Courts continue to strike down City sign code regulations as unconstitutional

In line with other recent decisions holding cities’ sign ordinances unconstitutional, the U.S. Court of Appeals for the Eighth Circuit, in Willson v. City of Bel-Nor, Missouri, found that a Missouri City's sign code imposed “content-based” restrictions on speech in violation of the First Amendment. The Court held that the City's sign ordinance, which permitted one “sign,” and no more than one “flag,” was an illegal regulation of “content” because of the ordinance’s definitions and distinction between "flags" and "signs." A “sign” was defined in the ordinance to include “[a]ny poster, object, devise, or display, situated outdoors, which is used to advertise, identify, display, direct or attract attention to an object, person, institution, organization, business, product, service, event, idea, belief or location by any means…” A “flag” was separately defined as “any fabric or bunting containing distinctive colors, patterns or symbols used as a symbol of a government or institution.” The Court first focused on the “government or institution” limitation in the “flag” definition, and pointed out that the definitions required one to review the content of the object to determine whether it was a flag or sign. The Court explained: “applying the ordinary meaning of ‘government or institution,’ a fabric with a Cardinals logo is a ‘sign,’ while a fabric with an Army logo is a ‘flag.’” Accordingly, the ordinance was impermissibly content-based. The City argued that the ordinance was justified because it served a compelling governmental interest of regulating aesthetics and traffic safety, but the Court rejected that argument. The Court also found that the ordinance was unconstitutionally “overbroad” because it restricted each lot to no more than one stake-mounted freestanding sign and one flag. Given the broad definition of “sign” in the ordinance, and the substantial regulations on “signs” in the Code, allowing only one “sign” restricted a substantial amount of speech. The Court gave examples of speech that would be prohibited by the ordinance, such as: “sticking an ADT security window cling to the front window,” is prohibited because the Code stated that “no sign shall be displayed from the interior of any window.” In light of this decision, and the holding of the United States Supreme Court in Reed v. Town of Gilbert, Arizona, which also found a sign code to be content-based and violative of the First Amendment, it is important for Cities to review their sign codes and make any necessary revisions, in order to avoid similar legal challenges. If you have any questions about these matters, please contact your City Attorney or Justin Harmon at justin@municipalfirm.com.