Agenda - Planning Commission - 05/05/2016

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Zoning Bulletin April 10, 2016 I Volume 10 I Issue 7 the topic discussed or the idea or message expressed. Only if the sign code did not expressly draw distinctions based on the sign's com- municative content could the court examine, as a second step in neutral- ity analysis, whether the sign code could not "be `justified without ref- erence to the content of the regulated speech,' or. . .[was] adopted by the goverment `because of disagreement with the message [the speech] conveys.' " Here, the court determined that the sign code was a content -based re- striction of speech. The court found that the sign code exempted governmental or religious flags and emblems, but applied to private and secular flags and emblems. In addition, it exempted "works of art" that "in no way identified] or specifically relate[d] to a product or service," but it applied to art that referenced a product or service. Thus, the court concluded that, on its face, the sign code was "content -based because it applied or did not apply as a result of content, that is, 'the topic discussed or the idea or message expressed.' " Having found the sign code was content -based, the court applied strict scrutiny in determining its constitutionality. Under strict scrutiny, the City had to show that the sign code "further[ed] a compelling inter- est and [w]as narrowly tailored to achieve that interest" (i.e., there was no "less restrictive alternative" that would serve the purpose). The court determined that although the City's interests in aesthetics and traffic (the reasons stated for the sign code enactment) may be "substantial government goals," those interests did not constitute com- pelling government interests. Moreover, said the court, even assuming that those interests did provide compelling justification for content - based restrictions of speech, the City had failed to show that its restric- tions were narrowly tailored to serve those interests. In fact, the court found that the City's exemptions from the sign code were "hopelessly underinclusive." For example, noted the court, with regard to aesthetics, "the flag of a private or secular organization was 'no greater an eyesore' than the flag of a government or religion. . .and works of art that referenced a product or service did not necessarily detract from the City's physical appearance any more than other works of art. Yet, the former sign code allowed the unlimited proliferation of governmental and religious flags, as well as works of art that met the City's dubious criterion, while sharply restricting the number and size of flags and art bearing other messages." Moreover, said the court, the City had failed to show that limiting the size and number of private and secular flags, as well as works of art that referenced products or services, was necessary to eliminate threats to traffic safety. Accordingly, the court concluded that the sign code failed strict scrutiny, and therefore was unconstitutional under the First Amendment. See also: Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015) ©2016 Thomson Reuters 5