signs

• administration

• permitting provisions

• variances

• appeals

Additional Code Contents

Residential and Political Signs


Residential Signs

On-site Real Estate for Sale Signs

• Cannot be banned – per Linmark Assoc., Inc. v. Twp. of Willingboro, 431 U.S. 85 (1977)

• An early case granting First Amendment protection to commercial messages

• City’s goal: prevent white flight

• No other place the sign would be as effective

• Home investment one of life’s most important decisions


Residential Signs

REFS Beyond Linmark

• Some states have statutes that say the city cannot ban REFS, regardless of property type, onsite or offsite

• Example: Cal Civil Code 713

– Is it constitutional?

– Does it favor commercial speech?

– Is the rule content based?

• Many state laws on residential signage rights


Residential Signs

Banning Commercial Signs in Residential Neighborhoods

• Rochester Hills v. Schultz (1999): “the ban on home occupation signs may directly advance the city's interest in preserving the character of its residential neighborhoods.” – Many other signs were allowed in neighborhoods, but

they were consistent with residential character

• Gall Auctioneers v. Coral Gables FL (2000)– city could ban commercial auctions and advertising of them in res’l neighborhoods, even though REFS and garage sale signs were allowed


Residential Signs

Political and Protest Signs in Residential Areas—City of Ladue v. Gilleo, 512 U.S. 43 (1994)

• City banned all residential signs, with 10 exceptions – reducing visual clutter

• War protest sign (“For Peace in the Gulf”) not excepted from the ban, thus banned

• Held: the ban violates Free Speech Right

• “Displaying a sign from one's own residence carries a message quite distinct from placing the same sign someplace else.”


Limiting residential signs

• Cumulative size limit

– For freestanding, measure one side or two?

• Limit number – not a good idea

• Flags – part of the cumulative total, or separate category?

– Okay to limit size, pole height, number of poles

– Do not favor official flags

Residential Signs


Political Signs

• Political speech is at the core of First Amendment protection

• First Amendment was adopted primarily to protect unpopular speech on religion, politics, philosophy

• Limits on Political Signs extremely difficult to defend, BUT . . .

• Burson v. Freeman – no signs or politicking within 100 feet of polls on election day - VALID


Political Signs

Rules for Political Signs

• Most sign ordinances have special rules for “Political signs” – advocating a certain vote

• Common claim: “It is content neutral because it treats all candidates and issues identically.”

• WRONG. It is not content neutral because it is choosing the topic of debate


Political Signs

Banning Political Signs

• City-wide ban

– Peltz v. South Euclid OH (1967) – rid the city of unattractive signs – UNCONSTITUTIONAL

– Courts unanimous: complete ban is unconstitutional

• Ban politicals from residential areas

– Always unconstitutional under Ladue v. Gilleo

• Message substitution


Political Signs

Time Limits on Display of Political Signs

• Most common serious error in sign reg

• When challenged, almost always invalidated – City usually pays challenger’s attorney fees

• Courts will not tolerate time limits on display of political speech

• Reasonableness of display time is NOT the issue!

• Political messages must be allowed at all times


Limits on Number, Size and Height

• Size and Height – limits usually approved if

there is no favoring of commercial speech

• Size rule should be cumulative for all signs

on a given location

• Limit on number – unconstitutional in most

court decisions

Political Signs


Political Signs on City Property

• City cannot ban live picketers, protestors from city streets, sidewalks, parks, even if they are holding signs or banners (US v. Grace)

• Reasonable TPM rules sometimes valid

• Some cases say city can ban all inanimate signs (stake signs, left behind) – if there is no message discrimination

• If the city allows politicals on city property, then it must grant equal display rights for all noncomm’l

• Rules can be highly location specific

Political Signs


How to “Get There”

• Allow any and all types of noncommercial

speech on signs at all times – do not

categorize beyond “noncommercial”

• Optional: In the pre-election time period

(define it) increase the allowable display area

per parcel – equal for all noncommercial

• Optional increase is event based – election –

thus is a true Time Place and Manner rule

Political Signs

EMCs and Digital Signs



Regulatory Options

• Total ban

• Total ban with exceptions

• Allowing digitals only in specified districts or by overlays

Risky Options—not recommended

• Risk of allowing digitals for onsite but not on billboards

• Exceptions based on message


Time, place and manner

regulations for EMCs

• Size—of the sign, or of the EMC

portion of the sign

• Message change rates

• Brightness—be careful about

regulating color!

• Restrictions by zoning district

and within a specified radius of

certain places




• Include a clause

prohibiting any sign not

expressly authorized by the

ordinance

• Work with billboard

companies and sign

owners to find mutually-

agreeable solutions

• Permit fees

Ordinance Drafting Strategies



1. Sign Ordinance Update is a TEAM project –

knowledgeable attorneys, planners, code enforcement

2. Citizen outreach – get public input on policy choices –

sign committee with public hearings – people care

about signs! • Drafting new or updated sign regulations is a way to engage local

businesses, foster community relationships and build extra-legal

opportunities to create better signage

3. Don’t copy errors from other sign codes!

4. Focus on structure and location, avoid content based

rules

5. Don’t try to regulate everything! Limit the ordinance

scope to only regulate signs that directly impact the

community’s goals



Every sign ordinance should…

1. Explicitly state that the purposes include serving gov’t and public interests in safety and community esthetics

2. Balance competing interests, respect the right of free speech, other FA rights

3. Include message substitution – mandatory if your code talks of commercial and noncommercial speech


Seriously consider…

• Separate chapters for city as regulator and

city as proprietor

• Take advantage of Public Forum and

Government Speech doctrines

– Message substitution does not always apply for

private signs on gov’t property



Recommended strategies…

• Completely rid the code of all “political sign” or “campaign sign” or “election sign” rules

– Replace with rules that apply equally to every variety of protected non-commercial speech

• Option: increase the allowed display space for all types of non-commercial during the pre-election period



Digital Sign Policy

• No city can evade the digital wave

• Complete ban on all digitals is constitutional

• Allowing digitals only in certain areas – probably okay

• Digital conversion of existing billboards

– BB companies will sacrifice some inventory to get digitals along freeways

• Digitals okay on-site but banned off-site?



Watch Out For…

• Better to use “establishment” than “business”

– Some non-profits are in commercial zones

• Construction site signs: do not dictate acceptable message content

• Carefully consider what items to exclude from definition of sign

• Do not show preference for gov’t / official flags

• Avoid rules banning “obscene, profane, offensive, in poor taste”



Resources and Contact

Contact Information • Brian Connolly, Univ. of Michigan Law School ·(248) 877-4527 · [email protected]

• Randal Morrison, Sabine & Morrison · (619) 234-2864 · [email protected]

• Alan Weinstein, Cleveland State Univ.· (216) 687-3758· [email protected]

Additional Resources • www.signlaw.com – Randal Morrison’s website on sign regulation

• Brian J. Connolly & Mark A. Wyckoff, Michigan Sign Guidebook: The Local Planning & Regulation of Signs (2012)

• Alan C. Weinstein et al, Federal Land Use Law and Litigation (2011)

• Randal R. Morrison, Political Signs, Free Speech & the Law (2010)

• Daniel R. Mandelker, Planning Advisory Service Report No. 527, Street Graphics and the Law (2004)

• Randal Morrison & Jerry Wachtel, Regulating Digital Signs (forthcoming from APA)

modern constitutional challenges in sign regulation

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