I Saw the Sign

Natch Greyes, Municipal Services Counsel

Signs are a form of expression protected by the First Amendment, but ones that pose distinctive problems because they take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation. It is common knowledge that governments may regulate the physical characteristics of signs -- just as they can, within reasonable bounds and absent censorial purpose, regulate audible expression in its capacity as noise. However, because regulation of a medium inevitably affects communication itself, it is not surprising that municipal sign ordinances must be regularly reviewed to ensure that they comply with the latest First Amendment case law. This short guide is designed to help municipalities updating their sign ordinances in 2019.

No parking sign

Here are some questions you should be asking upon review:

Is the Regulation Content Based? 

If your code enforcement officer must read the sign in order to determine whether a regulation applies, the ordinance provision is content based. Virtually any content-based regulation is unconstitutional.

For example, if your ordinance applies different rules to political signs and real estate signs, it is content based. The United States Supreme Court was very clear in Reed v. Gilbert, 135 S. Ct. 2218 (2015), that applying different rules to different kinds of signs due to content is unconstitutional.

Permissible regulations do not require code enforcement officers to read the sign in order to determine whether the regulation applies (except in the case of signs purporting to be Traffic Control Devices). These permissible, content-neutral regulations may include distinctions between “temporary” and “permanent” signs, but those regulations must be very clear on what characteristics  qualifies as “temporary” versus “permanent.” Further, those regulations cannot distinguish between types of temporary or permanent sign. If the farmer’s market can have a temporary sign at an intersection, so can a political candidate.

What about Traffic Control Devices? 

RSA 47:17, VIII (a) gives municipalities the authority to regulate all traffic control devices – commonly understood to be “street signs” and “signals” – within its boundaries. Furthermore, RSA 265:14 prohibits the display of any unauthorized sign that mimics or resembles and official traffic control device.  In Reed, the Supreme Court did carve out a narrow exception for traffic control devices, stating “a sign ordinance narrowly tailored to the challenges of protecting the safety of pedestrians, drivers, and passengers – such as warning signs marking hazards on private property, signs directing traffic, or street numbers associated with private houses – well might survive strict scrutiny.” Thus, the authority given to municipalities by RSA 265:14 is likely constitutional and it may be enforced.

Does the Regulation Control Duration of Display? 

Many current ordinances restrict the number of days that a temporary sign may be installed and maintained. Similarly, RSA 664:17 regulates how long political advertising may be displayed. Municipalities should be very cautious about enforcing these ordinances (or RSA 664:17). Why? Such  regulations require the code enforcement officer to read the sign in order to determine whether the regulation applies. Thus, the regulation is actually focused on the content of the sign, not an unrelated aspect, such as the size or placement.

This is not an unfounded fear. Federal and other states’ courts which have looked at duration ordinances have found that they are content-based regulations because they demonstrate a preference for the likely content that signs would have at those times, e.g. businesses promoting special events or winners of political contests. www.RicardoPacheco.com v. City of Baldwin Park, No. 2:16-CV-09167-CAS(GJSx), (Cen. Dist. Cal. May 10, 2017); Bell v. Baltimore County, Maryland, 550 F. Supp. 2d 590 (2008).

Does the Ordinance Overregulate (or Underregulate) Certain Signs? 

Many zoning ordinances and sign ordinances define different types of signs, but then only apply regulations to some of those types of signs. The concern, of course, is that such regulations may be designed to target a particular content. For example, in Reed, the municipality defined 23 exemptions to sign types that had to be permitted, with political signs “designed to influence the outcome of an election” being in one class and temporary direction signs “that direct the public to a church or other qualifying event” as another class. One of those classes was regulated more stringently than the other. That demonstrated preferential treatment to the type of content likely to be displayed on the less regulated signage.

Does the Ordinance have all the ‘Required’ Elements?

Check to be sure your sign code has all the ‘required’ elements of a sign code:

  • The code should contain a purpose statement that, at the very minimum, references traffic safety and aesthetics as purposes for sign regulation.
  • The code should contain a message substitution clause that allows the copy on any sign to be substituted with noncommercial copy.
  • The code should contain a severability clause to increase the likelihood that the code will be upheld in litigation, even if certain provisions of the code are not upheld.
  • In preparing the purpose statement, it is always best to link regulatory purposes to data, both quantitative and qualitative. For example, linking a regulatory purpose statement to goals of the local master plan, such as community beautification, increases the likelihood that the code will survive a challenge.
  • If traffic safety is one of the purposes of the sign code (it should be), consult studies on signage and traffic safety to draw the connection between sign clutter and vehicle accidents.

Does the Ordinance Continue to Properly Regulate Municipal Property? 

Municipalities may still regulate signage on their own property. Members of City Council v Taxpayers for Vincent, 466 U.S. 789 (1984), which saw the United States Supreme Court upheld a city ordinance that prohibited the posting of signs on public property, is still good law. Just remember that the ordinance prohibiting such posting must contain all of the required elements, including the legitimate interest served by the ordinance, such as eliminating visual blight, in order to ensure that the ordinance is constitutional.

Natch Greyes is Municipal Services Counsel with the New Hampshire Municipal Association.  He may be contacted at 603.224.7447 or at legalinquiries@nhmunicipal.org.