Legal Considerations in Sign Code Development

Abstract

Legal considerations have always played a critical role in the development of a sign code, but that role has taken on renewed importance in the wake of the U.S. Supreme Court's recent ruling in Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218 (2015).  A detailed analysis of Reed is obviously beyond the scope of this paper. For our purposes, it is sufficient to note that the Reed Court announced a far more stringent test to determine whether a sign code's provisions are "content-neutral" or "content-based." In short, the Court ruled that any sign code provision that "on its face" considers the message on a sign to determine how it will be regulated is content-based. The practical effect of finding that a sign code provision is content-based is to heighten the judicial scrutiny of such a provision if challenged. A provision that is content-neutral is subjected only to intermediate judicial scrutiny: the provision will be upheld if government can demonstrate that the regulation serves a substantial governmental interest and is narrowly-tailored to achieve that interest. In contrast, a provision that is content-based is subjected to strict judicial scrutiny: the provision will be upheld only if government can demonstrate that the regulation serves a compelling governmental interest and is the least restrictive alternative to achieve that interest.