The Star-Ledger recently reported on a West Long Branch resident who received a summons for flying a Trump flag on his front lawn. The sign ordinance allegedly violated said that such displays are limited to 30 days before an election. Sometime later, apparently upon the advice of the municipal attorney, the town dismissed the summons and rescinded the ordinance, probably because of Reed v. Town of Gilbert, Arizona, where the U.S. Supreme Court held in 2015 that “content-based laws must satisfy strict scrutiny.” The court found that the code provision at issue provided content-based regulation of speech that did not survive strict scrutiny under the First Amendment, and that it had no need to consider the town’s purported justification or purpose to find that strict scrutiny applied.
In a concurring opinion, Justice Alito, joined by Justices Kennedy and Sotomayor, explained that the court was not saying that municipalities are without power to enact and enforce reasonable sign regulations, so long as they are not content based. In her concurring opinion, Justice Kagan, joined by Justices Ginsburg and Breyer, said that in the past, the Court had been “less rigid than the majority admits” in applying strict scrutiny to facially content-based laws. Although agreeing that the code provision was unquestionably unconstitutional, she opined that in other instances, towns would be justified in certain limiting requirements in sign ordinances, especially for public safety health and welfare, at which times the court might apply “intermediate scrutiny.” Justice Kagan concluded that, “This Court may soon find itself a veritable Supreme Court Board of Sign Review.”
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