Agenda - Planning Commission - 05/05/2016

Home

April 10, 2016 I Volume 10 I Issue 7 Zoning Bulletin requiring them to obtain a sign certificate before erecting a display ef- fectuated an impermissible prior restraint on speech. Finding there were no material issues of fact in dispute, and deciding the matter on the law alone, the district court granted summary judg- ment in favor of the City. In doing so, the court concluded that the pro- visions in the former sign code exempting flags, emblems, and works of art were content -neutral, reasonably related to the City's interests in promoting traffic safety and aesthetics, and a constitutional exercise of the City's regulatory authority. Central Radio appealed. The United States Court of Appeals, Fourth Circuit, affirmed the district court's judgment. Central Radio then petitioned for certiorari to the United States Supreme Court, which granted the petition, vacated the Fourth Circuit's opinion, and remanded the matter back to the Fourth Circuit for reconsideration in light of a June 2015 decision of the Supreme Court: Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015). DECISION: Judgment of district court dismissed in part, af- firmed in part, reversed in part, and remanded on issue of nominal damages. On remand, the United States Court of Appeals, Fourth Circuit, held that the City's sign code was unconstitutional in violation of the First Amendment. In determining whether free speech rights were violated, the court first evaluated the content neutrality of the sign code. (Whether the sign code was content -neutral or content -based in its restriction of speech would determine the level of scrutiny (intermediate or strict) that the court would use to evaluate the sign code.) The U.S. Supreme Court's decision in Reed, conflicted with, and therefore abrogated, the Fourth Circuit's "previous formulation for analyzing content neutrality," in which the Fourth Circuit had held that "[t]he government's purpose is the controlling consideration." The U.S. Supreme Court disagreed, holding that the first step of the content neutrality analysis, the government's justification or purpose in enact- ing a sign regulation is irrelevant. Accordingly, under the holding in. Reed, "[g]overnment regulation of speech is content based if a law ap- plies to particular speech because of the topic discussed or the idea or message expressed." Only when a regulation does not expressly draw distinctions based on a sign's communicative content may courts exam- ine, at the second step of the content neutrality analysis, whether the regulation "cannot be `justified without reference to the content of the regulated speech,' or. . .[was] adopted by the government `because of disagreement with the message [the speech] conveys.' " Thus, here, the City's regulation of speech would be found to be content -based if the sign code applied to particular speech because of 4 © 2016 Thomson Reuters