Civil Liberties

Sign Ordinances and the First Amendment
Published: June 14, 2021

This content conveys general information. Do not use it as a substitute for legal advice. Any attorney general opinions cited are available from the League’s Research staff.

First Amendment principles

The First Amendment protects signs as speech, and as a result courts closely review attempts to regulate signs. In 2015, the U.S. Supreme Court decided a seminal case that changed how courts review the validity of sign ordinances (Reed v. Town of Gilbert (pdf), 135 S. Ct. 2218 (2015)).

Prior to this decision, courts generally presumed sign ordinances were valid and considered the intent behind the adoption of the ordinance. They would only strike down ordinances where they found evidence that the city “adopted (the sign regulation) to suppress speech with which the government disagreed.” This is commonly known as content-based speech.

Since Reed, courts now presume that sign ordinances that restrict speech (either expressly or implicitly) are unconstitutional.

As a result, courts look first to the effect of the sign ordinance — whether the ordinance regulates signs differently based on the content or message of the sign — before conducting their analysis of the constitutionality of the ordinance.

Based on the court’s determination, the court will apply one of two standards of review to the challenged ordinance. One is a content-based standard, the other is a content-neutral standard.

Content-based

If the ordinance draws distinctions based on the message communicated by the sign, the court reviews these ordinances more harshly than if the ordinance regulates signs and their placement without regard to content.

The Reed decision created a two-step analysis to determine if the ordinance restricts speech:

• Does the ordinance language refer to the content or the message of the sign?
• If not, then is there evidence showing the city adopted the regulation specifically because of disagreement (or agreement) with the message expressed by the sign?
• In Reed, the Town of Gilbert’s sign code required permitting for signs, but then listed out categories or types of signs exempt from permitting, including “political signs,” “ideological signs,” and “temporary directional signs.”

The ordinance in Reed also placed different physical restrictions on the separate types of signs.

The Supreme Court found this ordinance to be content-based because the regulation “on its face” looked to the message on the proposed sign to determine how the city would regulate it.

If a court finds the city expressly regulated, or intended to regulate a message or content, then the court applies a more rigorous level of review to those ordinances. This heightened level of review is called “strict scrutiny.” The court will only uphold the ordinance if:

• It furthers a compelling government interest, and
• It is narrowly tailored.

Courts have found few governmental interests represent justifiable “compelling interests.” As a result, in practice, few, regulations survive strict scrutiny.

Content-neutral

For sign ordinances that do not regulate the message or content of signs (commonly called “content-neutral”), courts apply a lower standard of review to the reasonableness of regulations. Courts generally uphold regulations that further a significant government interest, as long as reasonable alternative channels for communication exist. As a result, courts usually uphold ordinances considered content-neutral.

Courts generally uphold regulations that meet the criteria below. They are often referred to as reasonable time, place, and manner restrictions. These ordinances:

• Do not reference the content of the sign.
• Are narrowly tailored to serve a significant governmental interest (rather than compelling interest).
• Leave open ample alternative channels for communication of the information.

To help avoid challenges when adopting sign ordinances, cities should:

• Not regulate based on content.
• Not favor commercial speech over noncommercial speech.
• Further substantial government interests, such as traffic safety or aesthetics, without regulating more than necessary to accomplish their objectives.
• Leave ample alternative channels for communication, such as limiting the size of signs but still allowing signs.

(Advantage Media, LLC v. City of Eden Prairie, 456 F.3d 793 (8th Cir. 2006); Hensel v. City of Little Falls, 992 F. Supp.2d 916 (D. Minn. 2014).)

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