GENTRY -- The Constitutionally-protected right to free speech now has further reaching implications than previously thought and will likely require a rewrite of local city ordinances regulating signs posted in cities and towns. No longer are government entities able to regulate the content of signs posted within its jurisdiction, and that is so far reaching that even yard-sale signs will be affected.
As a result, the Gentry Planning Commission will now also be considering how to amend city code to comply with the Constitutional requirements.
What changed? Last June, in Clyde Reed v. Town of Gilbert, Arizona, the U.S. Supreme Court ruled that sign regulations of a government entity which place different restrictions upon signs based on the message content of the signs are content-based regulations of speech that "cannot survive strict scrutiny" under the First Amendment's protection of free speech (Supreme Court opinion delivered by Justice Thomas).
In the court case, a church pastor by the name of Clyde Reed and his church, Good News Community Church, were cited by the city of Gilbert, Ariz., for violations of its city code regarding the placement and duration of placement of directional signs pointing people to the locations of church services which were held at different locations from Sunday to Sunday. The pastor and church posted the directional signs early on Saturdays and removed them about mid-day on Sundays. City code only allowed directional signs to be posted for 12 hours but allowed other signs, such as political signs, to be posted for a longer duration of time. The city's actions were upheld by the District Court and the Ninth Circuit Court, but the Supreme Court overturned those decisions and ruled in favor of Reed.
The Supreme Court, in its June 18, 2015, decision, essentially ruled that cities, towns and other government entities may impose rules and regulations concerning sign size, materials used in signs, sign placement locations and duration of sign placement but could not pass restrictions based on a sign's content without violating the right to free speech as protected by the First Amendment of the U.S. Constitution. In other words, sign restrictions for signs cannot be different because of the sign's content.
What does this mean for towns like Gentry? If current sign ordinances make different restrictions on signs based on content, enforcement of those ordinances could be found unconstitutional and result in lawsuits and enormous legal fees.
Jay Williams, attorney for the city of Gentry, told planning and zoning commission members on Thursday that he had directed the police department not to enforce the city's current sign ordinance provisions because they would no longer pass the test of being constitutional and could potentially cost the city thousands in legal fees if they were enforced.
What could happen, Williams said, is that an individual or group could sue the city over its sign ordinance, be taken on by an attorney specializing in such cases and appeal and appeal until they won, and then the city would be responsible to pay a small penalty but hundreds of thousands in legal fees.
Williams told the Commission it needed to begin looking at amending the city's sign ordinance to comply with the Supreme Court ruling. Problematic parts of current code Williams pointed out included separate restrictions for political signs, real estate signs and yard sale signs because the distinctions are made based on the sign content. He also pointed out that city code which allowed yard sale signs to be placed on public property needed to be revisited since allowing one type of sign and not others could now be considered content-based and unconstitutional.
Current city code which allows temporary and restricted placement of yard sale signs might have to be amended to remove content requirements from the signs -- such as the sign owner's name and address -- and allow anything to be posted on the sign during the permitted period, Williams explained.
The Commission had been working for a number of years to update the city's sign ordinance but the recommended changes were never made law by the council. Now, it appears the planning commission will be back at the drawing board and perhaps with a clean slate to start all over again to ensure the city's sign ordinance is content neutral and could not drag the city into a drawn out and expensive legal suit.
General News on 02/24/2016