The Art (and Law)
of Sign Controls
Nancy Reid, Assistant City Attorney
City of Englewood, Colorado
Todd Messenger, Code Practice Leader
Kendig Keast Collaborative, Inc.
Part one: Englewood
Through the Looking Glass
Free Speech Guarantee
Part two: The Art and Law
• “Congress shall make no law . . . abridging the
freedom of speech . . .”
– First Amendment, U.S. Constitution
– Applied to States by 14thth Amendment. See Gitlow v. New York,
268 U.S. 652 (1925)
• “No law shall be passed impairing the freedom
of speech; every person shall be free to speak,
write or publish . . . on any subject, being
responsible for all abuse of that liberty . . . .”
– Art. 2 § 10, Colorado Constitution
Why Regulate Signs?
Why Regulate Signs?
Ouch!
Why Regulate Signs?
municipalities have a weighty,
It is well settled that the state may
essentially aesthetic interest in
legitimately exercise its police powers
proscribing intrusive and unpleasant
to advance aesthetic values.
formats for expression.
~ Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984)
~ Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984)
Freedom is Not Absolute
• “While signs are a form of expression protected
by the Free Speech Clause, they pose
distinctive problems that are subject to
municipalities' police powers. Unlike oral
speech, signs take up space and may obstruct
views, distract motorists, displace alternative
uses for land, and pose other problems that
legitimately call for regulation.”
~ City of Ladue v. Gilleo, 512 U.S. 43 (1994)
Freedom is Not Absolute
• “This Court has held that, when ‘speech’ and
‘nonspeech’ elements are combined in the same
course of conduct, a sufficiently important
governmental interest in regulating the
nonspeech element can justify incidental
limitations on First Amendment freedoms.”
~ United States v. O’Brien, 391 U.S. 367 (1968)
Freedom is Not Absolute
“Signs are by their very nature a means of
expression and communications within the
meaning of the First Amendment.
The public, however, has the concomitant right to
be free from intrusive signs and billboards.”
~ Williams v. City & County of Denver, 622 P.2d 542 (Colo. 1981).
Signs: Not Just Speech
Legal Framework
• Signs are a mix of speech and non-speech
• Since regulation of the medium affects the
message, sign codes implicate the First
Amendment and Article 2, Section 10
• Sign codes must respect constitutional limits:
– Content-based vs. Content-neutral tests
(and related viewpoint neutrality test)
– Commercial vs. Noncommercial speech
– Restrictions on prior restraint of speech
Regulation
Impacts Speech
The Tests
No
Based on
Content?
Path of Least Resistance
Yes
No
• Which test is
applied turns on
whether the
regulations are
based on content.
• The choice of test is
almost always
determinative of the
outcome.
• Regulations that impact speech are allowed if:
Legitimate?
Yes
No
Substantial
Interest?
Compelling
Interest?
Yes
No
Yes
Least
Restrictive
Means?
Narrowly
Tailored?
Yes
No
No
No
Yes
– Content-Neutral. Interest is unrelated to the
suppression of free expression;
– Legitimate. Within constitutional power of
government;
– Substantial Interest. Furthers important or substantial
governmental interest;
Ample
Alternatives?
Yes
OK
Invalid
Path of Least Resistance
– Narrowly Tailored.
While
the First
Amendment
• Incidental
restriction
on speech is nodoes
greater not
than is essential
to the furtherance of that interest;
guarantee
the right to employ every
• Does not have to be the “least restrictive means”; and
conceivable
method of communication at
– Ample Alternatives. Leaves open ample alternative
all times
and
in all places, a restriction on
channels
for communication.
expressive activity may be invalid if the
remaining modes of communication are
~ inadequate.
See, e.g., St. John’s Church in the Wilderness v. Scott, 194 P.3d 475
(Colo. App. 2008)
(Colo.
2008)
~ LosApp.
Angeles
v. Taxpayers for Vincent, 466 U.S. 789 (1984)
The Hard Road
• “Content based regulations are presumptively
invalid.”
~ R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)
• If court determines regulations are “content
based” the (almost always fatal) “test” is:
– “Compelling governmental interest”
– “Narrowly drawn” regulations that use the “least
restrictive means possible”
~ Curious Theater Company v. Colorado Dept. of Public Health
and Env’t., 216 P.3d 71 (Colo. App. 2008)
Content Distinctions
• The content based determination is not absolute
• Government may regulate content broadly:
–
–
–
Noncommercial message
On-site commercial message
Off-site commercial message
• Noncommercial messages have highest dignity,
then on-site commercial, then off-site
– i.e., cannot allow more signage for commercial than
noncommercial in same zone
Some Content Exceptions
•
•
•
Obscenity Roth v. United States, 354 U.S. 476 (1957)
Defamation Beauharnais v. Illinois, 343 U.S. 250 (1952) (libel)
Fighting words Terminiello v. Chicago, 337 U.S. 1 (1949); but
see R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)
• Secondary effects City of Renton v. Playtime Theatres, 475
U.S. 41 (1986)
• True threats People v. Stanley, 169 P.3d 258 (Colo. App.
2007)
~ Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981)
Exceptions to Exceptions
• Even if the speech is otherwise not protected -“the First Amendment forbids the government to
regulate speech in ways that favor some
viewpoints or ideas at the expense of others.”
~ Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984);
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)
Other Exceptions?
• Exceptions tacitly approved in dicta:
– Works of art which in no way identify a product
– Barber poles containing no written advertising
~ Williams v. City and County of Denver, 622 P.2d 542 (1981);
Veterans of Foreign Wars v. City of Steamboat Springs, 575
P.2d 835 (1978)
• Note that Williams and VFW did not involve
attacks on the potentially content-based
exceptions of the respective sign codes
Other Exceptions?
• Exceptions tacitly approved in dicta:
– Flags of nations, or an organization of nations states,
and cities, fraternal, religious and civic organizations
– Merchandise, pictures or models of products or
services incorporated in a window display
– Time / temperature devices not related to a product
– National, state, religious, fraternal, professional and
civic symbols or crests
Content Example
• Real Estate Signs
– Can’t have outright prohibition on real estate signs.
Linmark Associates v. Township of Willingboro, 431 U.S. 85
(1977)
– Linmark doesn’t say real estate signs must be called
out as a class (the analysis applied by the Court could
cut both ways)
– Distinctions for “real estate signs” are ubiquitous in
Colorado sign codes (good chance it’s in yours!)
– Is there a content neutral reason to call out “real
estate signs” versus other “temporary” yard signs?
Content Example
Format Example
• Constitutionally OK to ban billboards. Metromedia,
Inc. v. City of San Diego, 453 U.S. 490 (1981)
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SPEECH
– The First Amendment does not guarantee a right to the
most cost-effective means of [speech] . . . .”
– “When the medium itself is the ‘evil the city [seeks] to
address,’ then a ban of that entire medium is narrowly
tailored.”
~ Naser Jewelers, Inc. v. Concord, 513 F.3d 27 (1st Cir. Ct. App. 2008)
Clarity
Clarity
“‘I don’t think they play at all fairly,’ Alice began, in
rather a complaining tone, ‘and they all quarrel so
dreadfully one can’t hear oneself speak — and
they don’t seem to have any rules in particular; at
least, if there are, nobody attends to them.’”
~ Alice’s Adventures in Wonderland, Chapter 8
• Due process requires “fair notice of the conduct
that has been determined to be unlawful.” Law
must not “create a danger of arbitrary or
capricious enforcement.”
~ People v. Shell, 148 P.3d 162 (Colo. 2006)
• Due process does not require “mathematical
exactitude.”
~ Independence Institute v. Coffman, No. 07CA1151 (Colo. App.
(2008))
“Sentence first,
verdict afterwards.”
~The Queen of Hearts
AVOIDING THE RABBIT HOLE . . .
PRIOR RESTRAINTS
‘You might just as well
say,’ added the March
Hare, ‘that “I like what I
get” is the same thing as
“I get what I like”!’
~ The March Hare, Alice’s Adventures
in Wonderland
Prior Restraints
• “Where a prior restraint creates a risk of delay
such that every application of the regulation
creates an impermissible risk of suppression of
ideas, facial challenges to prior restraints are
permissible.”
– Mahaney v. Englewood
Prior Restraints
• Quick jump to prior restraint analysis turns the
established analytical frameworks on their head.
• According to Mahaney, sign codes are, per se,
prior restraints – subject to strict scrutiny –
– Adequate procedural safeguards (a decision within a
defined time period and prompt judicial review); and
– If so, then:
• Compelling governmental interest in establishing the
permitting scheme
• Narrow, objective, and definite criteria to avoid unfettered
discretion
Prior Restraints
• Mahaney’s dicta probably goes too far:
– Signs are protected speech; ergo
– Sign regulation is prior restraint; ergo
– Strict scrutiny review of sign regulations is automatic.
• Long line of precedents say signs are a “means”
for protected speech. Content-neutral “time,
place, and manner” restrictions are allowed:
– Strict scrutiny is limited to content-based regulation.
– “Ample alternatives” mitigates risks of prior restraints
Prior Restraints
• FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990),
cited in Mahaney, detailed two different types of
prior restraint:
– Unfettered discretion of the censor (direct censorship
of content of speech without clear standards)
• Strict scrutiny
• Burden on censor
– Undefined time period for decisions and / or judicial
review (incidental impacts on speech, content-neutral)
• City is relieved from strict scrutiny and burdens in court
~ Madsen v. Women’s Health Ctr., 512 U.S. 753 (1994), fn.2
Mahaney Lessons
• The most practical lesson is that, even with
respect to an optional review procedure, the
failure to include a “specified time limit” for final
decision-making is a fatal flaw.
Mahaney Lessons
• Don’t allow your defense to turn on the question
“what is art?”
– The exception for “art” (once we figure out what it is)
isn’t proven, so winning the argument could mean
losing the case.
• “Art” is protected speech. Hurley v. Irish American Gay,
Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995)
Suggestions
• Identify the interests at stake
– Don’t just copy them from somewhere else
• Look at the means, not the content
– E.g., “Real estate signs” used to invoke a particular
format. Not anymore. Now, “swing signs,” “yard
signs,” etc. are better descriptors of the form of the
sign (the means of communication)
• Work on vocabulary – words should
demonstrate commitment to content neutrality
Suggestions
Suggestions
• Include clear, content neutral criteria to constrain
the discretion of the decision-maker
• Make sure that noncommercial speech has
same dignity as commercial speech
• Include a definite period for approvals and a
direct path to judicial review
• Write a detailed severability clause
Food for Thought
• Rule of thumb should be that the code
enforcement official should not have to read the
sign to determine whether it complies with code.
However, there may be limited exceptions, like
on-site / off-site / noncommercial:
– “We have never held, or suggested, that it is improper
to look at the content of an oral or written statement in
order to determine whether a rule of law applies to a
course of conduct.” Hill v. Colorado, 530 U.S. 703 (2000)
Thanks for Your Time
Kendig Keast Collaborative
www.kendigkeast.com
[email protected]
(303) 577-7466