Insights

Is It a Sign? Emerging Thinking on Sign Regulation

March 9, 2015

By: Todd G. Messenger

Background

This year, the U.S. Supreme Court will decide the case of Reed v. Town of Gilbert, Arizona, which involves the constitutionality of a ubiquitous model for sign regulation (in fact, the model is so common that it is referred to in this article as the “Traditional Model”).  However the case turns out, the writing is on the wall (so to speak) that local governments should be reviewing and revising their sign codes in anticipation of the Reed v. Gilbert opinion.  During oral argument, there were several signals that the Reed v. Gilbert decision may require redirection away from the Traditional Model.

The Traditional Model, which is most often used to classify temporary signs, identifies different types of signs with monikers like “real estate sign,” “political sign,” “ideological sign,” “directional sign,” “construction site sign,” and “garage sale sign.”  The model then sets out standards, which control quantity, placement, size, timing of display, and potentially other characteristics of each category of sign.  In other words, the quantity, placement, size, timing of display, and other features of a sign are limited not on the basis of the structure of the sign itself, but instead on the basis of the message the sign conveys.

Opponents assert that since the model—on its face—classifies signs on the basis of their content, it is “content-based.”  It follows that as a content-based regulation, the model is “presumptively invalid.” In order to overcome the presumption of invalidity, the government has the burden to show that: (1) the regulations are actually “necessary to serve a compelling governmental interest,” and (2) they are “narrowly drawn to achieve that end. "Examples of regulations that restricted protected speech based on its content and then survived “strict scrutiny” review are few and far between.

In response, proponents of the model assert that it merely classifies signs on the basis of their function, not their message.  They acknowledge that government officials must read a sign in order to determine which standards to apply, but insist that the U.S. Supreme Court has “never held that it is improper to look at a statement's content in order to determine whether a rule of law applies to a course of conduct.” Proponents assert that the “commonly accepted” model is justified without reference to the regulated speech and therefore does not threaten values protected by the First Amendment. Consequently, proponents suggest, the model is “content-neutral.”

The government may use “content-neutral” regulations to control the “time, place, and manner” of speech that is protected by the First Amendment—even if the rules “incidentally” affect some speakers more than others, provided that the rules (1) advance (to some degree) significant governmental interests; and (2) “leave[] open ample alternative channels for communication. "This “intermediate scrutiny” rarely leads to a finding that the regulations under review are unconstitutional.

The pivotal question in the Reed v. Gilbert case is whether a sign regulation that is “content-based” on its face can be considered “content-neutral” and upheld simply because the government offers a non-discriminatory motive for adopting the regulation.  Put another way, is it within the constitutional authority of government to go past the traditional categories of commercial and noncommercial speech and regulate signs differently based on parsed subcategories of speech?  What should a local government do if the Court answers “no”?

The Legal Basis for Sign Regulation

Free Speech in General.

The First Amendment provides in pertinent part, “Congress shall make no law . . . abridging the freedom of speech . . . .”  The Fourteenth Amendment “incorporates” the First Amendment, protecting the right of free speech against intrusion by state and local governments. Consequently, since signs are a medium for conveying “speech,” local regulation of signs is constrained in certain ways by the First Amendment.

“A Law unto Itself?”

According to the plurality of the U.S. Supreme Court in the case of Metromedia, Inc. v. City of San Diego, “Each method of communicating ideas is ‘a law unto itself’ and that law must reflect the ‘differing natures, values, abuses and dangers’ of each method.”  Signs are different from other media because they are a merger of speech and structure, as compared to, for example, speech and conduct, speech (or music) and loudspeakers, speech in books,magazines, or pamphlets, or speech (or music) over the public airwaves. Likewise, the government’s interests in regulating structures are different from the government’s interests in regulating conduct, noise, paper, and access to the radio spectrum.

Yet despite the suggestion of a media-based compartmentalization of First Amendment law, in practice the “tests” that have historically been applied in free speech cases have not diverged much from one media type to another, and tests that were developed for one type of media are routinely applied to other types of media.  Perhaps not surprisingly, the U.S. Supreme Court has more recently taken a more unified approach, warning of the danger that drawing and redrawing lines among different media types will lead to the “inevitable, pervasive, and serious risk of chilling protected speech . . . ."In the end, according to the Court, “First Amendment standards . . . ‘must give the benefit of any doubt to protecting rather than stifling speech.’”

Regardless of whether sign law is (or will become) “a law unto itself,” there is no reasonable dispute that it is within the scope of the government’s police power to regulate the “noncommunicative” aspects of signs (principally, the structures).  Further, it is clear that the regulatory power is subject to First Amendment scrutiny (and potentially cut off by the First Amendment) to the extent that it is applied on the basis of the content of the regulated signs. But the line between “content-neutral” and “content-based” is neither straight nor bright.

Content-Based or Content-Neutral?

The tipping point at which regulations that impact speech become content-based—from a legal perspective—is currently not defined by a bright line in every federal circuit. Indeed, in its petition to the U.S. Supreme Court, the Petitioner in Reed v. Gilbert described a three-way split among federal circuit courts regarding how to distinguish between content-based and content-neutral regulations: 

• The Petitioner describes the test applied by the Ninth, Fourth, and Sixth Circuits as “a subjective ‘motive-based test’ that excuses facial content-based discrimination so long as the government professes a lack of discriminatory motive or a content-neutral justification.”
• By contrast, the Petitioner asserts that in the First, Second, Eighth, and Eleventh Circuits, “a speech regulation is content-based if it makes content-based distinctions on its face, regardless of governmental purpose or motive.”
• The Third Circuit, according to the Petitioner, has its own “multi-factor balancing test designed to determine when the value of certain speech in a particular location justifies a content-based exemption from a sign regulation.”

In the last major U.S. Supreme Court sign case, City of Ladue v. Gilleo, the Court had the opportunity to address this issue, but declined to do so.  Instead, the Court held that the City of Ladue’s nearly total ban on signs in residential neighborhoods was fatally flawed under any test. In her concurring opinion, Justice O’Connor recognized the lost opportunity to refine the law that is applied to sign cases.

If “the benefit of any doubt” must be in favor of “protecting rather than stifling speech,” then it seems more likely than not that the Supreme Court will decide the Reed v. Gilbert case in favor of the proposition that facially content-based distinctions in a sign code are unacceptable under the First Amendment.  Though not all free speech cases since Ladue have resulted in invalidation of the restriction on speech, in the 1995 case of Rosenberger v. Rector and Visitors of University of Virginia, the Court offered this summary of free speech jurisprudence:

It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. . . .  Other principles follow from this precept.  In the realm of private speech or expression, government regulation may not favor one speaker over another.  . . .  Discrimination against speech because of its message is presumed to be unconstitutional.

Specific Issues in Sign Regulation

The Ends and the Means.

As Justice Oliver Wendell Holmes observed more than a century ago, ideally, the law should be articulated so that there is a close relationship between the ends and the means:

[A] body of law is more rational and more civilized when every rule it contains is referred articulately and definitely to an end which it subserves, and when the grounds for desiring that end are stated or are ready to be stated in words.

Among the major points of the Ladue and Metromedia cases is that the relationship between the ends of a sign code and the regulatory means by which those ends are advanced is important.  In Ladue, the near-total ban on signs in residential districts was overkill in light of the minimal risk of “‘unlimited’ proliferation” of signs in those locations.  In Metromedia, the plurality found that the San Diego sign code was facially invalid because in its effort to reduce visual clutter, it favored “certain kinds of messages . . . over others.”The concurring Justices in Metromedia would have invalidated the ordinance based on the City’s failure to demonstrate that billboards “actually impair traffic safety.”

Lower courts have not always looked carefully at the relationship between ends and means.  That is unfortunate because absent an overtly discriminatory purpose statement in a sign code, the code in its entirety will nearly always include “magic words” that purport to justify the code “without reference to the regulated speech.”  It follows, then, that if the court does not connect permissible ends to permissible means, the Code will be held to be “content-neutral”—even if the specific provisions of the code are facially content-based and create an actual “risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate . . . .”

To illustrate, almost every sign code includes a purpose statement.  And virtually every purpose statement references the community’s interests in traffic safety and community aesthetics, often along with some other “content-neutral” values like preserving property values, ensuring that people can communicate effectively, and so forth.

• In Abbeville, Alabama, signs are regulated in “order to insure safe construction, light, air, and open space, to reduce hazards at intersections, to prevent the accumulation of trash, and to protect property values of the entire community.”
• In Zephyrhills, Florida, “The [sign] standards are designed to protect and promote the health, safety and welfare of persons within the city by providing regulations which allow and encourage creativity, effectiveness and flexibility in the design and use of the devices while promoting traffic safety and avoiding an environment that encourages visual blight.”

The risk to free speech is that, unless courts scrape the surface of sign regulations to ensure that permissible ends are connected to permissible means, the constitutional test could be reduced to—as Justice Scalia put it in another context—“a  test of whether the legislature has a stupid staff. ”And although the Supreme Court has articulated the rule that “the mere assertion of a content-neutral purpose” is not necessarily “enough to save a law which, on its face, discriminates based on content,” the application of that rule in the context of sign code cases is currently, as the Reed v. Gilbert Petitioner correctly asserts, a mixed bag.

Judicial Categorization of Speech.

The free speech guarantee of the First Amendment is absolute on its face, but the reality is that it is neither absolute nor uniform.  The free speech guarantee is a shield that is strongest at its center and weakens towards the edges.  At the center are those topics of discussion that are afforded the “highest degree of protection.”  Political speech and speech “on matters of public concern” occupy this space.“Religious speech” is close to political speech, and is also rigorously protected. Other non-commercial speech (e.g., on “matters of private concern”), music, and art, while not in the center of the shield, are also well-protected

In the space between non-commercial speech and the outer boundaries of the free speech shield is “commercial speech.”  Commercial speech “occupies a ‘subordinate position in the scale of First Amendment values.’”It is speech that “proposes a commercial transaction,” and occurs “where, among other things, (1) [the speech] is concededly an advertisement, (2) it refers to a specific product, or (3) it is motivated by an economic interest in selling the product.”

The outer edge of the shield is not well-defined, but according to the cases it includes nude dancing (which is “expressive conduct within the outer perimeters of the First Amendment, though [the Court] view[s] it as only marginally so”, and speech by students at school. Outside of the shield are “fighting words,” obscenity, and defamation.  These categories of speech are not “entirely invisible to the Constitution,” but may be regulated or proscribed categorically because of their content.

Implications for Sign Regulation.

Commercial vs. Noncommercial Speech.

Some regulatory classifications have been routinely upheld by courts, even though they relate to content.  For example, “The Supreme Court and other courts have approved of statutes, orders, ordinances and the like which require a distinction between commercial and noncommercial speech.”  However, to support such a distinction, there must be justification that relates to the distinction, and the assertion that commercial speech has “‘low value,’” without more, will not suffice.

Premises-Based Regulations.

Sign regulations commonly go beyond the commercial / noncommercial distinction and subcategorize both commercial and noncommercial speech based on their content.  For example, commercial signs are usually divided into “on-premises” and “off-premises” signs, with greater limitations on off-premises signs (e.g., billboards).  The plurality of the Metromedia Court accepted this distinction with respect to commercial speech, noting that, “the city may distinguish between the relative value of different categories of commercial speech [on-site vs. off-site]” and may consider on-site advertising more valuable than the City’s interest in traffic safety and aesthetics. 

By way of background, the Supreme Court has articulated a three-part test for evaluating whether regulation of non-misleading commercial speech that relates to lawful activity is permissible under the First Amendment:

• The government must assert a substantial interest to be achieved by the regulation.
• The regulation must directly advance the asserted interest.  That is, it must do more than provide “only ineffective or remote support for the government's purpose.”
• The regulation must be narrowly tailored not to restrict more speech than necessary (but not necessarily the “least restrictive”).

Together, the final two factors require a reasonable fit between the government's objectives and the means it chooses to accomplish those ends. As such, arguably, to the extent that a prohibition on off-site commercial signs would advance the substantial governmental interests in traffic safety and aesthetics by reducing the proliferation of sign structures, the distinction should hold up under the three-part test. 

Yet local governments should not take for granted that they have plenary power to regulate on-site and off-site messages.  Consider the case of the digital message center—a single structure that is capable of displaying 28,800 three-second messages over the course of 24 hours.  Once that structure is in place, arguments about how its content affects traffic safety and aesthetics may prove challenging to support.

In the realm of noncommercial speech, the on-premises versus off-premises distinction is problematic.  Some courts have assumed that “the address of identifiable groups or associations formed around an idea, aim, philosophy or viewpoint defines the location of the idea,” such that a theoretical distinction could be made between on-premises and off-premises noncommercial messages. Other courts have taken the position that “all noncommercial speech is onsite.”That is, “[a] sign bearing a noncommercial message is onsite wherever the speaker places it.”In practice, if a sign code distinguishes between on-premises and off-premises commercial messages, it should include a provision that ensures that noncommercial messages will be treated as on-premises.

Speaker-Based Regulations.

Generally

Beyond the on-site / off-site distinctions, many sign codes include provisions that subdivide commercial speech based on the type of business.  For example, the code may define a “bank sign,” or a “gas station sign.” Here, the link between ends and means may be tenuous, and local governments should be aware that “[r]egulations that discriminate . . . among different speakers within a single medium . . . often present serious First Amendment concerns.”  Such speaker-based regulations may be subjected to strict scrutiny in court, unless “the differential treatment is ‘justified by some special characteristic of’ the particular medium being regulated.” The justification does not have to be “perfect,” but it does have to be “reasonable.” If there are clear reasons for such distinctions—linking ends to means—then the reasons should be set out in the code itself.  If not, the distinctions should be eliminated.

The Special Case of Marijuana.

After the passage of Article XVIII, Sections 14 and 16, of the Colorado Constitution (“medical use of marijuana for persons suffering from debilitating medical conditions” and “personal use and regulation of marijuana,” respectively) and the U.S. Department of Justice’s guidance memoranda with respect to the enforcement of the Controlled Substances Act, many Colorado local governments allow the retail sale of marijuana.  Some local governments want to regulate the content of the marijuana business’ signs, for example, to prohibit the display of the cannabis leaf or depictions of people smoking marijuana.

Whether or not the content-based regulation of marijuana business signs is permissible is still an open question.  Its resolution will likely depend in a particular case on how fine-grained the content-based regulation is.  That is, regulations that categorically ban marijuana advertising could be upheld, while regulations that ban certain images or words would be less likely to survive constitutional scrutiny.

As to categorical bans, “[t]he government may ban . . . commercial speech related to illegal activity.” Marijuana is “legal” under the Colorado Constitution and Colorado Revised Statutes, but it remains illegal under the federal Controlled Substances Act.  In other words, marijuana is still technically illegal in Colorado. Therefore a local government may assert that it has the authority to categorically ban commercial speech related to the production or sale of marijuana.  In fact, the federal government has (arguably) already done this.

As to bans of certain content related to illegal activity, the authority to ban a category of speech does not necessarily include the power to ban only a subset of that category.  That is, where specific symbols, messages, or viewpoints are banned, but other are not, the regulation will be constitutionally suspect.  For example, under the First Amendment, obscenity may be categorically banned, but “it is perfectly clear that [the government] could not ban all obscene liquor ads except those that advocated temperance[.]”  Moreover, while the sale of liquor may also be banned, it is “clear that [the government’s] power to ban the sale of liquor entirely does not include a power to censor all advertisements that contain accurate and nonmisleading information about the price of the product.

Whether a categorical ban or a ban on certain content is imposed, a marijuana business could argue that the government “‘may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially his interest in freedom of speech.’”  Since the local government provides the benefit of permitting the marijuana business under Colorado law and local ordinances, a marijuana business could argue that the local government cannot force the business owner to exchange its free speech rights for the business license or zoning permit.

Noncommercial Speech.

The Metromedia plurality’s reasoning for striking down the San Diego sign ordinance was that:

[T]he city does not have the same range of choice in the area of noncommercial speech [as it does in the area of commercial speech] to evaluate the strength of, or distinguish between, various communicative interests. . . .  With respect to noncommercial speech, the city may not choose the appropriate subjects for public discourse:  “To allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for political truth.

Metromedia provided strongly worded dicta, but ultimately left unresolved the issue of classification of noncommercial signs based on the content of their messages.  And notably, the concurring Justices in Metromedia questioned whether local governments should even be allowed to distinguish between commercial and noncommercial messages in their sign codes. Reed v. Gilbert could resolve these issues. 

Further Subclassification—Function over Form? 

In the context of signage, part of the Reed v. Gilbert dispute centers around whether sign regulations that facially differentiate among signs based on their content are simply using content as a permissible proxy for function.  During oral argument in Reed v. Gilbert, Justice Scalia revealed his position on the difference between function and content:

Justice Scalia:  [I]s there a difference between the function of the sign and the content of the sign?

Mr. Savrin:  Yes, Your Honor.

Justice Scalia:  I frankly can’t grasp that.  What is it?

Mr. Savrin:  Well, it depends on how –

Justice Scalia:  Doesn’t its function depend upon its content?

Mr. Savrin:  In a literal sense, yes.

Justice Scalia:  Oh, I see.  What sense are we talking here?

The First Circuit has also not been persuaded by the argument that content and function are different in the context of signs:

The defendants respond by asserting that the bylaw does not discriminate on the basis of “content,” but rather on the basis of “function.”  This argument is unpersuasive. The “function” of any sign is to communicate the information written on it.  The defendants' preference for the “functions” of certain signs over those of other (e.g., political) signs is really nothing more than a preference based on content.

Yet some signs—based on their content—do have functions that directly advance governmental interests in public safety.  For example, messages like “speed limit,” “stop,” “yield,” and “construction zone”—or even the name of a street—serve the significant (and sometimes compelling) governmental interest in traffic safety.  However, these signs are generally displayed by the governmental entity within a public right-of-way.  The government’s display of messages within its rights-of-way is “government speech” that does not implicate the First Amendment.

Outside of the narrow range of signs that ensure the orderly flow of traffic or help first responders find addresses in the event of an emergency, there are few commonly used “functional” classifications that have anything to do with direct impacts on public safety.  That is because in these cases, the aesthetics and safety objectives are both presumably served by regulations that reduce visual clutter or prevent visual obstructions that create safety risks.  Such regulations control the number or size of sign structures, or regulate their design, lighting, distracting elements, or location.

While the Metromedia Court suggested that an on-premises / off-premises distinction among commercial signs could be used to prevent sign clutter, the reasoning of the plurality did not extend further to speaker-based distinctions (which were not at issue).  For now, a local government that includes speaker-based distinctions on commercial speakers should be prepared to demonstrate that they actually advance the government’s stated interests (e.g., traffic safety, aesthetics, and other policy reasons for regulating signs), and that there is a reasonable fit between the regulation and the objective.  With respect to speaker-based or content-based distinctions among noncommercial speakers, local governments should be even more cautious.  The Reed v. Gilbert Court could well adopt the reasoning of the Metromedia plurality and strike down the Gilbert ordinance based on its content-based distinctions among noncommercial messages.

Indeed, when examining a sign code or proposed amendments that classify noncommercial signs by their content, consider the response of Justice Scalia when counsel for Gilbert, Arizona asserted that the Arizona state law that requires local governments to allow political signs within the public right-of-way should not be a “baseline” that is applied at the local level to other types of signs—

Mr. Savrin:  It doesn’t make sense that . . . all signs need to . . . meet [statutory] provisions for purposes of preserving beauty, reducing clutter, so on and so forth.

Justice Scalia:  It makes a lot of sense if you believe in the First Amendment.

Towards an Updated Regulatory Approach

An error does not become truth by reason of multiplied propagation, nor does truth become error because nobody sees it.

~ Mahatma Gandhi

Generally

People experience signs as structures and as messages.  It is natural that they would classify signs based on their content as a proxy for their structure.  That is particularly the case where, historically, certain types of messages were displayed on certain types of signs.  Take for example the “classic” residential real estate sign—a metal panel hung from a wooden support structure.  What if a person modified a real estate sign to say “Happy Birthday” or “I Love the First Amendment”?  Would it still be a real estate sign? 

Even if the Reed v. Gilbert Court were to allow them to continue, the reality is that content-based distinctions among signs invite disagreement about which rules apply.  For example, in Gilbert, Arizona, the code distinguishes between “political” and “ideological” signs.  Under such a framework, consider the sign that started the dispute in City of Ladue v. Gilleo.  It was placed in Ms. Gilleo’s front yard on December 8, 1990, and read “Say No to War in the Persian Gulf, Call Congress Now.”If Ms. Gilleo lived in Gilbert, her sign could be up to 16 square feet in area as a “political sign,” and up to 20 square feet as an “ideological sign.”

A sign code that does not reference the content of signs does not invite this sort of interpretive challenge and potential constitutional risk.  If the Reed v. Gilbert decision favors the Petitioner, then there will be a pressing need to reform thousands of sign codes across the country to bring them into compliance with Constitutional requirements.  If the Reed v. Gilbert decision favors the Respondent, then code reform may be somewhat less pressing, but the closeness of fit between the stated ends of the code and the means utilized to achieve those ends should still be the subject of careful reflection.

Key Ingredients of an Updated Sign Code

Since the text of a sign code should reflect—within constitutional limits—the balance in the community among the interests of public safety, aesthetics, property values, and communication via signs (this will be referred to as “balance of community values”), no particular “model code” is suggested.  Instead, the ingredients of a reformed code are offered.

True Content-Neutrality.

First and foremost, the words and phrases that are used to classify signs for the purposes of regulation should be stripped of references to the content of the signs.  All of the following examples from the Gilbert sign ordinance could be classified as simply “Temporary Signs”:  “Political Sign,” “Ideological Sign,” and “Garage Sale Sign.”  If the local government wants to control the design of structures more specifically, political signs, ideological signs, and garage sale signs could all be grouped together as “yard signs,” which could be defined as “a temporary portable sign constructed of paper, vinyl, plastic, wood, metal or other comparable material, and designed or intended to be displayed for a short period of time.”  True content neutrality requires a different way of thinking about sign regulation, but it does not require the local government to compromise its legitimate policy objectives.

Number, Area, Structure, and Location.

The number, area, structure, and location of signs are “noncommunicative” aspects of the medium that may be regulated.  The method of regulation should treat similarly situated property owners similarly.  Generally, that means that signs should be regulated by zone district, although “overlays” and other methods to address corridors or special areas also may be appropriate.  Specifically, a sign code may specify the maximum number of signs that are allowed, the sign area that is allowed on each type of structure, the types of structures that are permissible, and setbacks or other locational standards for each type of structure.  Alternatively, a sign code may specify a “budget” for total sign area, with the allocation of that area to any number of individual signs as the property owner sees fit. 

Number, area, structure, and location standards may be specified for both temporary and permanent signs.  With respect to temporary signage, although the sign code should strive for “pure content neutrality,” case law with respect to political signs should inform the discussion about permissible numbers (or sign area budgets) of temporary signs.  For example, one federal circuit court struck down a two-sign limitation on temporary signs in residential yards because it was too restrictive on political speech and was not “narrowly tailored” to further the municipality’s interests in safety and aesthetics.

Materials and Design Elements.

A local government may consider including in its sign code a list of prohibited or limited materials and design elements.  This list should reflect the balance of community values in the jurisdiction.  Many lists of this nature include such things as “spinning or moving parts,” “flashing lights,” “bare light bulbs,” “sound, smoke, or odor emitters,” and “streamers or pendants.”  At least two courts have upheld total bans on electronic message centers, one of them observing that “‘the First Amendment does not guarantee the right to employ every conceivable method of communication at all times and in all places.

If electronic message centers are allowed, standards may be adopted to limit their area and / or their area in proportion to other elements of the sign.  Hours of operation and automatic dimming based on weather conditions and time of day are also appropriate.  To lessen the level of distraction that this type of sign may create, the display time per message, presence or absence of movement or animation, and the transitions between messages displayed on electronic message centers may also be regulated without reference to the content of the messages displayed.  Local governments should avoid conditioning approval of electronic message centers on such things as requiring only on-site messages or compelling the sign owner to display public interest messages (such as Amber Alerts), as these types of conditions could raise constitutional issues.

Landscaping and Lighting.

In the interest of community aesthetics and safety, sign codes may set out minimum standards for landscaping, lighting, and maintenance of signs.  Many sign codes include requirements for the installation of freestanding signs within landscaped areas (as opposed to paved areas), often with certain minimum dimensions and required plant materials.  Lighting of signs may be controlled to prevent glare and to promote certain aesthetic objectives (e.g., in certain zone districts, internally lit signs may be prohibited).

Maintenance and Duration of Display.

In the traditional model, the timing and duration of display of certain temporary signs is usually based on their content.  The “pure content neutrality” model takes a different approach.  First, a minimum standard for maintenance should be established for both temporary and permanent signs.  For example, they should be kept in good condition; upright; free of rust, corrosion, mineral deposits, and stains; and so forth.

A code may also require a sign to include a communicative element.  Although an individual cannot be compelled to speak, the purpose of a sign is to convey a message, and those who wish to remain silent do not need signs.  A requirement that sign structures be used to communicate a message allows the local government to bring nonconforming sign structures into conformity after extended periods of nonuse.  The local government may also use a communicative element requirement to require the removal of commercial messages that are “misleading” because, for example, the business identified on the sign is no longer in the shopping center.

With regard to temporary signs, most sign codes are like the Gilbert, Arizona code in that they impose limits on the timing and duration of display based on the content of the sign.  For example, in one Colorado municipality, “election season signs” may be posted not more than “90 days prior to the election to which the sign is related, and must be removed within 2 weeks of the final election.”  Under that standard, a nostalgic or disaffected voter might not be allowed to post a “Reagan / Bush” or “Carter / Mondale” sign.  If political speech is the most protected discourse under the First Amendment, then restricting the timing of political discourse to election season, while allowing other types of discourse year-round, is suspect.

One way to approach the temporary sign problem is to allow temporary signs for different periods depending upon their materials (a proxy for their durability).  For example, paper signs could be allowed for 24 hours, while durable materials like wood, corrugated plastic, and metal, when supported by a durable finished frame, could be allowed for many months.  Other standards could be applied to cloth and canvas banners and other types of temporary signs.

A sign code that allows a sufficient number of temporary signs for a limited number of days per year, combined with minimum requirements for maintenance and taking into account minimum timing and area requirements to protect political speech, can deliver true content-neutrality with no adverse effect on the legitimate and substantial governmental objectives of traffic safety and community aesthetics.  ?