Smith on The Impact of Reed v Gilbert

Part 3 in a series on First Amendment Sign Cases by J. Allen Smith, an eminent domain and condemnation expert at Settlepou, a Dallas law firm.  Smith previously discussed Metromedia and two cases which amplified Metromedia.  

The reverberations of Reed v. Town of Gilbert are in full effect. Its impact is making government entities reevaluate their laws and may bring the issue of free speech in the context of billboards before the Supreme Court again as cases develop in Texas and Tennessee.

With a 9-0 majority, the Reed Court determined that an ordinance restricting the size, number, duration, and location of certain sigs are subject to strict scrutiny because they were content-based restrictions, or restrictions that were applied differently depending on the message of the sign.

Justice Alito’s concurring opinion qualified a presumably sweeping decision: “As the Court shows, the regulations at issue in this case are replete with content-based distinctions, and as a result they must satisfy strict scrutiny. This does not mean, however, that municipalities are powerless to enact and enforce reasonable sign regulations.” Justice Alito goes on to delineate some rules that he believes would not be content based:

  • Rules regulating the size of signs.
  • Rules regulating the locations in which signs may be placed.
  • Rules distinguishing between lighted and unlighted signs.
  • Rules that distinguish between the placement of signs on private and public property.
  • Rules distinguishing between on-premises and off-premises signs.
  • Rules restricting the total number of signs allowed per mile of roadway.

“Properly understood,” Justice Alito continued, “today’s decision will not prevent cities from regulating signs in a way that fully protects public safety and serves legitimate esthetic objectives.” But the regulations must be reasonable.

The current climate in the Supreme Court, however, champions a broad breadth to freedom of speech as just last week the Supreme Court in Packingham v. North Carolina (2017) protected freedom of speech in the realm of social media, limiting government regulation, and in Matal v. Tam (2017) the Court ruled that the government could not restrict patents on terms they found disparaging.

We may see this Supreme Court deal with freedom of speech in the billboard context soon as a Texas and Tennessee cases have the potential to end up before the Court. Specifically, in Tennessee, citing Reed, a federal court struck down the Tennessee HBA as an unconstitutional content-based regulation of speech.  In Texas, using Reed’s standard, the State Court of Appeals deemed the Texas HBA unconstitutional. Both cases unwove their respective state’s regulatory fabric and may continue marching on to the Supreme Court.

Clearly, there is still turbulence at the nexus of the fundamental right of free speech, and the regulation of billboards as a long established means of communication. In pursuing an outcome, Justice Alito called for “reasonable sign regulations.” Pragmatic, reasonable solutions will result in clear delineations, reasonable governance, and a fair market to compete in.


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