Will U.S. Supreme Court Clear Up 30 Years of Confusion on Sign Regulation?

John Kramer
John Kramer · January 9, 2012

Arlington, Va.—On Friday, January 13, the U.S. Supreme Court will decide whether to accept review of a case that could finally clear up 30 years of confusion when it comes to the First Amendment, signs and city sign regulations.

“Courts are supposed to be like a GPS for legislatures—providing a clear roadmap on what kinds of laws are constitutional and which aren’t,” said Michael Bindas, a senior attorney with the Institute for Justice (IJ), which is asking for Supreme Court review in the case ofCity of St. Louis v. Neighborhood Enterprises, Inc. “But when it comes to judicial interpretations of sign codes nationwide, courts are all over the map, sometimes leading cities to create disastrous laws that trample the free speech rights of those who wish to create or carry signs.”

IJ’s case arose out of St. Louis, Mo., where the city had used eminent domain to acquire 24 buildings owned by Sanctuary in the Ordinary or managed by Neighborhood Enterprises, the nonprofit, low-income housing provider and self-supporting housing ministry that activist Jim Roos founded to house the poor. The city took the buildings for private development.

Fed up with the city’s disregard for property rights, Roos exercised his free speech rights to protest the city’s eminent domain policies. He painted a large protest mural on the side of yet another Sanctuary-owned building threatened with eminent domain, calling for an end to eminent domain abuse. The city promptly cited Roos for displaying an “illegal sign” and told him a permit was required. But when Roos applied for a permit, the city refused to issue one.

Roos refused to remove his protest and joined with IJ to fight for his First Amendment rights. In July 2011, the 8th U.S. Circuit Court of Appeals ruled in Roos’ favor, holding emphatically that government isn’t allowed to restrict speech based on its message. The court struck down the St. Louis sign regulations that the city had tried to use to silence this anti-eminent-domain activist.

The court’s opinion held that the sign code’s definition of “sign,” as well as the code’s many exemptions allowing signs only on certain subject matters, are “impermissibly content based.” As the court explained, “to determine whether a particular object qualifies as a ‘sign’ . . . or is instead a ‘non-sign’ . . . or exempt from the sign regulations . . . , one must look at thecontent of the object.” Thus, a mural depicting a governmental crest would be allowed, but a mural like Jim’s, which protests governmental policy, is not.

Even though Roos won at the federal appeals court, he and his attorneys agreed with the city’s request that the U.S. Supreme Court review the case so that the Court can once and for all provide clear judicial guidance to municipalities nationwide that seek to draft constitutional sign ordinances.

“So many of these problems go back to the U.S. Supreme Court’s decision 30 years ago in theMetromedia case, a case in which the justices issued five different opinions—none of which earned a majority of support—and thus created confusion on how sign codes should be written and interpreted,” said IJ Senior Attorney Michael Bindas. “That case creates confusion that lingers to this day.”

“Where you live dictates how much legal protection your sign gets,” Bindas said. “In the 1st, 2nd, 8th and 11th U.S. Circuits, you have relatively strong opinions defending an individual’s right to speak through posted signs. The 3rd and 9th Circuits are tepid in their opinions. The 4th, 6th and 7th Circuits have issued terrible rulings that ignore the First Amendment rights of those who wish to communicate through signs.”

Interestingly, then-Circuit Judge Samuel Alito, who concurred in the 3rd Circuit’s ruling, and then-Professor Elena Kagan—both of whom now serve as U.S. Supreme Court justices—wrote about how confusing the sign code jurisprudence is and how the U.S. Supreme Court needs to provide greater clarity for lawmakers drafting sign ordinances.

Bindas said, “Municipalities should welcome U.S. Supreme Court review of the Institute for Justice’s St. Louis sign case because, if the Court accepts the case, city lawmakers may finally have a clear and singular ruling from the High Court to follow in crafting these kinds of regulations. Ordinary Americans should likewise support review because the current disparity of approaches among the circuits has resulted inwidely varying degrees of protection for free speech. This case presents an opportunity to secure uniform guidance onsign codesin order to ensure thatthe free speech rights of citizens are fully protected once and for all.”

St. Louis’s sign ordinance treats some signs differently than others based solely on their subject matter. This, on its face, creates a content-based (and therefore unconstitutional) restriction on the rights of people like Jim Roos. The Institute for Justice is asking the Court to apply strict scrutiny when reviewing all such content-based restrictions in sign codes and to strike down such laws as unconstitutional.

Chip Mellor, president and general counsel for the Institute for Justice, said, “This case shows how interconnected our constitutional rights are—how vibrant free speech protections are essential to the preservation of our other rights and liberties, including property rights. With many courts refusing to protect property owners from eminent domain abuse, the right to protest against such a misuse of government power becomes all the more important.”

Roos said,“Our mural has helped change public sentiment against eminent domain abuse in Missouri. We still have a lot of work to do to change the eminent domain laws, but free speech has allowed us to shift public sentiment in favor of property rights.”

For more information about Roos’ case, visit:http://www.ij.org/1236.