2. AMCA Summer 2016 Conference
political signs
AMCA Summer 2016 Conference
Wednesday, July 27, 2016
Christina Estes-Werther General Counsel League of Arizona Cities and Towns

3. Reed v. town of Gilbert, 135 S. Ct. 2218 (2015)
United States Supreme Court case
Decided June 2015
Unanimous vote
Significant impact on sign codes across the nation
Gilbert’s Code
The Town of Gilbert’s sign code required a permit for the display of outdoor signs, except for those signs that fell under one of the exempted categories.
For example, political signs, ideological signs or temporary directional signs (relating to a qualifying event) did not require permits if all the criteria was met.
Temporary Directional Signs Relating to a Qualifying Event. No permit required for signs intended to direct pedestrians, motorists and other passersby to a qualifying event.
“Qualifying event” – “assembly, activity sponsored by a religious, charitable, community service, education, or similar non-profit organization.”

4. Reed v. town of Gilbert, 135 S. Ct. 2218 (2015)
Facts of the Case
Petitioners, Good News Community Church (“Church”) and Pastor Clyde Reed posted temporary signs on Saturday mornings bearing the Church name and the time and location of the next service and removed the signs midday the next day.
Gilbert categorized these signs as “Temporary Directional Signs” because they were intending to direct pedestrians and vehicles to a specific qualifying event.
The Town cited the Church for exceeding the time limits for displaying the signs and for failing to include an event date on the signs.
The Church did not dispute these violations but filed a complaint in U.S. District Court that Gilbert was abridging their freedom of speech.
Temporary Directional Signs Relating to a Qualifying Event. No permit required for signs intended to direct pedestrians, motorists and other passersby to a qualifying event.
“Qualifying event” – “assembly, activity sponsored by a religious, charitable, community service, education, or similar non-profit organization.”

5. Reed v. town of Gilbert, 135 S. Ct. 2218 (2015)
Court Process
The District Court denied the Church’s motion for a preliminary injunction and the Ninth Circuit affirmed the ruling in favor of the Town.
The Ninth Circuit concluded that Gilbert’s code was content-neutral (the regulation applies to all speech regardless of the viewpoint and subject matter) and Gilbert was able to satisfy the intermediate scrutiny for content-neutral regulation.
The Church appealed and the case was heard by the U.S. Supreme Court.
Temporary Directional Signs: conveys a message directing the public to a qualifying event; Political Signs: influences the outcome of an election; Ideological Signs: communicates a message or idea and doesn’t fit within another category.
Temporary Directional Signs Relating to a Qualifying Event. No permit required for signs intended to direct pedestrians, motorists and other passersby to a qualifying event.
“Qualifying event” – “assembly, activity sponsored by a religious, charitable, community service, education, or similar non-profit organization.”

6. Reed v. town of Gilbert, 135 S. Ct. 2218 (2015)
Decision
On June 18, 2015, the U.S. Supreme Court reversed the Ninth Circuit’s decision.
The Court found that Gilbert’s sign code is “facially content- based” meaning that on its face Gilbert regulates speech based on the subject matter because Gilbert used the content of the sign to determine whether the sign was exempted.
Essentially, the Court found that the Church’s sign was regulated according to the message it was conveying.

7. Reed v. town of Gilbert, 135 S. Ct. 2218 (2015)
Gilbert’s Arguments
The regulation was not based on any disagreement with the message conveyed on the Church’s sign so it was not content- based.
The Court stated that it was irrelevant whether Gilbert agreed or disagreed with the content of the sign when regulating it, finding that a “benign motive” was not relevant when examining whether the regulation is content-based.

8. Reed v. town of Gilbert, 135 S. Ct. 2218 (2015)
Gilbert’s Arguments
The sign regulation was content-neutral because all temporary directional signs were treated similarly, regardless of the particular viewpoint.
The Court asserted that the regulation singles out specific subject matter for differential treatment, even if it does not target viewpoints within the subject matter.
An Ideological Sign can be up to 20 square feet and have no placement or time restrictions;
A Political Sign can be up to 32 square feet and may only be displayed during an election season; and
A Temporary Directional Sign, such as the Church’s sign, is limited to six square feet and could only be displayed no more than 12 hours before the qualifying event and 1 hour after.
The Court found that the more favorable treatment to some signs rather than other types of signs, based on the content, was an example of content-based discrimination.

9. Reed v. town of Gilbert, 135 S. Ct. 2218 (2015)
Gilbert’s Arguments
The regulation was speaker or event-based and therefore was not content-based.
The Court disagreed and reiterated that speech regulation is content-based if the law applies to a particular speech because of the topic discussed or the idea or message expressed.

10. Reed v. town of Gilbert Decision
Because the court found the regulation to be content-based discrimination, it was subject to the highest standard – strict scrutiny.
The Court found that Gilbert’s regulation failed the strict scrutiny test because it could not provide evidence that its regulation furthered a compelling governmental interest and is narrowly tailored to that interest.
The Court dismissed Gilbert’s assertions that the regulation is necessary for aesthetic appeal and traffic safety because Gilbert’s Sign Code allowed unlimited display of larger Ideological Signs and was unable to demonstrate that Temporary Directional Signs posed a greater threat to safety than any other signs.
The Court reversed the judgment of the Ninth Circuit Court of Appeals.

11. Reed v. town of Gilbert, 135 S. Ct. 2218 (2015)
Concurring Opinions – Justice Alito (joined by Justices Kennedy and Sotomayor)
Government can regulate signs in a manner that would not be content- based and provided the following examples of content-neutral regulation:
Size of signs;
Location of signs such as free standing signs or those attached to buildings;
Lighted and unlighted signs;
Fixed messages and electronic signs with messages that change;
Distinguishing placement of signs on private and public property;
Distinguishing on-premises and off-premises signs;
Restricting the total number of signs allowed per roadway;
Imposing time restrictions on signs advertising a one-time event ; and
Signs erected by private actors and government entities.

12. Reed v. town of Gilbert, 135 S. Ct. 2218 (2015)
Concurring Opinions – Justice Kagan (joined by Justices Breyer and Ginsburg)
Many illuminated signs, certain safety-related signs and historic site markers may be in jeopardy if the regulation is focused on a specific subject matter (content-based) and there is not a compelling governmental interest under strict scrutiny.
Would have applied intermediate scrutiny to this case.
States that communities may have to repeal the sign exemptions or remove all sign restrictions.

13. Reed v. town of Gilbert, 135 S. Ct. 2218 (2015)
Concurring Opinions – Justice Breyer (joined by Justice Kagan)
Agreed with judgment but contended that many content-based distinctions, outside of sign codes, do no have strict scrutiny applied.
Concerned that the court’s application will affect other areas that regulate speech such as prescription drug labeling or securities regulations.
Other areas have been affected by this ruling…

14. Issues Affected by Reed
Panhandling
The Seventh Circuit Court found that Springfield's Municipal Code was content discrimination because it prohibits an oral request for an immediate donation of money but does not include signs requesting money or oral pleas to send money later. Norton v. City of Springfield, Ill., 806 F.3d 411, 412 (7th Cir. 2015) cert. denied, 136 S. Ct (2016)
The Court found that the new anti-panhandling ordinance that prohibited panhandling for an immediate donation within five feet of the solicited person was content-based because the ordinance continues to prohibit speech that requests an immediate donation but allows other type of speech and the city was unable to meet its burden of strict scrutiny. Norton v. City of Springfield, , 2015 WL , at *1 (C.D. Ill. Dec. 4, 2015)
The Court found that ordinance was content-based since it regulated a particular type of speech and while the City has a legitimate interest in promoting the safety and convenience of its citizens on public sidewalks and streets, the City’s ordinance is not the least restrictive means available to protect the public and therefore, did not satisfy strict scrutiny. Thayer v. City of Worcester, CV TSH, WL , at *11 (D. Mass. Nov. 9, 2015)
The Court found that the City's definition of panhandling was content-based because it targets only the solicitation of immediate charitable donations and promoting tourism is not a compelling state interest and it cannot survive strict scrutiny under the First Amendment McLaughlin v. City of Lowell, DPW, WL , at *4 (D. Mass. Oct. 23, 2015)

15. Issues Affected by Reed
Photographs of Ballots
The District Court held that the statute prohibiting voters from taking and disclosing digital or photographic copies of their completed ballots was content- based because it restricts speech on the basis of whether the ballot was marked or unmarked ballots. Rideout v. Gardner, 123 F. Supp. 3d 218 (D.N.H. 2015)
Political Speech
Ohio's political false-statements laws that only govern speech about political candidates are unconstitutional because they are not narrowly tailored in their (1) timing, (2) lack of a screening process for frivolous complaints, (3) application to non-material statements, (4) application to commercial intermediaries, and (5) over- inclusiveness and under-inclusiveness. Susan B. Anthony List v. Driehaus, 814 F.3d 466, 473 (6th Cir. 2016)
The Court held that the statute restricting false statements in campaigns was content-based regulation of political speech, and, thus, was presumptively invalid. Com. v. Lucas, 472 Mass. 387, 34 N.E.3d 1242 (2015)
Robocalls
The Court found that South Carolina's anti-robocall statute is a content-based regulation that does not survive strict scrutiny because the statute applies to calls with a consumer or political message but does not apply to calls made for any other purpose Cahaly v. Larosa, 796 F.3d 399, 402 (4th Cir. 2015)

16. Impact of Reed What does this mean for city and town sign codes?
This was a significant decision and city and town attorneys have been reviewing the sign codes.
Remember that any categorization based on the content or the face of the message may be content-based discrimination under the First Amendment.
If you have to read it to classify it, it’s content-based.
Sign code revisions will follow as more case law is being developed and draft ordinances are being published.

17. Arizona’s Political sign law
A.R.S. § (A), (B)
It is a Class 2 misdemeanor if 45 days before a primary election until 7 days after the general election, any person knowingly:
Removes, alters, defaces or covers any political sign of any candidate for public office; or
Removes, alters or defaces any political mailers, handouts, flyers or other hand-delivered printed mailers.
Candidates may remove, alter, or cover their own signs or the signs may be removed by the owner of the private property if no permission was given by the owner or if the sign is placed in violation of state law or county, city or town ordinance or regulation.

18. Arizona’s Political sign law
A.R.S. § (C)
A city or town is prohibited from removing, altering, defacing or covering any political sign if the sign:
Is placed in a public right-of-way that is owned or controlled by that jurisdiction;
Supports or opposes a candidate for public office or it supports or opposes a ballot measure;
Is not placed in a location that is hazardous to public safety, obstructs clear vision in the area or interferes with the requirements of the Americans with Disabilities Act.
Has a maximum area of 16 square feet, if the sign is located in an area zoned for residential use, or a maximum area of 32 square feet if the sign is located in any other area.
Contains the name and telephone number or website address of the candidate or campaign committee contact person.

19. Arizona’s Political sign law
A.R.S. § (D),(H)
The removal restrictions on cities and towns is only from 60 days before a primary election and ending 15 days after the general election. If a sign is for a candidate in a primary election who does not advance to the general election, the period ends 15 days after the primary election.
If a sign is placed outside of this allowable time frame (i.e. 90 days before a primary election), the city or town may notify the candidate that the sign is placed in violation and after 24 hours, the city or town may remove the sign. The city or town must contact the candidate or campaign committee and retain the sign for at least 10 business days to allows the candidate or campaign committee to retrieve the sign without penalty.
Recent Informal Attorney General Opinion, I16-006/R16-014
Disputed the assertion by some candidates that signs can be placed as early as 60 days before early voting begins.
Stated that the “plain meaning” of primary election means 60 days before a primary election in A.R.S. §

20. Arizona’s Political sign law
A.R.S. § (D),(E),(G),(I)
The city or town may immediately relocate the sign if it deems that the placement of a political sign constitutes an emergency.
The candidate or campaign committee must be notified by the city or town within 24 hours after the relocation.
A city, town or county employee acting within the scope of the employee's employment is not liable for an injury caused by the failure to remove a sign if there was an emergency situation under subsection D unless the employee intended to cause injury or was grossly negligent.
A city, town or county may prohibit the installation of a sign on any structure owned by the jurisdiction.
The restriction on removing signs does not apply to state highways or routes, or overpasses over those state highways or routes. This means signs on state highways can be removed (likely by ADOT).

21. Arizona’s Political sign law
A.R.S. § (F)
A city or town can remove political signs in a commercial tourism, commercial resort and hotel sign free zones as those zones are designated by municipalities.
The total area of those zones shall not be larger than three square miles, and each zone shall be identified as a specific contiguous area where, by resolution of the municipal governing body, the municipality has determined that based on a predominance of commercial tourism, resort and hotel uses within the zone the placement of political signs within the rights-of-way in the zone will detract from the scenic and aesthetic appeal of the area within the zone and deter its appeal to tourists.
Not more than two zones may be identified within a municipality.

22. Application of Reed to Arizona’s Political sign law
How does Reed apply to Arizona’s political sign law?
A.R.S. § protects political signs from removal by individuals and government entities while other signs are not afforded the same protection. Is it content-based discrimination? Do you have to read the sign to know whether a sign is subject to A.R.S. § ?
Municipalities sought an opinion from the Attorney General - requested by Sen. Kavanagh.
Two questions:
What legal impact does the recent United States Supreme Court ruling in Good News Presbyterian Church v. Town of Gilbert have on Arizona Statutes regulating political campaign signs? 
In particular, does the Supreme Court ruling require an amendment to Section , Arizona Revised Statutes, in order to comply with the Court’s mandate?

23. Application of Reed to Arizona’s Political sign law
ATTORNEY GENERAL OPINION I15-011
The Attorney General stated the Supreme Court’s decision does not directly impact any Arizona statutes regulating political campaign signs. 
It does not require an amendment to Section because nothing in that statute restricts speech. “Instead, it establishes the limits—under Arizona law—of what local governments may do as they limit or regulate signs.”
“A municipality desiring to enact rules specifically targeting political signs in violation of Reed cannot rely on Section (F) to inoculate such rules against a First Amendment challenge. ”

24. Application of Reed to Arizona’s Political sign law
Cities and towns must comply with Reed and not restrict speech based on content yet must also comply with A.R.S. § , which grants protection to a particular type of speech: political signs.
If a city is forced to allow political signs during this time period, must they allow other types of signs such as ideological signs or directional signs? If not, is the city discriminating based on content by allowing political signs to remain but other signs are removed?
In order to avoid a court challenge: treat all speech the same.

25. Next steps
A.R.S. §
cType=ARS
Recent Informal Attorney General Opinion, I16-006/R
regarding-political-signs
ATTORNEY GENERAL OPINION I15-011
amendment
Talk to your city or town attorney
Best resource about the status of your sign code
How to address political sign issues in your city or town
Do policies need to be updated?
Report any issues or complaints

26. Questions?