A tattered campaign sign on a D.C. lamppost. Source: Washington Times.

Yesterday, the Court of Appeals for the D.C. Circuit determined that Washington, D.C.’s regulation of event-based signage on public lampposts is not content based.  On its face, the court’s decision appears to conflict with one of the central holdings of the Supreme Court’s 2015 decision in Reed v. Town of Gilbert.  But the lengthy, well-written opinion made significant efforts to distinguish the case from Reed, and the D.C. Circuit’s decision potentially offers new avenues for local governments to control proliferations of signage.

Washington, D.C. has long regulated signage on public lampposts. After 1980, the District prohibited commercial signs affixed to lampposts, allowed noncommercial signs to be displayed on lampposts for up to 60 days, allowed election signs to be displayed for up to 30 days, and neighborhood crime prevention signs were allowed to be displayed for an unlimited period.  In 2010, the District changed its regulations.  Under the new regulations, signs unrelated to a specific event could remain on lampposts for up to 60 days, while signs related to a specific event could be posted anytime before the event but had to be removed within 30 days of the event.  The District again modified the regulations in 2012 to provide that any sign could be posted for a maximum of 180 days, but that signs related to a specific event needed to be removed within 30 days after the event.

The case at issue began in 2007, when the District commenced enforcement action against a public interest group, Act Now to Stop War and End Racism Coalition (ANSWER).  Another public interest group, Muslim American Society Freedom Foundation (MASF), had conducted activities that were also implicated in the enforcement action.  The groups sued the city government on First Amendment grounds.  The federal district court found that the organizations lacked standing, but the D.C. Circuit reversed and remanded the case back to the district court.

By 2012, ANSWER had voluntarily dismissed its claims for prospective relief, and MASF’s claims were limited to a facial challenge.  The District and MASF cross-moved for summary judgment in 2012.  The district court found that the regulations were content neutral, but that they failed intermediate scrutiny because the District failed to show evidence that the lamppost regulations advanced the purposes underlying the regulation.  The parties cross-appealed, but in 2014, the D.C. Circuit held the appeals in abeyance pending the outcome of Reed v. Town of Gilbert.

This week, a three-judge panel of the court found that the lamppost sign regulation did not violate the First Amendment.  The court held that “[t]he District’s regulation of the public’s use of city lampposts as convenient places to post signs is a content-neutral time, place, and manner restriction that is sufficiently tailored to a significant governmental interest in avoiding clutter.”  The court observed that the lampposts are a public forum, requiring the regulation to be content neutral, even though D.C. could have restricted signage on lampposts in such a manner as to convert the lampposts into a non-public forum.

In its content neutrality analysis, the D.C. Circuit found that the rule did “not target the ‘communicative content’” of event-related signs and was uniformly applicable to all signs.  The court observed:

Content distinctions are of special concern under the First Amendment because they pose the risk that government is favoring particular viewpoints or subjects. But a broad-based, general distinction between event-based signs and other signs poses no such risk. It instead simply reflects the commonsense understanding that, once an event has passed, signs advertising it serve little purpose and contribute to visual clutter. The promulgation and function of the District of Columbia’s wholly viewpoint neutral lamppost rule reveals “not even a hint of bias or censorship.”

(internal citations omitted).  The court was not swayed by the plaintiff’s arguments that, because an enforcement officer was required to read the sign to determine whether it should be subject to the event-based regulation, the rule was content based.  The approach advocated by the plaintiffs is sometimes called the “need to read” rule.

The opinion contains a lengthy discussion distinguishing the D.C. lamppost regulation from the Town of Gilbert, Arizona’s sign code—which also contained event-based sign regulations—that was found content-based and subject to strict scrutiny in Reed.  The court noted that in Reed, the event-based sign regulations contained distinctions between political, commercial, construction-related, religious, and charitable events.  In the D.C. context, the court observed that the lamppost regulation did not drill down into various categories and content of event-related speech, but instead regulated signs based simply on whether or not they related to an event.  In the D.C. Circuit’s view, Reed does not demand that municipalities stop regulating speech based on its relationship to an event, but rather that municipalities avoid regulating event-based signage based upon the event-based signage’s substantive content or category.  The court also cites Justice Alito’s concurrence in Reed, which appeared to backtrack on the majority’s view that event-based signage was unconstitutional, as further evidence that six justices of the Supreme Court did not agree that special regulations for event-based signage were content based and subject to strict scrutiny.  Summarizing its content neutrality analysis, the court writes:

The District’s rule governs the time event-related signs may remain on public lampposts after the event has passed because obsolete signs cause a particular aesthetic harm; the rule makes no distinctions among event-related signs based on their particular communicative content. Reed’s definition of content-based regulation does not sweep in rules like the District’s that merely distinguish between all signs related to events and all non-event-related signs.

The court went on to find that the regulation withstands intermediate scrutiny.  Relying on an earlier Supreme Court decision regarding signage on lampposts, Members of City Council v. Taxpayers for Vincent, the court found that the District’s interest in aesthetics and prevention of clutter were substantial governmental interests.  The decision goes on to find that, by preventing event signage beyond the time period during which that signage has any communicative value, the District has taken steps to avoid visual clutter in direct furtherance of its governmental interest.  The court also finds that the rule leaves ample alternative channels for communication, allowing leafleting, bumper stickers, and other ways to express the information that might be contained on the lamppost signs.

The D.C. Circuit’s decision in ANSWER is certain to have ramifications for sign regulation, and may also affect the continuing evolution of the content neutrality doctrine.  In the past, local governments relied on event-based sign regulations to avoid the visual clutter associated with temporary signs that are left on display long after an event occurs.  Reed called those regulations into question, prompting government agencies to begin redrafting regulations to avoid all distinctions between messages on the face of a sign.  Reed appeared to adopt the “need to read” view of sign regulation.  ANSWER rejects this view, and appears to attempt a middle ground.  At the very least, ANSWER provides a roadmap for local governments that may want to regulate event-based signage specially.  The case may have also reopened the door—at least a crack—for some debate as to whether regulation based on certain innocuous, non-censorial categories is truly constitutionally suspect.  The D.C. Circuit’s observation that six Supreme Court justices were not completely on board with the entirety of the Reed majority’s blanket, mechanical approach to content neutrality may placate local governments that remain concerned that the Supreme Court left them with few options to regulate signs in furtherance of their aesthetic goals.  Until the high court weighs in on the issue again, local regulators should consider this issue unsettled.

Act Now to Stop War and End Racism Coal. v. Dist. of Columbia, ___ F.3d ___, 2017 WL 344321 (D.C. Cir. Jan. 24, 2017).

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Photo of Brian J. Connolly Brian J. Connolly

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private…

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private covenants and restrictions, land use and zoning litigation, initiatives and referenda associated with land use approvals, and real estate transactions.  Brian additionally specializes in the First Amendment and land use issues associated with outdoor sign and advertising regulation, and fair housing matters in local planning and zoning.