Sign Regulation Court Decisions

Federal Court Decisions

City violated the plaintiff’s First Amendment rights when it refused a request to fly a religious flag outside city hall but had previously flown many other flags at the request of the public.

Shurtleff v. City of Boston (2022) – The U.S. Supreme Court held the City’s refusal to fly a religious flag violated the plaintiff’s First Amendment rights when the city had indiscriminately allowed many other flags to be flown at the request of the public. The City of Boston had a practice of allowing outside groups to raise their flags on one of its flagpoles while holding events in the plaza outside city hall. A religious organization sought to hold a flag raising ceremony in the plaza involving what it described as a “Christian flag.” The city denied the request due to concerns that raising a religious flag on a city flagpole would violate the Establishment Clause of the First Amendment.

The religious organization sued, claiming that the denial was impermissible viewpoint discrimination and a violation of its free speech rights. In response, the City of Boston argued the decision of what flags will fly over city hall is government speech.

All the justices agreed that the denial of the flag raising request was a violation of the religious organization’s free speech rights and that the flag raising, under the facts of the case, was not government speech. The city’s policy did not identify a message the city intended to express, and the city had granted all previous requests to fly a flag.

City’s off-premises sign regulation was content-neutral and therefore subject to an intermediate rather than a strict scrutiny standard of review.

City of Austin v. Reagan National Advertising (2022) – The U.S. Supreme Court held that the city’s off-premises sign regulations were content-neutral and therefore subject to intermediate scrutiny, a more deferential standard of review to local governments than strict-scrutiny (the standard of review for content-based regulations of speech). The city’s regulation prohibited billboards, however allowed existing billboards to remain, provided the sign owners did not increase the nonconformity. Two billboard companies sought permits to digitize their existing signs. The permits were denied. The companies appealed, claiming that the city’s regulation that treats off-premises signs such as billboards differently than on-premises signs (which could be digitized in some instances), was unconstitutional. The plaintiffs relied on the implication in Reed v. Town of Gilbert that if you have to read the sign to know if a regulation applies, the regulation is content-based and presumptively unconstitutional. The Supreme Court disagreed. The Court wrote:

[a] given sign is treated differently based solely on whether it is located on the same premises as the thing being discussed or not. The message on the sign matters only to the extent that it informs the sign’s relative location. The on-/off-premises distinction is therefore similar to ordinary time, place, or manner restrictions. Reed does not require the application of strict scrutiny to this kind of location-based regulation.

Regulation of commercial speech is subject to intermediate scrutiny even after Reed v. Town of Gilbert.

Contest Promotions v. City and County of San Francisco (2017) – The Ninth Circuit Court of Appeals affirmed that restrictions on commercial speech are subject to intermediate scrutiny which requires the application of a four-part test established in Central Hudson Gas & Elec. Co. v. Public Serv. Comm. of N.Y. (1980). Plaintiffs challenged a San Francisco regulation that treated outdoor “business signs” (on-premises signs) and “general advertising signs” (off-premises signs) differently. Plaintiffs had argued that after Reed v. Town of Gilbert, any content-based restriction—whether commercial or non-commercial—was subject to strict scrutiny.

Sign regulations that treat various categories of non-commercial signs differently based on the information they convey violate the First Amendment.

Reed v. Town of Gilbert (2015) – The U.S. Supreme Court held that a town sign code that treats various categories of signs differently based on the information they convey violates the First Amendment. The sign code defined the categories of temporary, political, and ideological signs on the basis of their messages and then subjected each category to different restrictions such as on size, number of signs, and the permissible duration of display. The Court held that the sign code's provision were content-based regulations of speech that do not survive strict judicial scrutiny because the town did not demonstrate that the code’s differentiation between temporary directional signs and other types of signs furthers a compelling governmental interest and is narrowly tailored to that end.

Enforcement of ordinance prohibiting non-official signs from being placed within or projecting into city rights-of-way, streets, or sidewalks did not violate state or federal constitution.

McClanahan v. City of Tumwater (2012) (Order denying motion for preliminary injunction) – The city removed yard sign containing political speech that intruded into sidewalk. The court, denying the plaintiff’s motion, held that the city removed the sign not based on its content but because it was located in the right-of-way.

City ordinance that prohibited some portable commercial signs but not others was not narrowly tailored to serve governmental interest and was therefore unconstitutional.

Ballen v. Redmond (2006) – The Ninth Circuit Court of Appeals ruled that Redmond's portable sign regulation that banned some commercial signs but not others (such a real estate signs) was an impermissible restriction on commercial speech and therefore unconstitutional. At issue were Blazing Bagels' employees standing on the street wearing signs advertising fresh bagels.

Enforcement action requiring removal of plaintiff’s pole sign that was noncompliant with new city regulation was constitutional.

G.K Ltd. Travel v. City of Lake Oswego (2006) – The Ninth Circuit Court of Appeals held that the city's restriction on plaintiffs' pole sign was not content-based and that the city's interest in regulating pole signs - in preventing visual blight and ensuring travel safety - was significant. The city produced strong evidence of the need for the sign restrictions and the form the restrictions should take.

Local health department ban on outdoor tobacco advertising preempted by federal law.

Lindsey v. Tacoma-Pierce County Health Dep’t. (1999) – The Ninth Circuit Court of Appeals reversed a ban on outdoor tobacco advertising, holding that such local action was preempted by the Federal Cigarette Labeling and Advertising Act.

City ordinance prohibiting all residential signs with some limited exemptions was overly restrictive of protected speech, content-based, and therefore unconstitutional.

City of Ladue v. Gilleo (1994) – The U.S. Supreme Court struck down a Ladue, Missouri, ordinance that prohibited all residential signs, except those falling within certain specific exemptions such as small "residential identification" signs and signs advertising the sale, lease, or exchange of property. The Court concluded that the ordinance violated the First Amendment's free speech protection by suppressing too much speech. Although the Court invalidated Ladue's restrictions, it did not provide any meaningful guidance as to what would be a permissible content-neutral regulation of signs on residential property.

Regulation of commercial speech is subject to intermediate scrutiny.

Central Hudson Gas & Elec. Co. v. Public Serv. Comm. of N.Y. (1980) – The U.S. Supreme Court developed a four-part test to determine when commercial speech can be regulated under the First Amendment. The case arose from the 1973 energy crisis when New York ordered utilities to stop advertising as a way to try to reduce consumer demand and consumption. In evaluating the regulation, Justice Powell wrote:

At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading.  Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than necessary to serve that interest.

Applying this test, the Court determined that the regulation was too broad and violated the U.S. Constitution. The test is a form of intermediate scrutiny, rather than a strict scrutiny analysis which rarely survives a constitutional challenge.

Washington State Court Decisions

State’s regulation of marijuana advertising did not violate plaintiff’s state or federal constitutional rights.

Seattle Events v. State,  22 Wn.App.2d 640 (2022) – The Court of Appeals applied the four-part test established in Central Hudson Gas & Elec. Co. v. Public Serv. Comm. of N.Y. (1981) and concluded that the state’s regulation of marijuana advertising did not violate the state or federal constitutions. The restrictions included a ban on marijuana advertising within 1,000 feet of schools, playgrounds, and other specified places where minors would congregate. The court concluded that the Central Hudson test applied to claims under both the state and federal constitutions.

Housing authority rule banning all signs on tenants’ doors violated the First Amendment.

Resident Action Council v. Seattle Housing Auth., 162 Wn.2d 773 (2008) – The court held that the public housing authority's rule banning all signs on the outside of tenants' doors violated the First Amendment because: (1) the tenants retained control over the outer surfaces of their doors; and (2) a total ban on signs was unnecessary to support various interests claimed by the authority, such as avoiding clutter and avoiding the cost of refinishing damaged doors. The court determined that it did not matter, as concerns the application of the First Amendment here, that the tenants leased and did not own their units.

Access area to monorail in private mall secured by a city easement was not a public forum and restriction on display of signs was constitutional.

Sanders v. City of Seattle, 160 Wn.2d 198 (2007) – An easement granted to the City of Seattle for the limited purpose of providing pedestrian access to a monorail station was not a public forum; the oral policy which required war protestors using the easement to hold stick-mounted signs down was a reasonable regulation on speech under the First Amendment and article 1, section 5 of the state constitution.

County ordinance banning offsite advertising signs but providing certain exceptions was not narrowly tailored to serve government interest and therefore unconstitutional.

Kitsap County v. Mattress Outlet, 153 Wn.2d 506 (2005) – Held that Kitsap County's sign ordinance, which the county claimed prohibited Mattress Outlet's use of raincoat-clad workers as offsite advertisements, is an unconstitutional restriction of commercial speech.

City ordinance restricting posting on utility poles upheld as constitutional.

City of Seattle v. Mighty Movers, Inc., 152 Wn.2d 343 (2004) – The court upheld the city ordinance restricting posting on utility poles, concluding that the ordinance was enacted to achieve legitimate governmental purposes, it was reasonable in light of the purposes served by utility poles, and it was content and viewpoint neutral. The court also held that utility poles were not a public forum because they were an essential part of the city's power system and they had not been a traditional public forum or historically held open to the general public.

Provision in city’s sign code that prohibited placement of political signs in parking strips (a traditional public forum) more than 60-days prior to an election was unconstitutional.

Collier v. Tacoma, 121 Wn.2d 737 (1993) – The State Supreme Court found unconstitutional a provision of Tacoma's sign code that prohibited the placement of political signs earlier than 60 days before the date of the election for which the signs were intended. Tacoma's requirement that political signs be removed within seven days after the election was not challenged. Further, the city had enforced its ordinance in an area between the street and sidewalk (i.e., the parking strip area) which is considered a traditional public forum where government’s ability to restrict expressive activity is very limited.