R. Gregory Hyden, Associate, Nason, Yeager, Gerson, White & Lioce, Boca Raton

When it comes to temporary signs, particularly political signs, there's a good chance most local governments' sign regulations are not constitutional. Having reviewed sign codes from across the state of Florida, it is clear most would not survive a constitutional challenge. All of this goes back to a game-changing 2015 Supreme Court decision.

In 2015, the U.S. Supreme Court handed down its decision in Reed v. Town of Gilbert, Arizona, 135 S. Ct. 2218 (2015). Reed is the most important Supreme Court decision regarding the constitutionality of sign regulation in years. It has transformed the landscape of how local government can and cannot regulate signs, particularly temporary signs. As a result, cities and counties throughout the United States must amend their sign codes.

The facts of Reed were straightforward. A pastor and fellow church members placed temporary signs in Gilbert, Arizona giving notice of the time and location of services. Gilbert's sign code, like many cities and counties, had different categories of temporary signs with different size, duration and location restrictions. For example, it's “political signs” could only be displayed during an election and its “Temporary Directional Signs” could only be displayed for up to 12 hours before a “qualifying event” and only one hour after. Some of Reed's signs remained up past permissible time limits and when Gilbert sought to enforce its sign code, Reed filed suit claiming Gilbert's sign code violated his freedom of speech. The Supreme Court agreed.

The primary takeaways from Reed are that sign codes that define categories of signs based upon the content of their messages and then subjects those signs to different regulations are content based and thus subject to strict scrutiny and signs can be regulated on a content neutral basis such as size, building materials, lighting, moving parts, and portability. While the court noted that traffic safety and aesthetics remain compelling government interests, in Gilbert's situation, and many other cities and counties, the court noted that temporary directional signs are no greater an eyesore than ideological or political signs. “The town cannot claim that placing strict limits on temporary directional signs is necessary to beautify the town while at the same time allowing unlimited numbers of other types of signs that create the same problem.”  

What makes Reed fascinating is that its concurring opinions have generated as much interest as the majority opinion. This is true particularly with Justice Samuel Alito's concurring opinion which lists rules that would purportedly not be content based. These rules include, among other things, the regulation of sign size, location, lighting, number and time. Another important aspect to Reed is that most federal courts who have addressed Reed have limited its holding to noncommercial speech. While the Supreme Court has not definitely addressed this issue, federal courts largely continue to look to Central Hudson Gas & Electric v. Public Service Commission of New York, 447 U.S. 557 (1981) as the seminal case addressing the regulation of commercial speech. Under Central Hudson, a regulation of commercial speech is subject to intermediate scrutiny.

In addition to the pressing need for local governments to become compliant with Reed, they need to become aware of the passage of Florida House Bill 1021 which amended Florida Statutes Section 553.79. Importantly, the new law prohibits local governments from adopting or enforcing ordinances that conflict with corporate trademarks, service marks, trade dress, logos, color patterns, design scheme insignia, image standards and so on in connection with business activities related to the sale of liquid fuel. It also prohibits local governments from adopting or enforcing ordinances or permit requirements relating to signage advertising the price of retail gasoline.

It is imperative that local governments immediately begin revising their sign codes to bring them into compliance with Reed. When a local government begins the process of revising its sign code, there are at least three things it should do in its preliminary stages. First, if the revision is taking place during an election year, the local government should send a letter to the applicable supervisor of elections and various political party offices so that they can alert candidates running for office that it is in the process of revising its sign code, particularly as it relates to temporary signage. Second, if applicable, the local government should send a letter to each person or group that frequently posts temporary signage to likewise alert that person or group that it is in the process of revising its sign code. Third, the local government should hold community meetings to educate residents and businesses alike about the Reed decision, its impact on the sign code, the need for revision and the proposed revisions.

Gregory Hyden is a litigation associate with Nason, Yeager, Gerson, White & Lioce in Boca Raton.