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QQ Temporary signs with noncommercial speech tend to be more of a presence <br />during election times. Rules for these signs can vary greatly by individual state <br />rules and case law. <br />interests supporting sign regulations, are not <br />"compelling interests." <br />Justice Thomas's opinion calls into ques- <br />tion almost every sign code in this country: <br />Few, if any, codes have no content -based <br />provisions under the rules announced in Reed. <br />For example, almost all codes contain content - <br />based exemptions from permit requirements <br />for house nameplates, real estate signs, <br />political or election signs, garage sale signs, <br />"holiday displays," etc. Almost all codes also <br />categorize temporary signs by content, and <br />then regulate them differently. For example, a <br />real estate sign can be bigger and remain lon- <br />ger than a garage sale sign. Or the code allows <br />the display of more election signs than "ideo- <br />logical" or "personal" signs, but the election <br />signs must be removed by a certain number of <br />days after the election, while the personal or <br />ideological signs can remain indefinitely. <br />Many sign codes also have content -based <br />provisions for permanent signs. Because the <br />Reed rules consider "speaker -based" provi- <br />sions to be content based, differing treatment <br />of signs for "educational uses" versus "insti- <br />tutional uses" versus "religious institutions" <br />could be subject to strict scrutiny. The strict <br />scrutiny test could also apply for differing <br />treatment of signs for "gas stations" versus <br />"banks" versus "movie theaters." <br />Reed does not, however, cast doubt on <br />the content -neutral "time, place, or manner" <br />regulations that are the mainstay of almost <br />all sign codes, provided they are not justified <br />by—and do not have a purpose related to—the <br />Justice Thomas's <br />opinion calls into <br />question almost every <br />sign code in this <br />country: Few, if any, <br />codes have no content - <br />based provisions <br />under the rules <br />announced in Reed. <br />Wendy E. Mode <br />message on the sign. Justice Thomas acknowl- <br />edged that point, noting that the code at issue <br />in Reed "regulates many aspects of signs that <br />have nothing to do with a sign's message: size, <br />building materials, lighting, moving parts and <br />portability." Justice Alito's concurring opinion, <br />joined by Justices Kennedy and Sotomayor, <br />went further. <br />While disclaiming he was providing "any- <br />thing like a comprehensive list," Justice Alito <br />noted "some rules that would not be content <br />based." These included rules regulating the <br />size and location of signs, including distin- <br />guishing between building and freestanding <br />signs; "distinguishing between lighted and un- <br />lighted signs"; "distinguishing between signs <br />Prior to Reed, it was <br />common to see standards <br />for development or <br />construction signs, but this <br />can be an example of a <br />content -based regulation <br />if the sign is defined as <br />relating to a development or <br />construction project. <br />with fixed messages and electronic signs with <br />messages that change"; distinguishing "be- <br />tween the placement of signs on private and <br />public property" and "between the placement <br />of signs on commercial and residential prop- <br />erty"; and rules "restricting the total number of <br />signs allowed per mile of roadway." <br />But Justice Alito also approved of two <br />rules that seem at odds with Justice Thomas's <br />"on its face" language. Alito claimed that rules <br />"distinguishing between on -premises and <br />off -premises signs" and rules "imposing time <br />restrictions on signs advertising a one-time <br />event" would be content neutral. But rules <br />regarding "signs advertising a one-time event" <br />clearly are facially content based, as Justice <br />Kagan noted in her opinion concurring in the <br />judgment, and the same claim could be made <br />regarding the on-site/off-site distinction. Fur- <br />ther, neither Justice Thomas nor Justice Alito <br />discussed how courts should treat codes that <br />distinguish between commercial and noncom- <br />mercial signs, a point raised by Justice Breyer <br />in his concurring opinion. <br />In fact, the lower federal courts are <br />already dealing with claims that codes that <br />differentiate between commercial and non- <br />commercial signs or that regulate on-site and <br />off-site signs differently are content based and <br />ZONINGPRACTICE 2.16 <br />AMERICAN PLANNING ASSOCIATION I page 3 <br />