April 728x90TopBanner

First Amendment means no content regulations on signs

0103 biz belmont signs

An example of a noncommercial sign, a sign for Donald Trump for president is visible from Route 106 in Belmont. (David Carkhuff/Laconia Daily Sun)

Belmont adapts sign rules to Supreme Court ruling, decision applies to all

By DAVID CARKHUFF/THE LACONIA DAILY SUN

BELMONT — In an effort to comply with a recent U.S. Supreme Court decision, a proposed overhaul of Belmont's sign regulations doesn't include any references to specific wording of signs.

"This has all come about because of the recent Supreme Court decision, Reed v. Town of Gilbert, Arizona, which basically says you can't regulate the content of signs," explained Rick Ball, land use technician for Belmont.

On Wednesday, Jan. 11, at 6 p.m., the Belmont Planning Board will meet in the Belmont Corner Meeting House, 16 Sargent St., to conduct a final hearing on the proposed revisions. The hearing will allow town officials to forward amendments to voters at the March 14 Town Meeting.

Belmont's existing sign ordinance regulates things such as temporary signs for special events "identifying contractors, architects, engineers, banks and other artisans." This style of wording doesn't exist in the revision.

The goal, according to the planning board, is "content neutrality."

Candace Daigle, town planner, told the planning board that the town can no longer regulate on the basis of wording of a sign because such regulation would be an infringement of the First Amendment right to free speech, according to Planning Board minutes. Daigle said town officials "have taken out anything that refers to wording," regardless of whether or not it's a sign for a private home or a business, according to the minutes, or written record, of the board's Dec. 19 meeting.

As a result, the wording of political advertisements or other First Amendment-protected advertisements will not be regulated, Ball said. "Eat at Joe's"-style commercial signs, meanwhile, will still face a set of standards.

Non-commercial signs such as those advertising church services enjoy stricter protections than commercial signs such as real estate postings, according to recent court rulings.

"In Reed v. Town of Gilbert, the U.S. Supreme Court established a bright-line test to determine when a sign regulation violates the First Amendment," the New Hampshire Municipal Association reported in a message to municipalities following the June 18, 2015, Supreme Court decision. "Please take note: this is a big deal! Based on Reed, it is nearly certain that at least some aspect of your sign ordinance is unconstitutional and illegal."

The new standard, according to the association, is whether code enforcement officials need to read a sign in order to know whether or not a local regulation applies. "If the answer is YES, the regulation is most likely unconstitutional and illegal," the association explains. "(Why? Because it is most likely a 'content-based' restriction on free speech and, therefore, subject to 'strict scrutiny' review which means a court will very likely consider it an unconstitutional restriction on free speech)."

Reed v. Town of Gilbert, Arizona, according to the U.S. Supreme Court, stemmed from a dispute in Gilbert, Arizona, in which an itinerant church and its pastor, Clyde Reed, "posted signs early each Saturday bearing the church name and the time and location of the next service and did not remove the signs until around midday Sunday. The church was cited for exceeding the time limits for displaying temporary directional signs and for failing to include an event date on the signs."

The Supreme Court ruled, "Because content-based laws target speech based on its communicative content, they are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests."

Belmont municipal staff replaced the town's entire sign ordinance to comply with the U.S. Supreme Court decision, with several changes as noted in the meeting minutes:

• A severability clause is included "which simply says if some portion of this ordinance is illegal you do not have to throw out the whole thing."

• Under a section regarding exemptions, street numbers and warning signs are included as types of signs excluded from regulation.

• Under Prohibited Signs, No. 3, the draft document deletes "'located for the purpose to advertise a use' to eliminate differentiation between commercial and non-commercial."

Ball said, "There is a section that was removed called 'billboards,' and the reason that we changed that is because when people see 'billboards' they immediately think of off-site advertisements, and we don't allow off-site advertisements."

The town plans to continue allowing 300-square-foot signs, but the sign must advertise something that's on the property where it's located, he said.

Stephen C. Buckley, legal services counsel for the New Hampshire Municipal Association, said municipalities are encouraged to regulate signs strictly based on time, place and manner — not content.

"If you're trying to regulate content of private speech, you're going to have some severe difficulties with passing the litmus test of the Reed case," Buckley said.

Buckley said he wasn't aware of any other looming Supreme Court decisions regarding signs but did note a few cases to watch with implications for municipalities.

Signs for Jesus et al. v Town of Pembroke et al. is a pending federal court case involving an electronic message board for a church.

"The Christian sign organization, which operates an electronic message board that displays Bible verses in Chichester, is working in partnership with Hillside Baptist Church to establish another location on Route 3, where the church currently has a manual sign," The Concord Monitor reported in February 2016. "The 547 Pembroke St. church is located in an area where digital signs are prohibited by local zoning and was denied a variance by the town."

A case that already has been settled is Cutting v. City of Portland, in which the U.S. District Court for the District of Maine struck down a Portland, Maine city ordinance prohibiting panhandling in road medians. The ruling pertained to signs because of the placards held by the panhandlers asking for money. On Feb. 14, 2014, the U.S. District Court for the District of Maine declared the ordinance an unconstitutional infringement of free speech. The city appealed that ruling but lost.

To review the proposed sign ordinance for Belmont, visit www.belmontnh.org/docs/Planning/17Amendments/17SignOrdPH170111.pdf.