What has the Supreme Court Said about On-premise Signage?

Supreme Court cases that involve on-premise signage

The First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The 14th Amendment

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

As far back as 1923, in Meyer v. Nebraska, SCOTUS ruled that the 14th Amendment protects the rights of citizens to, among myriad things, “acquire useful knowledge” and, based on Virginia Pharmacy, can’t restrict speech based on who the speaker is (“equal protection”).

Unquestionably, the Reed v. Gilbert Supreme Court (SCOTUS) case from July 2015 was the most important court case for the sign industry of the 21st Century (see related story). But several other SCOTUS cases have established sign-code standards still in effect today. 

Time, Place and Manner

In 1976, SCOTUS ruled that pharmacies were allowed to announce their prices for drugs in Virginia State Board of Pharmacy v. Virginia Citizen Consumer Council, Inc. Essentially, this case substantiated First Amendment freedom-of-speech protection for advertising messages. Most importantly, the case established the tent of “time, place and manner” for restricting the words on signs.  

Virginia established that sign can’t arbitrarily restrict the time a sign can be displayed (“when”), place (“where”) or manner (“how”) a sign can be displayed. Any limitations on these three characteristics are permitted only if the restrictions are shown to be:

Justified without reference to the speech’s content

Serve a significant governmental interest, and

Allow ample alternatives for communicating the information.

Directly Advances, Narrowly Tailored

Four years later (1980), Central Hudson Gas & Electric Corp. v. Public Service Commission further strengthened Virginia’s tenets by adding that any restrictions, to withstand a constitutional challenge, also had to 

Directly advance the governmental interest, and

Be narrowly tailored to achieve that interest.

Soon after Central Hudson, the SCOTUS case of Metromedia Inc. v. City of San Diego involved the allowance of on-premise signage, but the banning of off-premise outdoor advertising (billboards). Although five separate opinion emerged, a 6-3 vote declared the ordinance unconstitutional. 

Advertising Bans
In 1996, in 44 Liquormart v. Rhode Island, the state tried to ban the advertising of liquor prices anywhere but at the actual stores. Essentially, SCOTUS upheld the right for merchants to advertise truthful, non-misleading commercial information. First Amendment protections superecede “vice” oriented restrictions. 

The Fallacy of “Rational Basis Test” 
The above cases collectively negated the broad police powers that became known as the Rational Basis Test that followed Village of Euclid v. Amber Realty (1926). It basically allowed cities to enact legislation that promoted health, moral, safety and general welfare objectives. This is the basic rationale for virtually all sign codes. Cities only needed to show the regulation wasn’t arbitrary and could be rationally linked to a governmental objective.

Other First Amendment Cases
In 1977, the township of Willingboro, NJ, banned “for sale” signs on residential lawns in an attempt to prevent “white flight” from racially integrated neighborhoods. This also falls under the tenets of a “content neutrality” violation because it was based solely on the signs’ messages.  In Linmark Associates v. Township of Willingboro, SCOTUS ruled this to be unconstitutional because it unduly restricted the free flow of information. The defendants tried to use the “time, place and manner” defense, but it was overruled. The court ruled that the sign provides an immediate way to react.