Billboard Insider published an interesting article in its February 8th edition entitled Reed vs Gilbert and Panhandling? According to the article, the City Council of Spokane Valley, Washington is considering amendments to the City’s sign code to regulate panhandling (I suppose the politically correct term is actually “street solicitation,” but I’ll stick with panhandling since that word was used in the article) in a content-neutral manner, thereby avoiding the constitutional pitfalls illustrated in the US Supreme Court’s 2015 decision of Reed vs Gilbert. That case, you’ll recall, found that the First Amendment’s protection of Free Speech was violated when the government effectively censored signage by forcing the regulators to read and interpret the sign’s message to determine if the sign was exempt, prohibited, or otherwise regulated. While Reed vs Gilbert addressed temporary religious signs, the case has been widely cited by other courts across the country to invalidate the on-premise/off-premise distinction in many municipal sign codes and State Highway Beautification Acts.
It’s probably prudent, therefore, for cities like Spokane Valley to appreciate the broad implications of these constitutional challenges. For example, the article included a sign typically held by panhandlers and directed to motorists reading “Homeless, Hungry, Please Help!” The draft ordinance, however, eliminates references to prohibited solicitation language, and substitutes content-neutral prohibitions on “interference with vehicular traffic.” Thus, the City hopes to avoid First Amendment litigation by regulating the behavior in and around traffic and streets, without regard to the content displayed on signs held by panhandlers.
While some cities are timely reacting to Reed vs Gilbert, even in rather imaginative ways like Spokane Valley, I remain surprised that the vast majority of cities and other government regulators across the country continue to enforce constitutionally suspect content-based sign codes more that five years after the Supreme Court’s decision. In fact, by way of full disclosure, I have been the City Attorney for the City of Southside Place, Texas, a Houston suburb, for almost 10 years. And, consistent with the old adage “the cobbler’s children have no shoes,” our Southside City Council only recently revised the sign code to render it content-neutral and constitutionally compliant with the mandates of Reed vs Gilbert. In Southside, we addressed this panhandling issue by defining and then prohibiting “Human or Sandwich Board Signs,” which are any displays held by a human in the public right of way. We also completely eliminated the laundry list of signs based on their content, such as religious, political, community, on-premise, off-premise, and construction signs. These categories were replaced by definitions derived from the physical characteristics of signs, such as window, yard, monument, roof, pole, and awning signs. In each case, the sign is regulated according to height, size, and location, without regard to the message it displays, as required by Reed vs Gilbert and the numerous cases following it.
When it comes to sign code amendments, therefore, it’s better late than never; especially, if the city can cure it’s constitutional defects, and avoid expensive and time-consuming First Amendment litigation.
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