Phantom Law Recommended to Supreme Court

Commentary by Bill Brinton, Rogers Towers, Jacksonville, Florida

During the oral argument in Reed v. Town of Gilbert, Arizona, Reed’s counsel, David Cortman of Lawrenceville, Georgia, recommended that temporary signs relating to a one-time event, such as an election or anything else that occurs on a particular date, be taken down within the same time period after that event. He represented to the Court that “in fact the Washington, D.C., municipal regulations have that exact code . . . it’s one we would recommend to the Court. . . . I believe it’s 13605.” According to Mr. Cortman, “what it says is all temporary signs should be treated the same, period. . . . Every temporary sign can be up for 180 days.” See Oral Argument Transcript at pages 16-17.

As a practitioner who defends and drafts sign regulations, I found a number of the propositions made by the petitioners to be impractical and contrary to common sense. I was curious about the D.C. municipal regulation 13605, and when I looked for the regulation I could not find it. There was a good reason. It is not a law at this time, nor has it ever been the law. There is simply a draft proposal from 2012 for a new Title 13, Chapter 6, that would provide regulation for temporary signs, but the same is still under review by the District, and has been undergoing further changes since 2012 based upon public input.

A reasonable time period for removal of a dozen or more temporary directional signs to an event such as a morning or afternoon church service or bible study, is a different time period for the removal of thousands of election signs that have been placed in a large geographic area such as Gilbert, Arizona. The temporary sign category makes a difference in how much time it may reasonably take to remove signs after the event is concluded, and for which the necessity for First Amendment protection has waned. Moreover, as the questioning during oral argument made clear, an election cycle is more than just a single event and is an ongoing sequence that covers a lengthy period of time.

Temporary directional signs are typically small in size (3-square feet to 6-square feet), far smaller than 32-square feet for election signs or 20-square feet for ideological signs. A visit to any sign vendor website would show the typical sign sizes for such customary temporary signs, be they directional or residential real estate. When they are used, such directional signs simply provide assistance to someone who has already decided that he or she will be attending an event.

Indeed, such additional signage may be viewed as sign clutter and even prohibited if the prohibition of such roadside signage satisfies intermediate scrutiny, including a showing of ample alternative modes of communication. In the case of the Petitioners, a visit to reveals that they have a very effective alternative mode of communication for the church’s 9:00 a.m. Sunday service and its Wednesday 7:00 p.m. bible study. Pastor Reed’s telephone number and email address are provided, among other contact information on the website. Thus, the temporary directional sign regulations easily meet the reasonable alternative element of the intermediate scrutiny test.

The gamesmanship of conflating the Town’s accommodation of small temporary directional signs with the Town’s allowance for ideological signs should not be taken as a serious flaw in the ordinance. Indeed, there was no issue before the court as to any ambiguity or vagueness in the definitions of these two sign types.